SZVYB v Minister for Immigration
[2016] FCCA 2179
•25 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVYB v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2179 |
| Catchwords: SHOW CAUSE PROCEDURE – Power not to be exercised lightly – AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 applied – proceeding summarily dismissed. |
| Legislation: Commonwealth of Australia Constitution Act, s.75 Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a) Migration Act 1958 (Cth), ss.36(2), 474, 476 |
| Cases cited: AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 Attorney-General (NSW) v Quin (1990) 170 CLR 1 |
| Applicant: | SZVYB |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3653 of 2014 |
| Judgment of: | Judge Wilson |
| Hearing date: | 27 May 2016 |
| Date of Last Submission: | 27 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 25 August 2016 |
REPRESENTATION
| Applicant in person |
| Solicitor-Advocate for the First Respondent: | Ms C Hillary |
| Solicitors for the First Respondent: | DLA Piper Australia |
ORDERS
Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application filed 31 December 2014 is dismissed.
The applicant pay the costs of the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3653 of 2014
| SZVYB |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By orders made by his Honour Judge Manousaridis on 10 March 2015, this show cause hearing was fixed for 27 May 2016. His Honour requested me to deal with it.
By application filed 31 December 2014, the applicant sought an order that the Minister for Immigration and Border Protection
(“the Minister”) and the Refugee Review Tribunal, now the Administrative Appeals Tribunals (“the Tribunal”), show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“the Act”). The applicant relied on two grounds in seeking the order under s.476 of the Act, namely –
1. The Member of the Tribunal failed to accept my fear of persecution at the hand of the intruders as a lack of persuasive explanation.
2. The Tribunal failed to accept my real risk because he failed to accept and understand the incident and the harm at the hand of the Muslims.[1]
[1] Application filed 31 December 2014 at p.3.
On 10 March 2015, on the first return of this case, his Honour
Judge Manousaridis ordered material to be filed by the applicant and the Minister by certain dates and that the proceeding be dealt with on a show cause basis.
Synopsis
For the reasons that follow I am not satisfied that this application is arguable. Nor am I satisfied that there is any utility in permitting the case to advance beyond this point. In my view, the proceeding must be dismissed under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
Factual setting
On 30 January 2014 the Minister’s department received the applicant’s application for a Protection (Class XA) visa. In his visa application the applicant stated that he left Lebanon “to get away from a group of people who were after me because of my comments and opinions of (sic) what they did to a large cross in my village”.[2] He stated he had experienced harm in that he “was chased and hit and told that I will be killed due to my comments”.[3] He stated several times in his visa application that he believed he would be killed by Muslims by reason of his comments concerning what Muslims did to the cross in his village. He stated that he did not consider Lebanese authorities would protect him if he returned to Lebanon.
[2] Court Book filed 19 February 2015 at p.19.
[3] Court Book filed 19 February 2015 at p.20.
On 21 May 2014 the Minister’s delegate decided to refuse the applicant’s protection visa application.[4] The applicant sought a review of that decision.[5]
[4] Court Book filed 19 February 2015 at pp.50-64.
[5] Court Book filed 19 February 2015 at pp.65-97.
On 12 June 2014 the Tribunal received the applicant’s application for review of the delegate’s decision.[6]
[6] Court Book filed 19 February 2015 at pp.98-100.
On 9 October 2014 the Tribunal invited the applicant to attend before it to give evidence and present argument in relation to the issues arising in respect of the delegate’s decision.[7] The applicant responded in writing to that invitation indicating that he would appear on
7 November 2014 and that he required an Arabic interpreter.[8]
The Tribunal hearing commenced on 8.34 a.m. on 7 November 2014 and concluded at 11.00 a.m. the same day.
[7] Court Book filed 19 February 2015 at pp.101-103.
[8] Court Book filed 19 February 2015 at pp.107-108.
On 5 December 2014 the Tribunal decided to refuse to grant the applicant the protection visa.[9]
[9] Court Book filed 19 February 2015 at pp.122-130.
In its reasons, the points set out below were recorded by the Tribunal.
The Tribunal recorded that -
a)it had considered the delegate’s decision, the applicant’s visa application, various police and other reports explaining the incident that was the subject of the application as well as a statement from a municipal president together with translations of various media reports;
b)the applicant asserted he left Lebanon to get away from a group of people who were after him because of his comments made concerning the desecration of a cross in his village by unknown Muslims;
c)the delegate did not find the applicant to be a credible witness;
d)according to the applicant, on 30 August 2013, the applicant and his friends were picnicking in a field where there was a wooden cross and three men with long black beards pulled down the cross while shouting ‘Allah Akbar’, but that no physical fight ensued and that the three men ran away when the applicant shouted at them;
e)the applicant told the Tribunal that he reinstated the cross in the ground immediately thereafter and contacted the local Mayor who notified the army;
f)according to the applicant, strangers with long beards came to his village after the incident asking who had been in the fields when the cross was reinstated;
g)the applicant stated that “someone must have told the strangers his name” as being the person who dobbed in those strangers to the army;[10]
[10] Court Book filed 19 February 2015, p.125 at [18].
h)the applicant stated that after repeated enquiries from strangers about the applicant’s whereabouts, the applicant’s mother told the applicant he was not safe in the village;
i)the applicant told the Tribunal that the applicant felt unsafe, pointing to his receipt of pamphlets or notes placed on his brother-in-law’s car stating “it’s getting close”;[11]
[11] Court Book filed 19 February 2015, p.126 at [20].
j)the applicant had received no face-to-face threats;
k)the applicant informed the Tribunal that his fears of death came from a telephone call made by his mother to the applicant’s paternal uncle in Australia in which the applicant’s mother told the paternal uncle that if the applicant stayed in Lebanon the applicant would be killed;
l)the applicant told the Tribunal that Muslims were coming to his village, initially because of the applicant, but later, without army support, Muslims could not be controlled;
m)the applicant stated that Muslims still come to his village and ask about his whereabouts and “will not rest before they take revenge”;[12]
n)
the applicant informed the Tribunal that persons who the applicant described as Muslims were “just an armed group”,
that ISIS is there and that “every day you hear a new thing”;[13]
o)the applicant stated he could not relocate within Lebanon because, so the applicant said, there was nowhere in Lebanon where he could go; and
p)when country information was put to the applicant, the applicant told the Tribunal the situation was much worse.
[12] Court Book filed 19 February 2015, p.126 at [22].
[13] Court Book filed 19 February 2015, p.126 at [23].
Between paragraphs 5 and 8 of its reasons,[14] the Tribunal correctly identified the relevant sections of the Act that fell for its consideration.
[14] Court Book filed 19 February 2015 at pp.123-124.
The Tribunal found that the applicant, generally speaking, was an unreliable witness, although the Tribunal accepted certain propositions put by the applicant.
Pausing there, it was entirely proper for the Tribunal to make credibility findings. In fact, the Tribunal was, par excellence best placed to make credibility findings. Similarly, it was open for the Tribunal to accept certain aspects of the applicant’s evidence yet reject other aspects of the applicant’s evidence.
The Tribunal specifically put to the applicant its concerns about aspects of the applicant’s evidence. Those were detailed in paragraph 29 of the Tribunal’s reasons.[15] Similarly, the Tribunal set out in paragraph 30 of its reasons that it found the applicant’s response to it about swearing unconvincing.[16] The Tribunal was entitled to make that finding.
[15] Court Book filed 19 February 2015 at pp.127-128.
[16] Court Book filed 19 February 2015 at p.128.
The Tribunal did not believe the applicant in his assertions about his discovery of three men with black beards pushing over the cross and that the applicant was responsible for notifying the Mayor.
The Tribunal was not satisfied about the fact of there being shooting. The Tribunal rejected as being far-fetched the assertion that strangers came to the applicant’s village every day on a monthly basis.
The Tribunal rejected the applicant’s contention that the applicant fled Lebanon because of a fear of being killed by unknown Muslims.
The Tribunal found that the applicant did not face any real chance of persecution by reason of his religion. The Tribunal found that the applicant did not face a real risk of significant harm arising from his religion. The Tribunal stated that no country information existed suggesting that Maronite Christians in Lebanon were targeted for serious harm. In fact, the Tribunal stated that country information in 2014 indicated that the southern part of the North Governate was calm and secure.
Those factual findings and the conclusion reached by the Tribunal were open. The Tribunal found that the applicant did not have a
well-founded fear of persecution for the purposes of s.36(2)(a) of the Act. The Tribunal found that the applicant did not meet the criteria for the purposes of s.36(2)(aa) of the Act. Those issues were canvassed in paragraphs 42 and 43 of the Tribunal’s reasons.[17]
[17] Court Book filed 19 February 2015 at p.130.
This application
The rules of this Court require me to assess whether the applicant has an arguable case. Beyond relying on the proposition that the
decision-maker was par excellence best placed to assess credibility matters, as was held in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham,[18] the legal representative for the Minister referred to factual matters as found by the Tribunal, contending that those facts as found were entirely open to the Tribunal.
[18] (2000) 168 ALR 407, 423.
I agree.
The two grounds of review advanced by the applicant were not particularised. The applicant asserted that the Tribunal failed to accept his fear of persecution. That much is true. The Tribunal’s basis for the rejection of his assertions concerning fear was very well-considered in my view. In essence, the Tribunal did not believe the applicant.
The applicant under this ground of review wants that issue to be
re-agitated. Doing so is to conduct a merits review. The law does not permit that. Judicial review for jurisdictional error is not concerned with a merits review.
Jurisdictional error
Under the Act, the power to make decisions about matters concerning visas is given to the delegate of the Minister. The Act, and the Regulations made under it, specify the things the delegate is required to take into account when an applicant seeks a visa. Different considerations apply depending on the type of visa the applicant seeks. The underlying intention of this field of the Act is to render decisions made by the delegate impervious to review by courts. That is the import and effect of s.474 of the Act. However, s.474 of the Act is subject to s.75 of the Commonwealth of Australia Constitution Act and must be construed in conformity with established principles of constitutional law. Hence, even though s.474 of the Act purports to mean that a privative clause decision cannot be reviewed, that statutory stipulation will be effective only if the relevant decision is not infected with jurisdictional error. On 27 July 2016, the High Court made observations on privative clauses in Minister for Immigration and Border Protection v SZSSJ.[19]
[19] [2016] HCA 29.
In the passages below I set out (although not exhaustively) the lengths and breadths of administrative decisions that can be reviewed (because they are adversely affected by jurisdictional error) and the administrative decisions that cannot be reviewed (because they are not adversely affected by jurisdictional error).
Judicial review under s.474 of the Act
Section 474 of the Act creates a statutory scheme providing for the finality of a privative clause decision. In essence, s.474(1) of the Act provides that a privative clause decision is final and conclusive and that it cannot be challenged or appealed against, nor can it be reviewed, quashed or called into question in any court. Further, under s.474 of the Act, a privative clause decision is not subject to administrative law remedies of prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
Under s.474(2) of the Act, a “privative clause decision” is a decision of an administrative character made, proposed to be made or required to be made under the Act.
Privative clauses are strictly construed, as was held by the majority (Gaudron, McHugh, Gummow, Kirby and Hayne JJ) in the High Court of Australia in Plaintiff S157/2002 v Commonwealthof Australia[20] (“Plaintiff S157/2002”).
[20] (2003) 211 CLR 476 at [72].
That is because it is fundamental to the rule of law that persons affected by administrative decisions should have access to the courts to challenge those decisions. Gleeson CJ made that point in Minister for Immigration and Multicultural Affairs v Bhardwaj[21] (“Bhardwaj”).
But the point is of considerable veneration as is revealed by Clancy v Butchers’ Shop Employees Union,[22] Hockey v Yelland,[23] Public Service Association (SA) v Federated Clerks Union South Australian Branch and Anor [24] (“Public Service Association (SA)”) and Darling Casino Ltd v NSW Casino Control Authority.[25]
[21] (2002) 209 CLR 597.
[22] (1904) 1 CLR 181, 204.
[23] (1984) 157 CLR 124, 130.
[24] (1991) 173 CLR 132, 160.
[25] (1997) 191 CLR 602, 653.
An administrative decision will not be a valid privative clause decision if the relevant decision is infected with jurisdictional error. That is for the simple reason that an administrative decision which involves jurisdictional error is regarded in law as being no decision at all.
So much was held by the High Court in Bhardwaj.[26]
[26] (2002) 209 CLR 597, 614-615 at [51], 618 at [63] and 614-615 at [152].
The majority in Plaintiff S157/2002[27] held to like effect. Accordingly, an administrative decision made under the Act may be amenable to judicial review if the applicant seeking judicial review can establish that the administrative decision is tainted by jurisdictional error.
[27] (2003) 211 CLR 476 at [76].
The circumstances exhibiting jurisdictional error have been described in a variety of ways. In Craig v State of South Australia[28] (“Craig”) the majority of the High Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) held that jurisdictional error is at its most obvious when the inferior tribunal purports to act wholly or partly outside of the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers.[29] In the same case, it was held that an inferior tribunal can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something it lacks authority to do.[30]
[28] (1995) 184 CLR 163.
[29] (1995) 184 CLR 163 at 177.
[30] Ibid.
Similarly, jurisdictional error will occur where an inferior tribunal disregards or takes into account some matter in circumstances where the statute establishing the tribunal and conferring its power requires that a particular matter be taken into account or ignored as a precondition of the exercise of any authority to make an order or decision in the circumstances of the particular case.[31]
[31] Ibid.
Further, an administrative tribunal will exceed its authority and fall into jurisdictional error if it misconstrues the statute pursuant to which it was created and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of a particular case.[32]
[32] Ibid.
An administrative tribunal falls into error of law amounting to jurisdictional error with the effect of invalidating any order or decision of the tribunal if the tribunal –
a)identifies a wrong issue;
b)asks itself a wrong question;
c)ignores relevant material;
d)relies on irrelevant material; or
e)in some instances, makes an erroneous finding or reaches a mistaken conclusion.[33]
The majority (McHugh Gummow and Hayne JJ) applied that test in the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf.[34] That form of jurisdictional error is to be contrasted with the wrongful failure or refusal to exercise jurisdiction, of which Brennan J spoke in Public Service Association (SA)[35] where Brennan J held that an administrative body misconceives its jurisdiction (and thereby engages in jurisdictional error) where it fails to consider the true question it has to decide.
[33] Craig v State of South Australia (1995) 184 CLR 163.
[34] (2001) 206 CLR 323, 351 at [82].
[35] (1991) 173 CLR 132.
These are illustrations only of the ambit of jurisdictional error.[36] As the High Court in Kirk v Industrial Relations Commission (NSW)[37] held,
it was neither necessary nor possible to attempt to mark the metes and bounds of jurisdictional error as the reasoning in Craig[38] does not provide a rigid taxonomy of jurisdictional error. For that matter, as the High Court held in Minister for Immigration and Citizenship v Li and Anor[39] every statutory discretion is confined by the subject matter, scope and purpose of the legislation under which it is conferred.[40]
That concept was recently applied by the Full Court of the Federal Court of Australia in NBMZ v Minister for Immigration and Border Protection[41] (“NBMZ”).[36] See MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [33].
[37] (2010) 239 CLR 531 at [71] and [73].
[38] (1995) 184 CLR 163.
[39] (2013) 249 CLR 332.
[40] (2013) 249 CLR 332, 348 at [23].
[41] (2014) 220 FCR 1, 33 at [149].
So far as the onus of proving jurisdictional error is concerned,
an applicant seeking judicial review must show that the approach adopted by the Tribunal manifested a legally erroneous view as to what it was about which it needed to be satisfied. The High Court made that observation in Minister for Immigration and Multicultural Affairs v Eshetu.[42]
[42] (1999) 197 CLR 611, 629 at [55].
It has been held that judicial review is concerned with whether the relevant decision was one authorised rather than it providing an appellate procedure enabling either a general review of the relevant decision or a substitution of the decision the court thinks should have been made. As recently as December 2015, the High Court so held in Plaintiff M64/2015 v Minister for Immigration and Border Protection[43] (“Plaintiff M64/2015”). In that case, the High Court approved earlier statements to similar effect in Minister for Aboriginal Affairs v
Peko-Wallsend Ltd[44] and Attorney-General (NSW) v Quin.[45][43] [2015] HCA 50 at [23].
[44] (1986) 162 CLR 24 at 41-42.
[45] (1990) 170 CLR 1 at 45-46.
In the context of administrative decision-making, the High Court instructs that courts are not astute to discerning error where an administrative officer makes a statement in the form of a broad administrative evaluation that was not, and was not intended to be, a statement of reasons in the nature of a judicial decision. Authority for that proposition is Minister for Immigration and Ethnic Affairs v
Wu Shan Liang[46] as well as Plaintiff M64/2015.[47][46] (1996) 185 CLR 259.
[47] [2015] HCA 50.
The Full Court of the Federal Court of Australia held in Collector of Customs v Pozzolanic Enterprises Pty Ltd[48] that the reasons of the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.
[48] (1993) 43 FCR 280 at 287.
More recently, in Minister for Immigration and Citizenshipv SZMDS[49] the High Court of Australia affirmed the observations of Brennan J in Quin[50] when it held that the merits of administrative action, as distinct from the legality of administrative action, are matters for the holder of the relevant power and for that holder alone.
[49] (2010) 240 CLR 611, 619 at [19].
[50] (1990) 170 CLR 1.
Time and again the courts have held that judicial review on the ground of jurisdictional error does not mean undertaking a merits review and that a court, when undertaking judicial review for the demonstration of jurisdictional error is not permitted simply to substitute a different conclusion because the court regards that decision as preferable on the facts.[51] That said, relatively recently the Full Court of the Federal Court of Australia (Allsop CJ, Buchanan and Katzman JJ) in NBMZ[52] held that courts exercising jurisdiction under the Act need to give proper attention to the merits of the application under consideration.
That means the court must “give proper, genuine and realistic consideration to the merits of the case” according to the observations of the High Court in Minister for Immigration and Citizenship
v SZJSS.[53] It seems to me that a court such as this Court can give “proper, genuine and realistic consideration to the merits of the case”[54] without thereby engaging in a merits review.[51] See Minister for Immigration and Ethnic Affairs v GouWei Rong (1997) 191 CLR 559 at 585; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36;[52] (2014) 220 FCR 1, 33 at [151].
[53] (2010) 243 CLR 164, 174 at [26].
[54] Ibid.
Bearing in mind that this Court must not construe the Tribunal’s reasons minutely or finely with an eye keenly attuned to the perception of error[55] and also bearing in mind that this Court must give “proper, genuine and realistic consideration to the merits of the case”[56] and having regard to what I have called the proper encapsulation of the applicant’s grounds of review in this case, it seems to me I must examine the sufficiency of the Tribunal’s treatment of the applicant’s claim to persecution.
[55] Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280.
[56] Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, 174 at [26].
The applicant’s first ground of review cannot be made out. The point is not arguable.
The second ground of review invited a further agitation of the factual information in this case that underpinned the Tribunal’s conclusion that the applicant did not meet the criteria that there was a real risk of significant harm. The applicant’s evidence about serious harm was rejected not only in the general context of his overall credibility but in the specific context of s.36(2)(aa) of the Act. The Tribunal’s observations, relevantly, were at paragraph 43 of its reasons.[57]
[57] Court Book filed 19 February 2015 at p.130.
In my view, no arguable case was disclosed that the Tribunal made jurisdictional error in respect of ground two. This ground was likewise not arguable.
The power of summary dismissal is not to be lightly exercised
In accordance with the observations of the High Court in Spencer v Commonwealth of Australia,[58] the exercise of a power of summary dismissal is not to be exercised lightly. So much was restated as recently as 20 May 2016 by the Full Court of the Federal Court of Australia in AMF15 v Minister for Immigration and Border Protection.[59] I have proceeded with that in mind. By no means have I lightly considered the applicant’s contentions in this case. To the contrary, I have given very serious consideration to the reasoning of the Tribunal.
[58] (2010) 241 CLR 118.
[59] [2016] FCAFC 68.
Outcome of this application
It seems to me that the show cause application has succeeded. I dismiss this proceeding and I order the applicant to pay the costs of the Minister. As the Tribunal filed a submitting appearance, it incurred no costs and no order in respect of its costs will be made.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 25 August 2016
Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 372 at [153]; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-287; Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222, 254 at [105]; SGLB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 176 at [20]; Minister for Immigration and Multicultural and Indigenous Affairsv SGLB (2004) 78 ALJR 992, 1005 at [73].
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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