SZUHH v Minister for Immigration and Border Protection
[2014] FCA 1194
•7 November 2014
FEDERAL COURT OF AUSTRALIA
SZUHH v Minister for Immigration and Border Protection [2014] FCA 1194
Citation: SZUHH v Minister for Immigration and Border Protection [2014] FCA 1194 Appeal from: SZUHH v Minister for Immigration & Border Protection & Anor [2014] FCCA 1496 Parties: SZUHH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number(s): NSD 855 of 2014 Judge(s): BUCHANAN J Date of judgment: 7 November 2014 Catchwords: MIGRATION – application for leave to appeal and an extension of time to seek leave to appeal – no basis to establish jurisdictional error – application dismissed
COSTS – where the Minister seeks fixed costs against self-represented litigant in a migration appeal – fixed costs awarded for short form amount for migration appeal
Legislation: Federal Court Rules 2011 (Cth), rr 40.43, 40.44, Sch 3 items 15, 15.1(b) Date of hearing: 6 November 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 26 Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Ms N Blake, Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 855 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZUHH
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
7 NOVEMBER 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for leave to appeal and an extension of time in which to seek leave to appeal be dismissed with costs, fixed at $1,756.
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 855 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZUHH
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BUCHANAN J
DATE:
7 NOVEMBER 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 19 August 2014, the applicant sought leave to appeal against a judgment of the Federal Circuit Court of Australia (“the FCCA”). Because the application for leave to appeal was filed more than a month after the time in which he might normally do so, the applicant first needs an extension of time in which to bring his application for leave to appeal.
Leave to appeal is required because the judgment of the FCCA was an interlocutory judgment. In that interlocutory judgment, the primary judge considered that the applicant did not have an arguable case for the relief which he sought in the FCCA.
The application to the FCCA was for orders against the second respondent (“the RRT”) which, on 7 April 2014, affirmed a decision by a delegate of the first respondent not to grant the applicant a protection visa. In order to obtain relief in the FCCA, it was necessary for the applicant to show that the RRT had committed a jurisdictional error. The primary judge recorded that the applicant was given leave to file written submissions to advance such a case, but did not do so. The primary judge recorded:
7.Largely, the applicant’s oral submissions cavil with the factual findings of the RRT and seek merits review. This Court has no power to engage in merits review.
The applicant applied for a protection visa on 21 March 2013. It was refused by a delegate on 6 September 2013. The applicant applied to the RRT for review of the delegate’s decision and the RRT conducted a hearing on 1 April 2014 at which the applicant appeared to give evidence and present arguments. The RRT summarised the basic factual foundation for his claim for a protection visa as follows:
Protection Visa Application
4.The applicant is [a] single Lebanese Sunni male. He claimed that he had joined the Syrian Ba’th party and was the youngest member who attended rallies and events. He feared that he would be killed by anti-Ba’th groups if he returned to Lebanon. He had been subject to harassment and threats by members of the Future Movement.
5.He claimed that he was shot at while traveling to and from work, was followed by cars, and his mother had advised him that dangerous people came looking for him. Because of these pressures he decided to leave the Ba’th party and politics.
6.Since then his mother had received calls from anti-Ba’th groups where threats were made against him.
A good deal of further detail was then set out in the RRT decision, including a summary of questions put by the RRT and answers given by the applicant.
In its conclusions the RRT made the following observations, amongst others:
27.The applicant is [an] unmarried Sunni Muslim originally from Tripoli but resident in Beirut since 2007. He claimed that he would be forced to re-join the Ba’th party if he returned to Lebanon and forced to do filthy things, and that he and his family would be harmed by the Ba‘th Party if he did not. He had no other claims.
…
29.I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated his entire claim in order to be granted a protection visa.
Party membership
30.I do not accept that the applicant is, or was ever a member of the Ba‘th Party or has any other political affiliation. …
(Detailed reasons were then given.)
34.Because I do not accept that the applicant has been a member of the Ba’th party I do not accept that he has been followed, shot at or that either he or his family have been threatened. …
…
38.Having considered the applicant’s evidence both individually and cumulatively, for the reasons set out above the Tribunal does not accept there is a real chance that he would suffer persecution for any Convention reason either now or in the reasonably foreseeable future.
The RRT also dealt with, and rejected, claims that the applicant was entitled to a protection visa on “complementary protection” grounds, saying:
Complementary Protection
39.Because I do not accept that the applicant is or ever was a member of the Ba’th Party, that he or his family has been shot at or threatened by anyone, that he would be targeted by explosions in Tripoli or that he was ever questioned by the Lebanese Army over the Wissam al-Hassan assassination, I am not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
40.Therefore, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk that he will suffer significant harm.
Before the FCCA the applicant contended that he was not given a fair opportunity to deal with the RRT’s doubts and reservations and that the RRT had misstated or wrongly recorded parts of his evidence. The FCCA rejected those assertions, in part, because there was no evidence to support them. The primary judge concluded her discussion of the applicant’s contentions as follows:
15.There is nothing on the face of the RRT’s decision record to suggest that its findings were not open to it on the evidence in material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
16.To the extent that the applicant in oral submissions made bare assertions that the RRT did not make its decision according to law, no such error is otherwise particularised by the applicant, either in his written claims or oral submissions, and none is apparent on the face of the RRT’s decision record.
17.A fair reading of the RRT’s decision record suggests that the RRT explored with the applicant his claims at a hearing and put to him matters of concern it had about his evidence and noted his responses.
18.The RRT considered the applicant’s documents provided in support in the nature of photographs, but determined to give them no weight because they appeared to be generic and did not indicate where or when they were taken or what organisation the people in them belong to, and the applicant did not appear to be in any of those photographs.
19.The fact that the RRT rejected the applicant’s documentary evidence and the genuineness of his documents does not constitute a failure to consider the applicant’s claims in evidence.
20.While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, none is apparent on the face of the RRT’s decision record, and none has been identified by the applicant today, either in oral submissions or in writing. I note that the RRT referred to the relevant law and to which it correctly applied to the findings that it made.
21.In the circumstances, I’m not satisfied that the application has raised an arguable case for the relief claimed.
The grounds advanced by the applicant as those upon which he would proceed if he was granted an extension of time and given leave to appeal, were as follows:
1.Her Honour Judge Emmett erred in law by her Orders that on the basis that the Court is not satisfied that the application has raised an arguable case for the relief claimed. Her Honour did not have before her the Court Book and the contents of the file and denied me the opportunity to go through the whole file to justify the findings.
2.Her Honour Judge Emmett acted unjustly because she denied me the chance to argue my case based on the information in the Court Book which was never delivered to me.
Those proposed grounds, in effect, complain of a lack of procedural fairness by the primary judge. They also confirm that the applicant’s case is based on merit issues. The proposed grounds do not address the underlying question of jurisdictional error by the RRT or suggest, even obliquely, error of that kind. I see nothing on the face of the grounds themselves which suggests any error in the conclusions of the FCCA.
The applicant was directed by a registrar of the Court, on 25 August 2014, to file a written outline of the submissions on which he wished to rely. No written submissions were filed. At the hearing of his application for an extension of time and for leave to appeal the applicant initially did not appear.
The matter was stood down for a short period, and then adjourned until later in the day. The applicant then appeared.
The applicant explained his delay in bringing the application as due to his desire to obtain further information to support his claims. He asserted that those claims had been misunderstood, or not fully appreciated by the RRT and challenged the correctness of the findings made by the RRT. Although due allowance must be made for the fact that this evidence was given through an interpreter, I am satisfied that, again, the applicant’s complaints were directed to the way in which the merits of his claim were assessed, and did not refer to a possible jurisdictional defect in the proceedings.
The applicant criticised the primary judge for not having been prepared to examine for herself the whole of his file or listen to a recording of his exchanges with the RRT. The applicant also invited me to listen to the RRT recording but I explained to him, as I had done initially, that I was not able to decide whether his claims should be accepted.
Nothing put by the applicant with regard to the proceedings in either the RRT or the FCCA appeared to me to raise any possible jurisdictional error for consideration or any other appellable error by the FCCA.
There is no reason to doubt the central conclusion of the primary judge that any challenge that the applicant wishes to bring against the decision of the RRT would involve a challenge to the merits of the RRT’s conclusions, rather than identify any question of possible jurisdictional error. No jurisdictional issue appeared to me to emerge from the applicant’s oral submissions. Nor is there any reasonable or realistic possibility, in my view, that on the hearing of an appeal, if an extension of time was granted and leave to appeal was given, any jurisdictional error by the RRT would, for the first time, be identified by the applicant. In those circumstances, it would be futile to grant leave to appeal. It is unnecessary to deal separately with any question touching upon whether an extension of time should be granted.
When the applicant first failed to appear the first respondent indicated a desire to apply for an order for costs fixed in the amount of $3,140 and offered to provide an affidavit in support of that application. I declined at that time to permit the application, or to receive the affidavit, for the following reasons.
First, although this is by no means decisive, in the written submissions filed by the first respondent no such application was foreshadowed.
Secondly, a proposal to introduce further evidence (as would clearly be necessary to support such an application) introduces unnecessary complexity into the proceedings and has the potential to seriously prejudice a self-represented litigant. Subject to the matters referred to below, the Court has no convenient scale of costs which may serve as a clear indication to parties that an order for costs following a particular result will normally be made in a particular amount. Unless the matter is left to the ordinary process of taxation (or a short form bill of costs – see below) evidence will be necessary to support an application for a particular sum.
What is the position of the self-represented litigant? Such a person is entitled to a proper opportunity to consider any evidence filed, some assistance to understand it if not a native English speaker, or not familiar with legal processes, a chance to object to inadmissible parts of affidavits or unsupported opinion, an opportunity to cross-examine a deponent, to lead evidence in response and to make submissions about the evidence and any principles which might guide the exercise of a discretion to award costs in a fixed amount.
Those rights are each important ones. They should be protected by the Court. They should not be overlooked by government agencies or their solicitors.
The Rules make provision already for a streamlined procedure for the assessment of costs in migration cases which is available to the first respondent: r 40.43 (Short form bill on migration appeal) and r 40.44 (Procedure—short form bills for migration appeals). Schedule 3 to the Rules sets out in item 15 the amounts which a successful respondent may expect to claim, and be awarded under those processes. In a case such as the present the amount is $1,756. There are some inconsistencies between r 40.43, r 40.44 and Sch 3, item 15 and a confusing omission from r 40.43 (which does not refer to item 15.1(b)), but it is not necessary to pursue those matters in this judgment.
When, in due course, the applicant appeared and made his submissions, the first respondent asked the Court to make any fixed sum costs order which seemed appropriate (accepting it might be less than originally sought) in order to avoid the additional expense of a taxation. I referred to Sch 3, item 15.1(b) and was told the first respondent was content to confine a claim for costs to the amount there specified.
I explained to the applicant the nature of the application for costs then being made. He did not wish to make a submission about that matter.
In those particular circumstances, I am prepared to make an order for costs fixed in the amount indicated by Sch 3, item 15.1(b) as reflecting the amount the first respondent could seek if it served a short form bill of costs under r 40.43, to which no objection was taken.
The appropriate order therefore is that the application for an extension of time in which to seek leave to appeal, and for leave to appeal, should be dismissed with costs, which I fix at $1,756.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate:
Dated: 7 November 2014
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