SZTKA v Minister for Immigration and Border Protection [2014] FCA 1294 | Case summary

judicial review in the federal circuit court 15 On 15 October 2013, the appellant applied to the Federal Circuit Court for judicial review of the Tribunal's decision. 16 The appellant stated three grounds of review in an amended application filed on 24 March 2014, and, at the hearing, the primary judge gave the appellant leave to add a fourth ground of review relating to the quality of the interpretation at the Tribunal hearing. 17 On 11 July 2014, the primary judge dismissed the application and found that the appellant's grounds involved either allegations unsupported by evidence or were attempts to engage in impermissible merits review. 18 In relation to the appellant's fourth ground, that the interpreter made "mistakes" in the Tribunal hearing, the primary judge held that the appellant had provided no evidence to support this claim, despite having had more than seven months to obtain legal advice or provide evidence in relation to this ground, such as a Tribunal transcript. The primary judge rejected a request for an adjournment of the final hearing, on the basis that he had had a reasonable opportunity to present evidence or obtain advice and no useful purpose would be served, as the appellant had not identified the relevance or nature of the alleged mistakes of the interpreter. The primary judge accepted that the appellant had been given a meaningful opportunity to give his evidence and there was no jurisdictional error on the part of the Tribunal. 19 As to ground 1, the primary judge held that the Tribunal's adverse credibility findings and its ultimate conclusion were findings of fact which were all reasonably open to the Tribunal on the evidence before it. His Honour found that the Tribunal had given "cogent reasons probative of the evidence and material before it" and no jurisdictional error was disclosed. The primary judge noted that findings of credibility are a matter par excellence for the Tribunal. See Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405. 20 The Federal Circuit Court found that the remainder of the appellant's claims outlined in ground 1 sought to engage the Court in impermissible merits review. In particular, the primary judge noted that the Tribunal is not required to "disprove" an applicant's claims or find and then rely on rebutting evidence before it finds it cannot accept a particular factual assertion made by an applicant. Further, the primary judge stated that the choice and weight to be given to country information relied on by the Tribunal is for the Tribunal to determine and noted that this was not a matter where the appellant claimed that the Tribunal had not considered up-to-date country information, in the sense considered in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 136 ALD 547. 21 The primary judge considered that the appellant's further grounds were not an attempt to assert that the Tribunal had breached its procedural fairness obligations. In any event, his Honour noted that the appellant was invited to a hearing before the Tribunal, the appellant has not challenged the Tribunal's account of what happened at the hearing and the Tribunal raised with the appellant the issues dispositive of the review and gave the appellant an opportunity to comment. 22 Further, as to ground 2, the primary judge accepted that while some of the country information relied on by the Tribunal may have been exempt from the obligation set out in s 424A(1) of the Act, the Tribunal discharged any such obligation by raising the information with the appellant at the hearing and giving him the opportunity to comment on it. 23 As to ground 3, the primary judge also rejected the appellant's submission that the Tribunal failed to make further inquiries to verify certain aspects of his evidence, including his claims that he was a university teacher and had been sent to Australia in connection to or through the university, had been involved with the BNP in Australia and his medical records at the hospital. His Honour accepted that if the Tribunal cannot be satisfied that the visa must be granted on the material presented to it, then there is no general duty to make further inquiries: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992. 24 In the circumstances, the primary judge accepted that it was subsequently open to the Tribunal to rely on its factual findings and find that the appellant did not separately meet the comprehensive protection criterion for the grant of the visa.

appeal to this court 25 By his notice of appeal filed on 1 August 2014, the appellant identifies three grounds of appeal (with particulars) which reflect grounds 1-3 of the application before the Court below: 1. The Honourable Federal Circuit erred in not considering that the Refugee Review Tribunal (the Tribunal) made a jurisdictional error that the Tribunal did not act fairly. The Tribunal did not assess the information according to the Migration Act 1958. The Tribunal review process was wrong process. The review process was not done independently. The Tribunal wrongly consider Guidelines of the Department of Immigration. The Tribunal acted to reject the genuine claim. The Court did not consider it. The credibility issue is serious issue and the Tribunal followed- 'Department of Immigration - PAM3 Refugee and Humanitarian - Complementary Protection Guidelines and PAM3 Refugee and Humanitarian- Refugee Law Guidelines' which is a direction from the Fist Respondent. The Court did not consider it. Particulars: Is the applicant credible witness:- The Tribunal does not accept the applicant is a credible witness and ever faced any the difficulties he claimed or was ever involved with the BNP in Bangladesh in the manner he claims and suffered harm in his country that he claims for the reasons that he claims, specifically because of any involvement or any activities with the BNP and because of any leadership role in any BNP organization. It does not accept as true that he applicant faced any difficulty because of his interest or involvement in BNP Politics or will on his return. 2. The Honourable Federal Circuit Court erred in not finding that the Tribunal made a procedural mistake when it collected the information for the purpose of review through DFAT and took that information into consideration to reject the genuine claim for protection. But on the other hand the Court did not look into that the Tribunal did not collect information through DFAT to reject the review application when that information was genuine. The information was used to reject the claim was very old information and the Court did not consider it. The Tribunal did not comply with the part 7 of the Act and the Court did not consider it. Particulars: The Tribunal did not collect information regarding the applicant's involvement in BNP in Australia. The Tribunal did not call Dr Wahab to very applicant's claim. The Tribunal followed the Guideline and rejected the claim. The information collected by the Tribunal was very old information such as 29 August 2005. The Tribunal used information from UK Home Office Country of Origin Report, Bangladesh, 30 September 2012. This is an old report and The Refugee Review Tribunal in Australia can't rely on that information because it was not collected from their own sources. There is a question about the authenticity of this information. The information part of a Canadian report from 2005 is very old information and there is no authenticity of this information. 3. The Honourable Federal Circuit Court did not consider that the Tribunal did not follow the rule of the part 7 of the Migration Act. The Tribunal did not act indecently. The Tribunal wrongly followed the Immigration Department's Guidelines to reject the claim. The Tribunal collected limited information. The Tribunal relied on very old and unauthentic information. The Court did not consider it. The Tribunal is wrong but the Federal Circuit did not take into account. 26 The appellant filed a supporting affidavit on 1 August 2014, in which he states that his case and his fear for harm is genuine because of his political involvement and opinion and the Tribunal did not assess his fear for harm. The appellant says that the Tribunal did not apply the right law for the assessment of his case and the relevant supporting evidence. The Court receives the affidavit as a submission, not as additional evidence in the case. 27 In written submissions filed 13 November 2014, the appellant makes the following arguments: The appellant did not accept the decision of the Tribunal. The Tribunal did not review his application properly. The Tribunal acted as a delegate of the Minister and rejected the review application and the Court did not consider this. The Tribunal did not make a decision independently. It was influenced by the guidelines which is a wrong procedure to review the appellant's claim and the Court did not consider it. The appellant is a credible witness and his evidence is genuine evidence. He does not agree or accept the Tribunal's findings. It is very clear that the decision made by the Tribunal is made to reject the review application. For example, the Tribunal stated at [21] of its decision that "For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed". The Tribunal made few issues which are not accepted by the appellant. It was not appropriate for the Tribunal to say that the appellant is not credible in his claim. The Tribunal used very old information to support its decision, including information from the years 2005 and 2011. The Tribunal assessed the appellant's threats to his life using UK information from 2012. Its review was not done on proper information and the Tribunal made a mistake which the Court did not consider. The appellant does not accept the information collected by the Tribunal through DFAT, as he thinks that DFAT did not act independently and is part of the government. The credibility issue was determined on the basis of very old and not relevant information. The investigation was not made independently by the Tribunal, so its decision is not beyond doubt and question and it made a procedural mistake. The Act does not allow such an investigation and the Tribunal did not act fairly. The Tribunal did not assess the information according to the Act. It used the wrong process and the review process was not done independently. The Tribunal was wrong to consider the guidelines. It acted to reject a genuine claim. The credibility issue is a serious issue and this issue was not assessed fairly. The Tribunal followed a direction of the Minister. When the Tribunal collected information, it collected very limited information and did not collect information as to whether he has fears for his life, will face a threat to his life if he has to return to Bangladesh or whether the authorities would protect him. The Tribunal only collected information against him and rejected his claim. 28 In oral submissions on the appeal, the appellant emphasised that if only the Tribunal had made more comprehensive inquiries as to the documents he provided to the Tribunal, the Tribunal would have been satisfied he was involved in politics, as he put it, in Bangladesh. 29 The Minister reasonably notes that the appellant's three grounds of review are in narrative form, each covering multiple issues and many issues are repeated across the grounds. The Minister submits that these grounds for the most part amount to a complaint that the primary judge did not engage in merits review, which is beyond the jurisdiction of this Court. 30 The Minister submits that the appellant's complaints that the primary judge did not review the Tribunal's credibility findings are misconceived, as this is a matter for the Tribunal. He emphasises McHugh J's comments in Durairajasingham at [67] that findings on credibility are a matter par excellence for the primary decision-maker. 31 The Minister says that there is no requirement that a Tribunal must engage in "an uncritical acceptance of any and all allegations made by suppliants": Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451-2. He refers to Heerey J's comments in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 that "[a] decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out". 32 As to the remainder of the appeal grounds, the Minister says there are four matters which require consideration: (1) Whether the Tribunal was wrong to consider or adopt the guidelines. (2) Whether the Tribunal was wrong to rely on information from DFAT. (3) Whether the Tribunal relied on old or outdated country information. (4) Whether the Tribunal failed to contact certain persons, in particular Dr Wahab, to confirm the appellant's story. 33 As to (1), the Minister submits that the Tribunal was obliged to follow the guidelines, as it recognised at [19] of its decision, in accordance with a Ministerial direction made under s 499 of the Act, but, the Minister notes that at [50] of its decision, the Tribunal correctly declined to follow these guidelines where authority of this Court departed from the guidelines. 34 As to (2), the Minister contends there is nothing in the Tribunal's reasons to indicate that it deferred to views expressed in DFAT documents or used them in any way other than as ordinary country information. The Minister observes that the Tribunal explicitly gave no weight to DFAT information in respect of one issue. 35 As to (3), the Minister submits there is no evidence that more recent or more up-to-date country information was before the Tribunal for it to consider, which is in contrast to the situation in MZYTS at [29]-[62]. 36 As to (4), the Minister notes that the Tribunal is generally not obliged to exercise its inquisitorial powers. See WAEH of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 364 at [19]-[24]; SGLB at [43]. 37 The Minister submits that the primary judge's reasons at [55]-[56] are correct in this respect: [I]f the Tribunal cannot be satisfied that the visa must be granted on the material presented to it, then there is no general duty to make further inquiries as is suggested by the applicant's complaint … nor is this a case where the "limited" duty to inquire applies ([Minister v SZIAI (2009) 83 ALJR 1123]). As the Minister submits, the limited circumstances where a duty to inquire does arise are not present in this case… Given the Tribunal's general credibility concerns, any specific inquiries about his involvement in the BNP in Australia or his medical evidence cannot be held to reveal that the Tribunal failed to make an inquiry about a critical fact the existence of which was easily ascertained. 38 In response to the appellant's oral submission on the appeal, the Minister emphasised that there was no duty for the Tribunal to undertake any comprehensive inquiries. The Minister noted the Tribunal did ask DFAT to investigate one matter, but disbelieved the information relayed to it by DFAT. 39 The Court generally accepts the submission made on behalf of the Minister to the effect that as no jurisdictional error can be demonstrated in the decision of the Tribunal, it has not been shown that the primary judge erred in dismissing the judicial review application before the Federal Circuit Court. 40 Generally speaking, the scheme of the Act under which the Tribunal made its decision is such that questions of fact fall within the province of the Tribunal, but questions of law that govern the proper exercise of jurisdiction by the Tribunal ultimately fall within the province of the Federal Circuit Court, on a judicial review application under the Act, or of this Court on appeal from the Federal Circuit Court. 41 Thus, it is common to state that where a statute, such as the Act, makes factual issues for decision a matter for the administrative decision-maker's satisfaction, as the Act does here with respect to visa criteria, there is no error of law (let alone jurisdictional error) in the decision-maker simply making a wrong finding of fact. See Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [137] (Gummow and Hayne JJ). Again it is usual to observe that it is inappropriate for a Court such as the Federal Circuit Court or this Court, on a judicial review application or an appeal, to engage in merits review. See Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). Nonetheless, there may be circumstances where a decision made by the administrative decision-maker, having regard to the facts, may be challenged as to its reasonableness. See Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332. Also, it is not correct to say that findings made by an administrative decision-maker, such as the Tribunal, in respect of a person's credibility are unreviewable. See, for example, the observations of Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [78]; and the endorsement of them by Griffiths J in SZTFP v Minister for Immigration and Border Protection [2014] FCA 1236 at [18]. It should be observed, however, that courts ritually recognise the advantage that a primary decision-maker usually has in assessing the credibility of a witness and are slow to overturn credibility findings on judicial review or appeal. 42 The appellant in this case raises the credibility issue as a "serious issue" in ground 1 of the notice of appeal. The particulars to that ground specifically pose the question whether the appellant is a credible witness. The appellant there complains that: [The Tribunal] does not accept as true that [the appellant] faced any difficulty because of his interest or involvement in BNP Politics or will on his return. 43 Ultimately, that observation by the appellant is correct, but it is a finding made by the Tribunal after it carefully considered all of the evidence before it and found that the appellant's claims were not credible. 44 The position is, as the primary judge said, at [33] of his reasons, that the Tribunal's comprehensive adverse findings as to the appellant's credibility and the antecedent findings that informed this conclusion were based on the appellant's own evidence, inconsistencies in that evidence, and the absence of any reasonable explanation for those inconsistencies. The Tribunal also relied variously on country information available to the Tribunal. 45 The Court agrees with the observation of the primary judge, at [34] of his reasons, that the Tribunal's findings in this regard, and its ultimate conclusion, were findings of fact. The findings as to credibility were all reasonably open to the Tribunal on what was before it. The Tribunal gave cogent reasons probative of the evidence and the material before it. In those circumstances the Tribunal's findings fall within its jurisdiction. They were, to use the language of McHugh J in Durairajasingham, par excellence findings of fact for the Tribunal to make. They are not, in the circumstances of this appeal, open to legal challenge. 46 Thus, to invite the Court to overturn those credibility findings in this appeal, as before the primary judge, is to invite the Court in each case to engage in an impermissible review of the merits of the case. The primary judge did not err in refusing the invitation to do so. 47 Consequently, the appeal on this ground must fail. 48 The appellant also complains, in ground 1, that the Tribunal did not assess the information before it according to the Act. He adds that the Tribunal review process was the "wrong process" and that it was "not done independently". 49 These complaints may be taken together or independently, but however they are approached, they are not made out. 50 So far as the complaint that the Tribunal did not assess the information according to the Act is concerned, as the primary judge explained at [36] and following, there is some misunderstanding by the appellant as to what the Act requires. At [36] his Honour properly noted that s 65 of the Act requires the Tribunal to reach a requisite level of satisfaction that an applicant meets the criteria for the protection visa before the visa can be granted. In this case, the Tribunal simply could not reach that level of satisfaction based on its analysis of the information before it. In that regard, the Tribunal is not required to disprove any of the claims made by the applicant, or to find and then rely on any rebutting evidence before it finds that it cannot accept the particular factual assertion made by an applicant. 51 Thus, it is not possible to see that any "wrong process" was undertaken by the Tribunal in this case, as the primary judge also found. As the primary judge explained, at [40] and following, no "procedural mistakes" are apparent. 52 So far as the complaint that the review process was "not done independently" is concerned, again it appears the appellant has a misunderstanding as to the role and status of the Tribunal under the Act. In a review conducted by the Tribunal, the Tribunal "stands in the shoes" of the Minister and makes the decision anew: see ss 411 and 415 of the Act; Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314; Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344. 53 The Tribunal must act as required by the Act. This has the effect of producing an independent review of relevant decisions of the Minister. The fact that the Tribunal may not be satisfied as to a case put by an applicant, or that it accedes to submissions made on behalf of the Minister, or that it refers to information supplied by DFAT, does not thereby mean that the Tribunal has failed to meet the hearing and determination requirements imposed on it by the Act. 54 Conversely, it must be appreciated, as the Minister submits in this case, that there is no requirement that the Tribunal engage in "uncritical acceptance of any and all allegations made by suppliants". See Randhawa at 451-2 (Beaumont J). As Heerey J said in Selvadurai, at 348, "a decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out". 55 A particular complaint that the appellant advances in relation to the independence issue, is that the Tribunal wrongly considered the guidelines of the Minister. In that regard, the Tribunal, at [19] of its decision record, noted that in accordance with Ministerial Direction No 56, made under s 499 of the Act, the Tribunal is required to take account of guidelines prepared by the department to the extent that they are relevant to the decision under consideration. There is no doubt about the correctness of that statement, as a general proposition. 56 There is no example provided of the Tribunal having taken account of the guidelines where they were not relevant, or where they were applied without regard to the more general law. Indeed, at [50] of the Tribunal's decision record, in responding to the issue whether the applicant met the protection obligations under the complementary protection provisions of the Act, the Tribunal noted the explanation of the "risk threshold" in the guidelines but then said that in considering s 36(2)(aa) of the Act, it had proceeded on the basis that the "real risk" test mentioned imposes the same standard as the "real chances" test applicable in the context of assessment of the Refugees Convention definition, following the Full Court decision in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505. It thereby regarded the general law. 57 The appellant also complains in ground 2 that the primary judge erred in not finding that the Tribunal made a procedural mistake when it collected the information for the purpose of review through DFAT and took that into consideration to reject "the genuine claim for protection". The appellant says that, on the other hand, the Court did not look into "that the Tribunal did not collect information through DFAT to reject the review application when that information was genuine". 58 He adds that the information was used "to reject the claim was very old information and the Court did not consider it". In so acting, the appellant says the Tribunal did not comply with Pt 7 of the Act because it did not consider that information. This complaint is specifically the subject of ground 3. 59 He adds a particular to ground 2 that the Tribunal did not call Dr Wahab to verify his claim of involvement in the BNP in Australia since he arrived in this country. Rather, the Tribunal followed the guidelines and rejected the claim. 60 This particular set of complaints in grounds 2 and 3 was carefully considered by the primary judge. As his Honour noted, at [46] and following, while some of the information from DFAT which the Tribunal relied on may have been exempt from the requirement at s 424A(1) of the Act, notice of it was given to the appellant pursuant to s 424AA in order to discharge its obligations under s 424A(1). At [50] of his reasons, the primary judge correctly noted that the evidence showed that the Tribunal gave clear particulars of the information orally to the appellant and explained its relevance to the review and invited his response or comment and that he was given the opportunity to seek additional time for that purpose which, indeed, he exercised. 61 As the primary judge said, at [51], the applicant did not provide any evidence to say that the Tribunal did not comply with its procedural fairness obligations in that regard and the evidence before the Court provided a basis to find as it did. 62 As his Honour noted, the further element of the complaints made under ground 2 involves a contention that the Tribunal relied on irrelevant material and made findings without information to support them. The primary judge rightly accepted, however, that having identified the relevant DFAT material, it was for the Tribunal to give appropriate weight to that material. The same should be said concerning the use made by the Tribunal of the United Kingdom and Canadian material referred to at [36] of the decision record, of which the appellant also complains of in the ground 2 particulars. 63 As to the complaint of the appellant that the Tribunal did not take steps to verify his evidence, including by calling Dr Wahab, as the primary judge correctly observed, at [59], if the Tribunal cannot be satisfied that the visa must be granted on the material presented to it, there is no general duty to make further inquiries as suggested by the appellant. See SGLB. That was the situation in this case. It may reasonably be inferred that the Tribunal saw no reason to inquire of Dr Wahab and it was not obliged to do so. 64 Further, as the primary judge said at [56], this is not a case where the sort of "limited" duty to inquire mentioned in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123, has any application. In short, there was no practical obligation to call Dr Wahab in the factual circumstances of this case. 65 Nor was there any duty on the Tribunal to engage in a more comprehensive inquiry as to the involvement of the appellant in "politics" in Bangladesh, as the appellant would like it to have done. 66 As the Minister submits, there is nothing in the Tribunal's reasons to indicate that it deferred to the views expressed in the DFAT documents or used them in any way other than as ordinary country information and, indeed, on one issue, the Tribunal gave no weight to the DFAT information: see decision record at [36]-[37]. In other words, the Tribunal carefully weighed all information before it before making its decision, as it was required to do under the Act. 67 There is no evidence that more recent or more up to date country information was before the Tribunal. In that regard, the factual position here may be contrasted with that presented in MZYTS at [29]-[62]. 68 It follows that the set of complaints identified in grounds 1, 2 and 3 is not made out. 69 The result is, as the primary judge reasonably concluded in relation to a similar set of complaints, that the grounds and issues raised by grounds 1 to 3 do not disclose any error by the Tribunal going to its jurisdiction, but rather involve an invitation to the Court to review the merits of the decision made by the Tribunal, something the Court cannot do. The primary judge was correct in so finding and no error is thereby disclosed in the decision of the primary judge. 70 In these circumstances, each of the three grounds of appeal must fail.

SZTKA v Minister for Immigration and Border Protection

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (24)

Cited By (1)