SZUHH v Minister for Immigration & Border Protection
[2014] FCCA 1496
•3 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUHH v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 1496 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) r.44.12 |
| Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 |
| Applicant: | SZUHH |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1192 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 3 July 2014 |
| Date of Last Submission: | 3 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 3 July 2014 |
REPRESENTATION
| The applicant appeared in person with the assistance of an interpreter |
| Solicitors for the Respondent: | Mr Lewis d’Avigdor (Clayton Utz) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1192 of 2014
| SZUHH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is application by the applicant pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) seeking an order requiring to respondent to show cause why the Court should not grant the relief sort in the applicant’s application filed on 2 May 2014 seeking judicial review of a decision of the Refugee Review Tribunal (“the RRT”) dated 7 April 2014.
The applicant was unrepresented before the Court this morning although had the assistance of an Arabic interpreter. On 2 June 2014, the applicant attended a directions hearing before me at which time I explained to the applicant the role of this Court and that where the grounds of his application do not raise an arguable case for the relief claimed, that the application may be dismissed pursuant to the Rules.
I also explained to the applicant the cost consequences that may flow to him and provided him with a copy of those costs and a copy of the rule pursuant to which the matter was set down for hearing today. The applicant confirmed that he wished to continue with his application for judicial review of the Tribunal’s decision and accordingly was given leave to file and serve an amended application and evidence and submissions in support by 18 June.
The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
The applicant confirmed this morning that he had not filed any further document either in accordance with those directions or otherwise, and that he relied on the grounds of his application filed on 2 May 2014, as follows:
“1. The Refugee Review Tribunal came to a conclusion that I am not even a member of the Ba’th party or any other Political affiliation because I was unable to know how many MPs the Party had in the Lebanese Parliament and because of some inconsistencies. The Tribunal did not accept my claim because I did not know the location of the Ba’th Party office in Tripoli as well as the Party’s ideology. I will provide a copy of the hearing CD and put my argument as to why the Tribunal made an error in its decision.
2. I still feel confident that my lawyer included information in my application which was not mine and this is part of the inconsistencies.”
The grounds of the application were interpreted for the applicant, and the applicant was invited to say whatever he wished in support of those grounds.
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.
To the extent that the applicant complained that the RRT did not accept his claims, it is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
To the extent that the applicant complained that he was not given an opportunity to address the RRT’s doubts and the inconsistencies that the RRT found to exist, it is well established that the RRT’s subjective appraisal, thought processes and determinations, defects, gaps or lack of detail in an applicant’s evidence is not information that is required by the RRT to be put to the applicant (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).
To the extent that the applicant complained that the RRT’s decision record misconstrued parts of his evidence, the applicant was given an opportunity to file any evidence in support of any such assertion, including any transcript of the RRT hearing. The applicant chose not to file any such evidence. At the directions hearing on 2 June 2014 the applicant was given an opportunity to file a transcript of the RRT hearing. However, no step was taken by the applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the RRT’s summary of the oral evidence given by the applicant and exchanges it had with the applicant at the RRT hearing. The Court is entitled to accept the RRT’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).
In the circumstances, there is no evidence before this Court of any mistranslation that materially affected the RRT’s decision.
The applicant’s claims and the RRT’s decision are set out in the written submissions of the first respondent filed on 25 June 2014, as follows:
“Background
5. On 10 February 2013, the applicant, a citizen of Lebanon, arrived in Australia on a sponsored visitor visa.
6. On 21 March 2013, the applicant applied for the Visa.
7. On 3 September 2013, the applicant attended an interview with a delegate of the Minister (Delegate). By a decision dated 6 September 2013, the Delegate refused to grant the Visa.
8. On 24 September 2013, the applicant applied to the Tribunal for review of the Delegate's decision. On 1 April 2014, the applicant attended a hearing before the Tribunal to give evidence and present his claims. On 7 April 2014, the Tribunal affirmed the Delegate's decision.
9. On 2 May 2014, the applicant filed his application for judicial review of the Tribunal's decision.
Applicant's claims
10. The applicant claimed to fear persecution in Lebanon on the basis of his political opinion.[1] In brief, the applicant claimed that:
(a) he joined the pro-Syrian Ba'th Party in 2005 or 2006 in Tripoli;
(b) he lived in Beirut for the six years before he came to Australia and was the secretary of the Beirut branch of the Ba'th party. As secretary he was not involved in any fighting but organised meetings and took aid to needy people;
(c) he attended rallies and events and was threatened and harassed by members of the Al Moustaqbal party (Future Movement);
(d) he was shot at while travelling to and from work and was followed by cars;
(e) he was questioned by army investigators a week after the assassination of Wissam al-Hassan, a prominent Sunni Muslim political figure, on 19 November 2012;
(f) he claimed to have ceased membership of the Ba'th Party and that he would be harmed by anti-Ba'th groups, including members of the Future Movement, if he were to return to Lebanon; and
(g) at the Tribunal hearing, the applicant also claimed that he would be forced to re-join the Ba'th party if he returned to Lebanon and "forced to do filthy things".[2] He claimed that the Ba'th party had threatened his family and that if he didn't return he would be killed.[3]
[1] The Tribunal set out the applicant's claims made at the Tribunal Hearing at Decision Record (DR) 7 to 25.
[2] DR at [8].
[3] DR at [22].
The Tribunal's Reasons
11. The Tribunal found the applicant not to be a reliable, credible or truthful witness.[4] It found that he had fabricated his entire claim, including that he is or was a member of the Ba'th Party.[5] The Tribunal's rejection of the applicant's claims were based on the following findings:
(a) the applicant lacked knowledge of the Ba'th Party members of parliament (MPs). The Tribunal found this significant because the applicant claimed to have been a secretary of the Ba'th Party and there were only a small number of MPs;[6]
(b) the applicant could not name or describe the location of the Tripoli office of the Ba'th Party despite his claimed membership, nor did he correctly restate the date of assassination of Wissam al-Hassan;[8]
(c) the applicant lacked knowledge of the party's ideology and his knowledge of the founder of the Ba'th Party could have been gleaned from any online source;[9]
(d) the applicant had given inconsistent evidence regarding the threats he claimed that he and his family had faced. In his protection application statement he claimed that he was subjected to threats by the Future Movement and that his mother had received calls from 'anti-Baath groups'. At the hearing he claimed that the threats were made by the Ba'th Party. The Tribunal did not accept that reasons for the claim or inconsistency;[10] and
(e) no weight was given to photographs submitted by the applicant because they were generic, lacked any apparent connection to the Ba'th Party and did not feature the applicant.[11]
12. Having rejected the factual matrix on which the applicant's claims for protection relied, the Tribunal found that the applicant would not face serious harm for the purposes of section 36(2)(a) of the Act or significant harm for the purposes of section 36(2)(aa) of the Migration Act 1958 (Cth).”
[4] DR at [29].
[5] DR at [30].
[6] DR at [30] to [31].
[8] DR at [8] and [36].
[9] DR at [33].
[10] DR at [34] and [35].
[11] DR at [33].
Ground 1 of the applicant’s written application appears to be no more than a disagreement with the findings and conclusions of the RRT, and, as stated above, invites merits review, which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ).
To the extent that the applicant in ground 2 asserts that conduct of his lawyer led to the RRT’s adverse findings, I note that the RRT specifically considered whether an inconsistency which it found to exist was due to the applicant’s lawyer, whom the applicant said was untrustworthy and has misrepresented what he said. The RRT rejected the assertion by the applicant. Those findings appear to be open to the RRT on the evidence and material before it and for the reasons it gave.
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).
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.
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.
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.
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.
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.
In the circumstances, I’m not satisfied that the application has raised an arguable case for the relief claimed.
Accordingly, the proceeding before this Court, commenced by way of application filed on 2 May 2014, should be dismissed pursuant to r.44.12 of the Rules, with costs.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 11 July 2014
[7] DR at [32].
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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