SZULE v Minister for Immigration
[2017] FCCA 3280
•20 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZULE & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3280 |
| Catchwords: PRACTICE AND PROCEDURE – Application for an adjournment – whether an adjournment was in the interests of the administration of justice – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.36, 438, 476 |
| First Applicant: | SZULE |
| Second Applicant: | SZULF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2890 of 2014 |
| Judgment of: | Judge Street |
| Hearing date: | 20 December 2017 |
| Date of Last Submission: | 20 December 2017 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2017 |
REPRESENTATION
| The first applicant appeared in person. |
| Solicitors for the Respondents: | Ms C Hillary DLA Piper Australia |
ORDERS
The application is dismissed.
The applicants to pay the first respondent’s costs fixed in the amount of $6,646.00.
The name of the second respondent be changed to the Administrative Appeals Tribunal and the need to file any further document in this regard is dispensed with.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2890 of 2014
| SZULE |
First Applicant
| SZULF |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 16 September 2014 affirming the decision of the delegate not to grant the applicants protection visas. The applicants are husband and wife, and the husband was included as a member of the family unit. The applicants were found to be citizens of Pakistan and their claims were assessed against that country. The first applicant claimed to fear harm from the Taliban and by reason of her alleged involvement in Muttahida Qaumi Movember (“MQM”) and the Women’s Wing of the Pakistani Muslim League (WWPML).
The first applicant arrived in Australia on 10 September 2012 as a dependent of her husband who had been granted a student TU-572 visa on 14 March 2012 who had arrived in Australia on 6 April 2012. It was not until 9 October 2012 that the first applicant sought protection with her husband included as a member of the family unit. On 13 February 2013, the delegate found the applicants failed to meet the criteria for the grant of a protection visa.
The delegate made adverse credibility findings in relation to the first applicant’s claims and found the Taliban had no ongoing interest in the first applicant and did not accept the first applicant was ever involved in activities with the WWPML or that the first applicant was a member of the MQM.
The first Tribunal decision
The first applicant applied for review on 8 March 2013. On 22 August 2013, the Tribunal wrote to the first applicant, informing the first applicant that a new hearing date had been rescheduled for the 7 November 2013. The first applicant appeared on that date to give evidence and present arguments, as did her husband.
The decision of the Tribunal affirming the decision of the delegate on 5 May 2014 was set aside as a result of orders of the Federal Circuit Court of Australia and was remitted to a differently constituted Tribunal on 17 July 2014.
The current Tribunal decision
On 29 July 2014, the current Tribunal wrote to the applicant explaining that the matter had been referred to the Tribunal for review, after it was remitted by the Federal Circuit Court. On 15 August 2014, the Tribunal wrote to the applicant and invited the applicant to attend a hearing on 15 September 2014. The first applicant appeared on that date together with her husband to give evidence and present arguments.
The Tribunal, in its reasons of 16 September 2014, identified the background to the application for review. The Tribunal set out the relevant law in an attachment to its decision. The Tribunal summarised the applicant’s claims and evidence.
Credibility findings
The Tribunal was not satisfied the first applicant is a truthful witness and considers that her evidence to both the Department and the Tribunal was frequently vague, inconsistent, confused and lacking in credibility. The Tribunal does not accept any of the first applicant’s claims regarding the incidents she claimed occurred in Pakistan.
The Tribunal found that the first applicant had manufactured the totality of claims to fear harm in Pakistan, and that she and her husband had lodged applications for protections visas for reasons entirely unrelated to those put forward. The Tribunal set out detailed reasons in support of the adverse findings in respect of the first applicant’s evidence. The Tribunal identified inconsistencies in the first applicant’s evidence and found the first applicant had limited knowledge of an organisation she claimed to work for, for six months, which the Tribunal found to be indicative of the fact that the applicant did not work, at any time, for the WWPML and that this was not organised by the MQM as a result of her father’s purported connections with the political party.
The Tribunal found the first applicant is not a credible witness. The Tribunal did not accept that the first applicant and her brother were abducted by the Taliban in 2007 and found the first applicant had manufactured the entirety of her evidence in relation to these incidents that she claimed to have occurred in Pakistan. The Tribunal provided detailed reasons in support of the adverse finding in respect of the incident involving the alleged Taliban abduction of her and her brother.
The Tribunal took into account that the applicant claimed that she was mentally upset at the time of the hearing before the Tribunal and also her recent delivery of her child. The Tribunal was not satisfied the applicant has any mental health issues that affected her ability to give evidence or that the birth of her child has somehow affected her ability to provide consistent and credible account of the incidents. The Tribunal found the reason for the problematic nature of the first applicant’s evidence is not a result of any medical or mental issue but, instead, due to the fact that she has manufactured the totality of her claims to fear harm in Pakistan, and it is for that reason that her evidence is unpersuasive and lacking in credibility.
The Tribunal found and was not satisfied that the first applicant’s claims to fear harm in Pakistan are truthful. The Tribunal did not accept the first applicant worked for the WWPML at any time or that she travelled to different parts of Pakistan to teach women about their rights. The Tribunal did not accept the first applicant was asked to participate in military training for the WWPML or that she refused. The Tribunal did not accept the Taliban has ever had any interest in the first applicant or that she has ever been targeted by the Taliban or that she or her father were threatened or that threats have continued in her absence from Pakistan.
The Tribunal found that it had no evidence in relation to an attack on the MQM offices in August 2012. Even if such an attack occurred, the Tribunal did not accept the first applicant was working for MQM or that she was inside the premises at the time of the attack or that the attack was perpetrated as a result of the first applicant’s employment with the WWPML or the MQM.
The Tribunal did not accept the first applicant’s father had received threatening phone calls from the Taliban in relation to the first applicant whilst the first applicant has been in Australia. The Tribunal did not accept the first applicant’s claims that the Taliban had continued to threaten her because they believe she has information about them which she could expose to the United Nations, United States or the MQM. The Tribunal did not accept the second applicant’s claims made to the previously constituted Tribunal that his home in Karachi was searched.
Refugee assessment
The Tribunal was not satisfied that there is a real chance the first applicant will suffer serious harm if she returns to Pakistan as a result of her political opinion, imputed political opinion, or for any Convention reason or that the applicants would suffer serious harm as a result of generalised violence in Pakistan. The Tribunal found the applicants do not have a well-founded fear of persecution for any Convention reason if they returned to Pakistan now or in the reasonably foreseeable future.
The Tribunal was not satisfied that the first applicant is a person in respect of whom this country has protection obligations under s 36(2)(a) or s 36(2)(aa). The Tribunal was not satisfied there is a real risk that the applicants will suffer significant harm if removed from Australia to Pakistan and the Tribunal affirmed the decision under review.
Proceedings before this Court
Nature of the hearing
At the commencement of the hearing today, the Court explained to the first applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or denial of procedural fairness to the applicants. The Court explained that, in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained if it was not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs.
The Court explained that it would have identified the evidence and then hear submissions from the first applicant, and then hear submissions from the solicitor for the first respondent, and then hear submissions from the first applicant in reply. The first applicant confirmed that she understood the nature of the hearing as explained by the Court.
Adjournment application
From the bar table, the first applicant then indicated that she had a headache and was not feeling well and did not want to continue with the hearing. No earlier notice of any application for an adjournment was provided by the first applicant to the first respondent or the Court. The first applicant had no medical material to support any alleged illness. The first applicant indicated that she did not have a Medicare card and could not afford to pay a doctor. It is apparent from the further hearing of the matter that the first applicant was able to meaningfully participate in the hearing.
Nothing said by the first applicant identified any proper basis upon which an adjournment could be said to be necessary in the interests of the administration of justice. The first applicant’s assertion of wanting more time so that she could put on more material is completely lacking in merit in the circumstances where this case was commenced in 2014 and has been adjourned twice, once at the applicants’ request and once as a result of an alleged significance of a decision the subject of appellate review.
The adjournment was opposed by the first respondent. The Court was not satisfied an adjournment was warranted in the interests of the administration of justice. It is for these reasons the adjournment was refused.
Grounds in the application
The grounds in the application are prolix and ultimately do not disclose any jurisdictional error. The Court does not propose to set out the grounds in full but will summarise the reasons why each ground fails to make out any relevant jurisdictional error.
Consideration
Ground 1
Ground 1 is a bare assertion of jurisdictional error which without any particularisation is incapable of establishing an error.
Ground 2
Ground 2 asserts that the decision was unreasonable and that the Tribunal identified the wrong issue or wrong question and was mistaken in its findings. The Tribunal provided logical, rational, and cogent reasons for the adverse credibility findings. Those adverse reasons cannot be said to lack an evident and intelligible justification. The adverse findings were not legally unreasonable.
The applicants’ disagreement with the adverse findings does not identify any jurisdictional error. Further, the Tribunal correctly identified the relevant law and, on the material before the Court correctly identified the relevant questions for the determination of whether the applicants were entitled to protection under the Refugees Convention or on the grounds of complementary protection and made adverse findings dispositive of the applicants’ claims that were open to the Tribunal.
On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with the requirements of procedural fairness in the conduct of the review.
Section 438 certificate
This is a case where there was issued a certificate under s 438(1)(a) in respect of documents that have been put into evidence. Those documents were not relevant to the issues the subject of the review before the Tribunal. The documents cannot be said to be credible, relevant and significant information and did not impact adversely on the applicant’s claims or undermine or negate the applicant’s claims.
There was no practical injustice to the applicant in the conduct of the review by reason of the non-disclosure of the certificate or the documents the subject of the certificate. There was no denial of procedural fairness in the process adopted by the Tribunal in the review in the present case as the documents the subject of the certificate were not relevant. No denial of procedural fairness is made out by reason of the non-disclosure of the certificate or the documents the subject of the certificate. Further, this is a case where the Court is satisfied that the documents the subject of the certificate could not possibly have had an impact on the outcome of the proceedings. In those circumstances, even if there was a relevant error, relief should be withheld on discretionary grounds. No jurisdictional error as alleged in Ground 2 is made out.
Ground 3
Ground 3 is a bare assertion of unreasonableness. The Tribunal’s reasons reflect an orthodox approach to the determination of the applicant’s claims. No jurisdictional error is made out by Ground 3.
Ground 4
Ground 4 is an allegation of bias that appears to be based on the adverse findings made by the Tribunal. The adverse findings by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.
In the present case, the Court has the benefit of the transcript that has been tendered in respect of the review. There is nothing on the face of the transcript or the Tribunal’s reasons to support the conclusion that the Tribunal did other than approach the conduct of the review with an open mind reasonably capable of persuasion as to the merits. It was a proper matter for the Tribunal to explore the applicant’s credit. No jurisdictional error is made out by Ground 4.
Ground 5
Ground 5 is a bare invitation inviting this Court to review the matter and does not disclose any jurisdictional error.
Ground 6
Ground 6 asserts a misunderstanding by the Tribunal of the nature of the WWPML and the MQM. No misunderstanding is apparent on the face of the Tribunal’s reasons. No jurisdictional error is made out by Ground 6.
Ground 7
Ground 7 reflects a disagreement with the adverse finding by the Tribunal and fails to make out any jurisdictional error.
Ground 8
Ground 8, in substance, invites the Court to engage in impermissible merits review. This Court has no power to review the merits. Ground 8 fails to make out any jurisdictional error.
Ground 9
In relation to Ground 9, it is apparent that the Tribunal independently assessed the country information in the applicant’s claims and evidence and properly conducted a review as required under the statutory regime. No jurisdictional error is made out by Ground 9.
Ground 10
Ground 10 reflects a disagreement with the adverse findings by the Tribunal and does not identify any jurisdictional error.
Ground 11
Ground 11 makes an assertion of the failure to take into account the applicants’ evidence. This is, in substance, an invitation to the Court to engage in an impermissible merits review and makes out no jurisdictional error.
Ground 12
Ground 12 fails to identify any jurisdictional error.
Ground 13
Ground 13 equally is an endeavour to invite this Court to engage in an impermissible merits review and fails to make out any jurisdictional error.
Ground 14
Ground 14 puts forward the assertion that the Tribunal member brought to account a personal attitude rather than independently assessing the claim. No proper basis for that assertion is made out for the reasons earlier given. No case of bias or apprehended bias is made out, and there is no basis for the assertion that the Tribunal applied a personal attitude in the determination of the matter. Ground 14 fails to make any jurisdictional error.
Ground 15
Ground 15 makes an assertion of bias again by reason of the adverse findings. For the reasons already given, no such jurisdictional error is made out.
Ground 16
Ground 16 reflects a disagreement with the adverse findings by the Tribunal and does not identify any jurisdictional error.
Ground 17
Ground 17 reflects a disagreement by the applicants with the country information and findings by the Tribunal. It was a matter for the Tribunal which country information to take into account. No jurisdictional error is made out by Ground 17.
Ground 18
Ground 18 reflects a disagreement with the adverse findings and does not identify any jurisdictional error.
Ground 19
Ground 19 takes issue with the adverse credibility findings which for the reasons already given were open. No jurisdictional error is made out by Ground 19.
Ground 20
Ground 20 asserts that the decision was not made independently. There is no basis for the assertion that the Tribunal acted other than impartially and independently in the determination of the review. No inconsistency is identified in the material before the Court in respect of the findings of the Tribunal. No jurisdictional error is made by Ground 20.
Ground 21
Ground 21 again asserts a failure to take into account relevant material by reason of the adverse findings and advances an assertion of personal bias. That allegation is completely without substance. For the reasons already given, no case of bias is made out. No jurisdictional error as alleged in Ground 21 is made out.
Ground 22
Ground 22 reflects a disagreement with the adverse findings and does not identify any jurisdictional error.
Ground 23
Ground 23 again, in substance, invites this Court to engage in impermissible merits review and does not identify jurisdictional error.
Ground 24
Ground 24 reflects a disagreement with the adverse findings by the Tribunal. It was a matter for the Tribunal to determine the applicant’s credit, and no jurisdictional error is made out by Ground 24. Further, there is no misunderstanding on the face of the material before the Court of the applicants’ claims and evidence.
Ground 25
Ground 25 reflects a disagreement with the adverse findings and does not identify any jurisdictional error.
Ground 26
Ground 26 raises an issue in respect of the delegate’s decision in respect of which this Court has no jurisdiction. Further, there is no basis on the face of the material before the Court to support the allegation advanced in Ground 26. No jurisdictional error by the Tribunal is made out by Ground 26.
Ground 27
Ground 27 again reflects a disagreement with the adverse findings and does not identify any jurisdictional error. From the bar table, the first applicant maintained that the Tribunal had not given proper consideration to her claims and evidence. The Tribunal’s reasons reflect a proper consideration of the whole of the first applicant’s claims and the making of dispositive findings that were open to the Tribunal for the reasons given by the Tribunal, which were rational and logical.
The first applicant also submitted from the bar table that she was really upset at the time of the Tribunal hearing and that this may have affected her credibility. This was an issue that was taken into account by the Tribunal in relation to her alleged mental state, and the Tribunal provided logical and rational reasons as to why her alleged mental or medical issues did not adequately explain the lack of credibility in her claims and evidence.
On the face of the material before the Court, the first applicant had a genuine and meaningful hearing before the Tribunal. In reply, the first applicant also submitted that she could not provide documents because she was not feeling well and did not have enough time. This was a hearing before a second Tribunal. The applicants had already failed to succeed before the delegate and an earlier Tribunal, the decision of which was set aside. The applicants had a real and proper opportunity to present documents to the current Tribunal at the hearing on 15 September 2014. Nothing said by the first applicant from the bar table identified any jurisdictional error.
Conclusion
As the application fails to make out any jurisdictional error, the application is dismissed.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 22 January 2018
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