FEDERAL COURT OF AUSTRALIA

SZUGL v Minister for Immigration and Border Protection [2015] FCA 868

THE COURT DIRECTS THAT:

1.    The name of the second respondent be changed to Administrative Appeals Tribunal.

THE COURT ORDERS THAT:

2.    The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Buchanan J:

1    The appellant is a citizen of Pakistan. He arrived in Australia on 20 November 2012. At that time, he held a short stay business visa. On 11 December 2012, the appellant applied for a protection visa.

2    The appellant claimed to be a Shia Muslim whose father was shot and killed in November 1999 by five Islamic fundamentalists. He claimed that his father was a Shia preacher and that after his death the family received threatening phone calls requiring that they convert to Sunni Islam. The appellant stated that if he returned to Pakistan he would be targeted and killed due to his religious beliefs and his refusal to convert to Sunni Islam.

3    On 31 July 2013, the application for a protection visa was refused by a delegate of the Minister and the appellant then applied to the Refugee Review Tribunal (“the RRT”) on 16 August 2013 for review of the delegate’s decision.

4    The RRT, on 31 March 2014, affirmed the delegate’s decision not to grant a protection visa. The RRT observed that:

7.    … Even if the applicant received calls after his father’s death, that does not seem to have caused the applicant serious harm in the past as he has not claimed anything happened as a result of these calls and he continued to remain in [location] and according to his application and initial testimony at hearing, he stayed in the same house since birth. …

and

16.    Even if the applicant received calls after his father’s death, the Tribunal is not satisfied that anything has happened as a result of these calls. In addition, given the lack of country information indicating that Shia are targeted in [location] the Tribunal does not accept that the applicant will be targeted by Sipah-e Saba or any other militant group in Pakistan because they want to convert him or because he or his father have been involved in Shia religious events or organisations or because Sipah-e-Saba think he will become a preacher or because he is Shia or because he is seen as holding views against the Taliban’s religious ideologies. The Tribunal finds that the applicant does not face a real chance of serious harm in [location] in the reasonably foreseeable future for these reasons.

5    The RRT also considered whether the appellant was entitled to a protection visa upon “complementary protection” grounds but concluded:

21.    The Tribunal is not satisfied that there are substantial grounds for believing that the applicant faces a real risk of significant harm as a necessary and foreseeable consequence of him being removed from Australia and returned to Pakistan.

6    The appellant challenged the decision of the RRT in the Federal Circuit Court of Australia (“the FCCA”) by an application filed on 23 April 2014. The grounds of that application challenged the findings and assessment of the RRT. However, in order to succeed in his application before the FCCA it was necessary that the appellant show that the RRT had made a jurisdictional error rather than simply challenging the RRT’s assessment of the merits of the appellant’s claim for a protection visa.

7    In support of the grounds for judicial review the appellant filed written submissions but at the hearing before the FCCA he did not make any further oral submissions. These matters were referred to by the FCCA as follows:

16.    At the hearing, the applicant indicated he did not wish to make any oral submissions other than to say that the Tribunal had failed to consider his claim.

17.    The applicant filed written submissions in the Court’s Registry on 5 September 2014. These submissions contain a restatement of the application’s grounds of review, as well as an extensive statement of the applicant’s substantive protection claims.

8    The FCCA considered that it could not have regard to any claims which involved simply a challenge to the merits of the RRT decision. The FCCA said:

24.    Considerable portions of the applicant’s pleaded grounds and written submissions essentially restate or seek to introduce new substantive claims as to the merits of the applicant’s Protection application. These claims seek to engage the Court in impermissible merits review: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272. Accordingly, the Court cannot have regard to these claims.

9    However, the FCCA did go on to deal with particular aspects of the claims that might involve some form of jurisdictional error.

10    One such claim was that the RRT failed to consider a claim that Shia Muslims are being targeted throughout Pakistan. The FCCA’s conclusion about that contention was stated as follows:

28.    The Tribunal accepted sectarian groups were targeting Shias in Pakistan and were active in Punjab. However, as it raised with the applicant and his adviser at the hearing, it had only located one report of violence against Shia in [location] since 2004. The applicant’s adviser was given an opportunity to furnish further evidence and provided a report of a single Shia being killed in April 2013. Ultimately, the Tribunal was not satisfied Shias were being killed on a daily basis in [location].

29.    On a fair reading of the Decision Record and the Court Book, this finding was reasonably open to the Tribunal make for the reasons it gave and on the material before it. It cannot be said that the Tribunal failed to consider the applicant’s claim that Shia Muslims are being targeted in Pakistan and, accordingly, this ground cannot be sustained.

11    Another claim was that the RRT had misued “country information” to which it referred. The FCCA pointed out that a Full Court of this Court in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, said (at [11]):

11    … There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.

12    The FCCA, therefore, rejected any suggestion of jurisdictional error arising from this complaint.

13    The FCCA then referred to claims made by the appellant about his political opinions and pointed out that such claims had not been raised before the delegate or the RRT and could not provide a foundation to submit that the RRT had failed to consider the appellant’s claims as these claims did not arise on the material before it, an approach supported by authority in this Court. The FCCA referred to Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42] and Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; 197 ALR 389 at [22]-[24], [27].

14    The FCCA then dealt separately with the written submissions filed by the appellant on 5 September 2014. For reasons which were explained at [34] to [41] of the decision (SZUGL v Minister for Immigration & Anor [2015] FCCA 565), the FCCA considered that the written submissions did not identify any jurisdictional error. In particular, the FCCA rejected submissions that the RRT failed to consider the appellant’s claims and the evidence he provided in support of those claims.

15    The appellant has now appealed to this Court. The grounds of appeal are:

1.    The applicant’s matter was not dealt with in accordance to law

2.    The applicant’s evidence was not properly heard or applied with regard to criteria required by legislation

3.    The appellant was not afforded natural justice

16    These grounds cannot, in my view, be intended to apply to the proceedings before the FCCA. If they do there is no substance in them. I will assume, in favour of the appellant, that the grounds complain about how his application for a protection visa was dealt with by the RRT. Even upon this assumption, the appeal to this Court cannot succeed because there is no basis upon which to conclude that the FCCA made an error in its analysis.

17    On this occasion no written submission in support of the appeal was filed by the appellant despite a direction that he should do so. At the hearing of the appeal itself the appellant did not wish to add to what appeared in his grounds of appeal and made no oral submission. I accept that negotiating the judicial process may not be an easy task for an unrepresented litigant, and may be particularly challenging for a litigant whose first language is not English (which I will assume in this case). I infer that, in the present case, the appellant wished some further consideration of whether any error was apparent (i.e. error touching upon the jurisdiction and/or powers of the RRT) even if he was not able to articulate a specific error of that kind on his own behalf.

18    However, it must also be borne in mind that the proceeding in this Court is an appeal from the judgment of the FCCA. This Court does not sit at first instance to review decisions of the RRT; Parliament has directed that it may not do so (s 476A of the Migration Act 1958 (Cth)). The primary role of this Court, therefore, is to examine whether appealable error was made by the FCCA, rather than to perform “the trial court’s entire function” (see AAM15 v Minister for Immigration and Border Protection [2015] FCA 804 at [14]).

19    I agree with the FCCA that in substance the appellant’s earlier challenge to the decision of the RRT was a challenge to the assessment by the RRT of the merits of his claim for a protection visa. There is no jurisdictional issue which arises for serious consideration in this Court from that challenge. This Court may not, any more than may the FCCA, enter upon any consideration of the merits of the appellant’s application for a protection visa and there does not appear to me to be any other reason to go behind the decision of the FCCA.

20    As no appealable error in the decision of the FCCA has been established, and as no jurisdictional error otherwise appears in the decision of the RRT, the appeal to this Court must be dismissed. It is appropriate to dismiss it with costs.

Associate:

Dated:    20 August 2015