SZUTC v Minister for Immigration & Border Protection
[2014] FCCA 2901
•5 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUTC & ANOR v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 2901 |
| 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) rr.44.12, 44.13 |
| Cases Cited: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 |
| First Applicant: | SZUTC |
| Second Applicant: | SZUTD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1983 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 5 December 2014 |
| Date of Last Submission: | 5 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2014 |
REPRESENTATION
| The applicants appeared in person with the assistance of an interpreter. |
| Solicitors for the Respondents: | Mr Andras Markus (Australian Government Solicitor) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1983 of 2014
| SZUTC |
First Applicant
| SZUTD |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 16 July 2014, the applicant filed an application in this Court seeking judicial review of a decision of the Refugee Review Tribunal dated 26 June 2014 (“the Tribunal”).
The first named applicant (“the Applicant”) appeared before me at a directions hearing on 4 November 2014 on behalf of herself and the second named applicant. On that occasion, I explained to the Applicant that this court has no power to interfere with a decision of the Tribunal unless this court is satisfied that the decision is affected by a mistake that go to its jurisdiction. I also explained to the Applicant that the grounds of her application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this court.
I explained to the applicant that under the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), if her application does not raise an arguable case for the relief claimed, her application may be dismissed forthwith pursuant to the Rules. I also explained to the Applicant the cost consequences that may flow to her if she was unsuccessful. The Applicant confirmed that she wished to continue with her application. For that reason, the Applicant was given an opportunity to file and serve an Amended Application and evidence and submissions in support of her application.
The Applicant was also provided with the contact details of legal services providers and translating and interpreting services in documents headed in her own language, together with a copy of the costs schedule to which I had referred and a copy of r.44.12 of the Rules, pursuant to which the matter was set down for hearing today.
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.”
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 Applicant was unrepresented before the Court this morning, although had the assistance of an Urdu interpreter.
The Applicant filed an affidavit on 21 November 2014, sworn or affirmed by her on 20 November 2014, purporting to annex a transcript of the Tribunal hearing completed by her daughter. The first respondent’s solicitor, Mr Markus, did not object to the Applicant’s affidavit for the purposes of the show cause hearing today. However, the Applicant made no submissions to this Court as to the relevance of that document as supportive of her application to this Court for judicial review of the Tribunal’s decision.
The Applicant confirmed that she relied on the grounds of her application filed on 16 July 2014. Those grounds are as follows:
“1. The Refugee Review Tribunal Member made her opinion that she did not accept me telling the truth. Her mind was affected and bias.
2. The Tribunal did not understand my fear and my daughter’s fear to return back to Pakistan.”
Each of the grounds was interpreted for the Applicant and the Applicant was invited to say whatever she wished in support of those grounds. The Applicant said that she and her daughter were alone and that their lives would be in danger if returned to Pakistan, and that the Tribunal had refused a request by her for more time to provide evidence in support of the applicant’s application before the Tribunal.
The Applicant also said that she had wanted to let the Tribunal know what had happened to her in the past. The Applicant said nothing further about the refusal by the Tribunal for more time. I accept Mr Markus’ submission that the Applicant was referring to a request by her, dated 23 May 2014, in a document titled “Request for Access to Written Material Held by the Tribunal”. That document formed part of a bundle of documents identified as Relevant Documents, filed on 25 November 2014, and marked Exhibit 1R.
There is a handwritten note on that request that states, “Please provide copies of the file and extension of time to reply to the letter dated 20 May. Please give us the copy of the CD.”
On 20 May 2014, the Tribunal wrote to the applicants inviting them to comment or respond to information that may be the reason or part of the reason for affirming the decision under review.
On 28 May 2014, the Tribunal wrote to the Applicant referring to the applicants’ request for an extension of time to provide comments or response to the Tribunal’s letter dated 20 May 2014.
The Tribunal noted that it had considered that request. However, the Tribunal decided not to grant an extension of time as no reasons were provided by the applicants to support the request and that any comment or response was to be received by the Tribunal by 12 June 2014, as advised in the Tribunal’s letter dated 20 May 2014.
On 3 June 2014, the Tribunal provided to the applicant the documents requested by her on 23 May 2014, and on 11 June 2014, the applicant responded to the Tribunal’s letter dated 20 May 2014. That response did not make any further reference to any further request by the Applicant for further time for any reason.
There is nothing in the manner in which the Tribunal dealt with the Applicant’s request for further time to reply to the letter that would suggest that the Tribunal’s refusal to provide time beyond 12 June 2014 was not a proper exercise of the Tribunal’s discretion.
In any event, the applicant replied to that letter within time, and the letter was considered and referred to by the Tribunal in its decision record.
The first respondent summarised the Tribunal’s decision record in written submissions filed on 28 November 2011. Those submissions accurately summarise the decision of the Tribunal. Those submissions are as follows:
“The first applicant is the mother of the second applicant, who is a girl of 16 years of age, and is thus a minor. They are nationals of Pakistan.
On 4 April 2013, the applicants applied for Protection (Class XA) visas (the visas) as dependent members of the family of the first applicant’s husband (the husband), who made protection claims as the primary visa applicant[1].
[1] Relevant Documents (RD) 1-43
On 10 September 2013, a Minister’s delegate refused to grant the visas[2].
[2] RD 52-65
On 18 September 2013, the husband and the applicants applied for review of the Minister’s delegate’s decision to the Tribunal[3].
[3] RD 68-74
Shortly thereafter, on 23 September 2014, the husband departed Australia[4]. The applicants continued to pursue their review rights before the Tribunal.
[4] RD 80
On 16 May 2014, the applicants appeared at a hearing before the Tribunal[5]. Both applicants gave evidence.
On 26 June 2014, the Tribunal affirmed the delegate’s decision[6].
Protection claims
At the Tribunal hearing, the Tribunal received the first applicant’s written claims for protection[7]. In summary, she claimed to fear harm from the Shia and Sunni Muslim communities because she is a Shia and she married the husband, who is a Sunni. She claimed to have been attacked several times by her family members because they were against the marriage. She fears harm from the husband, who has four other wives and killed one of them. She fears harm due to having two failed marriages (the second to the husband). She also fears harm from her first husband, a drug addict, who has threatened to take away the second applicant from her (he is the biological father of the second applicant).
Tribunal decision
The Tribunal considered whether the husband’s claims engaged Australia’s protection obligations in s 36(2) of the Act, and decided that they did not. The Tribunal noted that the husband had not attended the Tribunal hearing to which he had been invited, and considered that there was a lack of essential information that could enable it to reach the requisite state of satisfaction for s 36(2) of the Act[8].
The Tribunal then considered the first applicant’s claims. It found that she was not a witness of truth[9]. At [45] and [46] of the decision[10], the Tribunal set out why it came to this conclusion. Those matters were:
That the asserted dispute between the Shia and Sunni communities as a result of the husband’s conversion from Sunni to Shia was not credible. This was for two reasons. First, the husband had written in his application for a protection visa that he was a Shia Muslim, and did not mention that he had converted from Sunni to Shia (as the first applicant claimed) or that he was targeted because of his conversion. Second, the Tribunal considered the claim that the conflict between the communities arose two and a half years after their marriage to be without credit. The Tribunal specifically rejected the applicant’s explanation that the conflict began at that time because this was when the marriage was discovered, referring to the first applicant’s own evidence that she married the husband because she was treated badly by society due to her status as a single woman[11].
The first applicant’s evidence as to when she discovered that the husband had multiple wives and children was inconsistent with the second’s applicant’s oral evidence. The Tribunal also found that she ought to have had more precise knowledge as to when she discovered that the husband was already married and had other children, given that this was the claimed source of friction in their relationship. The inconsistencies between the applicants’ oral evidence regarding the time of discovery of the husband’s other wives and children, and the first applicant’s changing explanations for these inconsistencies, led the Tribunal to conclude that she was not being truthful in her evidence[12]. The Tribunal did not accept that either the first or second applicants have been targeted in the past or that they will be targeted either by the Sunni or Shia communities in the future.
[5] RD 91
[6] RD 128-144
[7] RD 93-95
[8] RD 141 [40]-[43]
[9] RD 142 [47]
[10] RD 141-142
[11] RD 141-142 [45]
[12] RD 142 [46]
The Tribunal accordingly rejected the first applicant’s claims regarding the husband, that is, that he was a Sunni who converted to Shia, that this led to a conflict between the Sunni and Shia communities and that she was targeted as a result, or that she had been attacked by her family[13].
The Tribunal also rejected the claim that the first applicant’s first husband sought custody of the second applicant on the basis of contrary information contained in an earlier tourist visa application[14], and also rejected the contention that the applicants would be at risk of harm because the first applicant would be without work or livelihood.[15]
Citing country information about the lower level of generalised and sectarian violence against the Shia community in the Punjab relative to the rest of Pakistan, the Tribunal concluded that the first applicant would not face a real chance of harm in the reasonably foreseeable future because she is a Shia if she were to return to Lahore.[16]
Having made credibility findings as to the first applicant’s claims about the second applicant’s biological father and about her relationship with the husband, the Tribunal did not accept the claims that the second applicant was at risk of harm from her natural father or arising from her mother’s marriage to the husband.[17]
[13] RD 142 [47]
[14] RD 143 [48]
[15] RD 143 [49]-[50]
[16] RD 143 [51]
[17] RD 143 [52]
The Tribunal concluded that the applicants did not engage subsections 36(2)(a) or (aa) of the Act.”
Ground 1 asserts that the Tribunal did not accept that the Applicant was telling the truth, and that the Tribunal was biased. The Applicant confirmed to the Court that her allegation of bias was based on the fact that the Tribunal member did not accept that she was telling the truth.
It is well established that the Tribunal 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 Tribunal 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).
A claim of bias is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the Applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (See Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision does not appear to suggest that the Tribunal approached its task other than with a mind open to persuasion. There does not appear to be any evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
In the circumstances, the Applicant’s allegation of bias on the part of the Tribunal would not appear to be capable of establishing jurisdictional error on the part of the Tribunal. In Ground 2, the applicant asserts that the Tribunal did not understand her fear and her daughter’s fear to return to Pakistan. The applicant said nothing further to explain that ground.
Either the complaint in Ground 2 would appear to be no more than a disagreement with the findings and conclusions of the Tribunal. Ground 2 is purporting to assert that there was some claim not dealt with by the Tribunal.
A fair reading of the Tribunal’s decision would not appear to support either allegation made by the applicant that the Tribunal did not understand the claims made by her or her daughter. Given that the applicant did not identify any claim which the Tribunal which she asserted the Tribunal had failed to consider. In my view, Ground 2 is more in the nature of a disagreement with the findings and conclusions of the Tribunal. Such disagreement invites merits review which this court cannot undertake (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).
Otherwise, the Tribunal’s findings and conclusions would appear to be open to it on the evidence and material before it and for the reasons it gave.
At the end of the submissions made by the solicitor for the first respondent, the Applicant was invited to say whatever she wished in response. The Applicant said she needed more time to seek legal advice. To the extent that I understood that request to be a request for an adjournment of today’s hearing, that application was opposed by the first respondent and refused by me, having regard to the many months that the applicant has had to seek that advice.
Whilst I make no final decision as to whether or not the Tribunal’s decision is affected by jurisdictional error, none is apparent on the face of the decision record, and none has been raised by the applicant.
In the circumstances, I am not satisfied that the application before this Court has raised an arguable case for the relief claimed.
Accordingly, the proceeding before this court should be dismissed pursuant to r.44.12 of the Rules with costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 10 December 2014
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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