SZTWL v Minister for Immigration and Border Protection

[2015] FCA 56

FEDERAL COURT OF AUSTRALIA

SZTWL v Minister for Immigration and Border Protection [2015] FCA 56

Citation:

SZTWL v Minister for Immigration and Border Protection [2015] FCA 56

Appeal from:

Application for leave to appeal: SZTWL v Minister for Immigration and Border Protection and Anor [2014] FCCA 2280

Parties:

SZTWL v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL

File number(s):

NSD 1068 of 2014

Judge(s):

PERRAM J

Date of judgment:

9 February 2015

Catchwords:

PRACTICE AND PROCEDURE – application for leave to appeal –whether the proposed appeal has substance

MIGRATION – decision of Refugee Review Tribunal affirming decision to refuse applicant protection visa – whether claims properly considered by Tribunal – whether Tribunal’s findings as to applicant’s credit reasonably open

Legislation:

Federal Circuit Court Rules 2001 (Cth) r 44.12

Federal Court of Australia Act 1976 (Cth) s 24

Migration Act 1958 (Cth) s 65

Cases cited:

Bienstein v Bienstein (2003) 195 ALR 225 applied

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied

Date of hearing:

9 February 2015

Place:

Sydney

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

11

Solicitor for the Applicant:

The applicant appeared in person with the assistance of an interpreter

Solicitor for the First Respondent:

Mr M Wiese of Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1068 of 2014

BETWEEN:

SZTWL
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	9 FEBRUARY 2015
WHERE MADE:	SYDNEY

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.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1068 of 2014

BETWEEN:

SZTWL
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	PERRAM J
DATE:	9 FEBRUARY 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from orders made by the Federal Circuit Court. Federal Circuit Court Judge Driver summarily dismissed the applicant’s claims in that Court. The applicant had sought from the Federal Circuit Court the grant of writs of certiorari and mandamus directed to the Refugee Review Tribunal (‘the Tribunal’). The Federal Circuit Court dismissed these claims summarily because it concluded that the applicant’s claims did not present an arguable case for relief. That course was open to the Federal Circuit Court as a matter of procedure because of the terms of rule 44.12 of the Federal Circuit Court Rules 2001 (Cth).  

2. That determination was interlocutory (see rules 44.12(1)(a) and 44.12(2)), with the consequence that no appeal lies to this Court without first obtaining an antecedent grant of leave: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Leave will be granted on such an application when the decision of the Court below is attended by sufficient doubt to warrant the grant of leave and substantial injustice would result from a refusal to grant leave: see Bienstein v Bienstein (2003) 195 ALR 225 at [29] (HC) and Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (FC). 

3. The inquiry thrown up by section 24 of the Federal Court of Australia Act directs attention to the underlying nature of the applicant’s claims. Her claim against the Tribunal, whose decision she sought to quash by certiorari in the Federal Circuit Court, related, in turn, to its refusal to grant her a protection visa under s 65 of the Migration Act 1958 (Cth). A delegate of the responsible minister had already refused to grant her a protection visa and the Tribunal, in turn, had concluded following a complete rehearing that that earlier decision was the correct one.

4. The ability of the Federal Circuit Court to issue writs of certiorari and mandamus against the Tribunal was constrained by the necessity of demonstrating that the Tribunal had made a jurisdictional error.  Before the Federal Circuit Court, the applicant pursued only one such substantive claim of that kind of error.  This was that the Tribunal had failed properly to deal with her claims.  There may be an issue as to whether this ground is correctly expressed, but the Federal Circuit Court was of the view that the allegation involved attempted merits review, as it termed it, and dismissed the claim accordingly.

5. A number of grounds upon which jurisdictional error may be established such as the reaching of a decision which is so unreasonable that no reasonable decision maker could reach it or reaching an outcome (or perhaps pursuing a line of reasoning) which is irrational will naturally call for an assessment of matters which involve a consideration, at least to an extent, of merits.  The prohibition about merits review is not that it is forbidden on all occasions, but that it is forbidden as an end in itself.  It is difficult to see that an assessment, for example, of Wednesbury unreasonableness or irrationality can be conducted entirely in ignorance of key aspects of an applicant’s claim.

6. On the other hand, it is tolerably clear that in this case the Federal Circuit Court assessed the Tribunal’s treatment of the applicant’s claims.  The essence of what had happened before the Tribunal was that the applicant had been disbelieved for three reasons.  First, whilst the applicant had claimed that if returned to Nepal she would be forced to live as a single woman, it observed that on her application for the protection visa she had given the same address as was on her passport which was also, as events transpired, the same as her mother’s address.  Secondly, the Tribunal was unimpressed both by the lack of detail in the applicant’s application which, so it was said, was expressed at a high level of generality and by her failure after the hearing to take up an invitation from the Tribunal to provide more detail.  Thirdly, it thought the evidence she gave was delivered in a manner which suggested that she was reciting her answers from a pre-prepared script.  In light of these matters the Tribunal concluded that the applicant was not a credible witness.

7. Because it had concluded that the applicant was not a credible witness, it therefore rejected the claims she made in support of her application.  Those claims were related to a central theme: that she would suffer harm if she were to be returned to Nepal because she would be treated as an outcast.  There were a number of aspects which the Tribunal explained this way:

   ‘•Her parents did not get along and her father would assault her mother.  Her father married a second time but without divorcing her mother.  Her and her mother moved out of the family house in 2000 and she helped her mother run a vegetable shop.

   ŸIn 2006 she entered into a relationship with a man but shortly afterwards she discovered that he was an Indian citizen, married and had a child. She decided to leave him but “he threatened that he would kill me if I refused him.  He raped me and left me.  I called the police for help.  The police said they would come soon so I waited for nearly 7 hours but the police did not come to help me.”  As a result of the rape she became pregnant and had an abortion.

   ŸIn September 2006 she moved to Kathmandu where she worked as a receptionist in 2008 she married a man of the Brahmin caste and as a result her family disowned her and his parents threatened to kill her if she did not leave her husband (their son).

   ŸShe states that she “suffered domestic violence form my husband’s family members.”  “I could not go to my parents because my father is violent.”

   ŸAfter she arrived in Australia with her husband he left her for another woman.

   ŸShe states that if she returns to Nepal she fears she will be “sexually assaulted by perpetrator males.  I fear I will be killed by my husband or his family members.  I also fear that I will be forced into prostitution or trafficked to India to engage in sex trade.  I will be harmed by conservative people… I will face social stigma against me a woman living alone.”

   ŸShe states that the police will not protect her as they are weak and corrupt.’

8. The Federal Circuit Court could detect no error in the Tribunal’s reasoning that these claims should be rejected since it had concluded that she was a discreditable witness.  The logic of that must, I think, be accepted.  That makes it critical to examine with care the soundness or otherwise of the Tribunal’s conclusion that the applicant was a discreditable witness.  I have undertaken that exercise and examined that conclusion with some care.

9. There is increasing evidence available that the reliability of credit findings based on demeanour is approximately the same as chance in the case of judicial officers, that is, such findings are correct about 50 per cent of the time.  Credit-based findings are of much more utility when they are based on documentary or contemporaneous materials.  Despite these observations I do not think that the Tribunal’s approach to its disbelief of the applicant in this case discloses anything untoward.  It is a real problem for the applicant that her address on her application form and her passport is the same as her mother’s address.  It undermines her argument that she could not live with her mother if returned to Nepal.  It was, so it seems to me, a valid reason for the Tribunal to disbelieve the applicant.

10. Whilst I might have had doubts if the Tribunal had proceeded purely upon the basis of its impression that the applicant was reciting her answers from a pre-prepared script, that is not what the Tribunal did and its analysis involved a consideration of documentary and other materials.  In those circumstances I am not satisfied that the Tribunal made any error in the manner in which it dealt with the assessment of the applicant’s credit.  It follow that the Federal Circuit Court made no error in reaching essentially the same conclusion.

11. The proposed grounds of appeal in this Court (subject to minor stylistic correction by me) if leave were to be granted were that:

    (1)the learned Federal Circuit Court Judge Driver failed to identify an error of law in the Tribunal’s decision; and

    (2)the Refugee Review Tribunal Member’s decision has been affected by a lack of fairness and injustice.

    In light of the remarks I have made I detect no arguable case for either of these alleged errors.  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 Perram.

Associate:

Dated:        11 February 2015