FEDERAL COURT OF AUSTRALIA

SZONG v Minister for Immigration and Border Protection [2019] FCA 1876

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

YATES J:

Introduction

1    The applicant applied for a protection visa based on the complementary protection criterion of s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act). The application was refused and the applicant sought review of that decision in the Administrative Appeals Tribunal (the Tribunal). On 22 August 2016, the Tribunal affirmed the decision under review. Thereupon, the applicant sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia (the Federal Circuit Court). On 14 December 2017, the Federal Circuit Court dismissed the judicial review application under r 44.12 of the Federal Circuit Court Rules 2011 (Cth) (the FCCR).

2    The applicant now seeks leave to appeal from the Federal Circuit Court judgment. Leave is required because the judgment that was given is interlocutory in nature: FCCR r 44.12(2); Federal Court of Australia Act 1976 (Cth) s 24(1A).

Background

3    The applicant is a citizen of Pakistan. He was born on 24 August 1962. He arrived in Australia on 5 August 2009 as the holder of a Business (UC-456) visa. On 27 August 2009, he applied for a protection visa. His application was refused. He unsuccessfully sought review, including judicial review, of that refusal. He then made two unsuccessful applications for Ministerial intervention, under s 417 of the Act.

4    The applicant’s application for a protection visa, based on the complementary protection criterion, was initially treated as invalid. However, following the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71, his application was re-assessed. As I have stated, the application was refused.

5    The applicant claims to fear harm should he return to Pakistan. He originally claimed that he feared harm from Islamic extremists for three reasons—his work as a journalist which involved him in exposing extremist activities and killings; his political affiliation with the moderate Pakistan Tehrik-e-Insaaf (PTI) political party; and his extended stay in Australia, by reason of which he would be seen as a “Western spy and infidel”. However, at the hearing before the Tribunal, he said that he would be targeted and harmed by extremists because of his “social activity” and not because of any political affiliation (which, he said, he was not concerned about because it was “not a life threat”).

6    The Tribunal was not satisfied that the applicant had given a truthful account of his reasons for seeking Australia’s protection. Overall, the Tribunal found the applicant’s evidence during the hearing to be “vague, unpersuasive and implausible.” The Tribunal noted that the applicant had to be prompted about several claims that were identified in his protection visa application.

7    In its Decision Record, the Tribunal made the following observations:

22.    The applicant's evidence as to why he left Pakistan was vague and imprecise. He claimed he was threatened in March or April 2009 over his ‘social activity’ variously by ‘bad people’, who had ‘several faces’ and could be called Taliban or ‘target killers’. When pressed to be more specific, the applicant told the Tribunal that the threat came from a man named Rana Jimshad, whom he described as being a member of a ‘banned organisation’ - which may have been Lashkar-e-Jangvi (LeJ) or the Taliban, though he was not sure - but he had been told he was a ‘dangerous man’. He claimed that Jimshad, told him he was ‘too sensitive to human rights’ and that, if he kept doing what he was doing, they would break his legs or kill him. The exchange took place while the applicant was standing at the main roundabout in his town with others from the Press Club. Previously, he had received threats on his phone from around August 2008, when Pervez Musharraf resigned as President of Pakistan and the Pakistan People's Party (PPP) took over.

23.    As for what constituted the ‘social activity’ that caused his problem with the extremists, the applicant spoke in generalities, saying they did not like that he used his ‘freedom of speech’; and raised his voice to tell them they were wrong and should keep society at peace and consider every human was human. He confirmed that the reason he feared he would be targeted and harmed in the future was because of the ‘social activity’ he had been involved in seven years earlier - talking about religion and human rights being for everyone.

24.    While the applicant claimed that there was a threat to his life should he return to Pakistan, he said he did not know who would target him: it could be ‘target killers’ or Taliban, ‘it could be all the people I have talked about, it could be anybody’. Asked several times what he thought might happen to him if he returned to Pakistan, the applicant spoke vaguely about facing the ‘same danger’ from the people who previously threatened him, who were ‘unreliable’ and could not be trusted. While he never had problems with authorities in the past, he did not know who was behind the people threatening him and he feared that they had ‘investors’ and government people backing them. The applicant confirmed that the last time he was threatened by anyone was in March or April 2009 and that his wife and children had continued to live in Pakistan unharmed.

8    The Tribunal analysed the applicant’s claims under the following headings: his fears relating to his work as a journalist and his social activities; his fears relating to his political affiliation with the PTI; his fears relating to his extended stay in Australia; and the security situation in Pakistan.

9    The Tribunal reached the following conclusions:

39.     Considered together, the reasons discussed above lead the Tribunal to conclude that the applicant has not been truthful about the reasons he fears returning to Pakistan. The Tribunal does not accept that, while previously living in Pakistan, the applicant was ever threatened with harm or death by Islamic extremists or fundamentalists, be they Pakistani Taliban or LeJ, ‘target killers’, ‘bad people’ or by a man named Rana Jimshad because of his alleged work as a journalist exposing extremist activities in the media, his ‘social activity’ or his political affiliation with the PTI. It follows that the Tribunal is not satisfied that, if the applicant returns to Pakistan in the reasonably foreseeable future, he will face a real risk of significant harm by these elements for these reasons or because they will regard him as a spy or infidel because of his extended stay in Australia.

40.     Having considered all of the evidence both individually and cumulatively, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm if he is removed from Australia to Pakistan. The Tribunal finds, therefore, that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan that there is a real risk that he will suffer significant harm, including arbitrary deprivation of life, torture, the death penalty, cruel or inhuman treatment or punishment or degrading treatment or punishment.

The application for judicial review in the Federal Circuit Court

10    The applicant’s application for judicial review in the Federal Circuit Court contained a single, unparticularised assertion: the decision of the Tribunal involves jurisdictional error. The deficiency in the pleading of this ground was explained to the applicant. He was given a number of opportunities to file an amended application. He did not avail himself of those opportunities.

11    In his reasons for judgment, the primary judge said:

20.    I have considered the Decision Record of the Tribunal with a consciousness of the seriousness of an application under r.44.12 of the Rules, which application is in form and nature that of a summary dismissal application. I take into account and have regard to the principles and the high hurdle established by such well-known cases as Dey v Victorian Railways Commissioners (1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Fancourt v Mercantile Credits (1983) 48 ALR 1; Spencer v Commonwealth (2010) 241 CLR 118 and Agar v Hyde (2000) 201 CLR 552.

21.    This morning I gave the Applicant an opportunity to tell me in oral submissions why he said the decision of the Tribunal was wrong.

22.    Obviously r.44.13(1) of the Rules (which relevantly confines an applicant to the grounds mentioned in his or her application) could not meaningfully apply in this case because there were no grounds in the Application. Accordingly I invited the Applicant in general terms to tell me why he considered that the decision of the Tribunal was “wrong” or “not lawfully made” and what were “his complaints about the Tribunal decision”. All he has been able to put to me amounts to merits complaint or seeks merits review of the Tribunal’s decision, rather than, as he needs to show, anything which would indicate that the Tribunal did not lawfully come to its decision to affirm the decision of the Delegate to refuse him a Protection visa.

23.    I am unable to discern any readily identifiable jurisdictional error in the Decision Record of the Tribunal. It appears to me to constitute a comprehensive and reasoned consideration and evaluation of the Applicant’s claims to protection. It does not seem to me to be affected by “legal unreasonableness” or “illogicality”, nor does it seem to lack any intelligible justification for its conclusions.

24.    I note that r.44.12 of the Rules comprehends two components. First, the Minister has to establish that the Court ought to be satisfied that the Application has not raised an arguable case for the relief claimed. Second, I would then have a residuary discretion whether or not to dismiss the Application or to still allow the case to go to final hearing.

25.    The simple fact of the matter is the Applicant has had ample time to properly prepare himself both for a final hearing and the present interlocutory hearing. He was given the opportunity by the consent orders of 21 October 2016 to file and serve an Amended Application giving complete particulars of each ground of review relied upon. He was also given the opportunity to file further evidence. He did neither of those two things so that when the matter came back before me at the callover on 10 November 2017 his case had not advanced at all, despite the fact that on the face of it this is a most important case for the Applicant.

12    The primary judge was not satisfied that the application filed by the applicant raised an arguable case to set aside the Tribunal’s decision. The applicant was unable to explain to his Honour why he claimed that the Tribunal’s decision was affected by jurisdictional error. The primary judge dismissed the application, with costs.

13    In the course of his reasons, the primary judge referred to the fact that, in presenting his case to the Federal Circuit Court, the applicant had the benefit of an interpreter, notwithstanding the fact that, on several different occasions concerning his migration affairs, the applicant represented that he could speak, read and write the English language and had resided in the United Kingdom from November 2007 to April 2008 to attend a journalism conference and to engage in sight-seeing. These observations were made in the context of the primary judge explaining that, despite the opportunities provided to him, the applicant, inexplicably, had not filed an amended application for judicial review. The primary judge remarked that this failure could not be attributed to language difficulties. The primary judge said that the applicant was in no worse position, in terms of formulating a meaningful complaint about the decision of the Tribunal, than hundreds of other applicants who make applications for a protection visa and who cannot speak, read or write the English language.

14    I mention this matter because, as I will explain, the applicant now seeks to rely on these observations by the primary judge as a reason why there is appealable error in the Federal Circuit Court judgment.

The proposed appeal

15    The applicant’s draft notice of appeal contains the following grounds:

1.    The primary judge failed to have any or any proper regard to the provisions of the Migration Act, 1958 as a whole. The primary judge failed to have regard to the requirements of the legislation in a manner consistent with Australia's protection obligations under the Refugee Convention.

2.    The primary judge erred in finding that the appellant knows English and does not require interpreter service.

3.    The primary judge was wrong in dismissing the case at the hearing on 14 December 2017, solely based on a finding that the appellant speaks English and is misusing the interpreter service.

4.    The primary judge should have made a finding that the appellant can only read and write little English, indicating that the appellant's language skill is very poor. He cannot speak or explain in English and requires interpreter to understand the court procedures.

 5.    The primary judge identified an irrelevant issue at the hearing.

 6.    The Federal Circuit Court failed to adopt a fair process in making the decision.

7.    The appellant's rights under the Refugee Convention and Australian Human Rights Commission Act 1986 would be breached were the Australian authorities to proceed with removal.

8.    Discretion should have been exercised by the court and/or exercised in a different way as to how it was legally exercised by the initial decision maker.

16    Proposed Grounds 2 – 6 all concern the primary judge’s observations concerning the applicant’s degree of proficiency in the English language. In an affidavit made in support of his present application, the applicant said:

 6.    At the hearing on 14 December 2017 and in making the order, the learned judge solely relied on an irrelevant issue identified by the respondent – an assumption that the applicant knows English and has been misusing the interpreter service till now. No other issues were taken into consideration at the hearing.

 7.    My ability to understand English is minimal. I can only read and write some English. My poor level of English does not allow me to speak or explain in English nor can I understand or follow the court procedures without an interpreter.

 8.    The issue referred to in paragraph 6 of this my affidavit, is an irrelevant consideration taken into account by the primary judge while making the order.

  9.    The learned judge did not adopt a fair process at the hearing.

10.    The learned judge did not take relevant consideration into account and ignored the materials the decision maker was required to look at.

  11.    The learned judge failed to make order in accordance with the law.

12.    The Federal Circuit Court made a decision for which there was no evidence, or that was not reasonably open on the materials.

17    This affidavit was made by the applicant before a solicitor (not retained to act for the applicant in this proceeding), without the assistance of an interpreter.

18    Proposed Grounds 2 – 6 disclose no appealable error on the part of the primary judge. Plainly, the primary judge did not dismiss the application for judicial review because of the applicant’s proficiency, or lack of proficiency, in the English language. His Honour dismissed the application because the applicant did not identify, and was unable to identify, any jurisdictional error in the Tribunal’s decision and because, on his Honour’s own analysis of the Tribunal’s Decision Record, he could not discern any readily identifiable jurisdictional error. Indeed, as I have already noted, his Honour said:

It appears to me to constitute a comprehensive and reasoned consideration and evaluation of the Applicant’s claims to protection. It does not seem to me to be affected by “legal unreasonableness” or “illogicality”, nor does it seem to lack any intelligible justification for its conclusions.

19    This brings me to proposed Grounds 1, 7 and 8 of the draft notice of appeal. Proposed Grounds 1 and 7 were not raised as grounds of review in the Federal Circuit Court. For this reason alone, they cannot bespeak error on the part of the primary judge. Moreover, as expressed, they are nothing more than generalised assertions that obviously lack appropriately meaningful content. These grounds were not addressed in the applicant’s written submissions, discussed below. They are barren assertions.

20    As to proposed Ground 8, the Federal Circuit Court did not have jurisdiction to engage in merits review of the Tribunal’s decision and no discretion was reposed in the primary judge to reach a decision at variance with the decision of the Minister’s delegate.

The applicant’s written submissions

21    The applicant’s written submissions contain two overarching contentions: first, the Tribunal prejudged the applicant’s claims with the consequence that the Tribunal “hearing and decision [were] tainted by apprehended bias”; and secondly, the Federal Circuit Court judgment is affected by jurisdictional error because the primary judge denied the applicant procedural fairness and “failed to apply rules of natural justice by dismissing the case expeditiously, solely based on unreasonable grounds of appellant’s ‘misinterpreted’ language skills”.

Apprehended bias on the part of the Tribunal

22    This allegation was not raised as a ground of review in the Federal Circuit Court. Had it been raised, the primary judge could have dealt with it appropriately. This allegation is not even raised as a ground in the applicant’s draft notice of appeal.

23    In his written submissions, the applicant referred to numerous passages in the Tribunal’s Decision Record and raised myriad complaints concerning the Tribunal’s assessment of his evidence and the findings of fact it made.

24    For example, the applicant argued that the Tribunal rejected and ignored all his claims and contentions under “political affiliation”, “social activities”, and “life threats” despite “the existence of more than sufficient evidence before it”; the Tribunal “inappropriately exaggerated” the concept of significant harm; the Tribunal “acted unreasonably and dismissed probative evidence on flimsy grounds”; the Tribunal rejected certain claims “on an unexplained, speculative theory”; the Tribunal “failed to make a proper finding as to whether I could be harmed in respect of this claim in terms of s 36(2)(aa)”; the Tribunal took into account a DFAT Report which was “insufficient and irrelevant”; the Tribunal’s decision was “tainted by an unreasonable analysis of ‘killings of various high-profile people in Pakistan’”, which term the Tribunal either misinterpreted or gave a “limited interpretation” to; and the Tribunal made an“[i]rrelevant inquiry”. The applicant even provided a flowchart in an attempt to persuade the Court of the facts the Tribunal should have found, and to show how the Tribunal should have reasoned to a conclusion that the applicant met the s 36(2)(aa) criterion.

25    The appellate jurisdiction of the Court is not engaged to deal with allegations of jurisdictional error that should have been advanced, but which were not advanced, at first instance in the application for judicial review. This is particularly so in the present case where, despite every reasonable opportunity given to the applicant, he failed to articulate, in respect of his judicial review application, any ground on which the Tribunal’s decision was affected by jurisdictional error. The fact that the applicant is able to identify and canvass such alleged errors now suggests that he could equally have identified and canvassed these matters in the Federal Circuit Court. The simple fact is that he did not. This is reason enough to refuse leave to permit the applicant to agitate, belatedly, these matters now.

26    That said, on proper analysis the various criticisms of the Tribunal’s decision are really directed to no more than the proposition that the Tribunal should have come to a different conclusion on the facts (i.e., one favourable to the applicant) and that, because it did not, the Tribunal must have prejudged the applicant’s claims. My own reading of the Tribunal’s Decision Record accords with the primary judge’s assessment, quoted at [18] above. There is nothing which indicates to me that the Tribunal prejudged the applicant’s claims.

27    In his written submissions, the applicant sought to argue that his failure to identify any alleged jurisdictional error in the Tribunal’s decision at the time of the Federal Circuit Court hearing was because of his lack of proficiency in English. I reject that explanation. The primary judge’s reasons demonstrate why this cannot be so. Moreover, there is no evidence before me of any change in the applicant’s English language skills between the time of the Federal Circuit Court hearing and the present time which could possibly sustain that submission, given his current proficiency which is significantly greater than adequate.

28    In his written submissions, the applicant cited SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88; 229 FCR 317 (SZWBH) and submitted that his experience was “no different” from the experience of the appellant in that case. The facts in SZWBH which warranted appellate intervention by the Court bear no resemblance to the facts of the present case. SZWBH provides no assistance to the applicant.

29    The applicant also submitted that “equal access to justice requires much more than the provision of interpreting …”. If, by that submission, the applicant was intending to contend that there was an obligation on the Federal Circuit Court to secure legal assistance for him to attempt to find jurisdictional error in the Tribunal’s decision, then I reject that submission.

Alleged lack of procedural fairness in the Federal Circuit Court

30    This allegation raises the comments made by the primary judge concerning the fact that the applicant’s English language skills could not stand as a reason why he failed to identify and advance any ground of jurisdictional error in the Tribunal’s decision. I have dealt with the applicant’s criticisms in this regard when considering proposed Grounds 2 – 6 of the draft notice of appeal, and in the immediately preceding section of these reasons. There is no reasonably arguable case that the applicant was denied procedural fairness by the primary judge.

The applicant’s affidavit

31    In his affidavit, the applicant addressed the Tribunal’s finding at [36] of the Decision Record. In that paragraph (which dealt with the applicant’s fears concerning his extended stay in Australia), the Tribunal said:

36.    The Tribunal does not accept that the applicant will face significant harm in Pakistan on account of his extended stay in Australia because fundamentalists, including the Taliban, will regard him as a spy and an infidel. As discussed with the applicant, according to country information sources, including the January 2016 DFAT Report, many Pakistanis have relatives in western countries, who return to Pakistan frequently for visits and assess that individuals are not subject to discrimination or violence on the basis of having spent time in the West.

32    The applicant deposed:

14.    The Tribunal in its decision, at paragraph 36 in particular, relied on January 2016 DFAT Report, which says that many Pakistanis have relatives in western countries, who return to Pakistan for visits and assessed that individuals are not subject to discrimination and violence on the basis of having spent time in the West. The Tribunal erred in relying on a report, which refers to people (tourists) in general. The Tribunal failed to take into account that 'the spy and an infidel rule' of the fundamentalists like Taliban apply to correspondents and not to people in general. The applicant will be regarded as a spy and an infidel in his capacity as an ex-correspondent who had collected and sold news to the newspapers against fundamentalists including Taliban. Foreign return Pakistani correspondents face significant harm in Pakistan than Pakistani tourists in general.

33    This contention is also canvassed (to the same effect) in the applicant’s written submissions. It is an example of the applicant’s disagreement with the Tribunal’s fact-finding. It does not point to jurisdictional error on the part of the Tribunal. As the Minister said in oral submissions, the assessment of, and weight to be given to, country information is a matter for the Tribunal. The other difficulty standing in the way of the applicant’s contention is that the Tribunal did not accept that he had ever worked as a journalist or exposed the activities and killings of Islamic extremists in the media, or was ever targeted by them for this reason. Thus, the fundamental premise of the applicant’s argument falls away.

Conclusion and disposition

34    The proposed grounds of appeal do not have any reasonable prospects of success, for the reasons discussed at [16] – [20] above. The additional matters argued in the applicant’s written submissions concerning the Tribunal’s decision were not advanced in his application for judicial review and, for that reason alone, leave should not be granted to enable the applicant to raise them for the first time in the appellate jurisdiction of the Court. In any event, the submissions are directed, substantially, to expressing disagreement with the Tribunal’s findings of fact and arguing why, in the applicant’s view, the Tribunal should have arrived at findings favourable to his case. These contentions do not disclose an arguable case, with reasonable prospects of success, that the Tribunal prejudged the applicant’s claims. Further, there is no arguable case, with reasonable prospects of success, that the primary judge denied the applicant procedural fairness.

35    For these reasons, leave to appeal will be refused. The applicant is to pay the Minister’s costs.

Associate:

Dated:    15 November 2019