FEDERAL COURT OF AUSTRALIA SZUJO v Minister for Immigration and Border Protection [2016] FCA 1491 Appeal from: Application for leave to appeal: SZUJO v Minister for Immigration & Anor [2016] FCCA 1252 File number: NSD 801 of 2016 Judge: BURLEY J Date of judgment: 13 December 2016 Catchwords: MIGRATION – application for a Protection (Class XA) visa – whether Refugee Review Tribunal failed to properly deal with applicant's claims, made an error of law, considered irrelevant facts or disregarded relevant facts, or failed to act fairly ADMINISTRATIVE LAW – role of the Court to decide whether decision was invalid by reason of jurisdictional error – role of the Court not to consider factual merits of Tribunal's decision PRACTICE AND PROCEDURE – appeals – application for leave to appeal from an interlocutory decision of the Federal Circuit Court of Australia dismissing the application in a show cause hearing Legislation: Federal Court of Australia Act 1976 (Cth) s 24 Migration Act 1958 (Cth) s 36 Federal Circuit Court Rules 2001 (Cth) r 44.12 Cases cited: Décor 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 Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 SZUJO v Minister for Immigration & Anor [2016] FCCA 1252 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 Date of hearing: 31 October 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 41 Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Mr M Glavac of Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting appearance, save as to costs ORDERS NSD 801 of 2016 BETWEEN: SZUJO Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: BURLEY J DATE OF ORDER: 13 DECEMBER 2016 THE COURT ORDERS THAT: 1. The application for leave to appeal is refused. 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. REASONS FOR JUDGMENT 1 INTRODUCTION [1] 2 BACKGROUND [8] 2.1 The Visa application and the decision of the Delegate [8] 2.2 The Tribunal's decision [9] 2.3 The FCCA [19] 3 THE PRESENT APPLICATION [26] 3.1 Ground 1: Failure to deal with the applicant's claims [30] 3.2 Ground 2: Error of law [34] 3.3 Ground 3: Taking into account irrelevant facts and disregarding relevant facts [37] 3.4 Ground 4: Duty to act fairly [38] 4 DISPOSITION [40] BURLEY J: 1. INTRODUCTION 1 On 20 May 2016, the Federal Circuit Court of Australia (FCCA) gave judgment and made orders pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth), dismissing an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal). The Tribunal had affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the applicant a Protection (Class XA) Visa (Visa) under section 36 of the Migration Act 1958 (Cth) (the Act). 2 The present proceeding is an application for leave to appeal from the FCCA decision. Leave is necessary because the decision of the FCCA is interlocutory. 3 The hearing in this matter was conducted on 31 October 2016. The applicant was unrepresented, and appeared with the assistance of an interpreter. The Minister supplied written submissions in advance of the hearing, which were translated for the applicant prior to the commencement of the hearing. 4 The applicant filed an application for leave to appeal together with a draft notice of appeal, and an affidavit in support dated 26 May 2016. The grounds of application upon which he relies are as follows: 1. The Respondents failed to properly deal with the appellant's claims, by reaching a decision based on findings of fact that are so unreasonable. By doing so the Respondents made a jurisdictional error. 2. The Respondents made an error of law, in reaching decisions which failed to understand the law relevant to appellant's claims, namely the refugee law and more specifically ss.36(2)(a), 36(2)(aa) of the Migration Act 1958 (Cth). 3. The Respondents took into account irrelevant facts and disregarded relevant facts. Thereby, they made procedural mistakes. 4. The Respondents had a duty to act fairly, in the exercise of their administrative powers, which affected the rights, interests and legitimate expectations of the appellant. The Respondents failed to act accordingly. 5 The draft grounds of appeal were expressed in the same terms as the grounds for the present application. 6 The grounds advanced in this Court were materially different to the grounds relied upon in support of the application for review before the FCCA. 7 For the reasons set out in more detail below, the application for leave to appeal is refused with costs. 2. BACKGROUND 2.1 The Visa application and the decision of the Delegate 8 The applicant is a citizen of Pakistan who arrived in Australia on 28 March 2012. On 25 June 2012 he lodged an application for a protection visa, alleging that he feared persecution in Pakistan because of his former membership of an extremist Islamic group. On 2 November 2012, the application was refused by the Delegate. 2.2 The Tribunal's decision 9 The applicant applied to the Tribunal for a review of the Delegate's decision. He was unrepresented before the Tribunal but appeared in person with the assistance of an interpreter. 10 The applicant claims to fear harm from the Jamaat-e-Islami party because of his involvement with the party in 1996 and 1997. In support of his claims, the applicant asserted that: (a) he attended religious meetings with Jamaat-e-Islami and later joined the party. In May 1995, he was appointed as Union Council Nazim for the party; (b) in May 1996, the applicant accompanied a district leader of Jamaat-e-Islami and several young boys from his village, to Kashmir. They were to be trained in Kashmir for jihad; (c) on 15 June 1996, a district leader took the boys to occupied Kashmir and sent the applicant home to prepare other boys to be trained; (d) on 15 September 1996, the applicant was informed that the boys had been killed. He was unable to inform their parents; (e) the boys' parents reported the applicant to the police. When investigated by the police, the applicant told the police about the involvement of Jamaat-e-Islami; (f) on 8 November 1996, the applicant received a telephone call from the district leader, who asked him why he had not returned to Kashmir with other boys. The applicant told him that no further boys were "ready to go to Kashmir at this stage". However, the leader thought that the applicant was lying and that he was not interested in taking the boys to Kashmir; (g) in December 1996, the applicant told a commander of Jamaat-e-Islami that he was resigning as Union Council Nazim and would not participate in their activities any longer. The commander threatened to kill him if he left the party. He claims that Jamaat-e-Islami believes he knows the party's secrets; (h) in February 1997, the applicant was kidnapped, tortured and threatened with death. The applicant provided the Tribunal with a letter purportedly from the Zamord Surgical Unit (Zamord letter) as evidence of his stay in hospital after the kidnapping; (i) afterwards, he left Pakistan and travelled to Kuwait. He would visit Pakistan every one or two years, for one or two months at a time, but would not socialise or tell people about his visits; and (j) in 2011, the applicant moved back to Pakistan believing that everything would have settled. However, around 28 days after his return, the applicant was approached by Jamaat-e-Islami and threatened with harm if he did not join them. As a result, he decided to leave Pakistan. 11 The Tribunal rejected the applicant's claims on the basis that it did not consider that his version of events was credible. It identified several reasons why, in its view, his explanation should not be believed. 12 First, the applicant had claimed that in 1996 Jamaat-e-Islami had encouraged him to go to Kashmir with four named boys from his village, all of whom had been killed. However, he had earlier told the Department of Immigration and Border Protection that only two or three boys had died. The Tribunal was not satisfied with the applicant's explanation for this discrepancy, which it found to be material. 13 Secondly, the Tribunal found that the fact that the applicant made regular visits to Pakistan, every one or two years, after he allegedly fled in 1997, was inconsistent with his claims of fearing harm from Jamaat-e-Islami. In this context, the Tribunal recorded that the applicant had initially explained this on the basis that he met his parents when he visited in a "secret safe place", but later said that he was staying in their house. 14 Thirdly, the Tribunal noted that the applicant was granted a tourist visa to come to Australia in July 2010 but did not in fact arrive until 28 March 2012. The Tribunal noted that his explanation for this was that in December 2011 he did not know of the circumstances in Pakistan and that his family were "forcing him back". The Tribunal considered that this was inconsistent with a genuine fear of harm. 15 Fourthly, the Tribunal considered that the applicant did not provide a plausible explanation as to how Jamaat-e-Islami were unable to locate him in the many times that he returned to Pakistan between 1997 and December 2011, and yet found him within a month of his arrival in December 2011. Nor was it satisfied with the explanation as to why Jamaat-e-Islami would be interested in requiring the applicant to re-join them after he had allegedly complained to the police about their activities. 16 Finally, the Tribunal noted that the applicant arrived in Australia on 28 March 2012 and did not apply for his protection visa until 25 June 2012. The Tribunal did not accept that someone who fled Pakistan would not have at least made inquiries about protection at the earliest opportunity. 17 The Tribunal said at [11]: In sum, the Tribunal does not accept that the applicant has been approached by Jamaat-e-Islami in the past or that he or his family have subsequently gone into hiding or tried to avoid them. In reaching this conclusion, the Tribunal has also considered the letter from Zamord Surgical Unit which allegedly corroborates the applicant's stay in hospital after he was kidnapped in 1997 however given the Tribunal concerns with the applicant's credibility and evidence that fraudulent documents are produced in Pakistan, the Tribunal does not place any weight on this document. 18 As a result of these matters, the Tribunal did not accept that it was reasonably foreseeable that there is a real chance that the applicant would be persecuted by Jamaat-e-Islami or any other extremist group in the future. It concluded that the applicant is not a refugee within the terms of Article 1A of the 1951 Convention relating to the Status of Refugees (as amended by the 1967 Protocol relating to the Status of Refugees), is not owed protection obligations by Australia, did not satisfy the criterion set out in subsection 36(2)(a) of the Act and did not satisfy the alternative criterion in subsection 36(2)(aa) of the Act. 2.3 The FCCA 19 The applicant was self-represented before the FCCA. The matter came before the Court for consideration of an application to show cause pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) which is as follows: Show cause hearing (1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application; or (b) if it is satisfied that the application has raised an arguable case for the relief claimed – adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application. (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory. 20 The primary judge applied sub-rule 44.12(1)(a) and ordered that the application be dismissed; SZUJO v Minister for Immigration & Anor [2016] FCCA 1252 at [17]. 21 The grounds advanced by the applicant before the FCCA were materially different to the present grounds relied upon in the application and draft grounds of appeal. They were as follows: 1. The Refugee Review Tribunal did not give sufficient weight to the evidence and facts presented by me. Particulars The Tribunal did not take into consideration relevant facts and evidence presented by the applicant. For example, the Tribunal stated the applicant produced fake documents of the stay in the hospital after he had been kidnapped in 1997. The tribunal came to this conclusion based on an assumption that fraudulent documents are produced in Pakistan and no attempt was made to ascertain the authenticity of the documents. 2. The Tribunal's conclusion that the Jamaat-e-Islami had never approached the applicant was irrational and was based on pre-conceived judgment as to what happened or what did not happen. Particulars The applicant produced evidence as well as events that led to his involvement with the Jamaat-e-Islami. He showed how his life [was] in danger from such extremists [sic] elements in Pakistan. The Tribunal did not accept the applicant was approached by Jammat-e-Islami or he has reason to fear from the group. 3. The applicant was not given a fair hearing by the Refugee Review Tribunal. Particulars The applicant feels the Member questioned him so intensely that he felt so confused at times. The applicant understands that such questioning may have been used to ascertain the real facts relating to his application. However the applicant states the intensity at which they were probed, he felt he was being questioned for committing some wrongful act. The applicant states he believes a fair hearing is where each person is given time to think what he speaks in relation to actual facts and circumstances. 22 The primary judge noted that the first ground essentially sought an impermissible merits review of the applicant's Visa application. Further, to the extent that the first ground was said to be based on an "assumption" of the presence of fraudulent documents, the primary judge noted that country information reporting the existence of document fraud in Pakistan provided sufficient material, and a logical basis, for its decision to give no weight to the Zamord letter. Accordingly, the first ground was dismissed. 23 Ground 2 was dismissed on the basis that it reflected no more than an emphatic disagreement with the Tribunal's conclusions. 24 Ground 3, which alleged that the applicant had not been given a fair hearing before the Tribunal, was general and unspecific and, in the view of the primary judge, revealed by its particularisation to have no substance. No allegation was made that the applicant was deprived of a real and meaningful opportunity to put his case to the Tribunal. To the extent that this may be inferred from the allegation made in the particulars to ground 3 to the effect that the applicant may not have had an opportunity to have time to think, the allegation was devoid of detail and did not rise to the level of an arguable case. 25 In the conclusion, the primary judge found that the applicant did not raise an arguable case for the relief claimed and dismissed the application. 3. THE PRESENT APPLICATION 26 Leave to appeal is necessary in the present proceedings because the decision of the FCCA is interlocutory; sub-rule 44.12(2) of the Federal Circuit Court Rules 2001 (Cth); section 24(1A) of the Federal Court of Australia Act 1976 (Cth). 27 In considering the grant of leave, the first test, which relates to the prospects of the proposed appeal, is whether, in all the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered by the Full Court. The second is whether substantial injustice would result if leave were refused, supposing the decision to be wrong; Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398. 28 At this juncture, it is important to note that neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the applicant satisfies the criteria for the grant of the Visa or to grant the applicant a visa. As such, neither Court has the capacity to consider the factual merits of the Tribunal's decision to refuse to grant the Visa to the applicant. The jurisdiction of the FCCA is limited to considering only whether the Tribunal's decision to refuse to grant the applicant a visa is lawful under the Act, that is, whether the decision of the Tribunal is invalid by reason of jurisdictional error; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court, in the event that leave were granted, is required to consider whether there is error in the decision of the FCCA on an appeal from the Tribunal under section 24 of the Federal Court of Australia Act 1976 (Cth). That consideration is, in the present case, further overlaid with the requirements for consideration of whether an application for leave to appeal should be granted, as set out above. 29 In order to consider the prospects of the proposed appeal, it is necessary to review each of the grounds currently advanced by the applicant. None of those grounds were raised before the FCCA which, regrettably, gives rise to a further difficulty for the applicant in that he is now asking this Court to decide, on appeal, grounds which have not been ventilated in the Court below. In order to do so, leave would be required; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46] – [48]. 3.1 Ground 1: Failure to deal with the applicant's claims 30 Ground 1 asserts, without particularisation, that there was a failure properly to deal with the applicant's claims by reaching a decision based on findings of fact that are unreasonable. For present purposes, I assume that this criticism is levelled at the findings of the Tribunal and amounts to an allegation that the primary judge failed to detect that the Tribunal had reached findings of fact that were unreasonable. 31 In the absence of any factual particulars giving rise to this allegation, and any reasoning of the primary judge which might form the basis for such an allegation, the applicant faces considerable hurdles in establishing that this ground is arguable. As noted above, the rejection of the applicant's claim was essentially on the basis that the Tribunal did not accept his version of events. Accordingly, the Tribunal was not satisfied that he was entitled to the Visa pursuant to section 36 of the Act. 32 Credibility findings are matters for the Tribunal; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67]. The reasoning advanced by the Tribunal in support of its conclusion that the version of events offered by the applicant was not credible was not, in my view, irrational or unreasonable in the sense required by the authorities. 33 Accordingly, in my view, ground 1 of the application is not made out. 3.2 Ground 2: Error of law 34 Ground 2 contends that the respondents, in reaching their decision, failed to understand the law relevant to the applicant's claims. As for ground 1, for the purposes of ground 2, I also assume that this criticism is levelled at the findings of the Tribunal and amounts to an allegation that the primary judge failed to detect that the Tribunal did not understand the relevant law. Again, no detail of the alleged failure is given. 35 Paragraphs [2] – [6] of the Tribunal decision sets out in broad terms, the criteria for a protection visa and refers to Ministerial Direction No. 56 pursuant to which the Tribunal is required to take into account policy guidelines prepared by the Department of Immigration and Border Protection, any country information assessment prepared by the Department of Foreign Affairs and Trade to the extent relevant to the decision under consideration. No error of principle is apparent from these paragraphs, which appear to have been applied to the consideration of the matter by the Tribunal. 36 Accordingly, I can see no basis upon which ground 2 is made out. 3.3 Ground 3: Taking into account irrelevant facts and disregarding relevant facts 37 Ground 3 asserts that the respondents (by which I assume is meant the Tribunal and the FCCA) took into account irrelevant facts, disregarded relevant facts and thereby made procedural mistakes. Again, no particulars have been advanced to support this allegation. It appears to have no foundation. The reasoning offered by the Tribunal depends upon claims made by the applicant himself, and relied on his evidence given, inter alia, before the Tribunal to form the basis of its rejection of his claims. The Tribunal was entitled to give the Zamord letter no weight in circumstances where the Tribunal had formed the view that the party proffering it was not offering a credible explanation and its provenance lay entirely in the hands of the applicant; Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 at [34] – [36]. Accordingly, ground 3 is not made out. 3.4 Ground 4: Duty to act fairly 38 Ground 4 alleges that the respondents had a duty to act fairly. For present purposes, I again assume that this criticism is levelled at the findings of the Tribunal and amounts to an allegation that the primary judge failed to detect that the Tribunal did not act accordingly. 39 This ground is again unsupported by the provision of any particulars or information which might indicate the basis upon which it is said that there was a failure to act fairly. It is to be understood as no more than an emphatic disagreement with the conclusions reached by each of the Tribunal and the FCCA. As I have noted above, an appeal to this Court is not an opportunity for a general merits review or ambit claims seeking to re-agitate matters of fact. Accordingly, this ground is also not made out. 4. DISPOSITION 40 The applicant has not established that any of the grounds upon which the current application has been brought give rise to an arguable basis upon which it might be concluded that the decision below is attended with sufficient doubt to warrant it being reconsidered by the Full Court. I should add that even if the grounds of the current application were restricted to those which were advanced before the learned primary judge, I would have reached the same conclusion. 41 In the circumstances, the only appropriate order is for me to dismiss the application for leave to appeal with costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley. Associate: Dated: 13 December 2016