FEDERAL COURT OF AUSTRALIA SZUTC v Minister for Immigration and Border Protection [2015] FCA 540 Citation: SZUTC v Minister for Immigration and Border Protection [2015] FCA 540 Appeal from: Application for leave to appeal: SZUTC & Anor v Minister for Immigration and Border Protection & Anor [2014] FCCA 2901 Parties: SZUTC and SZUTD v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 1357 of 2014 Judge: MCKERRACHER J Date of judgment: 6 May 2015 Legislation: Federal Court Rules 2011 (Cth) r 35.12 Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Date of hearing: 6 May 2015 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 20 Counsel for the Applicants: The applicants appeared in person Counsel for the First Respondent: Ms F Taah Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent submits to any order the Court may make in the proceeding, save as to costs IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1357 of 2014 BETWEEN: SZUTC SZUTD Applicants AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: MCKERRACHER J DATE OF ORDER: 6 MAY 2015 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for leave to appeal be refused. 2. The First Applicant is to pay the costs of the First Respondent, 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 1357 of 2014 BETWEEN: SZUTC SZUTD Applicants AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: MCKERRACHER J DATE: 6 MAY 2015 PLACE: SYDNEY REASONS FOR JUDGMENT REVISED FROM THE TRANSCRIPT 1 The applicants apply pursuant to r 35.12 of the Federal Court Rules 2011 (Cth) for leave to appeal from a judgment of a judge of the Federal Circuit Court of Australia, delivered on 5 December 2014. In court this morning, the first applicant is present together with her husband, who has made submissions on her behalf and presented a written submission which I have read aloud for the benefit of counsel for the Minister in order to consider whether it adds further to the content of the present application for leave to appeal. The judgment from which leave to appeal is sought was a judgment dismissing an application for judicial review of a decision of the Refugee Review Tribunal (RRT) in which the RRT affirmed the decision to refuse the protection visas sought by the applicants. 2 The application in the Federal Circuit Court was dismissed pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) on the basis that the applicant had not raised an arguable case for the relief claimed. It is necessary in this Court for the applicants to proceed by way of an application for leave to appeal, because that decision in the Federal Circuit Court was interlocutory. The Minister opposes leave being granted to the applicants and submits, alternatively, that if leave is to be granted, the appeal should be dismissed with costs. 3 The first applicant, who is in court this morning, is the mother of the second applicant, a girl who is a minor. They are both nationals of Pakistan. 4 On 4 April 2013, the first and second applicants applied for protection visas, but they did so as dependent members of the family of the first applicant's then husband, who made protection claims as the primary visa applicant. Subsequently, on 10 September 2013, a delegate of the Minister declined to grant the protection visas, and the husband and the applicants applied to the RRT for a review of that decision. On 23 September 2013, the husband left Australia, but the applicants continued to pursue their review rights before the RRT. They attended a hearing of the RRT where the first applicant provided her claims for protection, as the initial application only contained claims which had been made by her husband. It is clear that these claims were the first applicant's own claims, as counsel for the Minister has pointed out this morning. 5 In essence, the first applicant, a Shia Muslim, claimed to fear harm in Pakistan from Shia and Sunni Muslim communities due to her marriage to her then-husband, who is a Sunni, and also for having two failed marriages. She claimed in addition to fear harm from both of her ex-husbands. It was not until 26 June 2014 that the RRT finally affirmed the delegate's decision after a deal of deliberation reflected in its decision. 6 The RRT did not believe the first applicant. It found that she was not a witness of truth and did not accept that the applicants had been targeted in the past by the Shia and Muslim communities, or by either of her ex-husbands. The RRT took the view that the claims were without credit and found aspects of her oral evidence inconsistent. Those were clearly findings in relation to the merits of the credit of the claims before the RRT. FEDERAL CIRCUIT COURT 7 The applicants filed an application for judicial review of the decision of the RRT in the Federal Circuit Court on 16 July 2014 confined to two grounds. The first of those grounds was that the RRT member had reached her opinion that she did not accept the first applicant was telling the truth on the basis of bias; and secondly, that the RRT did not understand her fear and her daughter's fear to return back to Pakistan. Those grounds of application are significant. Neither of them raised the questions of credit raised this morning or the fact that evidence was given in circumstances where either ill health or predetermination of the evidence by the former husband dictated the submission and evidence before the RRT. 8 The application to the Federal Circuit Court was listed in November. Orders were made at that time setting down an application for a show cause hearing on 5 December 2014 pursuant to r 44.11(b) of the FCC Rules. 9 In the meantime, on 21 November 2014, the applicants filed an affidavit which annexed what they said was the transcript of the RRT hearing which had been prepared and translated by the second applicant. When the matter came on for hearing on 5 December 2014, the first applicant appeared and indicated that she relied on the grounds of the application, but her oral submission only complained about the RRT's refusal of her request for time to provide evidence and did not make oral submissions regarding the relevance of the Affidavit. Her Honour found that there was nothing to indicate that the RRT had not properly exercised its discretion in refusing the request, noting that the first applicant in any event provided her evidence to the RRT, and it was considered. 10 Her Honour then considered the grounds of the application itself before the Federal Circuit Court. It rejected the assertion of bias as being based, if anything, on the contention that the RRT had not accepted her claims as being true. The Federal Circuit Court correctly found that such a contention was incapable of establishing jurisdictional error because simply disbelieving claims is not an indication of bias, nor is a simple disagreement with the RRT's conclusions sufficient to demonstrate jurisdictional error, which is the confined basis of an appeal which could be pursued in the Federal Circuit Court. Her Honour also concluded that there was no error of a jurisdictional nature in relation to the second ground concerning a failure to understand the applicants' fear. 11 The application for leave to appeal from this Court raises different grounds to those before the Federal Circuit Court, and for accuracy I will cite those in full. 12 The grounds of appeal which would be advanced if leave to appeal is permitted are these: (1) I admit that I was unable to answer some questions. Her Honour asked me regarding the transcript which was filed in Court on 21 November 2014. The affidavit was prepared by my daughter and I was of the opinion that the Judge will see the questions asked and the answers given to see that the [RRT] misunderstood my case. (2) Her Honour failed to accept that the [RRT] misunderstood my claim and failed to recognise me as a refugee. (3) I asked the Honourable Court to give me the opportunity to have my friend, Shabir, who is fluent in English and Urdu, to argue my case and prove in the light of the transcript, the [RRT] decision, that the [RRT] had no reason to disbelieve my claim. 13 From these grounds it appears that the applicant asserts an error in the way the Federal Circuit Court dealt with the Affidavit and it failed to understand the contents of the transcript, and appears to contend that the RRT misunderstood the first applicant's claim. In the affidavits filed in support of the application, the first applicant states that she was unable to indicate the purpose of the purported transcript. So it appears that there's an allegation that the RRT misunderstood her claims and the affidavit was evidence of that misunderstanding. 14 There are no further written submissions filed in support of the application, but as I say, a statement has been handed up to me this morning. 15 There is only one reference in the decision of the Federal Circuit Court to the transcript, and the assertions raised by the applicants concerning the transcript are difficult to follow in the light of the judgment of the Court, which records that after the grounds of the application for review were interpreted, the first applicant was invited to make submissions in support of the application for review. In those submissions, the first applicant simply raised factual matters which were incapable of establishing any error by the RRT, let alone jurisdictional error, and took issue with the refusal by the RRT to give additional time to the first applicant to provide evidence. 16 The submissions did not, in any sense, raise the relevance of the Affidavit as supportive of the judicial review application on the grounds that I have indicated. When the first applicant was asked to make submissions in relation to the bias ground, she reaffirmed the submission that the allegation of bias on the part of the RRT was based on the premise that the RRT concluded that she was not telling the truth. It was on that basis that the Federal Circuit Court rejected the claims. As I have already indicated, refusal to accept evidence given is no ground of bias. There was no evidence of bias of any nature, and it cannot be successfully asserted by the applicants that there was error in reaching that conclusion. 17 The Minister has contended that to the extent the applicants were asserting that the transcript was evidence supporting an allegation of misunderstanding by the RRT of the claims, that was not a ground of review raised in their application for review, nor was it raised at the hearing in the Federal Circuit Court. 18 There was no assertion in the Federal Circuit Court that the first applicant was unwell and could not participate in the hearing, but she did seek an adjournment to obtain legal advice. There is no evidence in proper form before the Court, nor is there anything in the reasons of the Federal Circuit Court, which would indicate that the first applicant's ability to meaningfully participate in the hearing was diminished so that she could not identify the real reasons for which she filed the Affidavit containing the transcript. 19 The essence of the complaints of the applicants is that the credit conclusions were incorrect. This is, therefore, an attack on the merits of the RRT's decision. Neither the Federal Circuit Court nor this Court can review the merits of decisions which have been made in the RRT. I accept the submission for the Minister that the decision of the Federal Circuit Court is not attended with any or sufficient doubt to warrant consideration on an appeal. In all the circumstances, no injustice in this sense would be occasioned to the applicants by refusing leave in the sense discussed in the authorities such as Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. 20 The following orders were made: 1. The application for extension of time to file a notice of appeal be refused. 2. The First Applicant is to pay the costs of the First Respondent, to be taxed if not agreed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate: Dated: 29 May 2015