SZUJK v Minister for Immigration and Border Protection

[2015] FCA 986

FEDERAL COURT OF AUSTRALIA

SZUJK v Minister for Immigration and Border Protection [2015] FCA 986

Citation:	SZUJK v Minister for Immigration and Border Protection [2015] FCA 986
Appeal from:	Application for leave to appeal: SZUJK v Minister for Immigration & Anor [2015] FCCA 1494
Parties:	SZUJK v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 592 of 2015
Judge:	MCKERRACHER J
Date of judgment:	25 August 2015
Date of hearing:	25 August 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	23
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the First Respondent:	Ms A Wong
Solicitor for the First Respondent:	DLA Piper Australia
Counsel for the Second Respondent:	The Second Respondent submits to any order of the Court, save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 592 of 2015

BETWEEN:

SZUJK
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MCKERRACHER J
DATE OF ORDER:	25 AUGUST 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal is dismissed.

2.The Applicant is to pay the costs of the First Respondent, to be taxed if not agreed.

3.The title of the Second Respondent be amended to the Administrative Appeals Tribunal.

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 592 of 2015

BETWEEN:

SZUJK
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MCKERRACHER J
DATE:	25 AUGUST 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

REVISED FROM TRANSCRIPT

INTRODUCTION

1. The applicant applies today for leave to appeal from a judgment of a judge of the Federal Circuit Court of Australia delivered earlier this year on 11 May 2015.

2. In that judgment the Federal Circuit Court, pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules (Cth) dismissed the applicant’s application for judicial review.

3. The applicant today seeks leave to appeal from that decision, which is interlocutory in character.  He does so on new grounds of appeal.  Before I come to those grounds it is necessary to say a little about the history of the matter.

   BACKGROUND

4. The applicant is a male citizen who arrived in Australia from Pakistan holding a tourist subclass 676 visa in 2011.  He applied for a protection visa in early 2012, supported by various claims in an application which focused on his membership of a particular organisation, Lashkar-e-Tayyiba which I will refer to as the LeT, which he says preached against those who were against Islam in Pakistan.

5. He also claimed that he introduced his brother to LeT and financial support was provided by the LeT to him and to his brother.  In his application he claimed that he only became aware that the LeT was a terrorist organisation when he was asked to participate in learning war techniques.

6. He claimed that in July 2011, a few months before he arrived in Australia, that he and his brother were told that they would be embarking on a highly sacred but secret mission.  He claims that some of his friends had participated in those missions but they failed to return.  Because of those factors, the applicant reached a conclusion that he should leave Pakistan and seek protection.  Accordingly he arrived in Australia, as I say, in October 2011.

7. About a month after arrival he claimed, in his application for a protection visa, that he and his brother became aware that the general store, which was run by his brother, had been robbed and that the LeT had threatened his family in Pakistan, demanding that he return to Pakistan and return the finances which had previously been advanced to him by the LeT.

   BEFORE THE TRIBUNAL

8. A delegate of the Minister for Immigration and Border Protection rejected his application on 17 August 2012.  Accordingly the applicant, as he was entitled to do, applied to the Refugee Review Tribunal for review of the decision of the delegate.  That application was lodged on 14 September 2012.   Following the filing of that application, the applicant presented arguments and gave oral evidence on the various issues arising in his claims at the hearing before the Tribunal.

9. The hearing before the Tribunal was held on 1 November 2013.  Unfortunately for the applicant, the Tribunal resolved to affirm the decision of the Delegate and made its decision on 28 April 2014.

10. In its decision record, the Tribunal expressed the view that the applicant was not a credible witness and it found that his claims had been fabricated in order to achieve a positive immigration outcome.  The Tribunal expressed reasons to support those conclusions saying that there were inconsistencies in the applicant’s evidence in relation to key aspects of the claim, in particular, according to the Tribunal, the applicant had provided different accounts as to when he had become aware that the LeT was a terrorist organisation and also where he had actually resided in Pakistan before moving to Australia.

11. The Tribunal also found that the evidence given by the applicant concerning his participation in combat training was not convincing and lacked credibility.  It also found his evidence and responses regarding when he found out that LeT was an extremist organisation to be, as it described it, ‘vague, evasive and unpersuasive’.  The applicant was also unsuccessful in persuading the Tribunal as to his explanation for his delay in applying for protection and the Tribunal also took that into account.  Ultimately, the Tribunal was unable to accept – although it did not reach a concluded finding – that the applicant had even joined the LeT and had been asked to participate in combat training.  It also rejected the accounts of financial assistance and the threats that his brother was under.

12. The robbery at the store was thought to be nothing more than a random criminal activity, as far as the Tribunal was concerned, and the Tribunal was satisfied that, if returned to Pakistan, the applicant would not face either serious or significant harm within the meaning of the Migration Act 1958 (Cth) and the Convention.

    BEFORE THE FEDERAL CIRCUIT COURT

13. The applicant then sought to have the decision of the Tribunal judicially reviewed and took that application to the Federal Circuit Court.  The application in that Court was supported by various grounds which are set out in the reasons of the Federal Circuit Court but, by way of summary, in essence, the first was that there was jurisdictional error by not taking into account the evidence produced by the applicant; the second was that the conclusion by the Tribunal that he did not have a well-founded fear was illogical or irrational; and the third was that the applicant was not afforded natural justice.

14. Today, as I say, quite different grounds of appeal are advanced but I will, nevertheless, examine the reasons of the Federal Circuit Court in relation to the grounds then before it. 

15. The Court convened a show cause hearing within the meaning of r 44.12 of the Federal Circuit Court Rules but was of the view, after hearing the applicant on that account, that the application should be dismissed under those Rules.  It did so on the basis that the three grounds advanced were all, in essence, impermissible merits review and that the first ground, even though framed in terms of judicial error, was directed to findings reasonably open to the Tribunal.  It was clear that the Tribunal, the Court said, had not disregarded the applicant’s evidence and had dealt with the express claims or those clearly arising in the circumstances presented by the applicant.

16. On the second of the two grounds before the Court, it was held that this was simply another challenge to factual findings rather than a demonstration of judicial error.  On the third ground, that is, the absence of natural justice, that was, at its highest, the Court said, an allegation that the Tribunal was biased but it was unsupported by any of the material before the Court.

    LEAVE TO APPEAL

17. The applicant today seeks leave to appeal from that decision to this Court.  That application is supported by an affidavit of the applicant, seeking leave to appeal from the judgment pursuant to r 35.12 of the Federal Court Rules.  The draft notice of appeal filed by the applicant in support of that application today raises the following grounds: 

    1.The Federal Circuit Court and the [Tribunal] made an error of law in my case.  I am under the serious risk of harm if I go back to Pakistan which was undervalued by the [Federal Circuit Court] and the [Tribunal]. 

    2.The [Federal Circuit Court] did not consider that I was properly guided when I prepared my application for the [Tribunal] and was not legally equipped to present my case properly at the time of the interview

    3.The [Tribunal] committed an error of law by undervaluing the risk of harm to me and the [Federal Circuit Court] did not give him any relief

    4.The [Federal Circuit Court] did not consider properly that an error of law has occurred in my case and no relief was given to him in that regards (sic)

18. The fifth ground was a general appeal against the whole of the decision.

19. Leave to appeal is necessary because the decision made by the Federal Circuit Court was interlocutory in nature and s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) applies, but, in any event, because the grounds of appeal raised are entirely different, the applicant would need leave to advance those appeal grounds by way of a notice of appeal because they were not raised in the Federal Circuit Court.

20. Dealing generally with the question of the substantive application for leave to appeal, it is well-established that leave to an appeal from any interlocutory judgment requires demonstration by an applicant that there is sufficient doubt as to the correctness of the judgment to warrant review and, further, that if the judgment is assumed to be wrong for the purpose of the second limb of the test, that substantial injustice would be suffered if leave to appeal were refused.  It is necessary only to examine the first limb because, when the various limbs of the proposed grounds of appeal are examined, it can be seen that it is not possible for the applicant to demonstrate sufficient doubt as to the correctness of the judgment in the Federal Circuit Court.

21. The proposed grounds of appeal which were not argued below seek to take issue with factual findings of the Tribunal.  Any court undertaking judicial review, in this case, the Federal Circuit Court, does not have power to review the merits of the Tribunal’s decision.  In relation to the suggestion as to lack of legal support or legal representation, that is a difficulty commonly faced in applications of this nature, but it is not a ground taken alone on which the decision below could be successfully challenged.  In relation to the fourth proposed ground and the allegation that the primary judge failed to consider properly that an error of law had occurred, there is no doubt that the Court did consider the errors which the applicant raised and properly concluded that no arguable case was raised. 

22. There is no error in the reasoning of the Federal Circuit Court demonstrated or pointed to by the applicant and there is no reason to conclude that the decision of the Federal Circuit Court is wrong.

23. For those reasons, the application cannot succeed and I make the following orders:

    1.The application for leave to appeal be dismissed.

    2.The Applicant is to pay the costs of the First Respondent to be taxed if not agreed.

    3.The title of the Second Respondent be amended to the Administrative Appeals Tribunal.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

A/Associate: 

Dated:        7 September 2015