SZVXS v Minister for Immigration and Border Protection
[2016] FCA 641
•25 May 2016
FEDERAL COURT OF AUSTRALIA
SZVXS v Minister for Immigration and Border Protection [2016] FCA 641
Appeal from: SZVXS v Minister for Immigration and Anor [2016] FCCA 415 File number: NSD 341 of 2016 Judge: PAGONE J Date of judgment: 25 May 2016 Catchwords: MIGRATION – Application for leave to appeal from decision of Federal Circuit Court – Judicial review of Refugee Review Tribunal – No prospects of successful appeal – Application dismissed Legislation: Federal Court of Australia Act 1976 (Cth)
Federal Circuit Court Rules 2001 (Cth)Cases cited: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Minister for Immigration and Multicultural Affairs v Jia; Ex parte White (2001) 205 CLR 507
Re JRL; Ex parte CJL (1986) 161 CLR 342
Date of hearing: 25 May 2016 Date of publication of reasons: 2 June 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 Respondents: Ms Saunders of DLA Piper
Table of Corrections 7 June 2016 The file number on the cover page and orders page has been corrected ORDERS
NSD 341 of 2016 BETWEEN: SZVXS
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
PAGONE J
DATE OF ORDER:
25 MAY 2016
THE COURT ORDERS THAT:
1.The application be dismissed with costs.
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 a decision of the Federal Circuit Court made on 1 March 2016 dismissing, pursuant to rule 44.12(1)(a) of the Federal Circuit Rules 2001 (Cth), an application for judicial review of a decision which had been made by the Refugee Review Tribunal on 5 December 2014.
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. The Federal Circuit Court dismissed the application under that rule on the basis that his Honour was not satisfied that the application raised an arguable case for the relief that the applicant had sought. Leave to appeal from the judgment and orders is required pursuant to s 24(1)(a) of the Federal Court of Australia Act1976 (Cth) because the decision of the Federal Circuit Court was interlocutory.
An application for leave to appeal from an interlocutory judgment requires the applicant to show that there is sufficient doubt as to the correctness of the decision of the judgment below to warrant its 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, 398-9.
The application for leave to appeal was made on 8 March 2016 and was supported by a draft notice of appeal dated 8 March 2016, and by an affidavit made by the applicant sworn on that day. The applicant appeared in person before the Court without legal representation but with the assistance of an interpreter. He was invited to make supplementary submissions in support of his application for leave to appeal.
The draft notice of appeal filed with the application sets out three proposed grounds; namely:
1. AAT member didn’t afford me the procedural fairness.
2. AAT member has bias against me.
3.AAT didn’t give me time to answer questions and stopped me giving evidence, this is unfair.
These are essentially the same grounds as had been relied upon in his application to the Federal Circuit Court. The applicant’s grounds of application to the Federal Circuit Court are set out at [9] in the decision of the Federal Circuit Court as follows:
These proceedings began with a show cause application filed on 24 December 2014. The applicant continues to rely upon that application. The grounds in it are:
1. RRT has bias against me when I say I didn't study in Australia.
2. RRT didn’t give me procedural fairness.
3.RRT asked too many questions in a short time, and I didn’t have enough time to respond and even didn’t remember the questions.
The learned judge also had an affidavit in support of the application before the Federal Circuit Court, and I have an affidavit in support of the application for leave to appeal. The affidavit does not add to the material in the grounds of appeal. It is a short affidavit saying only:
1. I am the applicant and I am authorised to make this affidavit.
2. I wish to apply to the Federal Court to have my case to be reviewed.
3. AAT member has been unfair to me.
4. AAT failed to afford me fairness.
5. AAT didn’t allow me to answer my questions.
6. AAT member didn’t give me time to give my evidence.
7. I wish to have my case to be reviewed by the Federal Court.
8. My case should be remitted for reconsideration.
At the hearing, the applicant was asked whether he wished to add anything to the material in support of his application. He was informed that the task before the Court was to consider whether leave should be granted by reference to the decision from which he sought leave to appeal and in particular by considering the correctness of that decision. The applicant did not add to the material before the Court in the application, the draft notice of appeal and his affidavit. None of the grounds of appeal show sufficient error to justify the grant of leave. The grounds relied upon before the Court are essentially those that were relied upon before the Federal Circuit Court, and there is nothing to support a conclusion that the decision of the Federal Circuit Court was incorrect.
The first ground in his application to this Court (of not being afforded procedural fairness) is the same as the second ground relied upon by the applicant before the Federal Circuit Court. That ground was dealt with by the Federal Circuit Court at [19] when the learned Judge said that the ground was too broad to be meaningful. I agree with that conclusion. The ground does no more than make a general statement with no detail of any procedural error or of any circumstance which might indicate that something should have been done which was not done. Furthermore, it is clear from the reasons of his Honour that the learned Judge asked and invited the applicant to expand upon his claims but that the applicant did not do so.
The second proposed ground of appeal is substantially the same as the first ground that had been relied upon before the Federal Circuit Court, namely, an allegation of bias on the part of the Tribunal. The learned judge dismissed that ground as having been too broad to provide a basis for an appeal. An allegation of bias must be firmly established, distinctly made and clearly proved: Re JRL; Ex parte CJL (1986) 161 CLR 342, 352; and Minister for Immigration and Multicultural Affairs v Jia; Ex parte White (2001) 205 CLR 507, [69]. There is no evidence of bias.
At the hearing in the Federal Circuit Court, his Honour invited the applicant to expand upon his claim of bias. The learned Judge said at [14]:
I asked the applicant to expand upon his assertion of bias. He referred to the Tribunal repeatedly asking him questions in circumstances where he had already explained his reasons for remaining in Australia to the Minister’s delegate. That, however, does not indicate any bias. The applicant had sought review of the delegate’s decision before the Tribunal and the Tribunal appropriately explored the issues with him. When I invited further submissions to the applicant going to the process followed by the Tribunal, he referred instead to what he sees as the unsatisfactory outcome.
The applicant had sought review of the delegate’s decision before the Tribunal and the Tribunal appropriately explored the issues with him. The material fails to establish any bias by the Tribunal. The Tribunal rejected the applicant’s claim, finding that he was not a credible witness and that he had fabricated his evidence. The Judge said at [16]:
The applicant appears to suggest that because he told the Tribunal that he had not successfully completed any course of study in Australia, and that he had not contacted the Department or any other government agency, that the Tribunal was “biased” against him in finding that the applicant wanted to stay in Australia for the long term.
It is clear from what the Tribunal said that it had material upon which it was able to base its conclusions that the applicant was not a credible witness, that he had fabricated his evidence in order to prolong his stay in Australia and that he did not have a well-founded fear of serious harm or persecution in the foreseeable future for a Convention reason.
His third ground in this Court is substantially the same as the third ground which had been relied upon in the Federal Circuit Court. His Honour dismissed this ground, saying at [20] to [22]:
[20]In relation to the allegation that the Tribunal “asked too many questions in a short time and I didn’t have enough time to respond”, 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.
[21]The applicant has not put on a transcript to make good the assertion that the Tribunal asked “too many questions” in a short space of time.
[22] Accordingly, this ground must fail.
(footnotes omitted)
For the same reasons, that ground cannot succeed on appeal to this Court. He was given an opportunity at the hearing to expand upon his reasons and nothing was advanced other than the applicant wishing to have different findings made in his favour.
There is no prospect of an appeal succeeding and there is insufficient doubt as to the correctness of the judgment below to warrant review. 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: 2 June 2016
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