FEDERAL COURT OF AUSTRALIA SZVRK v Minister for Immigration and Border Protection [2016] FCA 554 Appeal from: Application for leave to appeal: SZVRK v Minister for Immigration & Anor [2015] FCCA 3302 File number: NSD 1733 of 2015 Judge: BROMWICH J Date of judgment: 17 May 2016 Legislation: Federal Court of Australia Act 1976 (Cth), ss 24(1)(d), 24(1A), 25(1AA), 25(2) Federal Circuit Court Rules 2001 (Cth), rr 44.12(1)(a), 44.12(2) Federal Court Rules 2011 (Cth), rr 35.11(a), 35.12(1) Cases cited: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 Date of hearing: 17 May 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 37 Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Mr L Leerdam, DLA Piper Australia Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS NSD 1733 of 2015 BETWEEN: SZVRK Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: BROMWICH J DATE OF ORDER: 17 MAY 2016 THE COURT ORDERS THAT: 1. The application for leave to appeal be dismissed. 2. The applicant pay the first respondent's costs of the application as taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Revised from transcript) BROMWICH J: 1 This is an application for leave to appeal from orders made by a judge of the Federal Circuit Court of Australia on 10 December 2015, dismissing an application for review to that Court. The application for review before the Federal Circuit Court concerned a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal, to affirm a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to refuse the grant of a protection visa. The application for review was dismissed under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) because the primary judge was not satisfied that the application for review had raised an arguable case for the relief claimed. Rule 44.12(2) states "[t]o avoid doubt, a dismissal under paragraph 1(a) is interlocutory". 2 This application for leave is brought under r 35.11(a) of the Federal Court Rules 2011 (Cth). The following provisions of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) therefore apply: (a) s 24(1)(d) provides that this Court has jurisdiction to hear and determine appeals from judgments of the Federal Circuit Court exercising original jurisdiction under a law of the Commonwealth, apart from certain exceptions that are not relevant here; (b) s 24(1A) provides that an appeal shall not be brought from a s 24(1) judgment that is an interlocutory judgment unless the Court or a judge gives leave to appeal; (c) s 25(1AA) provides that the appellate jurisdiction of this Court in relation to an appeal from a judgment of the Federal Circuit Court is to be exercised by a single judge unless a judge considers that it is appropriate for the appellate jurisdiction to be exercised by a Full Court; and (d) s 25(2) provides that applications for leave to appeal to this Court must be heard and determined by a single judge unless exceptions apply that are not present in this case. 3 The discretion to grant leave under s 24(1A) of the Federal Court Act is unfettered. However, the Full Court in Decor Corporation Pty Limited v Dart Industries Inc (1991) 33 FCR 397 (Decor v Dart) at 399 – 400 accepted a line of authority as to the general guidance to be applied which a court should normally accept in the exercise of the discretion. The principles emerging from Decor v Dart may be summarised as follows: (a) by s 24(1A), the legislature has evinced a policy against the bringing of interlocutory appeals except where the Court, acting judicially, finds reason to grant leave; and (b) a "tight rein" should generally be kept on common interlocutory decisions on a point of practice, but leave will more readily be granted from an interlocutory decision determining a substantive right. 4 The guidance to the exercise of discretion to grant or refuse leave approved in Decor v Dart is cast in the form of two interrelated tests: (a) the first test, concerning the prospects of the proposed appeal, is whether, in all the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered on appeal; and (b) the second test is whether substantial injustice would result if leave were refused, supposing the impugned decision to be wrong. The two tests are not in separate compartments but bear on each other so that the degree of doubt which is sufficient in one case may be different from that required in another. There will continue to be cases raising special considerations and, accordingly, a court should not regard its hands as tied by the guidance referred to above. 5 No special consideration has been suggested as applying to this case and none is apparent. I have read the reasons of the Tribunal and of the primary judge, as well as the Minister's written submissions, and have been taken to portions of each at the hearing today. 6 There were no written submissions on behalf of the applicant. However, the applicant did address me today on why he said leave to appeal should be granted. I will refer to what the applicant said to me later in these reasons. 7 I adopt the following summary in the Minister's submissions, which isolates in a useful form what transpired at both the merits review stage before the Tribunal and at the judicial review stage before the primary judge. Before the delegate 8 The applicant is a male citizen of Pakistan. He arrived in Australia on 6 May 2013. On 15 July 2013 he applied for a protection visa. He claimed to be the managing partner of United Business Corporation (UBC), which manufactured and exported marble. 9 The applicant claimed that, for the reason that UBC was profitable, the Taliban in Pakistan, known as the Tehreek-e-Taliban Pakistan (TTP), demanded money from the partners of the company, including him. The applicant claimed that he did not respond to the demand from the TTP, and the factory was later fired at and a grenade was thrown causing injury to some of the factory workers. Upon the second demand for money, the applicant claimed that he departed Pakistan for Australia. 10 On 20 May 2014, a delegate of the Minister refused the grant of a protection visa. Before the Tribunal 11 On 4 June 2014, the applicant applied to the Tribunal for review of the delegate's decision. On 10 October 2014, the applicant appeared at a hearing before the Tribunal. On 5 November 2014, the Tribunal made a decision affirming the decision under review to refuse the grant of a protection visa. 12 The Tribunal accepted that the applicant was involved with UBC but did not accept that the applicant occupied a more senior role than his older brother. 13 The Tribunal found that the applicant's evidence, including documentary evidence, regarding the claimed incidents were variously false, vague and inconsistent. The Tribunal found that the applicant had falsified a document which referred to a claimed grenade attack on UBC. The Tribunal, therefore, found that the applicant had fabricated this part of his claim. The Tribunal had serious concerns about other supporting documentation concerning the claimed incidents that had been provided by the applicant. The Tribunal consequently placed no weight on any of the documents provided in support of the claims that he had been targeted and threatened by the TTP. 14 On the basis of country information, the Tribunal accepted that there had been some extortion in Pakistan for the purposes of funding the operations of the TTP. However, the Tribunal did not accept that the applicant had been targeted for harm or extortion by the TTP. Consequently, the Tribunal found that the chance of the applicant or UBC being targeted or harmed by the TTP, or any other group, for the purpose of gaining financial reward was remote. The Tribunal concluded that the applicant did not satisfy the criteria for the grant of a protection visa. Before the Federal Circuit Court 15 On 19 November 2014, the applicant filed an application in the Federal Circuit Court of Australia for judicial review of the decision of the Tribunal dated 5 November 2014. The grounds of the application are reproduced in the reasons of the primary judge at [12]. The Federal Circuit Court convened a show cause hearing on 10 December 2015. Following that hearing, the primary judge delivered an ex tempore judgment giving reasons for ordering that the application be dismissed. 16 The primary judge noted at [20] of his reasons that the applicant filed an affidavit at the hearing in which he asserted interpretation problems, and that he stated from the Bar table that the interpreter at the Tribunal hearing was from Afghanistan and spoke Urdu differently to that spoken in Pakistan. The applicant suggested that what he said may not have been accurately interpreted into English. The primary judge noted at [22] the applicant's concession that he did not raise these concerns with the Tribunal. 17 The primary judge also found at [22] that it was not apparent from the Tribunal decision that there was any interpretation problem of which the Tribunal was aware. The Tribunal's discussion of what occurred at the hearing did not indicate a lack of understanding between the applicant and the Tribunal. The primary judge accepted that the interpreter at the Tribunal hearing may have been Afghani and may have spoken with an accent different to that of a Pakistani Urdu interpreter. However, his Honour found at [24] that this was not sufficient to establish that the standard of interpretation was inadequate, and that there was no evidence to support the applicant's assertion of interpretation problems. 18 The primary judge found at [26] that, contrary to the allegations made in grounds one, two and three in the application for review that certain information before the Tribunal was not considered, the Tribunal took into account all the information before it. His Honour found at [28] – [33] that the Tribunal's findings were open to it, that the Tribunal had rejected the factual basis of the applicant's claims, and that it was not the role of that Court to assign a different weight to the evidence. 19 The primary judge found at [35] that the allegation of bias made in ground four was not made out and that, on a fair reading of the decision record, there was nothing to suggest that the Tribunal member did not bring a fair and impartial mind to bear. 20 The primary judge concluded that there was no arguable case of jurisdictional error by the Tribunal and, accordingly, dismissed the application for review pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules. Before this Court 21 As noted above, by the application before this Court, filed on 24 December 2015, the applicant seeks leave to appeal from the judgment and orders of the primary judge pursuant to r 35.11(a) of the Federal Court Rules. The proposed notice of appeal, filed as an annexure to the affidavit in support of the application, identifies four proposed grounds of appeal as follows: (1) The Tribunal failed to make the enquiry on concerning the document provided. (2) The Tribunal failed to accept that I have been targeted for extortion which is serious harm. (3) His [Honour] failed to take an account my documents are genuine and credibility issue cannot be justified. It was not open to the Tribunal as well his [Honour] to accept adverse credibility finding based on the material before them. (4) The Court failed to accept lack of understanding between the Tribunal and applicant as a result of interpreter. There is difference between the Pakistani and Afghan language. The Interpreter speaking with different dialect. 22 The Minister submits that the applicant has failed to demonstrate that there is any doubt about the correctness of the decision of the primary judge and that there would be no substantial injustice resulting from refusing leave to appeal. Proposed grounds two and three 23 The Minister submits that grounds two and three of the proposed notice of appeal concern only matters of merits review of the Tribunal's factual findings. Such grounds were not reviewable by the Federal Circuit Court and, accordingly, there could not have been any error on the part of the primary judge in failing to uphold them. I agree. Leave cannot be granted in respect of those grounds as they do not raise any jurisdictional error on the part of the Tribunal and do not identify any error on the part of the primary judge. Proposed ground one 24 As to proposed ground one, the Minister points out that this raises a new ground not pleaded in the Court below. This ground suggests the Tribunal erred by not conducting inquiries into the genuineness of one or more of the applicant's documents. The Minister addressed this proposed ground at two levels. The first was legal in nature and the other factual in nature. The legal answer put forward by the Minister was that this ground, if leave were granted for it to be relied upon, would not establish any jurisdictional error on the part of the Tribunal. 25 The Minister relies upon the High Court decision of Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at 1128-1129 [20] – [27] to submit that the Tribunal had no general duty to conduct inquiries or seek information not presently available or not put before it by an applicant. In order to establish that the Tribunal was obliged to conduct inquiries, the applicant needed to show that there was an obvious inquiry that the Tribunal could have made about a critical fact, the existence of which was so easily ascertained that failure to do so amounted to a failure to exercise jurisdiction. 26 The applicant did not point to any obvious inquiry which could and should have been made in the present case. The Minister submitted that there was no such obvious inquiry to be made. 27 In further submissions today, the Minister's solicitor took me to parts of the Tribunal's reasons. The passages I was taken to establish that the Tribunal in the greater part accepted the existence and operations of UBC and accepted as genuine the documents that the applicant relied upon to establish those facts. However, the Tribunal did not accept as genuine three documents relating to the claimed incidents. 28 Two of the documents not accepted as genuine referred to purported attacks on UBC. The Tribunal located online versions of the documents. The documents provided by the applicant to the Tribunal differed from the online versions in that they contained references to UBC. The effect of this difference was to extend what appeared to be a genuine attack at another location to an attack on the applicant's company, UBC. One of the documents provided by the applicant and which the Tribunal questioned also referred to "3person injured" whereas an online version described no injuries. These differences were directly raised by the Tribunal with the applicant and he was given an opportunity to comment. The only explanation given by the applicant was that he had been provided the documents by his brother. 29 A third document was a purported newspaper report attached to an email from the applicant's cousin to the applicant. The Tribunal was not prepared to accept the newspaper report as being genuine and questioned the authenticity of the document based on its presentation. This was raised with the applicant who stated he had just received the information from his cousin. 30 The applicant today was unable to identify any other document relied upon adversely as to which no inquiry had taken place. As I have already commented, most of the documents provided by the applicant appear to have been accepted, and those which were not accepted were the subject of inquiry and the concerns about them were raised with the applicant. It follows that there is no substance to proposed ground one. Proposed ground four 31 As to proposed ground four, the Minister submits that this simply repeats the allegation made in the Court below that the interpretation provided to the applicant at the Tribunal hearing was inadequate. The Minister accepts that where interpretation is shown to be inadequate this can result in the applicant being denied a meaningful hearing. However, this needs to be proven by way of evidence, which has not occurred in this case. The Minister submitted that the applicant's assertions made in his affidavit in those proceedings and in oral submissions to the Court below, and repeated in these proceedings, are not sufficient to establish that the interpretation provided at the Tribunal hearing was such as to deny the applicant a meaningful hearing. 32 The Minister submitted that the applicant would need to put on evidence from an appropriately qualified interpreter to make good his claim. The Minister submitted that the primary judge was correct to find that the evidence before his Honour was not sufficient to establish any jurisdictional error on the part of the Tribunal arising from interpretation problems and, accordingly, there was no appellable error in this respect. 33 Before me today, the applicant identified his concerns in relation to interpreting as coming down to two matters. The first was that the applicant said he had referred to one person being injured at UBC, whereas the interpreter had said, "some people were injured". The Tribunal's reasons at [38] record in the last sentence the following: The applicant stated that the grenade was thrown at the factory, and stated that one of the workers who cut the marble had been injured. (Emphasis added.) 34 It therefore appears that what the applicant said about only one person being injured was in fact conveyed in the same terms to the Tribunal. 35 The second specific complaint made by the applicant in his submissions to me today referred to a request to speak to the interpreter outside the Tribunal hearing room about his translation leaving something out at the Tribunal hearing, but this had not taken place because the interpreter had apparently left. It was not clear whether this was a further reference to the issue of a single person being injured, rather than more than one person. Nothing else was specifically identified as not having been translated. The applicant more generally renewed his concerns about the quality of the interpreting, but did not identify any specific issue, concern or problem. 36 The applicant's case on proposed ground four does not meet the threshold required by the various authorities on this topic. It follows that the primary judge's conclusions on the issue of the quality of the interpreting service is not attended with any, let alone sufficient, doubt to warrant it being reconsidered on appeal. Conclusion 37 There is no prospect that I can see for any of the four proposed grounds of appeal succeeding. In those circumstances, there cannot be any injustice at all in refusing leave to appeal, let alone substantial injustice. The application for leave to appeal must therefore be dismissed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich. Associate: Dated: 17 June 2016