SZVZQ v Minister for Immigration and Border Protection
[2017] FCA 196
•1 March 2017
FEDERAL COURT OF AUSTRALIA
SZVZQ v Minister for Immigration and Border Protection [2017] FCA 196
Appeal from: SZVZQ v Minister for Immigration & Anor [2016] FCCA 2895 File number: NSD 1960 of 2016 Judge: BROMBERG J Date of judgment: 1 March 2017 Catchwords: MIGRATION – Protection (Class XA) visa – appeal from the Federal Circuit Court of Australia (“FCC”) – whether FCC erred in failing to find jurisdictional error in the decision of the Tribunal – no basis for any suggestion that the FCC’s decision was affected by appellable error – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 425, 474 Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129
SZVZQ v Minister for Immigration and Anor [2016] FCCA 2895
Date of hearing: 1 March 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 21 Counsel for the Appellant: The appellant appeared in person assisted by an interpreter Counsel for the First Respondent: Mr P Knowles Solicitor for the First Respondent: Mills Oakley Solicitors Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS
NSD 1960 of 2016 BETWEEN: SZVZQ
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
1 MARCH 2017
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the costs of the first respondent in an amount agreed or as taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
The appellant is a citizen of Jordan who arrived in Australia in September 2013 on a tourist visa. In November 2013, the appellant lodged an application for a Protection (Class XA) visa (“the visa”). On 26 March 2014, a delegate of the first respondent (“Minister”) refused the appellant’s application. On 22 December 2014, the Refugee Review Tribunal, a predecessor of the second respondent (“Tribunal”), affirmed the delegate’s decision. The appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court. The subject of this appeal is the primary judge’s dismissal of that application on 27 October 2016. The primary judge’s judgment is published as SZVZQ v Minister for Immigration and Anor [2016] FCCA 2895.
The primary judge’s task was to determine whether the Tribunal’s decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth) (“Migration Act”); and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. The task of this Court is to determine whether the primary judge’s judgment is affected by appellable error: SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ).
The claims made by the appellant are adequately set out in the judgment of the primary judge at [4]–[5]. The appellant told the Tribunal that there were several reasons he left Jordan. First, the war in Syria; second, economic conditions in Jordan; and third that he was a member of the Al Fadeela political party. The Tribunal recorded that the appellant claimed that he had organised a few peaceful public protests and began to feel that he was targeted. The appellant had claimed that he received verbal threats from government officials and was beaten by the police during some protests, that he had been denied medical treatment and that he feared he would be further targeted and persecuted. He also believed that he had been put on a “black list” because of his involvement with the opposition, and further, that he would be unable to find employment and provide for his family if he returned to Jordan. The Tribunal noted that in the appellant’s interview with the Minister’s delegate, he also claimed that he had reported an illegal shipment of cigarettes and other corrupt activities to the authorities and that the person who he had reported (“smuggler”) knew that and was now looking for him.
In its decision, the Tribunal considered the credibility of the appellant. Although the Tribunal accepted some specific claims, the Tribunal found that, generally, the appellant was an unreliable witness.
The Tribunal accepted that the appellant was born in Jordan and accepted his education and his work history in the Jordanian police force. The Tribunal then addressed each of the specific claims made by the appellant. The Tribunal did not accept that the appellant left Jordan because of the war in Syria. In any event, the Tribunal did not accept that the appellant faced harm if he returned to Jordan because of the war in Syria. The Tribunal considered the appellant’s claims about economic difficulties. It accepted that there were economic difficulties for Jordanians generally. However, the Tribunal did not accept that the appellant faced serious harm amounting to persecution in the reasonably foreseeable future if he returned to Jordan because of the economic conditions there.
The Tribunal then considered the appellant’s claims about his membership of Al Fadeela. It noted the absence of country information in support of the appellant’s claims. It found that Al Fadeela appeared to have virtually no public profile. The Tribunal came to the view that the lack of a profile for Al Fadeela militated against a finding that the appellant was targeted by Jordanian Intelligence (“GID”) because of his membership of that party. The Tribunal held that the appellant occupied no leadership or other position of authority in Al Fadeela. The Tribunal also found that the appellant had only a vague and generalised idea of that party’s activities.
The Tribunal accepted that the appellant had participated in two protests involving Al Fadeela. Based on the appellant’s evidence, however, the Tribunal found that neither the appellant nor Al Fadeela had organised any protests, and that some of the individual members of Al Fadeela, including the appellant, had joined marches or protests organised by others. The Tribunal accepted that the appellant was detained and confined after a protest in September 2012, but did not consider that this had occurred because of the appellant’s membership of Al Fadeela. Importantly, the Tribunal did not accept that the appellant was a figure of any interest to the authorities or the GID. That was because, according to the appellant, he had been able to participate in protests after his release from detention in 2012, and had no further encounters with police or GID before he came to Australia.
The Tribunal did not accept the appellant’s account of a fear that the smuggler would seek him out for retribution. The Tribunal considered the appellant’s claim that he had reported an illegal shipment of cigarettes and other corrupt activities, and, in particular, his account of fear in relation to that claim, to be farfetched on the basis that his evidence was superficial and unconvincing.
In summary, the Tribunal found that there was not a real chance that the appellant would suffer serious harm amounting to persecution by reason of any of the claims made by the appellant. The Tribunal concluded that the appellant was not a person in respect of whom Australia has protection obligations under the Refugee Convention.
Before the primary judge, the appellant raised one ground. That was that the Tribunal had misunderstood his fear of persecution and had failed to accept that his suffering and what had happened to him amounted to serious harm. That ground was unparticularised. The appellant was invited to address that ground in oral submissions. In doing so, the primary judge recorded in her reasons, the appellant conceded that his concern was that he did not agree with the Tribunal’s conclusion rather than an assertion that the Tribunal had misunderstood his claims. The primary judge found nothing in the material before the court to support the appellant’s contention that the Tribunal had misunderstood the appellant’s claims or failed to consider any integer of those claims.
The primary judge observed that it appeared, on the material before the Court, that the Tribunal had considered all the claims made by the appellant. Her Honour rejected the appellant’s contention that the Tribunal had misunderstood the appellant’s claims in a manner constituting or giving rise to jurisdictional error. The primary judge noted that insofar as the appellant disagreed with the Tribunal’s conclusions, he was merely seeking merits review. The primary judge considered that the Tribunal’s findings were reasonably open on the material before the Tribunal for the reasons which it gave. At [25], the primary judge said this:
In particular, it cannot be said that the Tribunal findings on the material before it were findings at which no rational or logical decision-maker could arrive on the same evidence. As the First Respondent submitted, reasonable minds may differ on the findings made, but legal unreasonableness is not made out. The Tribunal provided evident, intelligible and logical reasons why it did not accept aspects of the Applicant’s claims. The only ground in the Applicant’s application is not made out.
The primary judge also noted that in submissions in reply the appellant raised for the first time a claim that he had been confused, lacked the ability to express himself and did not know what he was saying before the Tribunal. The primary judge addressed that matter, observing that the assertion was not of itself sufficient to establish jurisdictional error. The primary judge recorded that there was no transcript of the Tribunal hearing before the court to support any contention that the appellant was denied a meaningful opportunity to participate in the hearing, as required under s 425 of the Migration Act. The primary judge also found that there was no evidence before the court to support any proposition that the appellant was not fit to participate in the Tribunal hearing. The primary judge concluded that, as no jurisdictional error had been established, the application before the Federal Circuit Court had to be dismissed.
In this appeal from the dismissal of the judicial review application before the Federal Circuit Court, the appellant raises two, but in truth one, ground of appeal. The appellant’s grounds of appeal record that his application was refused. The grounds then assert that the primary judge misunderstood the appellant’s fear of harm and the appellant’s circumstances. As the Minister’s written submissions correctly record, the grounds of appeal do not articulate any misunderstanding on the part of the primary judge.
The appellant, who was unrepresented, appeared before me and made submissions assisted by an interpreter. Much of what the appellant said in his submissions was directed to a review of the merits of the various claims made by the appellant before the Tribunal. When I directed the appellant to identify what error he was asserting the Tribunal or the Federal Circuit Court had made, the appellant made two assertions. First, that the Tribunal member had failed to understand his case and second, that the Federal Circuit Court had not been fair to him.
I will deal with the second matter first. Other than making that assertion, the appellant failed to particularise the manner in which any unfairness was occasioned in relation to the hearing before the Federal Circuit Court. Neither the reasons of the primary judge, nor anything put to me by the appellant suggest any unfairness to the appellant by the primary judge.
As to the first matter asserted, that the Tribunal member failed to understand the appellant’s case, there were two matters that the appellant pointed to in his submissions. The first related to an asserted misunderstanding by the Tribunal of the claim that he feared retribution from the smuggler. Why the appellant suggests that that claim was misunderstood is not particularly clear to me. It is apparent, as the Minister pointed out, that that claim had been put differently before the delegate than the way in which it was put before the Tribunal. Ultimately, the Tribunal rejected the claim because the Tribunal considered the account given by the appellant to be farfetched as his evidence was superficial and unconvincing. The Tribunal found that virtually no details had been given of the incident and considered it unlikely in the extreme that the smuggler would seek to harm the appellant on return.
Those conclusions were open to the Tribunal to have made. There is nothing that I can see in the material before me to suggest that the claim was misunderstood. I am not satisfied that the primary judge erred in failing to identify jurisdictional error in relation to the appellant’s alleged fear of retribution from the smuggler.
The second matter raised by the appellant in support of the assertion that the Tribunal had failed to understand his case related to the claim made by the appellant of his membership and activities with Al Fadeela. As the Tribunal had noted in its decision, the appellant had made inconsistent statements about who held leadership positions within Al Fadeela and the size of the membership of that party. Those inconsistencies were in part relied upon by the Tribunal in coming to its view that the appellant was, generally, an unreliable witness.
The appellant sought to explain that the inconsistencies may have been based in his own mistakes, including the possibility that his mistakes were based on mental health difficulties. None of that is of assistance to the appellant. First, as the primary judge correctly concluded, the appellant’s claims that he had been confused or lacked the ability to express himself did not establish jurisdictional error. There was no evidence before the primary judge, nor any evidence before me, to support any proposition that the appellant was not fit to participate in the Tribunal hearing. The primary judge correctly concluded that there was no basis to support a contention that the appellant had not been given a meaningful opportunity to participate in the hearing before the Tribunal as required under s 425 of the Migration Act. Second, and in any event, the fundamental reason that the appellant’s claims relating to Al Fadeela were rejected was the Tribunal’s conclusion, unchallenged before the primary judge and unchallenged before me, that Al Fadeela had virtually no public profile and that, by reason of the appellant’s activities with Al Fadeela, the appellant would not be a figure of any interest to the authorities or to the GID.
Beyond the matters raised by the appellant, I have carefully considered the reasons of the primary judge and can see no basis for any suggestion that the primary judge’s judgment is affected by appellable error.
For those reasons, the appeal must be dismissed.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate:
Dated: 17 March 2017