FEDERAL COURT OF AUSTRALIA SZRRY v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 815 Citation: SZRRY v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 815 Appeal from: SZRRY v Minister for Immigration [2013] FMCA 189 Parties: SZRRY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 642 of 2013 Judge: RARES J Date of judgment: 2 August 2013 Cases cited: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 applied Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 applied SZRRY v Minister for Immigration [2013] FMCA 189 referred to Date of hearing: 2 August 2013 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 15 Counsel for the Applicant: The applicant appeared in person Solicitor for the First Respondent: Ms A Carr of DLA Piper Australia IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 642 of 2013 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZRRY Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: RARES J DATE OF ORDER: 2 AUGUST 2013 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application 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. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 642 of 2013 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZRRY Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: RARES J DATE: 2 AUGUST 2013 PLACE: SYDNEY REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an appeal from a decision of the Federal Circuit Court as it now is, refusing constitutional writ relief to the appellant in respect of his claim for review of a decision of the Refugee Review Tribunal made on 27 June 2012, affirming the decision of the Minister's delegate not to grant her a protection visa: SZRRY v Minister for Immigration [2013] FMCA 189. The applicant at the time of the Tribunal's decision was aged 27 and is fluent in English. She very clearly and carefully explained to me her complaints about the process before the Tribunal during the course of the argument. Background 2 The application for leave to appeal was made because the applicant sought to file an appeal six days late. In her affidavit, she explained that when she sought to lodge the notice of appeal on the last day for filing on 9 April 2003, the registry refused to accept it on the basis that she had not been able at that time to establish her financial circumstances entitled her to a waiver of filing fees. Ultimately, the applicant received that waiver and filed the present application on 15 April 2013. The Minister contends that the application for an extension of time should be refused because any appeal would have no prospects of success. The applicant's claims 3 The applicant's claims, and the grounds on which she asserted that the Tribunal erred were comprehensively identified in the judge's reasons. In substance, the applicant claimed that: she had fallen in love with a Muslim man, called Shahid, while working in Karachi; she had been told by her employer in 2006, that she should wear a burqa for her own protection, after the political climate had changed dramatically over the previous three years in respect of tolerance of Christians by the dominant Muslim community; she had begun a relationship in 2006 with Shahid, and that they kept that from their families, Shahid had asked her to marry him, but she said that she would not convert to Islam, and that eventually the families discovered the relationship and neither approved; in about December 2008, she had been attacked on a street by a group of unknown men, beaten and forced into a car, called a variety of abusive names, and subsequently had become the subject of rumours about her misbehaving secretly with a Muslim man, her father had sent her after this to her uncle's house, and the following day men had come to her home asking where she was hiding and had attacked her father; her uncle had taken her to the airport and she feared persecution by fanatic Muslims and her lover's parents if she were to return to Pakistan. 4 In June 2009, the applicant came to Australia and completed a qualification in business management in April 2010. She then undertook a course seeking an accounting qualification which she completed in June 2011. Then in early July 2011, she travelled to, and stayed in, Malaysia for a few days before returning to Pakistan. The applicant also claimed that: she had stayed in Malaysia with her lover, Shahid, and provided the Tribunal with an email between Shahid and his travel agent which appeared to confirm that both of them had travelled from Kuala Lumpur to Karachi on the same flights, on the same day, as arranged by the travel agent following what appeared to be an earlier holiday, or visit by Shahid, together with another person and a child, where the child and other person had left for Karachi about four days before the appellant and Shahid; after arriving in Karachi in July 2011, she and Shahid separated at the airport, she returned to stay her uncle's home and at night visited her parents, and Shahid telephoned her during her stay; four days before she was to return to Australia, Shahid told her that his wife had found her telephone number in his mobile phone and that, accordingly, she would have to leave as soon as possible, during the period before she left Shahid's cousin had come to know she was in Pakistan, and her sister had told her that the police had searched their home, the parents' home, and were accusing her of trying to convert Shahid to Christianity; two months before her interview with the delegate on 16 February 2012, her father had been taken to prison, and she believed that Shahid's cousin had told the police to do this. 5 The applicant applied for a protection visa on 6 September 2011. On 17 February 2012, the delegate refused the application for the protection visa. The delegate observed that the applicant had not at that stage provided any evidence or documents to support her claims. I note that she only provided the email exchange between Shahid and the travel agent, later to the Tribunal. The Tribunal proceedings 6 The Tribunal conducted a hearing at which the applicant gave evidence to it, and provided the email to which I have referred. The Tribunal formed a very adverse view of the applicant's credibility. It found that she had fabricated her claims of difficulties and fears in Pakistan to support her application. It did not accept that she had ever had a relationship with a Muslim man as claimed, or that she had experienced any difficulties arising from her religion, or for any other reason in Pakistan. The Tribunal found that her past behaviour was: "... completely inconsistent with someone who has had the experiences claimed and indicates in fact that she holds no fears of any harm in Pakistan." 7 The Tribunal reasoned that if the applicant's claims of having been mistreated in 2008 were correct, it would mean that she had fled Pakistan soon after that, but had taken no action to seek protection in Australia until 2011. The Tribunal found that the real reason for her delay in seeking protection was not as she had explained to the Tribunal, namely, that she was busy with her study and that she was not aware of the process involved, but that she had only recently fabricated the claims of past mistreatment to support her recently made application for a protection visa. 8 The Tribunal also found that if the applicant had experienced the significant mistreatment in the past in Pakistan that she claimed, she would not have returned there in 2011. It also rejected her claim that, after being able to reunite with Shahid in Malaysia, she decided to return to Pakistan in any case on the basis that Shahid had told her that circumstances were better there. It found that to be a completely implausible explanation. It also found that it was not believable that the applicant would have returned to Pakistan on the same flight as Shahid in 2011 if there were any factual basis for them having an inter-religious relationship. 9 The Tribunal also dealt with the email from the travel agent about the flights, saying that it did not accept that that email was any evidence of a romantic relationship between the applicant and Shahid, or that such travel caused her difficulties of any kind, concluding that, if there were a romantic relationship between the two of them, they would not have travelled together from Malaysia to Pakistan. The Tribunal did not believe that the applicant had fears of harm on return to Pakistan by reason of her Christianity, and found that she did not have a well-founded fear of being harmed for any reason in Pakistan. Accordingly, the Tribunal rejected the application, together with any complementary protection obligation claim. The proposed appeal 10 The applicant's draft notice of appeal contained substantially four grounds that were in substance agued before and rejected by Judge Emmett. The grounds each assimilated the role of the Federal Circuit Court to being a merits reviewer of the dispute before the Tribunal. In substance, the grounds were that: (1) the Tribunal, in excess of its jurisdiction, and the Court below ignored the fear and serious harm that the applicant would face on her return to Pakistan, and rejected those claims due to her delay in seeking a protection visa after her arrival in Australia; (2) the Federal Circuit Court failed to find that the Tribunal's use of its "excessive authority" had not taken into consideration jurisdictional errors made by it identified in the application to that Court; (3) the Tribunal and the Federal Circuit Court failed to accept the applicant's fundamental claim that she, a Christian, had had a relationship with a Muslim man, that this circumstance gave rise to her claimed fear of persecution were she to return to Pakistan, and the Tribunal and her Honour "completely ignored the main claims" of the applicant's fear of persecution on the basis of adverse credibility findings; (4) her Honour and the Tribunal "completely ignored" the fact that the applicant had delayed making a protection visa application because she was confident that she would have obtained permanent resident status in Australia on skills grounds, but that this prospect disappeared with a revision in the points test in skills assessment in the area in which she was studying. Consideration 11 Her Honour dealt with and rejected each of the grounds for relief before her. In essence, each of the grounds was a challenge to the Tribunal's findings of fact, and her Honour concluded that no jurisdictional error was established by those challenges. Before her Honour, and again today, the applicant asserted that the Tribunal had not given serious or genuine consideration to her claims, and had wrongly failed to consider the evidence, particularly the evidence that, she contended, was compelling in the email identifying that Shahid had travelled with her back to Karachi from Kuala Lumpur. 12 As I think it is fair to say, her Honour explained to the applicant, and I did on the hearing of the application, that the Court has no power to interfere with a decision of the Tribunal simply because the Tribunal reached an adverse conclusion about the facts on which the applicant relied, or on her credibility. The Tribunal's jurisdiction was to hear the applicant's claim for a protection visa in accordance with law, and to make a decision on it in that way. A mere wrong finding of fact is not an error of law or a jurisdictional error: see Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 154 [44] per Gleeson CJ, Gummow, Kirby and Hayne JJ. Credibility findings are an essential and necessary part of the Tribunal's evaluative process in arriving at its conclusion on whether the applicant had satisfied it that her claims warranted the grant of a protection visa. 13 While it may have been open to the Tribunal to read the email dealing with the applicant's claimed interaction with Shahid in Malaysia and return flight to Pakistan with him as evidence that they were lovers, the document on its face is neutral as to the precise relationship between the two. It is capable, because it suggests that the two persons stayed in hotels together, of providing evidence of such a relationship, but it is equally capable of being read in a way that the two persons had a friendship or other relationship not of an intimate kind. Thus, while the material was capable of supporting the applicant's claims, it was also capable of bearing the construction which the Tribunal gave it. The selection of whichever of the two possible constructions should have been placed on the document depended on the Tribunal forming a view as to whether the applicant's evidence as a whole satisfied it that she had made out her claims or not. The Tribunal's finding that was adverse to the appellant is not a jurisdictional error, that is an error of a legal kind, attracting the jurisdiction of the Court to set aside decisions made by the Tribunal. Rather, it was the Tribunal's function to find, one way or another, whether it was satisfied of the applicant's claims. Here, the Tribunal formed a strong and adverse view of the applicant's credibility, and did not accept her claims of having a fear of persecution or of the incidents which she relied on as founding it. 14 In my opinion, each of the proposed grounds of appeal has no prospect of success. Her Honour correctly found that the Tribunal had given her application proper consideration, but had rejected it. Essentially, grounds 1 and 2 in the draft notice of appeal must fail for that reason. Ground 3 simply seeks to urge that the Court should substitute its own factual assessment of the relationship, if any, between the applicant and Shahid. The Tribunal's finding that the relationship was not of the kind the applicant claimed was open to it. It was entitled to come to the adverse credibility finding that it reached. Such findings are a matter par excellence for the Tribunal: Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at 423 [67] per McHugh J. Her Honour correctly rejected this ground. Ground 4 seeks to cavil with the Tribunal's conclusion that the applicant's delay in lodging the application for protection had not been adequately explained by the applicant and should not be treated adversely against her. Again, this was a matter for the Tribunal to evaluate as a factual consideration in its overall assessment of the applicant's claim for a protection visa. The Tribunal could have, had it so decided, accepted the applicant's application but there was no jurisdictional error in it rejecting that application. Indeed, its function was to make a decision one way or another. Its evidentiary conclusion and the use of the evidence to arrive at that conclusion relating to the applicant's delay in applying for a protection visa were open to it. Conclusion 15 For these reasons any appeal, if instituted, would have no prospect of success and accordingly it would be futile to grant an extension of time in which to file the notice of appeal. The application must be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 13 August 2013