SZTRJ v Minister for Immigration and Border Protection
[2015] FCA 555
•6 May 2015
FEDERAL COURT OF AUSTRALIA
SZTRJ v Minister for Immigration and Border Protection [2015] FCA 555
Citation: SZTRJ v Minister for Immigration and Border Protection [2015] FCA 555 Appeal from: Application for leave to appeal: SZTRJ v Minister for Immigration & Anor [2014] FCCA 2885 Parties: SZTRJ v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 1399 of 2014 Judge: MCKERRACHER J Date of judgment: 6 May 2015 Legislation: Migration Act 1958 (Cth) s 474 Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Date of hearing: 6 May 2015 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 22 Counsel for the Applicant: The applicant appeared in person assisted by an interpreter Counsel for the First Respondent: Ms M Stone Solicitor for the First Respondent: DLA Piper Australia Counsel for the Second Respondent: The Second Respondent submits to any order the Court may make in the proceeding, save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1399 of 2014
BETWEEN: SZTRJ
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
6 MAY 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for leave to appeal be refused.
2.The Applicant is to pay the costs of the First Respondent, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1399 of 2014
BETWEEN: SZTRJ
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MCKERRACHER J
DATE:
6 MAY 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
REVISED FROM THE TRANSCRIPT
The applicant is unrepresented, but assisted by an interpreter. Ms Stone appears for the Minister. This is an application for leave to appeal. Leave is necessary because the Federal Circuit Court of Australia ruled that there was no arguable case advanced in the application to review the decision in that Court. That was an interlocutory decision so that leave to appeal from that decision is necessary before there can be an appeal in this Court.
BACKGROUND AND CLAIMS
The applicant is a citizen of Pakistan who arrived in Australia on 29 May 2008 as a trainee on a subclass 442 visa. That visa was valid until 30 August 2009, but he applied for a protection visa on 15 June 2012. The claim advanced by the applicant was that he worked as a stable hand in the Lahore Race Club. He contended that in 2008 he and three of his friends who also worked there were kidnapped and taken to meet an identified ‘boss’, where they were threatened and directed to tell a jockey riding a horse that was the favourite in the race on the following day to pull the horse.
On the following day, the applicant claims that the “gunda”, which I understand to mean ‘criminal’, came to the stable and gave the applicant and his friends something to put in the horse’s feed. Although the applicant and his friends informed the jockey about the threats which had been made, they decided not to pull the horse, and ultimately the horse won the race. That night after the race meeting, the applicant said that the gunda came and attacked and assaulted them. They raised a complaint with the police on the following day, but the applicant says the police took no action in relation to it. They then went into hiding until they received their visas and travelled to Australia. (The jockey went to the United Kingdom.)
Against the background of that account, the applicant claimed to fear harm from the gangsters and from the Taliban as a result of these events and because the racing industry is not accepted by the Taliban, as it is contrary to the terms of Sharia law. The applicant claimed that he had no option in Pakistan but to work in the racing industry and to do that would cause him to be harmed.
In addition to that background, the applicant raised the reports of two psychologists, which have diagnosed him as suffering from post-traumatic stress disorder, depression and anxiety. He contended that he could not afford the treatment for those conditions if he was in Pakistan.
His application for a protection visa was refused by a delegate of the Minister on 10 September 2012. The applicant applied to the Refugee Review Tribunal for review of that decision on 21 September 2012. Well over a year later, the Tribunal resolved on 27 November 2013 that it affirmed the delegate’s decision not to grant the applicant a protection visa.
The Tribunal largely accepted the applicant’s account in relation to the racing club, in particular, the Tribunal accepted the likelihood that the applicant was asked to participate in a corrupt activity to assist fixing a race and that he declined to comply with such a request. In addition, the Tribunal accepted that he had a subjective fear of returning to Pakistan because of those events. The Tribunal had regard to country information. It concluded that the country information was consistent with the applicant’s account regarding a named ‘underworld boss’ based in Lahore who was recorded in the country information as having connections with the Taliban. The Tribunal also had regard to country information concerning corruption in the racing industry generally in Pakistan.
However, the Tribunal was not satisfied that the applicant was being targeted by criminal elements or targeted by the Taliban. As a matter of logic, the Tribunal said that if the gangsters had wanted to kill the applicant, they would have done so rather than only beating him and that they and the Taliban would have been able to locate the applicant, who was staying with friends before coming to Australia, if they had a genuine interest in doing so. The Tribunal did not accept that the gangsters or the Taliban had been asking after the applicant at his family home.
There were a number of other reasons recorded by the Tribunal for not accepting that the applicant would be at risk or targeted by the Taliban due to his involvement in the racing industry. It did not consider that the applicant on the basis of that involvement or otherwise would be considered by the Taliban as a person to target for offending or opposing their religious or political beliefs. Additionally, the Tribunal concluded that it did not accept that the only work available to the applicant in Pakistan was in the racing industry. It noted that he had already given evidence that he had been previously employed in sales in Pakistan and worked in security in Australia.
For a number of other reasons, the Tribunal concluded it wasn’t satisfied the applicant faced a real risk of serious harm in Pakistan. However, the Tribunal did accept that the applicant was suffering post-traumatic stress disorder and depression. Although it accepted that the applicant suffered from these health problems, it was not satisfied that the applicant would be denied treatment for those health issues for any Convention-related reasons, and did not accept that a lack of treatment for mental health issues would amount to significant harm as defined under the Migration Act 1958 (Cth). It found that the risk of the applicant being harmed due to having lived and worked in the West was remote. The Tribunal was of no assistance to the applicant.
FEDERAL CIRCUIT COURT
The applicant then sought judicial review of the decision of the Tribunal in the Federal Circuit Court. That application was filed in December 2013. The grounds of the application were extensive. There were a total of 17 grounds for judicial review. I do not propose to discuss all of those grounds. I will focus on the proposed grounds of the application for leave to appeal before me. It is sufficient to say that the grounds of appeal were rejected for a variety of reasons, predominantly on the basis that the applicant was seeking a review in the form of a merits review. The grounds did not make out any basis for jurisdictional error.
GROUNDS OF APPEAL
The applicant advances the following grounds of appeal:
1.The [Tribunal] made an error of law in my case. I am under the serious risk of harm, which was undervalued by the [Tribunal].
2.In the [Federal Circuit Court] interview, judger (sic) said that [Tribunal] did consider the opinion of "the psychologist's report in regard to the analysis of the applicant's mental state, that he has PTSD, is stressed, unable to concentrate for long periods and suffers memory loss" but no relief was given to me in this regards.(At number 41 of the decision)
3.[The Federal Circuit Court] judger (sic) did discuss the issue raised by me in regards to [Tribunal’s] comments that "the Tribunal did not understand its obligation under the Act how to review an application for protection", but no proper consideration was given to this point and no relief was given to me in this regards. (At number 24.5. of the decision).
4.The [Tribunal] committed an error of law by undervaluing the risk of harm to me.
5. The [Federal Circuit Court] did not consider my situation.
CONSIDERATION
I have referred to the fact that leave to appeal is required because the decision of the Federal Circuit Court was interlocutory, and it is necessary, therefore, in accordance with the principles discussed in a variety of cases, including Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, that the applicant must show there is sufficient doubt as to the correctness of the judgment below to warrant review and that if the judgment below is assumed to be wrong, substantial injustice would be suffered if leave to appeal were refused.
Ground 5 is not particularised at all but just generally says that the Federal Circuit Court did not consider the applicant’s situation. I will disregard that ground as there is clearly no substance in it.
Grounds 1 and 4 of the appeal both refer to the Tribunal’s undervaluing of the risk of harm. Ground 1 is that the Tribunal made an error of law as the applicant is under the serious risk of harm, which was undervalued by the Tribunal. Ground 4 similarly is that the Tribunal committed an error of law by undervaluing the risk of harm. However the ground is expressed, it is a complaint about the merits of the decision of the Tribunal. That is, it is a complaint as to the findings of fact in relation to the degree of risk of harm, if any, to the applicant on returning to Pakistan. Those grounds could not succeed.
It is difficult to see that grounds 1 and 4 are anything other than complaints about the conclusion or complaints about the factual findings leading to the merits of the Tribunal’s conclusions. It was not for the Federal Circuit Court to engage in review of the merits of the Tribunal’s decision. The task of the Federal Circuit Court was to determine whether or not the decision of the Tribunal was affected by jurisdictional error, that task being prescribed by statute under s 474 of the Migration Act, as discussed in numerous cases. The grounds outlined above are not capable of establishing jurisdictional error, either on the part of the Tribunal, or appellable error on the part of the judge in the Federal Circuit Court.
Ground 2 is a different argument. It complains about the failure to grant relief in relation to the psychologist’s report, even though that report had been considered by the Tribunal. This ground, in effect, takes issue with the Tribunal’s findings that the applicant, despite the psychologists’ reports, was competent to give evidence. That was a topic which was considered by his Honour in the Federal Circuit Court, but it was found (at [42]) that there was nothing to contradict the Tribunal’s conclusion as to the competence of the applicant.
While it was open for the Tribunal to accord weight to the psychologists’ reports, it was still for the Tribunal to take into account the expertise and to evaluate the evidence of the applicant as part of its own fact-finding exercise. It is not as though the reports of the psychologists were ignored. It was evaluated and a view was taken on the topic.
At [42] of the Federal Circuit Court decision, his Honour said:
As to the first finding there is nothing in either report to contradict the Tribunal’s conclusion. The finding that the applicant was competent to give his evidence was reasonably open to the Tribunal on what was before it. As to the second finding, there is no evidence by way of transcript of the Tribunal’s hearing to indicate that the finding was not open to the Tribunal.
The Federal Circuit Court went on to note that the Tribunal had accepted that the psychologists’ reports were from a professional, but that it was not the role of the professional to test the credibility of the applicant's account, but rather to deal with the ‘mental health situation’. The Court analysed the applicant’s situation (at [42]-[51]), and noted that the Tribunal explained and gave reasons for its assessment of the applicant's evidence, and that its findings were reasonably open to it. I am unable to conclude that ground 2 of the proposed ground of appeal raises an error of any description on the part of the Federal Circuit Court.
That takes me to ground 3, which was that the Federal Circuit Court discussed the issues raised with regards to the Tribunal’s comments that the Tribunal did not understand its obligations under the Migration Act, but no proper consideration was given to this point and no relief was granted in that regard. There are no further particulars advanced in relation to this ground. I note that there are some 71 paragraphs in the decision of the Federal Circuit Court delivered three and a-half months after the hearing. The Federal Circuit Court decision appears to me to be a very careful examination of the numerous grounds of the application which was before the Federal Circuit Court.
The very generalised proposed grounds of appeal which the leave application refers to are not, in my view, sufficient to demonstrate any error at all on the part of the Federal Circuit Court. That being so, the orders which I now make are that the:
1.The application for leave to appeal be refused.
2.The Applicant is to pay the costs of the First Respondent, to be taxed if not agreed.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 3 June 2015
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