FEDERAL COURT OF AUSTRALIA

SZVGF v Minister for Immigration and Border Protection [2016] FCA 882

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal filed on 17 May 2016 be dismissed.

2.    The applicant pay the first respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

Introduction

1    The applicant seeks leave to appeal from a judgment and order of the Federal Circuit Court of Australia (the FCCA) delivered on 9 May 2016 (SZVGF v Minister for Immigration and Border Protection [2016] FCCA 1285) (SZVGF). The FCCA dismissed the applicant’s application for judicial review of a decision of the then Refugee Review Tribunal (now the Administrative Appeals Tribunal (the Tribunal)) pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (FCCA rules). Under that provision, at a hearing of an application for an order to show cause, the Court may dismiss the application if it is not satisfied that the application has raised an arguable case for the relief claimed.

2    The two proposed grounds of appeal are as follows (without alteration, noting that the reference to “FM” is an apparent reference to Federal Magistrate (sic)):

1.    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claims and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

2.    The learned Judge dismissed the application without considering the legal and factual errors contained in the decision of the AAT.

Summary of background facts

3    The applicant is a citizen of Pakistan. He arrived in Australia on 18 May 2013 holding a Subclass FA-600 Business visa (the visa). He applied for a Protection (class XA) visa on 28 June 2013 and claimed that he feared persecution in Pakistan from both police and terrorists because he said he was on a terrorist hit list.

4    The application was refused by the Minister’s delegate, which decision was affirmed on appeal by the Tribunal. At both levels there were strong adverse findings concerning the applicant’s credibility. The Tribunal did not accept his claim that he was approached or targeted by terrorists or anyone else for recruitment, nor that he was asked by anyone to pay donations, nor that he or members of his family were harmed or threatened by any group or individual in Pakistan for any reason. The Tribunal rejected the applicant’s claim that he travelled to Malaysia because of his fears of harm, nor did it accept that he returned to Pakistan because his family was being threatened. The applicant’s claims that he had relocated to Chiniot or Karachi to avoid harm were also rejected, as also was his claim that he and members of his family in Pakistan were the subject of adverse interest. Finally, the Tribunal did not accept the applicant’s claim that he was questioned by Pakistani authorities because they suspected him of harbouring information about terrorists – it did not accept that those authorities, including the police, had an adverse interest in him.

5    The Tribunal found that the applicant’s evidence was “vague and unpersuasive”, “highly implausible and unconvincing”, contained inconsistencies which cast doubt on the credibility of his claims, involved discrepancies which he was unable to explain, involved explanations which did not satisfactorily address his delay of more than two months in leaving Pakistan after he had been granted a visa to travel to Malaysia and that he was unable satisfactorily to explain why he delayed for more than a month after obtaining his Australian visa before he left Pakistan.

6    In the light of these matters, the Tribunal concluded that it did not find the applicant to be a credible and truthful witness and that the totality of his evidence revealed “a propensity to fabricate claims and tailor and shift his evidence in a manner which achieves his own purpose”.

7    In his judicial review application in the FCCA, the applicant raised the following three grounds (without alteration):

1.    The Tribunal rejected my application and said that the evidences you provided are vague although these evidences are good enough (evidences about attempting to recruit).

2.    The Tribunal made an objection and said that why it took 4 weeks to leave the country although I had strong reasons.

3.    The Tribunal rejected my application on the basis of evidences are not satisfactory that terrorists were attempting to recruit me in their gang.    

8    In his ex tempore judgment, the primary judge dismissed the judicial review proceeding on the basis that the matters raised by the applicant in his judicial review application, oral submissions and evidence failed to raise an arguable case for the relief sought.

9    His Honour said that all the judicial review grounds sought an impermissible merits review. As to grounds 1 and 3, which were directed to the Tribunal’s view of his evidence, the primary judge found that, since there was no documentary evidence, this had to be a reference to the applicant’s oral evidence to the Tribunal. The primary judge found that the weight to be given to such evidence was for the Tribunal to determine and that the Tribunal’s adverse findings concerning his credibility, together with related findings, were all findings of fact which were within the Tribunal’s jurisdiction.

10    As to ground 2, which related to the Tribunal’s finding that there was a lack of a satisfactory explanation by the applicant as to why he delayed leaving Pakistan in circumstances where that was inimical to a genuine fear of harm, the primary judge found that the applicant’s challenge related to an adverse factual finding which was reasonably open to the Tribunal and no arguable case was presented on a judicial review.

11    The primary judge also found that there was no arguable case that the Tribunal had failed to comply with s 424A(1) of the Migration Act 1958 (Cth) (the Migration Act). In particular, his Honour found that the information provided by the applicant in writing to the delegate as well as the information given to the Tribunal were exempt by operation of ss 424A(3)(ba) and (b) respectively.

Disposition of the application to leave to appeal

12    On 18 May 2016, directions were made which included a direction that the applicant file and serve a written outline of submissions ten business days before the hearing date. The applicant failed to comply with this direction. The Minister filed an outline of written submissions dated 26 July 2016.

13    The day before the hearing was scheduled to commence, the Minister’s solicitors forwarded to the Court a copy of a facsimile letter which they had received from the applicant on 29 July 2016. The letter comprised a health certificate dated 29 July 2016 from Dr Maung Win from Your Health Griffith Pty Ltd. The certificate certified that the applicant was receiving certain medical treatment and “is not suitable to travel with his current situation to distance location (sic)”. The Court granted leave for the applicant to appear by telephone, as requested by the Minister. The applicant was advised by the Registry by email and telephone on 2 August 2016 that the hearing would proceed the following day at 10:15 am and that he could appear by telephone.

14    When the matter was called on for hearing, the applicant appeared for himself and was assisted by an interpreter. He made an oral application for the hearing to be adjourned, stating that he was suffering from diabetes and could not concentrate. He relied upon the medical certificate dated 29 July 2016.

15    The Minister opposed the application. The application was refused on the following grounds:

(a)    the applicant has known since 18 May 2016 that the hearing would proceed during the August Full Court sittings;

(b)    he was contacted by the Minister’s solicitors on 26 July 2016 and reminded that the hearing was listed for today at 10:15 am;

(c)    it was this letter which presumably caused the applicant to obtain the medical certificate;

(d)    the medical certificate was silent on the applicant’s capacity to participate in the hearing – it merely stated that in the medical practitioner’s opinion he was not suitable to travel to a distant location; and

(e)    the applicant provided no further medical evidence to indicate that he could not participate in the hearing by telephone.

16    The applicant then spoke briefly to each of the two proposed grounds of appeal. As to the first, he said that he is a diabetic patient and that circumstances in Pakistan had worsened.

17    In relation to proposed ground 2, the applicant submitted that the primary judge had not taken into account how bad the circumstances were in Pakistan and that his family was in trouble there.

18    The Minister contended that both the proposed grounds of appeal lacked merit, such that leave should be refused. As to proposed ground 1, the Minister drew attention to the Tribunal’s findings that the applicant was not a credible witness and that the entirety of his claims had been rejected. Accordingly, the Tribunal concluded there was no real chance that the applicant would be harmed if he returned to Pakistan and thus he lacked a well-founded fear of persecution. Having regard to these factual findings, there was no basis for the applicant’s contention that the Tribunal had acted unreasonably and misapplied s 91R of the Migration Act.

19    As to proposed ground 2, the Minister submitted that the ground was unparticularised and lacked any meaningful content and that any incorrect factual findings would not of themselves give rise to jurisdictional error. Moreover, the Minister contended that the primary judge’s reasons did not disclose any legal error in his conclusion that he was not satisfied that the applicant had an arguable case involving jurisdictional error on the part of the Tribunal.

Disposition of the application

20    In my view, the applicant has failed to establish any arguable appealable error in the primary judge’s summary dismissal of his judicial review application such as to warrant a grant of leave to appeal.

21    It is well established that in a case involving leave to appeal from an interlocutory judgment, it is incumbent on the application to show that there is sufficient doubt as to the correctness of the judgment below to warrant review and, further, that if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused.

22    The fundamental difficulty confronting the applicant is his failure to identify any doubt about the correctness of those aspects of the primary judgment which are the subject of his two proposed grounds of appeal. His Honour’s reasons for concluding that none of the three grounds of judicial review below was arguable are summarised above. The applicant has failed to satisfy me that he has an arguable case that the primary judge’s general finding that he was seeking an impermissible merits review was wrong. No arguable error has been established in relation to what his Honour said regarding the applicant’s challenge to the Tribunal’s factual findings, including that those findings were reasonably open to the Tribunal on the evidence before it. Nor has any arguable error been identified in relation to the primary judge’s finding that the weight to be given to the evidence was a matter for the Tribunal and that the Tribunal’s adverse findings, including in relation to the applicant’s credibility, were all findings of fact and within jurisdiction. Similarly, no arguable error has been established in respect of the primary judge’s characterisation of the applicant’s challenge to the Tribunal findings regarding the lack of a satisfactory explanation from the applicant for his delay in leaving Pakistan, which the Tribunal regarded as being inconsistent with a claimed genuine fear of harm.

23    As to the applicant’s oral submission that the primary judge failed to take into account the current circumstances in Pakistan, this submission fails to appreciate the limited role of the primary judge in terms of fact finding. His Honour’s role was to determine, on the basis of the evidence before him, whether there was an arguable case of jurisdictional error on the part of the Tribunal which supported the relief sought by the applicant in his judicial review application. There is no reason to doubt that the primary judge considered and dealt with all the relevant material which was before him.

24    As to the applicant’s reference to his diabetes, which emerged after he arrived in Australia, this matter was considered and addressed by the primary judge in [13], [22] and [23] of his Honour’s reasons for judgment. No arguable appealable error is evident in respect of his Honour’s findings in relation to this matter.

Conclusion

25    For these reasons, the application for leave to appeal must be dismissed and the applicant ordered to pay the Minister’s costs.

Associate:

Dated:    3 August 2016