FEDERAL COURT OF AUSTRALIA

SZTYY v Minister for Immigration and Border Protection [2015] FCA 985

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, to be taxed if not agreed.

3.    The title of the Second Respondent be amended to the Administrative Appeals Tribunal.

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

REASONS FOR JUDGMENT

REVISED FROM THE TRANSCRIPT

introduction

1    The appellant appeals today from a judgment of an order of the Federal Circuit Court of Australia which was delivered on 15 May 2015. In that judgment the Court dismissed an application to review a decision of the Refugee Review Tribunal. That tribunal decision was delivered in February 2014. On the hearing today before me, the appellant has indicated that he is suffering from some mental tension as he anticipates undergoing an operation, which is apparently for some shoulder condition or injury. He has handed me some documents referring to a workers compensation claim. Each of those documents post-dates the actual hearing before the Tribunal but there was an issue before the Federal Circuit Court as to whether there was a problem with painkillers during the hearing before the Tribunal. There is no other evidence before me on that topic and I need to consider the fundamental question of whether there are, in any event, arguable grounds of appeal.

BACKGROUND

2    The appellant is a citizen of Pakistan, born in 1956, arriving in this country in 2012. He applied for a protection visa with claims that he feared harm from Sunni fundamentalists in Pakistan as a result of his Shiite faith. He made claims regarding previous harm in submissions attached to his protection visa application. The Tribunal considered those claims. The delegate of the Minister accepted that the appellant was a Shiite Muslim, as claimed, but considered that his profile was not such as would warrant persecution at the hands of Sunni fundamentalists. Consideration was directed to the Convention related criteria.

before the tribunal

3    The appellant was not satisfied with this and so applied to the Tribunal, as was his right, to review the delegate’s decision. In that application before the Tribunal, the appellant gave evidence on 14 January 2014 leading to a Tribunal decision about three weeks later on 5 February 2014.

4    In the Tribunal decision, it identified the issue to be whether the appellant was a member of the Shiite faith and, if he was, whether he would suffer harm if he was returned to Lahore. It found as a fact that the appellant’s level of knowledge about that faith was not consistent with someone who was a member of it and indicated the reasons why it reached that conclusion. The appellant explained to the Tribunal in post-hearing submissions that he was unable to provide the information because he was on painkillers which prevented him from being able to talk about the topic.

5    The Tribunal, as a question of fact, did not accept that contention and, in any event, reached the conclusion that it was not satisfied that he had suffered past harm. The Tribunal expressly found that the appellant was not a credible witness and was not satisfied that it provided evidence which was, in material respects, consistent with the claims that were made. In that regard, in particular, it took into account the first information report which had been submitted but reached an adverse conclusion in relation to that document, finding that the document was not genuine.

6    The Tribunal then went on to take into account whether or not he would be likely to suffer serious harm if returned to Pakistan in the future but, on the basis of reasoning which it set out, concluded that there was no real chance. The Tribunal, therefore, found that there was no real risk he would suffer significant harm and did not meet the complimentary protection requirement under s 36(2)(aa) of the Migration Act 1958 (Cth).

THE FEDERal circuit court

7    The appellant then applied to the Federal Circuit Court. There was a decision of 15 May 2015 of that Court raising quite different grounds of appeal from those which are raised today in this Court. Indeed, at least on one view of the matter, none of the grounds raised today are the same as those raised before the Federal Circuit Court and, while that would present a difficulty for the appellant, I am content, in any event, to approach the grounds raised today on their own merits.

8    The various grounds of appeal which were set out in detail in the judgment of the Federal Circuit Court were examined. In respect of the first of those grounds, in relation to the authenticity of the documents, the Court concluded that the findings reached in relation to authenticity were findings on the facts, merits and findings which were reasonably open to and explained by the Tribunal. More specifically, in relation to the second ground, the Court concluded that the Tribunal had simply failed to accept the account given by the appellant. (And, in relation to that, there was no specific ground of appeal.)

9    On the second and third of the grounds, the Court concluded that there was no evidence or material upon which it could accept that there was an inability to properly participate in the hearing before the Tribunal because of his state of mind, said to be affected by painkillers. Once again, the Federal Circuit Court concluded that the Tribunal was entitled, for reasons reasonably open to it, to reject the reliance upon the taking of painkillers to explain the absence of knowledge which would be expected of a person of the Shiite faith. Accordingly, that ground was rejected.

10    The fourth ground was also examined in the context of the ability to understand the interpreter’s translated questions. Again, the Court was of the view that there was no material before it which would indicate there was any issue of that nature. The Court also examined a ground or claim that the document could be verified from the police department in Pakistan and rejected the contention that there was any arguable claim of jurisdictional error arising in relation to the rejection of the document.

THE APPEAL

11    The appellant now applies, as I say, on different grounds and would need leave of the Court to advance grounds which were not argued before the Federal Circuit Court. He has not, in terms, purported to challenge the specific grounds which were advanced before the Federal Circuit Court. I can deal with the grounds on their face. The grounds of appeal were as follows:

1.    I am under the serious risk of harm if I go back to Pakistan. My claim was undervalued by the Federal Circuit Court and the [Tribunal]. The [Federal Circuit Court] and the [Tribunal] made an error of law in my case.

2.    The [Tribunal] committed an error of law by undervaluing the risk of harm to me and the [Federal Circuit Court] did not give me any relief.

3.    The Honourable Judge did not take into account that I was not represented by a lawyer at the hearing with the Federal Circuit Court and also at the time of preparing the application with the Honourable Court.

4.    The [Federal Circuit Court] did not consider properly that an error of law has occurred in my case and no relief was given to me in this regards.

12    The fifth ground was simply a summary that he appealed against the whole of the decision.

13    The question before the Federal Circuit Court was whether the Tribunal, in reaching its decision, adopted a process which was affected by jurisdictional error. The question for me is whether the approach by the Federal Circuit Court, in reviewing that topic, was affected by appealable error. Regrettably, the grounds of appeal, as I say, do not reflect the grounds relied upon before the Federal Circuit Court and, while I do not intend to approach the issue on some technical basis in that regard, it is, nevertheless, the case that ground 1 and ground 2 that I have cited simply go to an impermissible merits review. Neither raises a question of jurisdictional error on the part of the tribunal, nor a question of appealable error from the Federal Circuit Court. They are totally devoid of any particulars. There was an appropriate assessment by the Federal Circuit Court of the Tribunal’s decision in light of the material which the appellant put before it in relation to the issues then advanced.

14    As to the lack of legal representation which is ground 3, this is a common difficulty that appellants in this area of law confront. But it is well-established that there is no automatic right to legal representation, nor is there an automatic right to an adjournment to seek legal representation, not that one has been sought nor was it sought in the Federal Circuit Court, or at least the ground of appeal does not contend that. This ground cannot be sustained.

15    Ground 4 and ground 5 do not advance any particular complaint which I can consider and simply reflect the appellant’s concern that he has been able to succeed in his claim so far. So it can be seen that none of the grounds of appeal before the Court today, even if leave were granted, could succeed and, in the circumstances, it is inappropriate to grant leave as if leave were granted, the appeal would be dismissed. As leave to advance the new grounds cannot be granted, the appeal must be dismissed.

16    It is necessary, at a technical level, to make an order to amend the name of the Tribunal. Otherwise, for the reasons I have expressed, the appeal will be dismissed and the appellant is to pay the costs of the first respondent, to be taxed if not agreed.

A/Associate:

Dated:    7 September 2015