SZVYK v Minister for Immigration and Border Protection
[2015] FCA 1044
•22 September 2015
FEDERAL COURT OF AUSTRALIA
SZVYK v Minister for Immigration and Border Protection [2015] FCA 1044
Citation: SZVYK v Minister for Immigration and Border Protection [2015] FCA 1044 Appeal from: Application for leave to appeal: SZVYK v Minister for Immigration & Border Protection & Anor [2015] FCCA 764 Parties: SZVYK v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 325 of 2015 Judge: MCKERRACHER J Date of judgment: 22 September 2015 Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1A)
Federal Court Rules 2001 (Cth) r 44.12(1)(a)Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
House v The King (1936) 55 CLR 499
Minister for Immigration and Citizenship v Li (2013) 249 CLR 33
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425Date of hearing: 6 August 2015 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 20 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Ms B Rayment Solicitor for the First Respondent: Mills Oakley Lawyers Solicitor for the Second Respondent: The Second Respondent submits to any order of the Court, save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 325 of 2015
BETWEEN: SZVYK
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
22 SEPTEMBER 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The Applicant is to pay the First Respondent's costs, to be taxed if not agreed.
3.The name of the Second Respondent be changed to the ‘Administrative Appeals Tribunal’.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 325 of 2015
BETWEEN: SZVYK
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MCKERRACHER J
DATE:
22 SEPTEMBER 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant seeks leave to appeal from a decision of the Federal Circuit Court of Australia by which a judge dismissed his application for judicial review of a decision of the Refugee Review Tribunal, which affirmed the decision of a delegate of the Minister to refuse to grant him a Protection (Class XA) visa.
Her Honour dismissed the application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) on the basis that the application did not raise an arguable case. As that dismissal was interlocutory in nature, the applicant requires leave to appeal that decision pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth).
The Tribunal set out the claims, evidence and issues in some detail in 13 paragraphs. Shortly stated for present purposes, however, the applicant is a Nepalese citizen who applied for a protection visa on 26 July 2013, claiming to fear harm from Maoists and criminal groups in Nepal. He claimed that he had experienced threats, harassment and extortion in connection with his political opinion in support of the monarchy and the Rastriya Prajatantra Party (RPP).
In the oral hearing before me, through an interpreter he complained of a number of things, primarily that the Tribunal did not believe him. He also complained that the Tribunal did not refer to the fact that he complained about the disappearance of his sister, but that topic is specifically addressed by the Tribunal in [5] of its reasons.
Notwithstanding the Tribunal’s comprehensive consideration of the applicant’s claim to fear harm in Nepal, it did not accept that his evidence was ‘reliable or truthful’ in relation to significant issues. The Tribunal concluded in its 31 page decision that it was unable to be satisfied of the central claims that he had advanced in support of his alleged fear of harm in Nepal. It identified several concerns in relation to the applicant’s evidence as to his circumstances. Examples of this include:
(a)the applicant’s evidence to the Tribunal was that shortly after his sister disappeared, he and his mother approached the police, the Kathmandu municipality and a human rights organisation to report her disappearance. He said they left their contact details, but no one contacted them. They did not follow up, he said, with these organisations and had not heard anything for ten years. The applicant explained that he suspected that his sister was ‘maybe overseas’. The Tribunal considered it to be ‘doubtful that, if the applicant’s sister disappeared in the circumstances claimed, he and his mother would not have done more to follow up’ the initial inquiries (at [16]);
(b)the applicant’s evidence that his family business was taken over by the Maoists was found by the Tribunal (at [17]) to be ‘vague and unconvincing’. The applicant claimed to have worked in the family business for almost 20 years, but did know whether the business was registered to his father’s or in his sister’s name. Further, his failure to ‘demonstrate any particular efforts or inquiries on his part in respect of the property’, were said to cast some doubt on the overall reliability of the applicant’s claims and evidence; and
(c)the Tribunal found (at [19]) that the applicant was unaware of significant recent events affecting the RPP despite his claimed involvement with the party. He was also unable to recall in oral evidence the timeframes for events of past harm that were specified in his written statement.
In the Tribunal’s detailed assessment, it was not satisfied that ‘the applicant was, is or intends to be in the reasonably foreseeable future, a member or active member of the [RPP] or any political party or movement’ in Nepal (at [22]). It rejected his claims of past harm. It was not satisfied that he or his family had been targeted for extortion. It was not satisfied that he or his family had been harmed by Maoists as he had claimed (at [23]-[32]).
The Tribunal also went on to consider country information from the Department of Foreign Affairs and Trade and other independent reports about threats and abductions in Nepal. In addition to the findings in relation to credit, the Tribunal was not satisfied that the applicant faced a real chance of being subject to extortion or harm in any way in Nepal in the reasonably foreseeable future by Maoists, criminals or anyone else for reason of his actual or perceived business interests or his actual or perceived political involvement or for any other reason (at [39]). The Tribunal summarised those findings as being ‘significant cumulative concerns’, and found that the applicant did not face a real chance of serious or significant harm. The applicant’s application was dismissed by the Tribunal due to the adverse view the Tribunal formed in respect of central aspects of the applicant’s claims for protection, and the lack of support in the independent country information for other claims he advanced. In short, the applicant lost on the basis of adverse credit findings.
BEFORE THE FEDERAL CIRCUIT COURT
On seeking judicial review, there were four grounds of review examined by the primary judge.
Her Honour fairly characterised the three grounds of the applicant’s initiating application as being a complaint that the Tribunal was biased against him. Her Honour found (at [21]-[22]) that the allegation of apprehended bias was not supported by the Tribunal’s decision record or the available evidence before the Court. Her Honour refused the applicant’s adjournment for more time to obtain a recording of the Tribunal hearing on the basis that he had already had ample time and opportunity to obtain and file evidence in support of the case (at [15] and [17]). Her Honour’s refusal on those grounds, were, as the Minister submits, an ‘evident and intelligible justification’ within the meaning of Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 per Hayne, Kiefel and Bell JJ (at [76]). The primary judge also inquired as to whether the applicant wished to give evidence about the matters that had concerned him, but he declined this opportunity (at [17]). Her Honour was entitled, in accordance with conventional legal principles and relevant authorities, to reject the applicant’s claim of bias.
The applicant made further complaints before her Honour as to incorrect factual findings, and this failure of the Tribunal to adequately consider independent information. These complaints were of a general nature and her Honour was justified in concluding (at [28]) that they lacked particulars and, in substance, did no more than invite the Court to engage in impermissible merits review of the Tribunal’s decision.
On that basis, her Honour concluded that the applicant had failed to establish an arguable case for the relief claimed, and dismissed his application with costs.
BEFORE THIS COURT
In order to succeed in an application for leave to appeal, an applicant is required to establish that, in all the circumstances of the case, a decision is attended by sufficient doubt to warrant it being reconsidered, in this case, by the Full Court and, secondly, that substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. It may be assumed that there would be substantial injustice if leave were refused if the decision were wrong.
The three grounds advanced in the draft notice of appeal are as follows:
1.The Federal Circuit Court erred by expressing reluctance to find that the Tribunal’s decision in relation to my case was taken in breach of procedural fairness and natural justice.
2.I am a victim of the Tribunal Member’s arbitrary views on my claims and evidence. I argue that as a result, the Tribunal Member’s decision has been affected by apprehended bias.
3.It is argued that the Tribunal Member simply ignored my claims and evidence because the Tribunal Member made its mind not to believe me at all and did not consider and address my claims appropriately with procedural fairness and good faith.
For reasons which follow, the applicant cannot establish that the decision is attended by sufficient doubt to warrant it being reconsidered. The applicant, of course, was unable to argue his application at a technical level, but it is clear that he has not established that the primary judge acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect her, mistook the facts, or failed to take into account a material consideration or reached a result that was plainly unreasonable or unjust: House v The King (1936) 55 CLR 499. To the contrary, her Honour’s approach was entirely conventional, appropriate and the reasoning by the Tribunal, equally, was entirely apposite and detailed.
I accept the submission for the Minister that there is nothing in the Tribunal’s reasons for decision or its approach to suggest that the order of the primary judge dismissing the application for review was attended by any doubt. Specifically, the foreshadowed grounds of appeal cannot, for the reasons which follow, succeed.
As to the first of the grounds, no particulars were provided. When I explored that in oral submissions before me, this topic was expanded upon slightly, but not in any fashion which would support any confidence that there would be any prospect of establishing a breach of procedural fairness or natural justice. The primary complaint was very clearly that the Tribunal failed to accept his account of events.
As to ground 2 and ground 3, these are simply complaints which lack any meaningful detail, particulars or substantiation.
The suggestion of bias before the primary judge was quite unsustained. It is well-established that bias is a serious allegation of that must be firmly and distinctly made and clearly proven. It is a rare case in which a court will find a decision-maker has breached the natural justice hearing rule by exhibiting bias simply upon the outcome and reasoning provided by the decision-maker.
This is one of the clearer cases where the Tribunal had serious concerns about credibility. The Tribunal was entitled to put the apparently evolving nature of the applicant’s evidence to him at the hearing. The Tribunal is entitled and, indeed, obliged to test the evidence presented and may need to do so at times with some vigour so as to enable the applicant to squarely deal with any concerns the Tribunal may have: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 per Gleeson CJ, Gaudron and Gummow JJ (at [30]).
The application for leave to appeal will be dismissed. The applicant must pay the costs. The following orders are made:
1.The application for leave to appeal be dismissed.
2.The Applicant is to pay the First Respondent's costs, to be taxed if not agreed.
3.The name of the Second Respondent be changed to the 'Administrative Appeals Tribunal'.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 22 September 2015
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