BZAGG v Minister for Immigration

[2014] FCCA 1020

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAGG & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1020

Catchwords:
MIGRATION – Judicial review – Refugee Review Tribunal – Protection (Class XA) visa – whether the Tribunal’s decision was not arrived at in accordance with the Migration Act 1958 (Cth) – no jurisdictional error demonstrated.

Legislation:

Migration Act 1958 (Cth), ss.65, 424A

Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SZBYR & Anor v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609

First Applicant: BZAGG

Second Applicant: BZAGH

Third Applicant: BZAGI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 1108 of 2013

Judgment of: Judge Cassidy

Hearing date: 15 April 2014

Date of Last Submission: 15 April 2014

Delivered at: Brisbane

Delivered on: 4 June 2014

REPRESENTATION

Solicitors for the Applicants: Sharma Lawyers

Solicitors for the First Respondent: Clayton Utz

Solicitors for the Second Respondent: Entered a submitting appearance

ORDERS

1. That the application filed 3 December 2013 be dismissed.

2. That the applicants pay the first respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1108 of 2013

BZAGG

First Applicant

BZAGH

Second Applicant

BZAGI

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In this matter the applicants applied for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) on 3 December 2013. The Tribunal decision affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection (Class XA) visa pursuant to s.65 of the Migration Act 1958 (Cth) (“the Act”).

2. The orders sought by the applicants are constitutional writs quashing the decision of the Tribunal and compelling the Tribunal to make a new decision according to law. 

3. The first respondent seeks an order dismissing the application with costs.  

Jurisdiction of the Federal Circuit Court of Australia

1. The first respondent’s submission sets out accurately the jurisdiction of the Federal Circuit Court of Australia at paragraphs 4, 5 and 6 of those submissions:

   “[4] The Tribunal’s decision is a “privative clause decision” within the meaning of s474(1) of the Act and is not reviewable under s476 of the Act unless it can be shown that the decision was tainted by jurisdictional error. Accordingly, this Court’s jurisdiction turns on the applicant establishing jurisdictional error in the Tribunal’s decision.

   [5] In SZAYG v Minister for Immigration and Multicultural and Indigenous Affairs, Allsop J described the Federal Magistrate Court’s role in reviewing Tribunal decisions as follows:

   The Migration Act and the Judiciary Act provide for judicial review of the Tribunal’s decision. That judicial review is the application that was brought to the Federal Magistrates Court. It is important to understand that the application is not simply a rehearing of what was before the Tribunal. It is not hearing afresh the evidence to decide whether or not a visa should be given. It is a review by the Court of the decision of the Tribunal in order to ascertain whether the Tribunal has acted lawfully. That is sometimes expressed in the legal expression to ascertain whether the Tribunal has committed any jurisdictional error.[1]

   [6] The concept of “jurisdictional error” has been addressed in a number of cases.  In Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf[2], McHugh, Gummow and Hayne JJ referred with approval to the following passage from Craig v South Australia which describes when an administrative tribunal falls into jurisdictional error:

   …[Where a Tribunal] falls into error which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or reach a mistaken conclusion, and the Tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.  Such an error of law is a jurisdictional error that will invalidate any order or decision of the Tribunal which reflects it.[3]”

   [1] SZAYG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 90 at [6].

   [2] (2001) 206 CLR 323.

   [3] This passage is from the joint judgment of Brennan, Deane, Toohey, Gaudron and McHugh JJ in Craig v South Australia (1995) 184 CLR 163.

Chronology

1. On 2 September 2011, the first applicant and his wife and child (the second and third applicants) applied for a Protection (Class XA) visa under s.65 of the Act. On 15 March 2012, the delegate refused to grant the visas sought. The applicants applied to the Tribunal for a review of the delegate’s decision. The Tribunal affirmed the delegate’s decision not to grant the visas.

2. The decision under review is the decision of the Tribunal and the only question is whether there has been a jurisdictional error by the Tribunal that is an appealable error. 

Credit Issues

1. In this matter, throughout the reasons the Tribunal provided, the majority of the findings were founded on adverse credibility findings.  Justice McHugh noted in Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 as follows:

   “[64] There is some authority in the Full Court of the Federal Court for the proposition that s 430(1) requires the reasons of the tribunal to refer to evidence contrary to findings of the tribunal. However, the contrary view was taken by differently constituted Full Courts in Ahmed v Minister for Immigration and Multicultural Affairs, Addo v Minister for Immigration and Multicultural Affairs and Sivaram v Minister for Immigration and Multicultural Affairs. In Addo, the court said:

   Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act.

   …

   It is not necessary, in order to comply with s 430(1), for the tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made.

   [65] In my opinion, this passage correctly sets out the effect of s 430(1)(c) and (d). However, the obligation to set out “the reasons for the decision” (s 430(1)(b)) will often require the tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as

   [168 ALR 407 at 423]

   one of its reasons. But that said, it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal. Indeed, to do so would be contrary to the direction in s 420 of the Act that:

   (1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

   (2) The Tribunal, in reviewing a decision:

   (a) is not bound by technicalities, legal forms or rules of evidence; and

   (b) must act according to substantial justice and the merits of the case.

   [66] In this case, the tribunal made an express finding that it did not accept the prosecutor's wife's evidence. That was sufficient to comply with the requirements of s 430(1).”

   [Footnotes omitted.]

2. I note that, as long as a credibility finding is available on the material before the Tribunal, then the finding cannot give rise to a jurisdictional error on the part of the Tribunal. 

Ground 1: Failure to Consider Relevant Information

1. The application filed 3 December 2013 sets out ground 1 as follows:

   “[1] That the first and second respondents did not take into account all of the relevant information.

   Particulars:

   The First and Second Respondents failed to take into account the information provided by the primary (first) Applicant about their marriage being an inter-caste marriage. 

   The Second Respondent did not take into account the information in the second Applicant’s passport about her name/caste, and as a result the second Respondent failed to take into account the country information about the Applicant’s caste. 

   The Second Respondent ignored the evidence and/or did not give proper weight to the evidence provided by the First Applicants (sic) as to his membership of Nepal Student’s Union, his and his father’s involvement in politics, and his father’s employment position.” 

2. The first applicant claimed that the delegate did not take into account information provided by the first applicant in relation to the fear of harm from the Young Communist League.  It is alleged that the first applicant was a member of the Nepalese Student Union. The Tribunal did not accept that the first applicant had any involvement with the Nepali Congress or the Nepal Students Union.  This was, in part, due to the Tribunal’s finding that certain documents provided by the first applicant in support of his claims were not genuine.  These reasons can be found at paragraphs 117 and 118 of the Tribunal decision:

   “[117] The applicant has provided a bundle of various documents (Folio’s 55 to 100 on the department file) in support of his visa application.  The applicant claims that these documents are in support of his claims that he will be harmed because of his involvement in politics, because of his father’s involvement in politics and because of his involvement in a village cooperative that he started with others in his village.  Other documents have been provided in that bundle.  All the documents are in English only.  There are no originals of the documents in the Nepalese language attached to the English versions.  The tribunal has no way to determine what the documents look like as it only has before it claimed typed translated documents.  The tribunal placed the applicant on notice that country information indicated that Nepalese documents could be obtained by fraud or be fraudulently made.  The tribunal relies on a 2008 Immigration and Refugee Board of Canada notation which indicated that an official at the Canadian High Commission in New Delhi has commented as follows:

   My experience is that any Nepalese document can be obtained by fraud.  These may include falsely obtained, forged or complete counterfeits.  I have personally seen and seized counterfeit passports, driver’s licences and company identification cards that are complete counterfeits or are altered.

   The tribunal notes that none of the documents are the originals and are claimed translations only.  These translations are in English.  The tribunal has had no opportunity to look at the original documents in the Nepalese language.  The tribunal notes that some documents, such as the translated letter from the Nepali Congress Sarangkot in Kaski, made claims about matters which the applicant had not raised previously.  The tribunal gives considerable weight to the country information outlining how easy it is for documents to be falsely obtained, forged or counterfeited in Nepal.  The tribunal has also found that the applicant has obtained a document that has been fraudulently obtained, supporting country information that documents can be acquired or altered through fraudulent means.  The applicant has shown that he can obtain false documents to suit his claims and for no other reason.  Country information indicates how easy this can be done in Nepal.  The applicant’s actions here indicate to the tribunal that he is not a credible witness.  Having considered the documents before it which are not the originals and are only claimed typed English translations, and having considered the country information before it and the actions of the applicant in being able to obtain documents that have been falsified for his visa application which was not his protection visa application, the tribunal finds that Folios 55 to 100 on the department file are not genuine documents and the tribunal gives these documents no weight at all in its consideration of the applicant’s claims.

   [118] The tribunal does not accept the applicant’s claims that he fears that he will suffer serious harm because of any involvement that he might have in politics.  It does not accept that he had any involvement in the Nepalese Congress Party or the Nepal Student’s Union.  The tribunal has already made findings that the documents above provided by the applicant in support of this claim are not genuine.  It particularly gives no weight to folio’s 97 and 99 of the department file which claim that the applicant was a member of the Nepal Student’s Union, a sister organisation of Nepali Congress.  The tribunal places no weight on these documents at all.  The tribunal is left with the oral and written claims made by the applicant claiming that he has been involved in some way with the Nepalese Congress Party or the Nepal Student’s Union.  The applicant had never raised any claims about his fear of harm because of his involvement with the Nepalese Congress party in his initial application where he was assisted by a registered migration agent.  This was only raised in detail by the applicant in a statutory declaration made at the time of his application for review was made to the tribunal.  The tribunal has already found that the applicant has not been a witness of truth.  The tribunal placed the applicant on notice that this might affect his credibility overall.  It has found that the applicant has the ability to have documents altered and that he has been able to obtain fraudulent documents to suit his claims.  Given these credibility findings above and given that the tribunal only has the applicant’s oral evidence at the hearing and a later statement (which was not his original claims) to consider that he was involved with the Nepalese Congress party, the tribunal does not accept as credible that he was involved with the Nepalese Congress party at all or in any way.  The applicant has provided no evidence that he is part of the Nepal Student’s Union.  The tribunal gives no weight to the Nepal Student’s Union Membership card which it finds as a non-genuine document.  The provision of this non-genuine document by the applicant goes to his lack of credibility that he was ever involved with the Nepal Student’s Union.  The tribunal finds that he has never been involved with the Nepal Student’s Union and therefore has never been in any fights or confrontations with the YCL as claimed.  Give (sic) these finding and given that the applicant has not been a credible witness overall, the tribunal finds that his claim that he will suffer serious harm because he is involved with the Nepal Student’s Union is not credible at all.  It finds that his claim that he will suffer serious harm from the YCL because of past confrontations with the Nepalese student organisation is not credible at all given that he has not been involved with the Nepal Student’s Union or the Nepalese Congress party.  It therefore does not find credible his claims that he openly supported the Nepali Congress party in the 2008 elections and that this made him look to be a “true Nepali Congress Supporter” to the YCL and supporters of other political parties.”

   [Footnotes omitted.] 

3. The Tribunal also rejected the first applicant’s evidence on the basis that the first applicant did not raise any claim to fear harm because of involvement because of the Nepalese Congress party in his initial protection visa application.  For those various reasons, the Tribunal found that the first applicant was not a witness of truth.  The first respondent gave reasons for providing no weight to the documents regarding the first applicant’s political involvement.  There was evidence that allowed the Tribunal to make that finding and matters of weight, provided there is some evidence, are for the Tribunal only.  In Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at paragraph [33], per the joint judgment of French CJ, Gummow, Hayne, Heydon, Crennan Kiefel and Bell JJ, it is noted that in that case “no weight” was attributed to a piece of evidence and this was held not to reflect any error on the Tribunal’s part. 

4. There was a further allegation that the Tribunal failed to consider the interview tape.  The interview tape was not available.  The Tribunal sought all available information in relation to the recording and the Tribunal considered the handwritten notes.  It is clear from their reasons that the Tribunal had regard to the claims raised in the interview despite not having the recording before it (Tribunal decision at paragraph 48). 

5. The Tribunal rejected the first applicant’s claims with respect to the issue of inter-caste marriage (paragraphs 115 – 116 and paragraphs 124 – 131).  In coming to that decision, the Tribunal considered independent evidence that the Chhetri is one of the highest castes in Nepal.  The Tribunal considered that the inter-caste marriage claim was not credible and it was therefore not necessary to further consider the nature of harm feared in relation to inter-caste marriage generally.  The finding was one as to credit and therefore not a jurisdictional error. 

6. I am not satisfied that there is any jurisdictional error demonstrated on behalf of the Tribunal in relation to ground 1. 

Ground 2: Erroneous Fact Finding

1. The application filed 3 December 2013 sets out ground 2 as follows:

   “[2] The Second Respondent made erroneous findings such as that the Giri caste is Chhetri caste.”

2. The Tribunal rejected the first applicant’s claim with respect to inter-caste marriage. 

3. Firstly, the Tribunal referred to the fact that the claims about fearing serious harm because of the inter-caste marriage were raised for the first time at the department interview and not in the protection visa applications.  This was despite the applicants having been assisted by a registered migration agent.  Furthermore, the Tribunal referred to the fact that the second applicant described herself as being “Chttri” caste (also referred to as “Chhetri”) on her protection visa application but then in fact said she was Sanyesi/Giri caste in her statement to the Tribunal. 

4. The Tribunal considered that there were inconsistent statements between the first applicant’s written and oral evidence.  The Tribunal did not accept the first applicant’s evidence given that the first applicant failed to make the inter-caste claim at the time of his protection visa.  The claim that the second applicant is the Sanyesi/Giri caste and not the Chhetri caste resulted in the finding that the first applicant was not a credible witness with respect to the applicants’ claims that they will suffer serious harm because of the inter-caste marriage. 

5. I am not satisfied that any jurisdictional error has been established with respect to this ground. 

Ground 3: Denial of Natural Justice

1. The application filed 3 December 2013 sets out ground 3 as follows:

   “[3] The applicant was denied natural justice.

   Particulars:

   The applicant was not given an opportunity to provide further information/documentation in relation to the issues raised by the Second Respondent.” 

2. The outline of submissions that the applicants filed on 3 April 2014 asserts that:

   a)The Tribunal failed to provide the applicants an opportunity to provide the original documentation that were provided to the delegate in support of the first applicant’s claim; and

   b)The Tribunal erred in considering the substance of the original application which was prepared incompetently.

1. In relation to the third ground, that the applicant was denied natural justice, it is alleged that the Tribunal breached s.424A of the Act. Section 424A(1) of the Act provides that the Tribunal must give the applicant “… clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”.  

2. Information in relation to paragraph s.424A is set out in SZBYR & Anor v Minister for Immigration and Citizenship & Anor (2007) 235 ALR 609 at [18]:

   “…does not encompass the tribunal’s subjective appraisals, though processes or determinations…nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc…”

3. The Tribunal’s decision to affirm the delegate’s decision was based, in large part, on adverse credibility findings in relation to the first applicant, not on information the subject of an obligation under s.424A of the Act. This is the submission of the first respondent and I accept that submission. The majority observed in SZBYR & Anor v Minister for Immigration and Citizenship & Anor (supra) at [21], s.424A cannot be used as a “back-door route to a merits review in the federal courts of credibility findings made by the tribunal”.  That seems in the present case to be what the applicants are seeking to do. 

4. There is also a submission that the Tribunal should not have considered the applicants’ “original application”.  That is a relevant consideration and in any case, the first applicant was given an opportunity at the hearing to clarify any errors and inconsistencies and confirm the truth of his previous statements.  That is obvious from the Tribunal decision at paragraphs 51 and 52. 

5. I am not satisfied that the applicants have established that the Tribunal have denied them procedural fairness and that ground must fail. 

Additional Ground

1. With respect to the Tribunal’s findings as to inconsistencies and contradiction, in the present case the Tribunal attributed certain weight to certain pieces of evidence.  It is not available under this application to review the merits of the Tribunal decision and matters of weight are for the Tribunal only (Minister for Immigration and Citizenship v SZJSS (supra) paragraph [33]). 

Conclusion

1. I am not satisfied the applicants have demonstrated jurisdictional error and their application must fail.  A necessary consequence of that is that the application must be dismissed and an order be made for costs against the applicants. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Cassidy

Date:  4 June 2014