FEDERAL COURT OF AUSTRALIA SZUUM v Minister for Immigration and Border Protection (No 2) [2016] FCA 526 Appeal from: SZUUM & Anor v Minister for Immigration & Anor [2015] FCCA 3549 File number: NSD 1745 of 2015 Judge: LOGAN J Date of judgment: 9 May 2016 Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa application – second appellant family unit member – whether appellants denied procedural fairness and natural justice – whether there is jurisdictional error – inconsistencies in evidence – adverse credibility finding – impermissible merits review – no merit in grounds of appeal – no jurisdictional error – appeal dismissed – Migration Act 1958 (Cth) Legislation: Migration Act 1958 (Cth) Cases cited: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 SZVAP v Minister for Immigration and Border Protection [2015] 233 FCR 451 Date of hearing: 9 May 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 19 Solicitor for the Appellants: Weighbridge Lawyers Solicitor for the First Respondent: Australian Government Solicitor Solicitor for the Second Respondent: The second respondent entered a submitting appearance save as to costs ORDERS NSD 1745 of 2015 BETWEEN: SZUUM First Appellant SZUUN Second Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: LOGAN J DATE OF ORDER: 9 MAY 2016 THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellants are 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. REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) LOGAN J: 1 The Refugee Review Tribunal (Tribunal) found that the female appellant and her husband, who is the other appellant, are each citizens of Nepal. 2 The female appellant came to Australia on 17 May 2012 on a dependent temporary skilled visa. That visa expired on 9 November 2012. Her husband had earlier visited Australia in 2006, but returned to Nepal. He and the female appellant married in Nepal on 3 October 2011. Shortly after their marriage they came to Australia on the temporary skilled visa. The male appellant applied for a student visa when here on 8 November 2012. In that application he named the female appellant as his dependent. This visa application was refused on 18 December 2012. 3 Thereafter, on 29 April 2013, the appellants lodged applications for that class of visa under the Migration Act 1958 (Cth) known as a Protection (Class XA) visa (Protection visa). The female appellant was the primary applicant for the Protection visa. Her husband's application was a derivative one. By that I mean that he did not advance a separate claim for a protection visa. 4 The basis for the claim for a Protection visa was that advanced by the female appellant. The basis of the claim is accurately summarised by the Tribunal at [28] of the Tribunal's reasons. In short, her claim is that she has been involved and continues to be involved with the Nepali Congress Party and she fears being raped, harmed and killed on return to Nepal by the YCL Maoists and Maoists because of her past and continued involvement with the Nepali Congress Party and because she has been critical of the Maoists. She claimed that because of her involvement in Nepal with the Nepali Congress Party she had been abducted and raped in 2011 by four YCL militants. These militants later set her free with threats that she should tell no one what happened or go to the police. 5 A delegate of the Minister for Immigration and Border Protection, who is the first respondent and only active party in the appeal, refused the appellants' Protection visa application on 20 December 2013. 6 Thereafter, the appellants applied for the review of the Minister's delegate's decision by the Tribunal. On 23 June 2014, for reasons given in writing, the Tribunal decided to affirm the decision not to grant the appellants the Protection visa they sought. 7 I note that the Tribunal's decision record bears incorrectly in one place 23 June 2013 as the date, whereas the date under the Tribunal member's signature which is inferentially the correct date is 23 June 2014. The Tribunal itself detected that error and issued a corrigendum on 25 June 2014: see pp 118 and 133 respectively of the Appeal Book. 8 The appellants then sought the judicial review of the Tribunal's decision by the Federal Circuit Court. Their judicial review application was made on 22 July 2014 and amended on 19 December 2014. In the result, it was not heard and determined in the Federal Circuit Court until 7 December 2015. On that date, that court, for reasons delivered ex tempore, dismissed with fixed costs the appellants' judicial review application. 9 In the interval between when the Tribunal gave its decision and when the judicial review application was heard and determined, the role of undertaking external merits review of protection visa decisions was assumed by the Administrative Appeals Tribunal. The name of the second respondent to the judicial review application was amended accordingly by the Federal Circuit Court. The names of the parties to the appeal reflect that amendment. As is appropriate in matters of this kind, the Administrative Appeals Tribunal did not seek to appear on the hearing of the appeal as an active contradictor. 10 A study of the Tribunal's reasons discloses an active engagement by the Tribunal with the basis of the claim for a Protection visa and the evidence advanced by the appellants, the female appellant in particular, in support of the claim. The end result, as the Tribunal's reasons disclose at [38], was that the Tribunal was not satisfied that the female appellant had ever been involved in handing out pamphlets for the Nepali Congress Party. Indeed the Tribunal member, for reasons which are set out, was just not satisfied at all on the basis of specified inconsistencies in the reasons with the female appellant's evidence: see [43] – [44] of the Tribunal's reasons as to that conclusion. 11 This finding, as to a lack of credibility on the part of the female appellant, led the Tribunal to place no weight on a membership certificate in respect of the Nepali Congress Party which was proffered by the appellants in support of their claim before the Tribunal. 12 The grounds of review before the Federal Circuit Court, even as amended, whilst they speak of a denial of procedural fairness are really a solicitation to conduct on judicial review, and impermissibly, a form of merits review. This was appreciated by the learned Federal Circuit Court judge at [15]. The reasons of that court which thereafter follow entail an unremarkable application of well-settled authority as to the approach which ought to be taken by a court on judicial review in respect of logically expressed reasons for an administrative tribunal concluding that it is not satisfied for reasons going to credibility with the basis of a claim. 13 The Tribunal's core function was, and in succession, that of the Administrative Appeals Tribunal is, to review a decision of the Minister or his delegates in respect of a Protection visa application. In so doing the Tribunal is not obliged to accept uncritically statements made by a visa applicant or other evidence tendered in support of an application. In the ordinary course of events, it is for the applicant or applicants for review to advance as best he, she or they can the claim which is made for a Protection visa. There can be particular circumstances in which it can fall upon the Tribunal to conduct its own inquiries, but the Tribunal is not obliged in every case to do this. 14 In this particular case the Tribunal did conduct a particular inquiry to the end of identifying a particular member of Parliament having the same name as that given in evidence by the female appellant. The use which the Tribunal made of this is set out at [36] of the Tribunal's reasons: Further, when asked to name who is the current elected Member of Parliament of the Pokhara area, being the area in which she worked for the Nepali congress when in Nepal, she said Govinda Paudel and he was her teacher from her school who introduced her to the Nepali Congress. However as I raised with her via s.424AA after a search of Members of Parliament for all district areas of Nepal in both the 2008 and 2013 elections the only Govinda Paudel I could find was a man who won the 2008 election in the electorate of Myagdi for the CPN (Maoists). In response the first named applicant indicated that there are two people with this name and that it is correct that Govinda Paudel is a member for the Maoist party but her teacher, Govinda Paudel is different. While I accept her teacher may be called Govinda Paudel as well, I do not accept her response and expect that if her teacher was involved with the Nepali Congress and was the member for her area that his name would be available as to winning his electorate and being a Member of Parliament in either the 2008 or 2013 election, which it is not. This adds to my finding that the first named applicant is not a credible witness. In acting as here recited, the Tribunal observed the statutory requirement of putting particular adverse information to the female appellant. The reasons which the Tribunal here sets out also form one of a number of bases for the conclusion as to the female appellant's lack of credibility. 15 Last year, in SZVAP v Minister for Immigration and Border Protection [2015] 233 FCR 451, Flick J, with respect helpfully, collected a number of authorities concerning challenges to an absence of satisfaction based on adverse credibility findings. It is not the case that such findings do not admit a challenge on judicial review. If, for example, a finding as to an absence of credibility based on demeanour were inconsistent with unimpeachable contemporaneous documentation corroborative of an appellant's account, a basis for a challenge to credibility may well be revealed. That is not this case. 16 The grounds of appeal are tersely stated and in essence reveal a similar misapprehension on the part of the appellants to that evident, with respect, in the grounds of judicial review. The grounds of appeal are these: 1. The Federal Circuit Court Judge erred by failing or ignoring to find that the Second Respondent has failed to give me procedural fairness and natural justice based on its arbitrary views and comments towards my political involvement with Nepali Congress Party. The Second Respondent's strong assumption has overshadowed my political involvement with Nepali Congress Party and the problems I faced with the Maoists YCL. 2. The Second Respondent fell into jurisdictional error by too readily concluding that I was not a rape victim impugning my credibility based on its arbitrary views rather than the facts. I am a victim of the Second Respondent's purported decision. 17 These grounds ought not to be accepted for they seek in the appellate jurisdiction what cannot be undertaken in the original jurisdiction namely, review on the merits. That apart, the allegation as to a failure on the part of the Federal Circuit Court to find procedural fairness wanting in the Tribunal proceeding has no merit. 18 So far as is revealed by the Tribunal's reasons, all the Tribunal did, as required by statute, was to put to the appellant potentially adverse information. Further, the Tribunal also put to the female appellant potential inconsistencies for explanation, potential inconsistencies arising from what she had earlier said to a departmental officer following the initial lodgement of the protection visa application. 19 So far as is revealed by the Tribunal's reasons, this does not appear to be a case where nothing that the female appellant could say or do would have changed a preconceived view on the part of the Tribunal. All that the Tribunal was doing was that which it was entitled to do namely, not to accept uncritically, claims made in support of a protection visa application. This is just a case where the Tribunal, for reasons which were logically expressed, was not satisfied on the basis of a credibility assessment of the claim made in respect of the protection visa. It falls within that class of case described by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 at 23, [67]. There was no error in the Federal Circuit Court's dismissal of the judicial review application. The appeal must be dismissed. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 20 May 2016