SZUJK v Minister for Immigration

[2015] FCCA 1494

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUJK v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1494

Catchwords:
MIGRATION – Application for review of the decision of the Refugee Review Tribunal – no arguable case raised for the relief sought – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 424AA, 476

Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13, Part 44

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA
Webster  v Lampard [1993] HCA 57; (1993) 177 CLR 598
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552; (2000) 173 ALR 665; (2000) 74 ALJR 1219
Xie v The Immigration Department [1999] FCA 365
Minister for Immigration & Ethnic Affairs v Wu Shan Liang  [1996] HCA 6; (1996) 185 CLR 259
Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609
Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58
Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425

Applicant: SZUJK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1384 of 2014

Judgment of: Judge Nicholls

Hearing date: 11 May 2015

Date of Last Submission: 11 May 2015

Delivered at: Sydney

Delivered on: 11 May 2015

REPRESENTATION

Applicant: In Person

Solicitors for the Respondents: Ms A Carr of DLA Piper Australia

ORDERS

1. The application made on 22 May 2014 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $3680.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1384 of 2014

SZUJK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) on 22 May 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) on 28 April 2014 which affirmed the decision of the delegate to refuse a Protection (Class XA) visa to the applicant (“the visa”).

2. In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”). The following background can be ascertained from those documents.

Background

1. The applicant is a citizen of Pakistan (CB 38). He arrived in Australia on 7 October 2011 on a tourist visa (CB 73). He applied for the visa on 6 January 2012 (CB 2 to CB 64, including attachments).

2. Attached to the application was a “statement”, which outlined his claims to protection (CB 57 to CB 59). Essentially, he claimed to have been involved in an organisation, “Lashkar-e-Tayyiba” (“the LeT”), which provided him and his brother with financial support. The applicant claimed that he became aware that the LeT was a terrorist organisation when he was asked to participate in “learning war techniques”. Further, that in July 2011 he was told that he and his brother were to embark on a “highly sacred, but secret mission”. He claimed that he had known friends who participated in similar “missions”, but that none of them had returned. Therefore, he and his brother decided to leave the country.

3. The applicant claimed that after leaving Pakistan, he heard that the “general store”, which was run by his brother, had been robbed, and that the LeT had threatened his family that remained in Pakistan, demanding that he return. Further, that on return he was required to repay the financial support that had been provided to him.

4. The delegate refused the application for the visa on 17 August 2012 (CB 72 to CB 85). The delegate found that the applicant was not a witness of truth, and, further, that the applicant had fabricated large parts of his claims.  The delegate was not satisfied that the applicant was involved with the LeT, or any other militant organisations.

The Tribunal

1. The applicant applied for review of the delegate’s decision to the Tribunal on 14 September 2012 (CB 87 to CB 92). He attended a hearing before the Tribunal on 1 November 2013 (CB 118 to CB 121).

2. The Tribunal affirmed the decision of the delegate not to grant the applicant the visa on 28 April 2014 (CB 132 to CB 139). Essentially, the Tribunal did not find the applicant to be a “credible and truthful witness” ([11] at CB 134). In essence, the Tribunal found that the applicant had “fabricated claims in order to achieve an immigration outcome” ([29] at CB 138).

3. The Tribunal found that the applicant’s evidence was inconsistent in relation to key claims ([11] at CB 134). In particular, the applicant’s claims as to when he became aware that the LeT was a terrorist organisation ([12] at CB 134 to [16] at CB 135), and where he resided in Pakistan prior to coming to Australia ([24] at CB 136). The Tribunal recorded that it put the inconsistent evidence to the applicant, pursuant to s.424AA of the Act, and that the applicant “did not satisfactorily address the significant inconsistences” ([16] at CB 135). These were inconsistencies said to arise between the applicant’s written statement, evidence that he gave to the delegate, and evidence that he gave at the hearing before the Tribunal.

4. The applicant’s brother had also applied for a protection visa, and the Tribunal put to the applicant inconsistences between their evidence ([19] – [22] at CB 136). It found that it was “unable to reconcile the inconsistencies between the applicant’s evidence and that of his brother” ([23] at CB 136).

5. Further, that his claims as to when he found out that the LeT were a terrorist organisation were “vague, evasive and unpersuasive” ([18] at CB 135 to CB 136).

6. The Tribunal considered the “First Information Report” (“FIR”) in relation to the applicant’s claim concerning a robbery at his brother’s “general store” (see CB 62 to CB 64). It found that, on the basis of that evidence, that the incident was not “anything other than random criminal activity” ([27] at CB 137). The Tribunal also considered a document said to be an “affidavit” prepared by the applicant’s brother-in-law.  Further, the Tribunal did not give weight to the “affidavit” provided by the applicant’s brother-in-law given the “fundamental lack of credibility within the applicant’s evidence” ([28] at CB 137).

7. In all, the Tribunal made the following findings and came to the following conclusions ([30] – [35] at CB 138):

   “[30]    The Tribunal is prepared to accept that the applicant comes from a religious family and that he was involved with charitable work through the mosque. The Tribunal, however, does not accept that the applicant had inadvertently or without knowing had joined the LeT or any other organisation. The Tribunal does not accept that he had recruited his brother to the same organisation. The Tribunal does not accept that the applicant was asked to participate or had participated in combat training at any point in time. The Tribunal does not accept that he was asked to go on a jihadi mission by any individual or organisation. The Tribunal does not accept that he received any threats in Pakistan. The Tribunal does not accept that the applicant had received financial support by any jihadi, extremist or militant organisation. It follows that the Tribunal does not accept that the applicant had antagonised any individual or organisation or that he is wanted by the LeT or anyone else for withdrawing from activities or any other reason, let alone Convention reasons. The Tribunal does not accept that the applicant is financially indebted to any individual or organisation. The Tribunal does not accept that the applicant had to live in hiding in the months before he came to Australia. The Tribunal does not accept that there is any threat to the applicant’s ability to earn an income in Pakistan. The Tribunal does not accept that that the robbery at his brother’s store was anything other than a random criminal activity. The Tribunal does not accept that members of his family were threatened by anyone after he came to Australia or that shots were fired outside of his house.

   [31]  After considering all of the applicant’s claims, both individually and cumulatively, the Tribunal is not satisfied that the applicant has been harmed in the past or that, if he were to return to Pakistan now or in the reasonably foreseeable future, there is a real chance that he will be harmed for the reason of his race, religion, nationality, political opinion or membership of any particular social group. The Tribunal is not satisfied that the applicant’s fear of persecution is well-founded. 

   [32]  For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

   [33]  Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

   [34]  For the reasons outlined above, the Tribunal has rejected the applicant’s claim that he had inadvertently joined a jihadi organisation and that the organisation is after him because he does not wish to be a part of the organisation anymore. It has found his claims to be fabricated. The Tribunal therefore is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm.

   [35]  Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).”

Application Before the Court

1. The application before the Court is in the following terms:

   “1. The Refugee Review Tribunal made a jurisdictional error by not taking into account evidence produced by the applicant.

   Particulars

   The Tribunal disregarded applicant’s evidence on the basis that he applicant was not a credible witness due to inconsistencies in his evidence. The Tribunal extended this perception of the applicant during the hearing, not to take into account vital information and evidence that were relevant to the applicant’s case.

   2. The Tribunal's conclusion that the applicant did not have a well-founded fear of persecution in Pakistan was illogical, or irrational, manifested a misunderstanding or misconstruction of the Convention test or arose out of a failure to take relevant information into account.

   Particulars

   The Tribunal found that there is not a real chance that the applicant will suffer serious harm in Pakistan based on his religion (or any Convention ground). He does not hold a

   
   

   well-founded fear of persecution.

   3.  The applicant was not afforded natural justice.

   Particulars

   The applicant believes that he was not afforded a fair hearing.  The Member’s judgment was clouded by his own pre-conceived beliefs, notions and as such the applicant could not be afforded an unbiased hearing.  Such pre-conceived views are displayed by the Member where evidence is simply regarded as not credible.”

Before the Court

1. The applicant had appeared before the Court, with the assistance of an interpreter in the Urdu language, on two previous occasions, at a first Court date on 16 July 2014 and mention at a callover on 12 November 2014. The applicant was put on notice at the first Court date that if he did not provide evidence in support of his application, or put any legal arguments before the Court, the Minister would seek to have the matter dismissed pursuant to Part 44 of the Federal Circuit Court Rules 2001 (Cth).

2. At the next Court event, on 12 November 2014, the Minister maintained his position that the application did not raise an arguable case for the relief sought and sought a show cause hearing. The matter was set down for a show cause hearing today.

3. At the first Court date the applicant indicated that his application to the Court had been drafted by a solicitor. It appeared that it was the same solicitor who had assisted him before the Tribunal. No solicitor is on the record before the Court, and no solicitor signed the “certification” on the application to the Court. No solicitor has appeared for the applicant in these proceedings.

4. The applicant appeared in person before the Court today. He was assisted by an interpreter in the Urdu language. The applicant, when given the opportunity to address the Court, said that he relied on what was written in the notice of his “appeal” and that he had nothing to add.  The applicant confirmed that the grounds of the application had been drafted by a person whom his brother had consulted. 

Issue Before the Court

1. The issue before the Court today is whether the application raises an arguable case for the relief sought. I understood this to be that the applicant seeks orders that the Tribunal decision be quashed on the basis that it is infected with jurisdictional error and that the matter be returned to the Tribunal for reconsideration.

2. If the Court cannot be satisfied that an arguable case is raised against the respondent the application will be dismissed. The Court’s power should be exercised with great caution. Given the summary nature of any such dismissal the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster  v Lampard [1993] HCA 57; (1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3] – [6], Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552; (2000) 173 ALR 665; (2000) 74 ALJR 1219) or where it is a hopeless case that would fail if it were to proceed to a final hearing (Xie v The Immigration Department [1999] FCA 365).

Consideration

1. All three of the applicant’s grounds, in essence, seek impermissible merits review. That is, they ask that this Court substitute its own findings of fact for those of the Tribunal. The law does not permit the Court to proceed in that fashion.  The assertions in the grounds seek to variously take issue with factual findings made by the Tribunal. The Tribunal’s adverse finding as to the applicant’s credibility is at the centre of its analysis.  The Tribunal affirmed the delegate’s decision because it, like the delegate, did not believe the truth of the applicant’s claims to fear harm.

2. On any fair reading of the Tribunal’s decision record, and having regard to all the material before the Court, the Tribunal’s conclusion, and the findings that informed that conclusion, were all reasonably open to the Tribunal to make, and for which the Tribunal gave reasons.  In that circumstance, no arguable case is raised for the relief that the applicant seeks. 

Ground One

1. In ground one of the application, the applicant complains that the Tribunal did not consider the evidence and arguments before it. The ground does not indicate which evidence he asserts the Tribunal did not consider.

2. On the evidence before the Court, the applicant provided two pieces of “evidence” in support of his claims, as well as his oral evidence before the delegate and at the Tribunal hearing. The FIR and the affidavit from his brother-in-law. The allocation of weight to be given to such material is for the Tribunal to determine in its evaluation of all the evidence before it. The Tribunal’s findings in this regard were reasonably open to it on what was before it, including its evaluation of the applicant’s own evidence, being both the applicant’s oral evidence and the documentary evidence before it (Minister for Immigration & Ethnic Affairs v Wu Shan Liang  [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”) at 280-281 per Brennan CJ, Toohey, McHugh and Gummow JJ and 291-292 per Kirby J; Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at 579-580 Gummow and Hayne JJ; [1999] HCA 14 at [195] to [197] per Gummow and Hayne JJ; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ).

3. It cannot be said that the Tribunal disregarded his evidence. The Tribunal did not find that the FIR or the affidavit were fabrications. It relied on what was stated in that document to find that it did not assist the applicant’s claims to fear harm, either under the Refugees Convention or the complementary protection criterion available for cases of this type. In relation to the brother-in-law’s affidavit, it was open to the Tribunal to evaluate what was written in that affidavit in light of the applicant’s own oral evidence.  No arguable case is raised in that regard.

4. I note also that the Tribunal dealt with each of the claims expressly made, or clearly arising, in the circumstances presented by the applicant (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263).

5. Further, the inconsistencies in the applicant’s evidence were raised by the Tribunal with him, pursuant to s.424AA of the Act. It is the case that the Tribunal’s evaluation of an applicant’s evidence, including any inconsistencies, is not information for the purposes of s.424A of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 and Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507). Therefore, to the extent that the Tribunal put the inconsistencies in the applicant’s evidence to him, it was not statutorily obliged to do so. However, there is no legal error that can be said to arise because the Tribunal did do so.

6. However, it may be that the Tribunal proceeded in an abundance of caution, and utilised the mechanism available to it in s.424AA of the Act, to discharge the obligation set out in s.424A of the Act, to put information which it considered would be the reason, or part of the reason, for affirming the decision under review to the applicant.

7. Here again, what the applicant put in writing to the Minister’s department in relation to the application for the protection visa, what he put in writing to the Tribunal, and what he told the Tribunal at the hearing, is exempt from the obligation in s.424A(1), by operation of s.424A(3) of the Act. There is no error in the Tribunal putting these matters to the applicant.

1. It is the case that what the applicant told the delegate at the interview is information for the purposes of s.424A(1) of the Act, and is not caught by any of the exemptions in s.424A(3) of the Act, unless the Tribunal relied on the delegate’s written report of what occurred, as set out in the delegate’s decision record, which was subsequently given to the Tribunal by the applicant himself.

2. In any event, the Tribunal, on the evidence before the Court, complied with any obligation to put such information to the applicant at the hearing, and discharge any obligation that may have arisen in relation to the applicant’s oral evidence to the delegate.

3. I should note that, as to whether the Tribunal properly complied with all aspects of s.424AA of the Act, the only relevant evidence before the Court is the Tribunal’s own decision record and, in particular, what it said was discussed at the hearing with the applicant.

4. Despite opportunity to do so, the applicant has not provided any evidence to the Court, for example, of a transcript of what occurred at the Tribunal hearing.  In all, therefore, ground one does not raise an arguable case for the relief that the applicant seeks. 

Ground Two

1. Ground two takes issue with the Tribunal’s finding that there was not a real chance the applicant would suffer “serious harm” on return to Pakistan. The ground alleges that this finding was: “illogical, or irrational, manifested a misunderstanding or misconstruction of the Convention test or arose out of a failure to take relevant information into account”.

2. As the Minister submitted, on a fair, if not plain, reading of the Tribunal’s decision record, the Tribunal rejected the applicant’s claims on the basis that he was not a credible witness, and that he had “fabricated” his claims to protection. This finding was reasonably open to the Tribunal on the evidence that was before it. As I sought to explain to the applicant today, even if the Court were to be of a different view on the material that was before the Tribunal, that conclusion, and the findings that informed that conclusion, were reasonably open to the Tribunal to make on what was before it.

3. While minds may differ as to the evaluation of the facts found, no illogicality or irrationality arises where the impugned decision was reasonably open on the facts (see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 per Crennan and Bell JJ at [130] – [131] and Heydon J at [78] and see also SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58, especially per Rares J and McKerracher J).

4. In essence, the applicant seeks to challenge the Tribunal’s factual findings, including findings as to his credibility. The applicant simply seeks to express his disagreement with what the Tribunal has done. It is the case that the Court cannot intervene to substitute its own findings of fact for those of the Tribunal. This is a request for the Court to indulge in impermissible merits review (Wu Shan Liang). Ground two is not made out.

Ground Three

1. Ground three of the application complains that the applicant was not “afforded natural justice”.

2. At best, when regard is had to the particulars of the ground, it may be that what the applicant is seeking to claim is that the Tribunal was biased, or that an apprehension of bias arises. I say this because the particulars assert that the Tribunal member’s judgment was clouded by his own preconceived beliefs and notions

3. The tests for bias and the apprehension of  bias are well settled (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 (2001) 205 CLR 507 (“Jia Legeng”), SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 (“Ex-parte H”)). In the case of actual bias, said to arise from prejudgment by the decision maker, such a complaint must be “distinctly made and clearly proven” (Jia Legeng at [69] and [127]). That, of course, is the case, because an allegation of bias against an administrative decision-maker is an extremely serious matter to raise. Unlike many other assertions of legal error, allegations of bias strike at the very integrity of the decision-maker.

4. The applicant asserts that the Tribunal member’s “judgment was clouded” by pre-conceived beliefs. However, on the evidence that is before the Court, and given in particular that the applicant has not taken the opportunity afforded to him to file any evidence, the allegations as to the Tribunal’s predisposition, attitude, or conduct towards the applicant cannot be, and are not, made out. Further, given the state of the evidence before the Court, it cannot be said that the well-informed lay observer might reasonably apprehend that the Tribunal did not bring an open mind to the hearing, and the conduct of the review (Ex parte H). To the extent that the applicant asserts that the Tribunal did not consider his evidence, what I have said above in relation to ground one stands in answer. In all, the ground does not raise an arguable case for the relief sought.

Conclusion

1. The grounds of the application do not raise an arguable case for the relief sought. It is the case that the rules of this Court provide that at a hearing of an application to show cause (with reference to r.44.12 of the FCC Rules), the applicant is confined to the grounds mentioned in the application to the Court (r.44.13(1) of the FCC Rules). The applicant did not raise anything today that would have made it appropriate to dispense with this rule pursuant to r.1.06 of the FCC Rules.

2. In the circumstances, it is appropriate that the application be dismissed pursuant to r.44.12(1)(a) of the FCC Rules. I will make an order accordingly.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 2 June 2015