SZULE v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: FLICK J
• Judgment Date: 19 December 2019
• Neutral Citation: [2019] FCA 2136
• Date: 19 December 2019

FEDERAL COURT OF AUSTRALIA

SZULE v Minister for Immigration and Border Protection [2019] FCA 2136

Appeal from:	SZULE & Anor v Minister for Immigration and Border Protection [2017] FCCA 3280
File number:	NSD 2307 of 2017
Judge:	FLICK J
Date of judgment:	19 December 2019
Catchwords:	MIGRATION – adverse findings as to credit – adverse findings explained and founded upon inconsistencies in evidence ; PRACTICE AND PROCEDURE – need for judicial consideration of even poorly expressed arguments – undesirability of making unfounded conclusions without consideration of the claims sought to be made
Legislation:	Constitution s 75(v) Federal Court of Australia Act 1976 (Cth) s 24 Migration Act 1958 (Cth) ss 425, 476
Cases cited:	AAM15 v Minister for Immigration and Border Protection [2015] FCA 804, (2015) 231 FCR 452 ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174, (2015) 250 FCR 109 AXL16 v Minister for Immigration and Border Protection [2018] FCA 208 AYG18 v Minister for Home Affairs [2019] FCA 454 BDS17 v Minister for Immigration and Border Protection [2018] FCA 1683 BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94, (2018) 263 FCR 292 Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112 CIT17 v Minister for Immigration and Border Protection [2018] FCAFC 150, (2018) 265 FCR 572 COZ16 v Minister for Immigration and Border Protection [2018] FCA 46, (2018) 259 FCR 1 ; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146, (2016) 253 FCR 496 CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61 DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2, (2018) 258 FCR 175 DQA16 v Minister for Immigration and Border Protection [2018] FCA 2086 Gill v Minister for Immigration and Border Protection [2017] FCAFC 51, (2017) 250 FCR 309 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Minister for Home Affairs v Ogawa [2019] FCAFC 98 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, (2019) 93 ALJR 252 Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, (2010) 240 CLR 611 Nguyen v Migration Review Tribunal [2008] FCA 524 Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50, (2015) 258 CLR 173 Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10, (2001) 75 ALJR 542 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1, (2000) 58 ALD 609 Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34, (2001) 179 ALR 513 SZKLO v Minister for Immigration and Citizenship [2008] FCA 735, (2007) 102 ALD 115 SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58, (2012) 202 FCR 1 SZQPE v Minister for Immigration and Citizenship [2012] FCA 544, (2012) 205 FCR 437 SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 ; Kneebone S, The Refugee Review Tribunal and the Assessment of Credibility: an Inquisitorial Role? (1998) 5 AJ Admin L 78
Date of hearing:	14 August 2019 and 3 October 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	58
Counsel for the Appellants:	The Appellants appeared in person with the assistance of an interpreter
Counsel for the First Respondent:	Mr S Lloyd SC with Ms A Carr
Solicitor for the First Respondent:	DLA Piper Australia
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

		NSD 2307 of 2017
BETWEEN:	SZULE First Appellant ; SZULF Second Appellant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	FLICK J
DATE OF ORDER:	19 DECEMBER 2019

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The Appellants are to pay the costs of the First Respondent, either as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FLICK J:

1. The Appellants in the present proceeding are husband and wife. They are both citizens of Pakistan. The husband (the Second Appellant) arrived in Australia in April 2012 on a student visa. The wife (the First Appellant) arrived in Australia in September 2012 as a dependant spouse of the husband.

2. In October 2012, they applied to the Department of Immigration and Citizenship for protection visas. The wife claimed to fear harm from the Taliban by reason of her involvement in the Muttahida Quami Movement (“MQM”) and the Women’s Wing of the Pakistani Muslim League (“WWPML”). The husband was included in the wife’s application as a member of the family unit.

3. A delegate of the Minister refused those applications in February 2013. An application for review of the delegate’s decision was lodged with the Refugee Review Tribunal (the “Tribunal”) and in May 2014 the Tribunal affirmed the delegate’s decision. That decision of the Tribunal, however, was set aside by the Federal Circuit Court (the “Circuit Court”) in July 2014 and the matter was remitted to the Tribunal for reconsideration. It was then accepted that the Tribunal had contravened s 425 of the Migration Act 1958 (Cth) (“Migration Act”). In September 2014 a differently constituted Tribunal again affirmed the delegate’s decision.

4. A further application for judicial review of the Tribunal’s decision was then filed with the Circuit Court. The jurisdiction being exercised by that Court was that conferred by s 476 of the Migration Act. In December 2017, that Court dismissed the application: SZULE v Minister for Immigration & Border Protection [2017] FCCA 3280.

5. The Appellants now appeal to this Court. The jurisdiction of this Court which the Appellants now invoke is that conferred by s 24 of the Federal Court of Australia Act 1976 (Cth).

6. The proceeding in this Court was commenced in December 2017 and was originally listed for hearing on 31 May 2018. On 24 May 2018, Markovic J made orders including an order adjourning the hearing pending the outcome of (at that time) two matters currently before the High Court. The High Court delivered its judgment in February 2019: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, (2019) 93 ALJR 252. This matter was then listed for hearing on 14 August 2019. On that occasion, the hearing was adjourned part-heard, to allow the Respondent Minister to file further submissions...