FEDERAL COURT OF AUSTRALIA SZQDC v Minister for Immigration and Citizenship [2011] FCA 1366 Citation: SZQDC v Minister for Immigration and Citizenship [2011] FCA 1366 Appeal from: SZQDC v Minister for Immigration and Citizenship [2011] FMCA 532 Parties: SZQDC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 1216 of 2011 Judge: LOGAN J Date of judgment: 15 November 2011 Catchwords: MIGRATION – irrationality or illogicality – whether in coming to state of satisfaction about appellant's claims the Tribunal acted irrationally or illogically so as to constitute jurisdictional error – no jurisdictional error Legislation: Migration Act 1958 (Cth) ss 36, 65 Cases cited: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 followed Date of hearing: 15 November 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 16 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Solicitor for the Respondents: DLA Piper Australia IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1216 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZQDC Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: LOGAN J DATE OF ORDER: 15 NOVEMBER 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant is to pay the first respondent's costs of, and incidental to the appeal, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1216 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZQDC Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: LOGAN J DATE: 15 NOVEMBER 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The appellant is a citizen of Malaysia. He was born on 26 March 1980. He came to Australia on 27 June 2008. The visa permitting his entry into Australia was valid until 26 September 2008. The appellant did not leave Australia on or before 26 September 2008. Instead, he remained here. 2 In August 2010, the appellant was taken into police custody in Australia as a result of his overstaying his visa entry permit. He was interviewed by an Australian immigration compliance officer on 25 August 2010. Shortly thereafter, on 31 August 2010, the appellant lodged an application for that class of visa under the Migration Act 1958 (Cth) (Migration Act), which is known as a Protection Visa. On 23 November 2010 a delegate of the Minister for Immigration and Citizenship (the Minister) refused his application for a Protection Visa. 3 As was his right under the Migration Act, the appellant sought the review of the Minister's delegate's decision by the Refugee Review Tribunal (the Tribunal). On 15 March 2011, that Tribunal decided to affirm the decision not to grant him a Protection Visa. 4 The appellant then sought the judicial review of the Tribunal's decision by the Federal Magistrates Court. On 4 July 2011, that court dismissed his judicial review application. The appellant now appeals to this Court against that order of dismissal. 5 The grounds of appeal are these. 1. The Hon, FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant's claims and ignoring the aspect of persecution and harm in terms of Sec 91R of the Act. The Tribunal failed to observe this obligation amounted to a breach of a statutory obligation. 2. The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal. [sic] 6 It should be stated at once that these grounds of appeal, insofar as they are meaningful at all, do not reflect grounds of review and related alleged errors which were put to the Federal Magistrates Court. 7 It is not necessary further to consider ground 2 in the notice of appeal. That is because as was correctly submitted on behalf of the Minister, that ground is so general and so devoid of content as to be meaningless. 8 Even though ground 1 in the notice of appeal does not reflect a ground of review taken before the Federal Magistrates Court, it was fairly conceded on behalf of the Minister that if, truly, the Tribunal's reasons manifestly exhibited a jurisdiction error, the fact that the alleged error was not pressed before the Federal Magistrates Court would not prevent the allowance of the appeal on that ground. It is possible, albeit perhaps on a generous reading, to regard ground 1 as raising a meaningful jurisdictional error allegation. Unreasonableness in the form of a state of administrative satisfaction, or absence of administrative satisfaction, reached on illogical or irrational grounds, can amount to jurisdictional error: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS). 9 The learned federal magistrate dealt with the grounds of review that were raised in, with respect, an unremarkable way. In the course of so doing, that court did not, because it was not asked so to do by the appellant, expressly address the question of whether or not there was irrationality or illogicality in the Tribunal's reasons. That court did, though, note at paragraph 10 of the reasons for judgment a concern on the part of the Tribunal about the appellant's credibility. 10 By virtue of s 65(1) of the Migration Act, the Minister, a delegate or, in their place, the Tribunal, could grant a visa to the appellant only if satisfied that the prescribed criteria for a protection visa were met. One of those criteria is that specified in s 36(2)(a) of the Migration Act, which is that a visa applicant is a person to whom Australia has a protection obligation under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol to that Convention. 11 In short, then, one of the criteria for the Protection Visa is satisfaction as to a visa applicant being a person to whom Australia has a protection obligation under that Convention as amended. That state of administrative satisfaction is a jurisdictional fact. If an absence of that satisfaction was present, having regard to the reasons given, because of irrationality or illogicality in reasoning, jurisdictional error would be present: SZMDS. 12 When one has regard to the Tribunal's reasons for why it was not satisfied that the appellant was a person to whom Australia had a protection obligation, no such illogicality or irrationality is present. The Tribunal has, in its chain of reasoning, drawn attention to inconsistencies as between the written claim on the visa application as lodged and the evidence which the appellant gave before the Tribunal after taking up the Tribunal's invitation to attend an oral hearing. 13 The Tribunal's assessment of the appellant's credibility in terms of the basis for his claim has also been influenced by the lapse of over two years which passed between his arrival in Australia and his making of a protection visa application. Another influential factor, having regard to the Tribunal's reasons, is that, when initially interviewed by an immigration compliance officer, the applicant said to that official that he had stayed here because he wanted to do some sightseeing, and that after that he had worked on some farms picking fruit. He told that compliance officer that he planned to leave Australia, in about a month's time when he had collected some debts. He also told that officer, when asked whether he was willing to leave Australia that he would leave as soon as required: see paragraph 98 of the Tribunal's reasons. 14 Considered as a whole it is evident from the Tribunal's reasons that the Tribunal closely engaged with and evaluated the basis of the appellant's claim. That centred very much around the claim that Chinese businessmen, particularly a family business in which he said he worked, were targeted by Malaysian gangs, and that the police did not offer protection. 15 The reasoning process which led the Tribunal to an absence of satisfaction that the appellant was a person to whom Australia owed a protection obligation was neither illogical nor irrational. A conclusion in relation to credibility is par excellence one for the Minister, his delegate or the Tribunal. Whilst it may be accepted that, if a credibility conclusion leading to an absence of satisfaction is attended by illogical or irrational reasoning, that will give rise to jurisdictional error, that is not this case. Instead, the Tribunal's reasons, particularly between paragraphs 89 and 105, logically and rationally explain why it is that the Tribunal was not satisfied. It was for the appellant to bring before the Tribunal such evidentiary material, including his own testimony, as would engender a state of satisfaction. 16 It follows from the foregoing that there is no basis for allowing the appeal. The appeal must be dismissed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 30 November 2011