SZTNA v Minister for Immigration and Border Protection
[2016] FCA 914
•5 August 2016
FEDERAL COURT OF AUSTRALIA
SZTNA v Minister for Immigration and Border Protection [2016] FCA 914
Appeal from: SZTNA v Minister for Immigration & Anor [2016] FCCA 952 File number: NSD 550 of 2016 Judge: PAGONE J Date of judgment: 5 August 2016 Catchwords: MIGRATION – Review of Federal Circuit Court decision to affirm decision of Refugee Review Tribunal – visa – protection visa – refusal
PRACTICE AND PROCEDURE – Objection to competency to hear appeal from interlocutory decision of Federal Circuit Court
Legislation: Federal Court of Australia Act 1976 (Cth)
Migration Act 1958 (Cth)
Federal Circuit Court Rules 2001 (Cth)
Federal Court Rules 2011 (Cth)
Cases cited: SZCVQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 489
SZCPY & Anor v Minister for Immigration [2004] FMCA 646
SZBRB v Minister for Immigration [2004] FMCA 285
SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Date of hearing: 5 August 2016 Date of publication of reasons: 11 August 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 11 Counsel for the Applicant: Mr J Cohen Solicitor for the Applicant: Cambridge Lawyers Counsel for the First Respondent: Ms C Hillary of DLA Piper Counsel for the Second Respondent: The second respondent filed a submitting notice ORDERS
NSD 550 of 2016 BETWEEN: SZTNA
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
PAGONE J
DATE OF ORDER:
5 AUGUST 2016
THE COURT ORDERS THAT:
1.The application be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)
PAGONE J:
The applicant in these proceedings has filed a notice of appeal from a decision of the Federal Circuit Court dismissing an application to have a proceeding reinstated. An application to the Federal Circuit Court had been dismissed on 3 February 2015 pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2011 (Cth) (“the Federal Court Rules”) because the applicant had failed to attend the hearing. An application to have the proceeding reinstated was subsequently dismissed pursuant to r 16.05 of the Federal Circuit Court Rules. Those decisions are interlocutory and an appeal from them to this Court requires that leave be sought and obtained: Federal Court of Australia Act 1976 (Cth), s 24(1A).
The proceeding commenced in this Court, however, was not for leave and the Minister objected to the competency of the proceeding as commenced. Counsel for the applicant accepted that leave was required and that it had not been sought within the time required by the rules, but sought that leave by oral application at the hearing and sought dispensation from compliance with the Federal Court Rules 2011 (Cth). Leave to make the application for leave to appeal, and to dispense with compliance with Rules, was granted at the hearing.
One of the factors relevant to whether leave to appeal should be granted where an application is made out of time or when the rules have not been complied with is whether an adequate explanation has been provided for the failure. Counsel for the applicant gave as the reason for the failure to make an application for leave that there had been an “oversight”, however, the failure to have applied for leave had been drawn to the attention of those acting for the applicant by the Minister’s notice of objection to competency and by the subsequent submissions for the Minister. It was plain that the need to apply for leave to appeal was something which had come to be within the “sight” of those acting for the applicant because, in written submissions filed for the applicant, there was acknowledgement that an application for leave to appeal ought to have been made. The explanation of “oversight”, therefore, explained only the initial failure to seek leave to appeal and not the subsequent failure to have made an application once the need to do so had been drawn to the attention of those acting for the applicant. When pressed, another explanation was proffered by counsel for the applicant for the ongoing failure, but that explanation was entirely unsatisfactory being that “these things happen”. Such an explanation is unsatisfactory and is sufficient to reject the application for leave to appeal without the need to consider the merits of any appeal if leave were to be granted.
It is, however, relevant to consider whether the potential appeal has sufficient prospect of success in deciding whether to grant leave: see SZCVQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 489. No purpose is served in granting leave to appeal in a proceeding which has no prospects of succeeding: see SZCPY & Anor v Minister for Immigration [2004] FMCA 646; SZBRB v Minister for Immigration [2004] FMCA 285. The task of this Court in an appeal is to determine whether the judgment of the Federal Circuit Court is affected by appealable error and not to undertake for itself a review of the proceeding on its merits: see SLMBv Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129, [11]. The task of the Federal Circuit Court in dealing with an application for judicial review brought by the applicant was to determine whether the decision of the Tribunal was affected by jurisdictional error: Migration Act 1958 (Cth), s 474; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
The notice of appeal has three unparticularised grounds of appeal, namely:
1.His Honour erred by not determining the appellant did not have reasonable prospects of success.
2. His Honour made errors of law.
3.His Honour erred by determining the second respondent had made errors of law.
The written submissions filed for the applicant did not provide more guidance about the error in respect of which leave was required and sought. The oral submissions made by counsel, in large measure, restated the matters found in the written submissions and were fundamentally addressed to seeking a merits review by this court which this court cannot undertake.
The applicant arrived in Australia from China in 2003 and applied for a protection visa on 28 March 2012. That application was refused on 12 December 2012. The applicant applied to the Refugee Review Tribunal for a review of that decision, but on 31 October 2013 the adverse decision which had been made by the delegate was affirmed.
The appeal to the Federal Circuit Court from the decision of the Tribunal was listed for hearing on 3 February 2015 but there was no appearance by the applicant. On 3 February 2015 Judge Cameron ordered that the application be dismissed pursuant to r 13.03C(1)(c) noting that there had been no appearance by or on behalf of the applicant. The applicant then sought to have the matter re‑determined on its merits on the basis that the Court had initially determined the matter in her absence. The reason which had been given on behalf of the applicant to the Federal Circuit Court for having been absent was described in the written submissions to this Court as being essentially “that she had been tricked by a person posing as a migration agent who had misled her to believe that she was not required to attend Court on the relevant day”. The judge accepted that explanation as satisfactory but observed that “there would be no point in reinstating the proceeding if the outcome would be no different”. His Honour went on to consider whether there were reasonable prospects of success and concluded that “she had no realistic prospects of proving that the Tribunal’s decision [was] affected by jurisdictional error”. In those circumstances the application to set aside the orders which had been made on 3 February 2015 was dismissed.
It was submitted for the applicant that the learned judge had failed to find that the Tribunal had made a jurisdictional error in reaching its decision. In the written submissions, the jurisdictional error was said to lie in the Tribunal having applied a “strict rule” that genuine refugees would apply for a protection visa shortly after arriving in Australia. The ground was not articulated as such in the proposed notice of appeal but emerged from [19]-[26] of the written submissions as follows:
19.The issue, however, of whether the provided the basis of a well-founded fear was not the only matter the Tribunal took into account in determining whether the appellant was a genuine applicant.
20.It also took into account other matters, such as the appellants knowledge of Christianity, and the fact the appellant took almost 8 years to apply for a protection visa.
21.The matter before the Tribunal was not a matter that could strictly be determined by objective sources such as studies and research it cited.
22.The tribunal had to properly consider the appellant's subjective circumstances.
23.Critically, the Tribunal has applied a strict rule, and determined as a rule that any person that is a genuine refugee would apply for a protection visa shortly after arriving in Australia.
24.This is an error of law, and a jurisdictional error. See paragraph 24 page 6 Tribunal's decision.
25.This is a matter not specific to the appellant, and is a finding of fact not supported by the appellant's account by rather applying a rule of thumb that all migrants whom have genuine fears apply for protection visa's shortly after arriving in Australia.
26.As such this is an error of law, His Honour should have found that the appellant had reasonable prospects of success.
A challenge to the Tribunal’s decision to this effect had been put in the application for judicial review by the Federal Circuit Court and was rejected by his Honour. At [13] of his Honour’s reasons his Honour recorded that the Tribunal had not believed the claims made by the applicant and set out the additional submission which had been made as follows:
[…] In this proceeding the applicant has sought to impugn the Tribunal’s conclusion on this question by submitting that the Tribunal had wrongly had regard to the applicant’s inability to articulate meaningful knowledge of Christianity and to the period of time it took her to lodge her protection visa application.
His Honour considered this submission and concluded that the Tribunal was entitled to make the findings it did in making its decision. At [14]-[15] his Honour said:
14.However, these issues were ultimately red herrings because the applicant had not claimed to fear persecution because of her alleged prior practice of Christianity in China. Her claims were based on what she said she feared would happen to her if she practised in China the Christianity which the Tribunal accepted she believed in and practised in Australia. The Tribunal found on the information before it, as it was entitled to do, that the applicant's fears in this regard were not well‑founded.
15.The applicant also submitted that the Tribunal placed too much weight on the independent information which provided the basis for this determinative finding. However, the weight which the Tribunal gives to material before it is a matter for it and not the Court.
There is no error in his Honour’s conclusion nor in the findings or analysis by the Tribunal. The Tribunal’s error was said to be revealed in [24] of its reasons but nothing in that paragraph reveals any error of the kind raised in the notice of appeal or in the written submissions or in the oral submissions. At [24] the Tribunal said:
24.The Tribunal has formed the view that the applicant fabricated the claim that she faced difficulties with the authorities in China relating to her religion. The Tribunal finds that if indeed the applicant was arrested in 2001 and she was fearful of returning to China, because she anticipated harm from the authorities there, relating to her religion, she would have applied for protection when she arrived or soon thereafter. The applicant applied for the visa over eight years after she arrived. The Tribunal has considered the applicant's claim that she did not know what protection visas were until someone from her church told her about them in 2012. However, the Tribunal is not satisfied that the reasons provided adequately account for the delay. The Tribunal finds that the applicant did not apply for a protection visa until 2012 because she did not require protection. It is not satisfied that she was a person of interest to the PRC authorities at the time of her departure from China in 2003; or that she was detained and mistreated by the PRC authorities in 2001 for her involvement with an underground church; or that she was a person of interest to the authorities in China at the time of her departure in November 2003. The Tribunal finds that these claims were fabricated by the applicant to enhance the application.
Each of the findings of fact made by the Tribunal in this paragraph were findings which the Tribunal was entitled to make. The Tribunal did not apply a strict rule that any person who is a genuine refugee would apply for a protection visa shortly after arriving in Australia. What the Tribunal did, rather, was to evaluate the evidence of the applicant, as it was obliged to do, and formed the view that it did not believe what the applicant had said, as the Tribunal was entitled to do. The Tribunal’s consideration of the evidence was detailed. It set out between [7] and [13] the material that it had before it in reaching its conclusions.
Counsel for the applicant placed some weight upon what were submitted to be inconsistencies between the findings that the Tribunal made, and placed considerable emphasis upon the finding by the Tribunal at [24], in particular, that the applicant had fabricated something. Paragraph [24] repays careful attention. The Tribunal plainly rejected the evidence of the applicant and began that paragraph by noting that the Tribunal had formed the view that the applicant had fabricated “the claim that she faced difficulties with the authorities in China relating to her religion”. The Tribunal did not form a view that she had fabricated all of her evidence, but that she had fabricated the claim. Whether or not she fabricated that claim was a finding of fact which the Tribunal was entitled to make in the exercise of its obligation to enquire into the matters relevant to the discharge of its statutory power. This Court does not have the task of reviewing the merits of the application. The findings were findings that were open to the Tribunal, and it is not for this Court to engage in merits review. The Tribunal was able to make the findings that it made, and there was no error shown in the decision of the Federal Circuit Court in concluding as it did to the same effect.
Accordingly, the application will be dismissed with costs.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate:
Dated: 11 August 2016
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