SZUQD v Minister for Immigration and Border Protection

The proceeding before the Tribunal 5 The appellant attended a hearing before the Tribunal in April 2014. He was then invited to attend a second hearing in May 2014. Following the second hearing, the Tribunal delivered its decision to affirm the delegate's decision. 6 In affirming the delegate's decision, the Tribunal did not accept that the appellant was a credible witness. Its findings in this respect included the following: (a) the appellant's claims were vague and general, his responses to questions were hesitant and evasive, and his evidence evolved and changed over time; (b) in a number of respects, the appellant's claims were contradictory and inconsistent; for example, in relation to his claims to have had to report to the police in China; and (c) the evidence on which the appellant's protection claims were based was false, even allowing for lapses in memory, nervousness and cultural differences. 7 At the first Tribunal hearing, the appellant supplied a number of documents to the Tribunal in support of his claims. Those documents were discussed with the appellant at the hearing and orally translated by the interpreter. In its decision, the Tribunal relied upon independent country information to find that document fraud was prevalent in China. Because of this finding and its adverse credibility findings, the Tribunal did not accept that the appellant's documents were genuine and it put no weight on them. 8 The Tribunal therefore rejected the appellant's core claims, including his claimed involvement with Falun Gong and his claimed mistreatment (including arrest and detention) because of his involvement with Falun Gong. The Tribunal also rejected his claims about having petitioned the government and noted that he had given evidence that he had no fears arising from his former business activity, nor from the resumption of his land. The Tribunal also refused to accept that the appellant would face harm from his former employees as a result of his business having closed. Finally, while the Tribunal accepted the appellant had engaged in some Falun Gong related activities in Australia, it disregarded these activities under s 91R(3) of the Migration Act 1958 (Cth) (the Act). 9 The Tribunal therefore concluded that the appellant did not satisfy the criterion in s 36(2)(a) of the Act, nor the complementary protection criterion in s 36(2)(aa) of the Act.

The decision of the Federal Circuit Court 10 By an application filed in July 2014, the appellant sought judicial review of the Tribunal's decision before the Federal Circuit Court. In that application, he raised the following three grounds of review: 1. The Tribunal unfairly reviewed my case. I have a genuine fear of harm if I return to China. I have been truthful in my account to the Department and to the Tribunal. I am a Falun Gong practitioner and therefore there is a high chance of harm if I return to China. 2. The Tribunal did not carefully review my case. I provided the Warrant Certificate that supports indicating my detention as I have claimed. Unfairly the Tribunal did not regard this evidence as supporting my claim to have been persecuted in the past in China on account of being a Falun Gong practitioner. I have also provided information in relation to my employment history in China. The Tribunal did not consider my explanation with care. 3. RRT did not consider the physical damage I suffered from the persecution, and this is not fair. I have been subjected to arrest more than one time and spiritual persecution. This resulted in my memories of history, and may appear vague memory problems. RRT should take full account of my physical condition, if necessary, my physical condition should be evaluated. RRT ignored that both the hearing and interview were stressful situations. Also due to memory loss arising from persecution, I could not provide evidence for my Falun Gong knowledge. (Errors in original) 11 As to the first ground, the Federal Circuit Court judge found that it was a matter for the Tribunal to determine whether it accepted the credibility of the appellant's claim and that therefore this ground was "clearly an impermissible challenge to the finding of fact made by the Tribunal": see SZUQD at [2]. His Honour went on to say (see SZUQD at [3]): The delegate did not accept that the applicant was telling the truth. The Tribunal did not accept that the applicant was telling the truth in relation to his claims in evidence and his fears in relation to being a Falun Gong practitioner. Those findings were open to the Tribunal. There is no substance in relation to ground 1. 12 As to ground two, the Federal Circuit Court judge held that it was clear from the Tribunal's reasons that it carefully reviewed the appellant's evidence and claims, and there was therefore no substance to the appellant's contention that the Tribunal did not have regard to the evidence. Moreover, it was a matter for the Tribunal as to what weight it gave the evidence adduced: see SZUQD at [4]. 13 As to the third ground, the Federal Circuit Court judge found that, as with the first ground, this amounted to an impermissible challenge to the findings of fact made by the Tribunal. His Honour stated (see SZUQD at [5]): I am clearly satisfied that the Tribunal complied with its statutory requirements including the obligation under s.425 of the Act. Accordingly, there is no jurisdiction error disclosed by ground 3. The applicant was invited to expand upon the reasons why the grounds were arguable and to identify a jurisdictional error and did not put any submissions. 14 Before concluding, his Honour observed that the reasons of the Tribunal demonstrated that it carefully considered the appellant's evidence in both hearings before it, and was careful to raise its concerns with the appellant to allow him to comment and respond to those concerns: see SZUQD at [6]. His Honour also set out in extensive detail the key findings of the Tribunal in relation to the credibility of the appellant, which demonstrated that the Tribunal had serious concerns in relation to this: see SZUQD at [7]-[8]. 15 The Federal Circuit Court judge summed up in the following terms (see SZUQD at [10]): There is no substances (sic) in the alleged jurisdictional errors. The findings of the Tribunal were clearly open. It cannot be said that the findings lack an evident and intelligible justification. It was open to the Tribunal to make the adverse findings of credit in relation to the applicant. The application is dismissed.

The contentions 16 The Minister submitted that none of grounds one to three (inclusive) was raised before the Federal Circuit Court. Accordingly, he submitted that the appellant is required to seek leave to raise those grounds of appeal before this Court. The Minister contended that, in the absence of any particulars in relation to these grounds of appeal, such leave should not be granted. In relation to the fourth ground of appeal, which appears to be a summary of the appellant's grounds before the Federal Circuit Court, the Minister contended that it cannot succeed as it is "an attempt to cavil with the factual findings of the Tribunal, and thus constitutes a request for merits review". 17 The appellant did not file any written submissions and when he appeared at the hearing of this appeal, he said he had nothing to say in support of it.

Consideration 18 The primary purpose of an appeal to this Court from a judgment of the Federal Circuit Court is the correction of error on the part of the latter Court: see Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [23] and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424, [2001] FCA 1833 at [21]-[22] per Allsop J (as his Honour then was), with whom Drummond and Mansfield JJ agreed. 19 As the Minister correctly observes, the appellant's first three grounds of appeal (see at [2] above) are new grounds that were not raised before the Federal Circuit Court. In those circumstances, it is difficult to see how the Federal Circuit Court could have made an error in relation to them. 20 Moreover, the appellant's first three grounds of appeal do not identify any error on the part of the Federal Circuit Court. Rather, they are all directed to alleged errors on the part of the Tribunal. And to compound this deficiency, the appellant has not put forward any written or oral submissions which identify any such error. 21 Since no error has been identified by the appellant, and since none is apparent from his Honour's reasons for decision, it would not be in the interests of justice to grant the appellant leave to rely upon his first three grounds of appeal. That leaves his fourth ground of appeal. 22 On that ground, I agree with the Minister's contention that it appears to be a summary of the appellant's grounds of review before the Federal Circuit Court. That being so, I agree with the conclusions of the Federal Circuit Court judge that this ground involves an attempt to challenge the factual findings of the Tribunal, and it therefore constitutes an impermissible attempt to obtain a review of the merits of the Tribunal's decision.

Conclusion 23 For these reasons, leave to rely on grounds one, two and three in the notice of appeal is refused and the appeal is dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.