SZVEC v Minister for Immigration and Border Protection
[2016] FCA 120
•17 February 2016
FEDERAL COURT OF AUSTRALIA
SZVEC v Minister for Immigration and Border Protection [2016] FCA 120
Appeal from: Application for leave to appeal: SZVEC v Minister for Immigration & Anor [2015] FCCA 2690 File number: NSD 1229 of 2015 Judge: PAGONE J Date of judgment: 17 February 2016 Catchwords: MIGRATION – application for leave to appeal from Federal Circuit Court – whether decision attended by sufficient doubt to warrant reconsideration – whether substantial injustice would be suffered if leave refused Legislation: Federal Circuit Court Rules 2001 (Cth) rr 44.12(1), 44.12(2)
Federal Court of Australia Act 1976 (Cth) s 24(1A)
Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa)
Cases cited: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Date of hearing: 17 February 2016 Date of publication of reasons: 18 February 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 10 Counsel for the Applicant: The applicant appeared in person assisted by an interpreter Counsel for the First Respondent: Ms A Wong of DLA Piper Australia Counsel for the Second Respondent: The second respondent filed a submitting notice ORDERS
NSD 1229 of 2015 BETWEEN: SZVEC
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
PAGONE J
DATE OF ORDER:
17 FEBRUARY 2016
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondents’ costs in a sum to be agreed or otherwise to be taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)PAGONE J:
This is an application for leave to appeal from the judgment and orders of Judge Driver dated 1 October 2015. Judge Driver dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). Rule 44.12 provides:
44.12 Show cause hearing
(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.
Sub-rule 44.12(2) makes clear that the dismissal of an application under sub-rule 44.12(1)(a) is interlocutory. Judge Driver dismissed the application under sub-rule 44.12(1)(a) on the basis that his Honour was not satisfied that the application raised an arguable case for the relief claimed. Leave to appeal from the judgment and orders is required pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth).
An application for leave to appeal from an interlocutory judgment requires an applicant to show that there is sufficient doubt as to the correctness of the judgment below to warrant review and that substantial injustice would be suffered by an applicant if leave were refused assuming the judgment to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. The application for leave to appeal contains no grounds upon which an application for leave could be based. Under the heading “Grounds of Application” there are four paragraphs stating why leave to appeal is needed but nothing that could be regarded as grounds for the application. The accompanying affidavit is to the same effect, but written submissions were filed by the appellant dated 8 February 2016 which contain a number of submissions challenging the correctness of the decision of the Federal Circuit Court. It is not easy to identify grounds of appeal from those written submissions but the Minister has sought to extract what might be grounds of appeal from those written submissions. A fair reading of the written submissions is capable of indicating what might be grounds of appeal that could be raised if leave were granted. For present purposes it may be assumed that the written submissions contain what ought to have been in the grounds seeking leave to appeal or draft notice of appeal and supported by the accompanying affidavit.
The written submissions complain that the decision of the Tribunal considered by Judge Driver “took a wrong issue to assess [the] claim”. That was similar to ground 2 relied upon by the applicant in his challenge from the decision of the Tribunal to the Federal Circuit Court. In paragraph [22] of the decision of the Federal Circuit Court his Honour said:
The second ground of review alleges that the Tribunal failed to assess the applicant’s claim for protection. The applicant provides quotes from the Tribunal’s decision record.
His Honour considered this ground and concluded at [26] that it had no foundation:
With respect to [2] of the applicant’s submissions, the Minister submits that the Tribunal understood that the main issue before it was whether the applicant met the criteria set out s.36(2)(a) or s.36(2)(aa) of the Migration Act. In so far as the applicant alleges that the Tribunal “knew” that there would be discrepancies in the applicant’s evidence, there is no basis for the applicant’s assertion. Further, the role of the Tribunal is to be an inquisitorial body. The inquisitorial nature of the Tribunal's proceedings must be taken into account, such that the Tribunal is necessarily required to test an applicant's evidence, often vigorously. [Footnotes omitted]
There is no foundation to the submission that either the Tribunal, or the Federal Circuit Court, misunderstood the main issue to be determined. It was whether the applicant had met the criteria set out in s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth). That is correctly recorded in paragraph [26] of his Honour’s decision quoted above.
The written submissions also contend that the applicant was unable to express himself well before the Tribunal and that this fact had not been considered by the Court. This claim, however, was expressly considered by Judge Driver and was decided adversely to the applicant. His Honour said at [15]:
In his oral submissions, the applicant said that he would like a further opportunity before the Tribunal because he was concerned that he did not give a good account of himself at the Tribunal hearing. He said he was nervous and that he was not able to express himself well. The Tribunal decision records that although the applicant was provided with an Urdu speaking interpreter, he addressed the Tribunal mostly in English. The applicant confirmed to me that he speaks, reads and writes English and Hindi in addition to Urdu, but that Urdu is his first language. He said that while he is generally proficient in English, his knowledge is limited and that he was somewhat reluctant to put his speech through the interpreter at the Tribunal hearing because she was female. While that may have been so, the applicant did not raise any concern about the interpreter with either the Tribunal or his migration agent. He confirmed that to me in his oral submissions. There is nothing in the available material to suggest to me that the applicant suffered any particular disadvantage because of the limited extent to which he chose to use the Urdu interpreter at the Tribunal hearing.
There is no reason to find error in his Honour’s conclusion or to accept the submission that his Honour had not considered a complaint that the applicant had not been able to express himself well before the Tribunal.
The applicant’s written submissions next claim that he did not have an opportunity to have his statement of claim “in his hand” when the Tribunal was asking him about his statement of claim. That had been ground 1 identified by Judge Driver at [18]-[21]:
18.The applicant alleges that the Tribunal applied “excessive jurisdiction” and that the applicant did not have an opportunity to have his statement of claim “in his hand” when the Tribunal was asking the applicant about his statement of claim.
19.At [12] of its reasons the Tribunal found that the applicant provided inconsistent evidence in relation to what the police said to the applicant and his brother when detained. At [13]-[14] the Tribunal put to the applicant that he had provided inconsistent evidence about dates of important events.
20.The Tribunal’s findings at [12] and [14] were open for the Tribunal to make, based on the applicant's evidence, and for the reasons it gave.
21.The Tribunal is under no obligation to allow the applicant to have his statement before him when giving evidence. [Footnotes omitted]
His Honour’s conclusion at paragraph [21] that the Tribunal had no obligation to allow the applicant to have his statement before him when giving evidence was not erroneous and nothing in the written submissions establishes the contrary.
The written submissions also contend that his Honour was in error in upholding the Tribunal’s reliance upon evidence that the applicant had provided to the delegate. At paragraph [25] his Honour said:
The Tribunal set out the applicant’s claims as was put to the delegate at [8] and [24]. It otherwise relied upon the applicant's evidence given to the delegate to conclude that the applicant changed his evidence before the Tribunal. The Tribunal was entitled to rely upon the evidence that the applicant provided to the delegate and, furthermore, that there is nothing in its decision to show that its findings were not independent of the delegate's decision. Contrary to the applicant’s allegation that there was no evidence before the Tribunal that the applicant was not a credible witness, the Tribunal found that the applicant had a poor demeanour as a witness and provided inconsistent evidence. [Footnotes omitted]
His Honour went on to observe in [26] that the Tribunal’s proceedings were inquisitorial in nature and “necessarily required [it] to test an applicant’s evidence, often vigorously”. His Honour was correct in expressing that view and in upholding the Tribunal’s reliance upon evidence which had been provided by the applicant to the Minister’s delegate.
The applicant contends that the Court “wrongly accepted that the Tribunal found that the applicant had a poor demeanour as [a] witness and provided inconsistent evidence”. The applicant’s written submissions contended that this was a wrong finding by the Tribunal. In paragraph [25] his Honour referred to the Tribunal’s finding to that effect. The Tribunal was empowered to make findings about the demeanour of the witness when giving evidence. It was for the Tribunal to make findings about the consistency and reliability of the evidence that was given by the applicant. The Federal Circuit Court was correct to refer to what the Tribunal had done within its power and there is no basis for me to conclude either that the Tribunal or that the Court was wrong in any respect.
The applicant’s written submissions also complain that the Tribunal had not acted independently and that its decision “was a template and was not fair”. A similar complaint had been made before Judge Driver as recorded in paragraph [27]. His Honour dismissed this complaint at [28]-[30]:
28.The first difficulty with the argument about the “template” nature of the reasons is that there is no evidence that the Tribunal used any template. It may be accepted that the format of the reasons is one that is commonly used by the Tribunal: the reasons are divided into sections (application for review, relevant law, findings, conclusions). These headings may be understood as providing a guide to the Tribunal in each case as to how best to comply with the obligations under s.430(1) of the Migration Act. However, there is nothing to suggest that any of the findings themselves were “template” or, in other words, precisely the same as findings in other cases. It would be difficult to draw that conclusion in light of the constant reference to the particular facts and evidence that were before the Tribunal and the particular sub-headings beneath “findings”.
29.The second difficulty with this argument is that, even if template reasoning were applied, that would, of itself, be insufficient to support a conclusion that there was a reasonable apprehension of bias.
30.It seems to me that the applicant's real complaint is about the outcome before the Tribunal rather than any issue of process before the Tribunal. While the applicant is concerned about that outcome and would like a further opportunity, no arguable case of jurisdictional error has been advanced. [Footnotes omitted]
Nothing in the applicant’s written submissions require a finding that his Honour was wrong in these conclusions expressed in these paragraphs.
The applicant was asked if he wished to say anything in addition to the matters that had been filed by him but nothing has been said that would require a grant of leave. I am satisfied that the test for the grant of leave has not been satisfied, that there is not sufficient doubt as to the correctness of the judgment below to warrant review and that, assuming the judgment to be wrong, there would not be substantial injustice suffered by the applicant if leave were refused.
Accordingly, the application will be dismissed.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate:
Dated: 17 February 2016
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