SZVGF v Minister for Immigration
[2016] FCCA 1285
•9 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVGF v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1285 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – Protection (Class XA) visa – merits review – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424A, 424AA, 425, 476 Federal Circuit Court Rules 2001 (Cth), rr. 1.06, 44.12, 44.13 |
| Cases cited: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 Xie v Immigration Department [1999] FCA 365 Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214 Saeed v Minister for Immigration & Citizenship [2009] FCAFC 41; (2009) 176 FCR 53 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) FCR 415 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 |
| Applicant: | SZVGF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2798 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 9 May 2016 |
| Date of Last Submission: | 9 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 9 May 2016 |
REPRESENTATION
| Applicant: | In Person |
| Solicitors for the Respondents: | Ms Nicole Maddocks of DLA Piper Australia |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 8 October 2014 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $3416.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2798 of 2014
| SZVGF |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Extempore; Revised from Transcript)
I have before me today an application made on 8 October 2014, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision made by the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 10 September 2014, which affirmed the decision of the Minister’s delegate to refuse a protection (Class XA) visa to the applicant.
The evidence before the Court is contained in a bundle of relevant documents (“the Court Book” – “CB”) filed by the Minister in these proceedings. From that material, the following background is relevant.
Background
The applicant is a citizen of Pakistan. He arrived in Australia as the holder of a business visa on 18 May 2013. He applied for a protection visa on 28 June 2013 (CB 1 – CB 35) His claims to protection were initially set out in an attached written statement (CB 35).
The applicant claimed to fear harm on return to Pakistan because he said he was on a “hit list” of terrorists (CB 36). The applicant claimed that this was because he refused to assist them. Nonetheless, the police in Pakistan subsequently interrogated the applicant because of his contact with the terrorists. In turn, the terrorists thought that he had cooperated with the police and that he had given information to the police, about them.
The Minister’s delegate refused the application for the visa on 14 February 2014 (CB 42 - CB 53). The delegate’s decision record is in evidence before the Court. The delegate did not accept the applicant’s claims as to his past experiences and rejected the applicant’s claims “in their entirety” (CB 51). The reason for the delegate’s conclusion was his view of the applicant’s evidence, which was found to be variously internally inconsistent, lacking in any explanation for these inconsistencies, lacking detail and spontaneity, and what was said to be the applicant’s repeated failure to leave the country of claimed harm when a lawful and safe means of departure became available to him (CB 50 – CB 51).
The applicant applied to the Tribunal for review of the delegate’s decision on 4 March 2014 (CB 57 to CB 62). He attended a hearing before the Tribunal on 20 August 2014 (CB 87). The Tribunal affirmed the delegate’s decision.
The key finding made by the Tribunal was that the applicant was not a credible or truthful witness ([14] at CB 99). It found that the applicant’s evidence showed “a propensity to fabricate claims and tailor and shift his evidence in a manner which achieves his own purpose” ([21] at CB 101).
The Tribunal rejected the entirety of the applicant’s claimed factual account of what he said had occurred in his home country. It gave reasons for its adverse credibility findings which informed that rejection. The Tribunal found the applicant’s evidence to be vague and unpersuasive, implausible and unconvincing, to be “different” in various key accounts, and lacking in explanation for these inconsistencies and differences ([15] – [18] at CB 99 to CB 101).
Further, the Tribunal found that the applicant did not provide a satisfactory explanation as to why he delayed in leaving Pakistan after obtaining a visa to do so, in circumstances where the applicant claimed to the Tribunal that he had a genuine fear of harm ([19] – [20] at CB 100 to CB 101).
The Tribunal rejected the entire factual basis of the applicant’s claims to fear harm and found that he did not satisfy either of the criteria at s.36(2) of the Act for the grant of a protection visa.
Consideration
The grounds of the application to the Court are in the following terms. First, as follows:
(1) The Tribunal rejected my application on the basis of evidenc[e] are not satisfactory that terrorist’s were attempting to recruit me in their gang.
Second, the applicant also sets out two further grounds, although these are said to be in relation to an application for an extension of time within which to bring these proceedings to this Court. Given that the applicant did apply within the time required by the Act, these two additional grounds should be properly considered as part of the applicant’s substantive application. These are:
(2) The Tribunal rejected my application and said that the evidences you provided are vague although these evidences are good enough (evidences about attempting to recruit).
(3) The Tribunal made an objection and said that why it took 4 weeks to leave the country although I had strong reas[on].
[Errors in original]
The applicant had appeared before the Court on two previous occasions, 5 November 2014, and subsequently 13 May 2015. In this matter, the Minister has consistently asserted that the grounds as presented, which remain without amendment despite the opportunity given to the applicant, are so lacking in merit that the application should be summarily dismissed. The matter was set down for a show cause hearing today by a Registrar of the Federal Court (r.44.12 of the Federal Circuit Court Rules 2001 (Cth)).
The applicant appeared in person before the Court today. He was assisted by an interpreter in the appropriate language. Essentially, he raised three matters before the Court. First, that his claims before the Tribunal were genuine and that he wanted another opportunity to submit his claims to the Tribunal. Second, that his family, which he explained was his six children in Pakistan, were in trouble. Third, since coming to Australia he had developed diabetes. The applicant confirmed that he had not sought legal advice, either in the making of his application to the Court or subsequently.
The issue before the Court is whether the grounds of the application raise an arguable case for the relief sought. I note in this regard that the applicant seeks orders that the Tribunal's decision be quashed and returned to it for reconsideration.
If the Court cannot be satisfied that an arguable case is raised against the respondent the application will be dismissed. It is the case that the Court's power in this regard, should be exercised with great caution. Given the summary nature of any such dismissal the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, especially at [8] - [9], Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3] - [6], Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552) or it is a hopeless case that would fail if it were to go to a final hearing (Xie v Immigration Department [1999] FCA 365).
What must be said is that all of the grounds of the application, in reality, seek impermissible merits review. The applicant seeks to cavil with the factual findings made by the Tribunal which were reasonably open to it on what was before it. On the evidence that is before the Court, the Tribunal gave cogent reasons for its decision which was probative of the material, that is, the evidence that was before it.
Grounds (1) and (3), as I have styled them, seek to complain about the Tribunal’s view of the applicant’s evidence. In the circumstances, this can only be understood as a reference to the oral evidence that the applicant gave to the Tribunal. This is because there is a lack of any evidence that the applicant submitted any documents to the Tribunal.
As the Minister correctly submits in my view, the weight to be given to any item of evidence and the degree of weight, if any, that the Tribunal gives, is for the Tribunal to determine within the proper exercise of its jurisdiction. I can only agree with the Minister’s submissions that grounds (1) and (3) and, for that matter, ground (2), really seek to complain about the Tribunal’s adverse findings as to the credibility of the applicant’s evidence and his claims. In the circumstances, the Tribunal’s adverse findings in relation to the applicant’s credibility, and the findings that informed this conclusion, were all findings of fact within jurisdiction. No legal error is revealed where such findings are reasonably open to the Tribunal on what was before it. Therefore, in the circumstances, no arguable case is raised in this regard.
The applicant also specifically complains in ground (2) about the Tribunal’s finding concerning the applicant’s delay in leaving Pakistan, and what the Tribunal found was the lack of a satisfactory explanation from the applicant for this. The Tribunal found, in essence, that such delay was inimical to a genuine fear of harm. Again, this is simply a disagreement by the applicant with factual findings reasonably open to the Tribunal. No arguable case is revealed in circumstances where the Tribunal finds that his explanation was not sufficient to explain the delay.
None of the grounds of the application raise any legally arguable case for the relief that the applicant seeks. It is the case that, in a show cause hearing, that is, in a hearing pursuant to r.44.12 of the Court’s Rules, r.44.13(1) provides that, at such a hearing, the applicant is confined to the relief that he seeks and the grounds mentioned in the application that he has put before the Court. On this basis, the application should be dismissed.
Nor can I see that there is anything that the applicant has said to the Court today, or in the evidence before the Court, to cause the Court to consider whether the application of r.44.13 should be dispensed with, pursuant to r.1.06 of this Court’s Rules, in the interests of justice.
Turning first to the matters the applicant raised with the Court. The assertion that his claims before the Tribunal were “genuine” is again a repetition of the complaint about the Tribunal’s adverse credibility finding. It does not raise any legally arguable case in the circumstances. The matter of the applicant’s family, and his six children, was a part of the factual matrix before the Tribunal. However, it is not a claim, nor was it a basis of a claim, to fear either serious or significant harm in relation to the applicant or, for that matter, the children. It is to be remembered that the applicant’s claims before the Tribunal were centred on the matter of his claimed fear of the terrorists and the police.
The third matter raised by the applicant today, his diabetes, was not a matter raised before the Tribunal. Therefore, it cannot be said to raise an arguable case for the relief that he seeks.
Nor can I see, on the evidence before the Court, any basis to cause the Court to consider whether r.44.13(1) should be dispensed with. This is a case, as the Minister submits, to which Division 4 of Part 7 of the Act operates as the exhaustive statement of the natural justice hearing rule in relation to the matters that are dealt with in that division (Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214; Saeed v Minister for Immigration & Citizenship [2009] FCAFC 41; (2009) 176 FCR 53).
In this regard, the applicant was invited to a hearing pursuant to s.425 of the Act. There is nothing in the evidence before the Court to indicate that this was not a meaningful opportunity for the applicant to give his evidence and arguments. The only account of what occurred at the hearing before the Tribunal is contained in the Tribunal’s various references in its decision record. These reveal that the issues in the review were exposed at the hearing (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152). Although the applicant could have been in no doubt following the delegate’s decision that his entire factual account underpinning his claimed fear was a live issue.
Nor can I see that the Tribunal failed to meet any obligation pursuant to s.424A(1) of the Act. The information provided by the applicant in writing to the delegate, and the information given to the Tribunal, are all exempt from the obligation in s.424A(1) by the operation of s.424A(3)(ba) and (b), respectively.
I note in part that the Tribunal relied on information given by the applicant at the interview with the delegate. Such information, given orally, does not fall within any of the exceptions in s.424A(3) of the Act. However, as set out at [17] of the Tribunal’s decision record, the Tribunal relied on the facility provided by s.424AA to discharge that relevant obligation (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415). I note in this regard that the reference by the Tribunal to having put to the applicant certain evidence that he had given to the delegate under s.424A, on a fair reading, should be read as being under s.424AA.
The Tribunal’s adverse view of the applicant’s credibility, its subjective assessment, and its view of his evidence, is not information for the purposes of s.424A (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [17] – [18]).
In all, therefore the Tribunal considered all of the applicant’s claims, as they were ultimately presented to it. The applicant was given a fair and meaningful opportunity at a hearing to explain his claims. He would have known, following the delegate’s decision, that the credibility of the factual basis of his claims were at issue. The Tribunal’s conclusion, and the findings that informed that conclusion, were all reasonably open to it on what was before it. In the absence of any indication of an arguable legal error, and on the basis that the grounds of the application are so lacking in merit that they do not raise an arguable case, then the application must be dismissed pursuant to r.44.12(1)(a). I will make the appropriate order.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 30 May 2016