FEDERAL COURT OF AUSTRALIA
SZUPW v Minister for Immigration and Border Protection [2015] FCA 958
IN THE FEDERAL COURT OF AUSTRALIA | |
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA | |
Appellant | |
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal.
2. The appeal be dismissed.
3. The Appellant is to pay the First Respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
VICTORIA DISTRICT REGISTRY | |
GENERAL DIVISION | NSD 730 of 2015 |
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA | |
BETWEEN: | SZUPW Appellant |
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent |
JUDGE: | DAVIES J |
DATE: | 20 August 2015 |
PLACE: | MELBOURNE |
REASONS FOR JUDGMENT
1 The appellant has appealed the decision of the Federal Circuit Court of Australia (“FCC”) which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the first respondent (“the Minister”) to refuse an application by the appellant for a Protection (Class XA) Visa.
2 The Tribunal was not satisfied that the appellant had provided a credible account of his circumstances in Pakistan and had formed the view that he had contrived his claims in the belief that it would enable him to obtain a protection visa. The appellant, who is a citizen of Pakistan, stated that he was raised as a Sunni Muslim, but converted to Shia Islam. He claimed that the conversion caused conflict with his family and, in addition, attracted the adverse interest of Sunni extremists. The Tribunal accepted that the appellant is a member of a Shia organisation, but did not accept the other claims as credible. Before the FCC, the appellant advanced two grounds in support of his application for judicial review. Both grounds were rejected by the FCC.
3 On appeal, the appellant has raised four grounds of appeal as follows:
1. The Honourable Federal Circuit Court Judge erred in law in deciding my application not finding that the Tribunal did not consider that my life was not in danger for my religious belief as a Shia Muslim prior to my departure from Pakistan.
2. The Honourable Federal Circuit Court Judge erred in law in deciding my application not finding that there was a lack of procedural fairness in the decision of the Refugee Review Tribunal as the Tribunal failed to consider that I am not and will not be in reasonably foreseeable future be at risk of serious harm in Pakistan by religious extremists, the state, or in sectarian violence.
3. The Honourable Federal Circuit Court Judge erred in erred in law in deciding not finding that the Tribunal made a procedural mistake that the Tribunal collected information from the applicant and rejected the information without proper assessment and proof. The Tribunal simply rejected the applicant's claim by saying that the Applicant did not provide a consistent account of circumstances in his matter.
4. The Honourable Judge erred in law in not finding in respect of each of those claims the Tribunal has set out the evidences that it relied upon in reaching its conclusions that it was not satisfied on each particular claim. Each of those conclusions were reasonably open to the Tribunal on the evidence before the Tribunal.
4 None of the grounds were raised before the FCC. The FCC was therefore not in error in not making the findings that the appellant urges this Court to make. The appellant requires the leave of the Court to rely upon the new grounds. Leave is refused for the reasons that follow.
5 Ground 1, in substance, amounts to a challenge to the facts found by the Tribunal and an attempt to seek impermissible merits review. It is clear from the Tribunal’s decision that the Tribunal correctly identified the test that was to be applied, but, having concluded that the appellant’s claims were not credible, dismissed the appellant’s claim on the basis.
6 Ground 2 is misconceived. It appears to conflate procedural fairness with the reasonableness of the Tribunal’s finding. It is clear that the Tribunal did give the appellant proper and adequate opportunity to present his case, including providing the appellant with the further opportunity after the hearing to make further submissions, which the appellant did. It is also clear that the Tribunal did consider whether the appellant would be at risk of serious harm in Pakistan by reason of his religion or any other Convention reason and concluded that such a risk was only remote.
7 Ground 3, similarly, in substance, amounts to a challenge to the findings of fact. It is clear that the Tribunal had regard to the appellant’s claims and the evidence before it, and the findings made by the Tribunal were reasonably and logically available to it on the material. No jurisdictional error is disclosed in the reasoning of the Tribunal by which it reached its conclusion that it did not believe the appellant’s claims.
8 Ground 4 is a little difficult to understand. As to Ground 4, to the extent that, by this ground, the appellant alleges that the Tribunal ought to have reached a different conclusion on the material before it, the findings that the Tribunal made were reasonably and logically open to it on the material before it. In addition, the reasons of the Tribunal sufficiently and adequately set out the basis of reasoning upon which it relied in reaching its conclusion. No jurisdictional error is shown.
9 Accordingly, there would be no utility in granting leave to advance any of these grounds, as none of the grounds have merit.
10 Accordingly, the appeal should 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 Davies. |
Associate:
