SZUJQ v Minister for Immigration & Border Protection

[2014] FCCA 2429

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUJQ v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 2429

Catchwords:
MIGRATION – Refugee Review Tribunal.

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, 44.13

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259

Applicant: SZUJQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1412 of 2014

Judgment of: Judge Emmett

Hearing date: 17 October 2014

Date of Last Submission: 17 October 2014

Delivered at: Sydney

Delivered on: 17 October 2014

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter

Solicitors for the Respondents: Ms Katherine Hooper (DLA Piper)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1412 of 2014

SZUJQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application by the applicant pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), for an order requiring the respondent to show cause why the Court should not grant the relief sought in the application filed on 26 May 2014 seeking judicial review of a decision of the Refugee Review Tribunal, dated 22 April 2014 (“the RRT”).

2. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a)  if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b)  if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c)  without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2)  To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

3. Relevantly, r.44.13 provides:

   “(1)  At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

The proceeding before this Court

1. The applicant was unrepresented before the Court this morning, although had the assistance of a Persian/Iranian interpreter.

2. On 7 August 2014, the applicant attended a directions hearing before me again unrepresented but with the assistance of an interpreter. 

3. I explained to the applicant that this Court has no power to interfere with the decision of the RRT unless the Court is satisfied that the RRT’s decision is affected by a mistake that goes to its jurisdiction.  I also explained to the applicant that the ground of his application made bare assertion that was unsupported by particulars and did not by itself disclose an error capable of review by this Court.  I explained to the applicant that in circumstances where the grounds of the application or the application does not raise an arguable case for the relief claimed, the application may be dismissed pursuant to the rules of this Court. 

4. I also explained to the applicant the cost consequences that may flow to him if he was unsuccessful and provided him with a copy of that relevant costs schedule.  The applicant confirmed that he wished to continue with his application and was provided with the contact details of legal services providers and interpreting and translating services in documents headed in how own language. 

5. The applicant was then given leave to file and serve and amended application, giving complete particulars of each ground of review relied upon together with evidence by way of affidavit and submissions in support by 3 October 2014. 

6. The matter was then listed for hearing today pursuant to r.44.12 of the Rules, a copy of which was provided to the applicant.

7. The applicant confirmed this morning that there have been no documents filed by him either in accordance with those directions or otherwise.  The applicant confirmed that he relied on the ground of judicial review identified in his application filed on 26 May 2014 which is as follows:

   “1. Refugee Review Tribunal did not look carefully my evidence in my case.”

8. The ground was interpreted for the applicant and the applicant was invited to say whatever he wished in support of that ground. 

9. The applicant said that he had been unwell at the time of the RRT hearing but did not have any documents to support that assertion.  The applicant sought to tender documents before this Court this morning, which he said were in the nature of medical evidence.  The applicant acknowledged that they were not documents that had been provided by the applicant to the RRT for its consideration.  On that basis, the tender was opposed by the first respondent and rejected by the Court as the documents could not be relevant to the applicant’s complaint that the RRT had failed to consider his evidence. 

10. The solicitor for the first respondent, Ms Hooper, read the affidavit of the applicant, sworn/affirmed 26 May 2014, annexing a copy of the RRT’s decision record.

11. There is nothing on the face of the RRT decision record to suggest that the applicant was unfit to take part in the hearing and to provide evidence on his behalf.  The applicant was represented by a migration agent who also gave evidence at the hearing.  The applicant claimed to be a citizen of Iran who feared persecution by reason of his Christian religion and anti-regime beliefs and as a failed asylum seeker. The applicant’s claims and the RRT’s decision record are accurately summarised by the solicitor for the first respondent in her submissions as follows:

    “4. The applicant applied for a Protection (Class XA) visa on 15 September 2012.[1] He claimed to fear harm for reason of:

    4.1 His conversion to Christianity.

    4.2 His work in construction, which involved depicting the symbol of the Iranian family, the promotion of which was against the policies of the Iranian government.

    4.3 His anti-regime beliefs.

    4.4 His being a failed asylum seeker.

    [1] CB 10

    …

    6. The applicant applied to the RRT for review of the delegate's decision on 7 January 2013.  The applicant attended a hearing before the RRT on 12 August 2013,[2] at which determinative issues were traversed.  By decision dated 22 April 2014, the RRT affirmed the decision under review refusing to grant the applicant a protection visa.[3]

    7. The RRT found, as it had put to the applicant, that the inconsistencies in his evidence in relation to the raids, which the applicant claimed prompted him to leave Iran, cast doubt on the truthfulness of these claims.  The RRT considered the various explanations advanced, but found that the inconsistencies indicated the applicant was not telling the truth, at [34].  The RRT expressly rejected the applicant's claims concerning the raids and a claimed summons, at [39].  The RRT did not accept that the applicant had a plaster mould for a Monarchist symbol and did not accept he had a crucifix on the wall of his home.  The RRT did not accept that the applicant was telling the truth about his interest in Christianity in Iran and did not accept that he did not believe in any religion in Iran, at [39]. 

    8. The RRT accepted that the applicant had engaged in certain religious conduct in Australia and considered the supporting letters the applicant produced.  Having regard to the view it formed of the applicant's credibility, the RRT did not accept that the applicant had undergone a genuine conversion to Christianity.  The RRT was not satisfied that the applicant had engaged in his Australian religious conduct otherwise than for the sole purpose of strengthening his refugee claims and accordingly disregarded it pursuant to section 91R(3), at [40]. 

    9. The RRT accepted that the applicant would be able to be identified as a failed asylum seeker but, as it had put to the applicant, observed that DFAT advised that the act of applying for asylum outside of Iran is not an offence in Iran.  The RRT rejected, at [42], the applicant's claim to have anti-regime beliefs.  It did not accept that the applicant was of any interest to the Iranian authorities when he left Iran.  The RRT did not accept that there was a real chance the applicant would be persecuted for reason of his religion, or his political opinion (arising from his work as a plasterer, his anti-regime beliefs, or his status as a failed asylum seeker), if the applicant returned to Iran (at [42]).

    10. The RRT considered complementary protection, from [43].  It repeated its pertinent factual findings concerning the applicant's material claims.  The RRT revisited the applicant's Australian conduct, at [44].  The RRT did not accept that there was a real risk the applicant would be perceived as a Christian convert or an apostate on the basis of his Australian conduct, or his wife's Australian conduct. ”

    [2] CB 216

    [3] CB 235

12. The RRT’s decision record makes clear that it explored the applicant’s claims with him and his migration agent at a hearing, raised matters of concern about the applicant’s evidence and noted the applicant’s responses and those of the migration agent.  Ultimately, the RRT found the applicant not to be a truthful witness and rejected his claims to have suffered past harm for the reasons given.  There is nothing on the face of the RRT’s decision record to suggest that those findings, including the adverse findings, were not open to the RRT on the evidence and material before it and for the reasons it gave. 

13. 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).

14. The RRT’s adverse credibility findings were based on what it found to be the unsatisfactory nature of the applicant’s evidence. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

15. A credit finding is sound if it was “open to [the RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547)

16. The applicant’s complaints appear to be more in the nature of a disagreement with the findings and conclusions of the RRT.  Such complaints invite merits review which this court can not 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)..

17. 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. 

18. In the circumstances, I’m not satisfied that the application has raised an arguable case for the relief claimed and, accordingly, the proceeding before this Court, commenced by way of application filed on 26 May 2014, should be dismissed pursuant to r.44.12 of the Rules, with costs.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:         27 October 2014