CRN15 v Minister for Immigration
[2016] FCCA 3067
•29 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CRN15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3067 |
| Catchwords: MIGRATION – Application seeking judicial review of Tribunal decision – whether Tribunal failed to consider complementary protection – whether Tribunal failed to afford the applicant procedural fairness – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 48A, 422B, 424A, 424AA, 476 |
| Cases cited: SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 |
| Applicant: | CRN15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3395 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 29 August 2016 |
| Date of Last Submission: | 29 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 29 August 2016 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Mr D McLaren of Minter Ellison |
ORDERS
The application made on 15 December 2015 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3395 of 2015
| CRN15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 15 December 2015, seeking review of a decision of the Administrative Appeals Tribunal (“the Tribunal”), made on 10 November 2015, which affirmed a decision of the Minister’s delegate not to grant the applicant a Protection (Class XA) visa.
In evidence before the Court is a bundle of relevant documents, filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
Background
The applicant is a citizen of Nepal (CB 8). He is of Magar ethnicity and Hindu religion (CB 16). The applicant arrived in Australia on 7 September 2009 using a “forged” (fraudulent) passport (CB 17). He first applied for a protection visa on 21 July 2010 (CB 134 to CB 157 and attached documents). His claims to protection were set out in his application form and in a Statutory Declaration made on 21 July 2010 (CB 158 to CB 159).
The application for the visa was refused by a delegate of the Minister on 13 April 2011, a decision that was subsequently affirmed by what was then known as the Refugee Review Tribunal (“the earlier constituted Tribunal”) on 10 August 2011 (CB 214 to CB 227).
Following the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 (“SZGIZ”), the applicant made a further application for a protection visa, received by the Minister’s department on 27 September 2013 (CB 4). At this time, the applicant was assisted by a registered migration agent (CB 12). This application was refused by a delegate of the Minister on 20 May 2014 (CB 57). The applicant applied for review of the delegate’s decision to the Tribunal on 10 June 2014 (CB 76). At this time, the applicant indicated that he did not want to appoint a representative on his behalf (CB 78).
The applicant was invited, by letter dated 27 July 2015, to a hearing before the Tribunal (differently constituted) on 6 October 2015 (CB 90). Subsequently, the Tribunal needed to reschedule the hearing, and a further letter was sent to the applicant dated 13 October 2015, outlining the new hearing date of 28 October 2015 (CB 99). The applicant attended the hearing on 28 October 2015 (CB 108 to CB 109).
The decision of the Minister’s delegate was affirmed by the Tribunal on 10 November 2015 (CB 115 to CB 133). The Tribunal stated that the “the Refugee Convention aspect of the applicant’s claims has been determined and the matter before the Tribunal relates only to complementary protection criterion” ([10] at CB 122). Therefore, the Tribunal’s review of the decision of the Minister’s delegate proceeded on that basis.
In the letter attached to his second application for a protection visa, dated 24 September 2013, the applicant’s former representative indicated that “[t]he applicant intends to forward further documentation in support of [his] application for a Complementary protection visa application” (CB 1). The Tribunal noted that “no documents were forthcoming” ([12] at CB 122).
The Tribunal stated ([13] at CB 122):
“In the interview with the delegate of the Minister with respect to the current application, the applicant said that he was not proposing to forward additional claims and that all the information he wished to provide had been already provided. He indicated that he wished his previous evidence and claims to be considered.”
Therefore, the applicant’s claims and evidence included those contained in the applicant’s first and second protection visa applications and the material provided to the department, and the evidence he provided before Tribunal as previously constituted and for current purposes constituted.
In its decision record, the Tribunal set out the applicant’s claims and evidence before the earlier constituted Tribunal ([11] at CB 122 to [14] at CB 122 to CB 126). The applicant claimed to have been a member of his local Rashtriya Prajatantra Party (“RPP”) since about 2003, and that he had been an “active” member, having been involved in “organising the RPP’s activities” in his local area, and that he was a “pro-Monarchist” (CB 123).
The applicant claimed to fear harm from Maoists if he were to return to Nepal because he is a member of the RPP, because he was
pro-monarchist and anti-Maoist, and specifically, because he was one of the organisers of the King’s birthday in July 2009. The applicant claimed that after he had left the King’s birthday celebrations, he had heard that attendees had been attacked by armed Maoists, and that his friend and co-worker Pratap, had been abducted (CB 124.1). As result of this incident, the applicant feared that Maoists would target him, and after moving between locations in Nepal, his uncle gave him the money for a fake passport with an Australian visa and he subsequently left Nepal for Australia on 7 September 2009 (CB 124.4).
The applicant’s claim to fear harm on the basis of his political opinion was the only claim to protection made by the applicant (CB 124.5). The applicant’s evidence before the earlier constituted Tribunal about the hostilities he faced from the Maoists was limited to “verbal threats from them” but also that he “did not take these threats seriously” (CB 124.7). The earlier constituted Tribunal had found that the applicant’s claim regarding the abduction or possible killing of Pratap, was “based on no positive evidence” and it had “difficulty accepting this claim” (CB 125.1).
The earlier constituted Tribunal “found it implausible” that his uncle would give him the “very large amount of money” for the passport after only talking to him for 30 minutes (CB 125.2). It also had “difficulty accepting” his explanation for the 10 month delay in lodging his visa application (CB 125.4) and that he had “fabricated these claims of past harm to establish that he is a refugee” (CB 125.6). The applicant also stated that “initially” after he left (for Australia) the Maoists enquired to his family about his whereabouts (CB 125.7).
The Tribunal (whose decision is currently before the Court) then outlined independent country information ([15] at CB 126 to [23] at CB 127) and its current analysis and findings ([24] at CB 128 to [62] at CB 133). The Tribunal had “credibility concerns” with certain aspects of the applicant’s evidence ([30] at CB 128). The Tribunal found that the applicant had given “inconsistent evidence” as between the first and second Tribunal hearing in regards to his account of what he claimed happened on the day Pratap had been taken ([31] at CB 128 to [33] at CB 129), and as to the source of his knowledge of Pratap’s disappearance ([34] – [37] at CB 129).
In relation to both these issues, the Tribunal put the information from the first Tribunal decision to the applicant in accordance with s.424AA of the Act ([32] and [35] at CB 129). As a result, the Tribunal stated that in relation to the former issue, the applicant had reiterated his reliance on his current evidence to the Tribunal but did not “otherwise explain the inconsistency” ([32] at CB 129). In regards to the latter issue, the Tribunal considered the applicant had been “directly inconsistent” with regards to whether he had spoken to Pratap’s family or not. As a result, the Tribunal “[drew] an adverse inference as to the credibility as to the applicant’s claims … as a result of this evidence” ([37] at CB 129).
The Tribunal stated that the applicant also gave inconsistent evidence about Maoists visiting the applicant’s family home after the applicant left for Australia. At the hearing before the earlier constituted Tribunal, the applicant had said that Maoists “initially” enquired about his whereabouts, but before the current Tribunal, he said that the visits continued up until 2011. Further, the current claim of “ongoing visits” was absent in his written claims and his Statutory Declaration provided in his first Protection visa application to the department and in his evidence before the earlier constituted Tribunal ([38] at CB 129 to CB 130).
The Tribunal’s concerns with this evidence were again put to the applicant in accordance with s.424AA of the Act. The Tribunal acknowledged that it was a “reasonably fine point” but that the overall evidence caused the Tribunal to have “significant doubts” in relation to this claim ([44] at CB 130).
The 10 month delay between the applicant arriving in Australia and applying for a protection visa was also “inconsistent with the applicant fleeing due to the fear of harm claimed”. Despite the applicant’s response that “he did not know what to do” and that “his English was not good”, the Tribunal considered that if the applicant had left Nepal for the reasons claimed, “he would have investigated protection options at an earlier opportunity” ([45] at CB 130 to [46] at CB 131).
In all, the Tribunal was “not satisfied with key aspects of the applicant’s claims” including that his friend Pratap had been abducted or killed by Maoists, that the applicant would be the target of harm from Maoists as a result of his involvement in the organisation of the King’s birthday celebrations or due to his involvement in the RPP generally or due to Maoists wanting to recruit him or that Maoists had visited the applicant’s family home threatening them and searching for the applicant ([47] at CB 131).
The Tribunal acknowledged that it had made adverse findings on claims that the first Tribunal had implicitly accepted. However, the Tribunal considered that its current findings were based on inconsistencies in the evidence given by the applicant as between the first and second applications as well as its current assessment of that evidence ([49] at CB 131).
The Tribunal also stated that there were problems with the applicant’s claim to having been a member of the RPP (in his first application) or the RPP-N (at the second Tribunal hearing), when he became involved in the particular political party and his knowledge of the history of the RPP-N (as compared to independent country information before the Tribunal) ([50] at CB 131). Although the evidence “create[d] some doubts” the Tribunal gave the applicant the “benefit of the doubt” and proceeded on the basis he had some involvement with a royalist political party in Nepal.
The Tribunal highlighted to the applicant that there were inconsistencies as between his evidence at the earlier constituted Tribunal hearing, that Maoists used to ask him to join that political party and that he did not take those requests seriously, as compared to his evidence in the interview with the delegate in the current application where he claimed that they used to “mentally give him torture”. The applicant responded that serious threats only occurred after the 2009 incident, but considering the Tribunal’s previous findings as to the 2009 events, the Tribunal was not satisfied that the applicant “was subject to intimidating or serious threats” from the Maoists or that he was requested to join that political party ([53] at CB 132).
The Tribunal accepted that the applicant was pro-monarchist and
anti-Maoist ([52] at CB 132), and put to the applicant independent country information that indicated there were few reported incidents of harm perpetrated by Maoists against members of royalist political parties, and the applicant responded that “what is reported does not reflect what is actually happening” ([55] at CB 132). Based on country information, the Tribunal was not satisfied that there was a “more general risk to the applicant”, as it considered that there was no “real risk of significant harm to individuals who are, or have been, involved with royalist political parties” ([57] at CB 132).
In all, as a result of the Tribunal’s findings, it was not satisfied that “there [was] a real risk of significant harm to the applicant on returning to Nepal” and therefore the applicant did not satisfy the criterion at s.36(2)(aa) of the Act for the grant of the Protection visa.
The Application to the Court
The applicant applied to the Court for review of the Tribunal’s decision on 15 December 2015. By a Notice of Address for Service filed with the Court on 20 April 2016, the applicant indicated that he had appointed a lawyer to represent him in his application before the Court.
On 6 June 2016, a Notice of Intention to Withdraw as Lawyer was filed with the Court, and on 7 July 2016, a Notice of Withdrawal as Lawyer was filed with Court. Accordingly, the applicant became and continues to be unrepresented in this matter.
The application to the Court is in the following terms:
“1. I am not satisfied with the Tribunal Member’s decision because the Tribunal Member erred by failing to consider whether Australia had protection obligations under the Refugee Convention and Protocol in my respect.
2. The Tribunal Member narrowly justified the issue of whether a protection visa should be issued complementary protection for refugee convention reasons.3. I received no natural justice from the Tribunal Member in my case.”
Although it appears from the numbering of the grounds that there are three distinct grounds of review, it is clear from the content of the words that, in fact, the two paragraphs are one ground, and that paragraph 3 is a separate ground (“ground three”).
The applicant appeared before the Court today, as I said, without legal representation. He was assisted by an interpreter in the Nepali language. The Minister was represented by a solicitor. I have written submissions from the Minister. The applicant confirmed that he had not filed any other documents in support of his application. This is despite the opportunity that had been provided to him by orders made earlier in the conduct of this case. I refer here to orders made by a Registrar of the Court on 18 February 2016, and subsequent orders made by the Registrar on 21 April 2016.
In any event, when given the opportunity to address the Court, the applicant said that he was “not happy” with the Tribunal’s decision. He wanted the Court to look at his case, and he “wanted justice”. The applicant asked that his case be sent back to the Tribunal. Beyond these general assertions, the applicant was unable to provide anything further, let alone anything of substance, in asserting jurisdictional error on the part of the Tribunal and, in fact, confirmed that what he wanted to say had already been said.
Consideration
To the extent that it may be that the applicant’s submissions to the Court may be understood at least in part as some attempt for the Court to intervene and form a view that the applicant should be given a protection visa and to remit his case to the Tribunal on that basis, it is, of course, not open to the Court to pursue that avenue given that that would require the Court to engage in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
Turning to the grounds as pleaded, the applicant confirmed that he had received some assistance in the preparation of those grounds. The asserted legal error raised in paragraphs 1 and 2 is, in essence, that the Tribunal erred in the circumstances in not considering his claims against the Refugee Convention criteria (s.36(2)(a) of the Act), which is what had occurred before the second Minister’s delegate, and that the error was that the Tribunal only considered his claims against the complementary protection criterion (s.36(2)(aa) of the Act).
There is current and applicable Federal Court authority which is binding on this Court that provides the answer to this assertion implicit, if not explicit, in the applicant’s ground. In SZGIZ, the Full Court found that s.48A of the Act did not prevent an applicant from making a second application for a protection visa based on the complementary protection criterion in circumstances where any first application was only considered in relation to the Refugees Convention criterion.
However, as the Minister correctly submitted, s.48A of the Act does prevent the applicant from making a second application in relation to the Refugees Convention criteria. In that regard, the Tribunal was not in error in considering only the complementary protection criterion on the second occasion given what had occurred previously. In SZVCH v Minister for Immigration [2015] FCCA 2950; (2015) 303 FLR 403 (“SZVCH”) this Court found that the Tribunal in that case erred by not considering the Refugee Convention criterion in similar circumstances to the current case where the second delegate had considered both criteria.
This matter is currently on appeal to the Full Federal Court, which reserved its decision on 4 May 2016. Notwithstanding this, a number of cases in this Court have found that SZVCH was “wrong” (see SZQTJ v Minister for Immigration & Anor [2015] FCCA 3226, SZRSX v Minister for Immigration & Anor [2016] FCCA 622 and AXH15 v Minister for Immigration & Anor [2016] FCCA 617). However, far more importantly the Federal Court in two matters also found it was wrong (see AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424 and SZRAG v Minister for Immigration and Border Protection [2016] FCA 189). As these are binding on this Court the applicant’s, if I can call them, first and second grounds, are not made out.
I did consider whether it was appropriate to await the handing down of the decision in SZVCH. However, having confirmed with the Minister as to his position on this point I am satisfied that where there is clear and existing binding authority it is not in the interests of justice to delay this matter to await the handing down of the Full Court judgment, particularly in circumstances where there is no indication as to when that may be done.
For this reason, as I said, the applicant’s first and second grounds are not made out.
Ground three is, it must be said, a mere unparticularised assertion that the applicant was denied natural justice. Given what the applicant said to the Court today, this is either some attempt to repeat, or to characterise, the complaint in grounds one and two, or, as I said earlier, some attempt to engage the Court in the conduct of impermissible merits review.
This ground also is not made out for those reasons. Noting in particular that the absence of particulars, and any explanation beyond the submissions made by the applicant, leaves the ground at a level of generality where it cannot be said that it is any proper assertion of jurisdictional error. In any event, I note that this is a case to which s.422B of the Act applies, making the matters set out in Part 7 of the Act the exhaustive statement of the natural justice hearing rule or, relevantly, matters of procedural fairness.
I note that the applicant was invited to a hearing by the Tribunal pursuant to s.425 of the Act. The issue relevant to the Tribunal’s adverse credibility findings, which were determinative of the hearing, were discussed. I agree with the Minister that, on the available evidence, there is no error in the Tribunal’s approach in relation to the issues in the review as explained by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152.
Despite opportunity available to him the applicant has not provided any evidence to the Court to challenge the Tribunal’s account of what it said occurred at the hearing, for example, by providing a transcript of the hearing to the Court. Therefore, the Tribunal’s references to what occurred at the hearing remain as the only relevant evidence. That evidence shows that the Tribunal said it employed the facility available at s.424AA of the Act to put information to the applicant at the hearing which it said was the reason or part of the reason for affirming the delegate’s decision and plainly it did so in an attempt to discharge any obligation pursuant to s.424A(1) of the Act.
There are paragraphs of the Tribunal’s decision record where it made references to s.424AA of the Act (see [32] and [35] at CB 129 and [39] at CB 130). On that evidence the Tribunal clearly put its concerns to the applicant and the basis from which those concerns arose. However, in essence, what the Tribunal put to the applicant were inconsistencies in his evidence and, having regard to what the High Court said in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [18], these inconsistencies are not, in any event, “information” for the purposes of s.424A of the Act.
However, as the Minister correctly submits, in any event, there is no legal error in the Tribunal putting these matters to the applicant (SZGIY v Minister for Immigration [2008] FCAFC 68).
Conclusion
In all, the grounds of the application to the Court on the state of current law reveal no jurisdictional error in the Tribunal’s decision. The applicant has now had his claims to protection considered by two delegates of the Minister and two different Tribunal members.
Ultimately, the first Tribunal member considered the claims in light of the Refugee’s Convention. The second Tribunal member considered the claims in light of the complementary protection criterion. The applicant has, in my view, been given a fair opportunity to satisfy two Tribunal members that his claims to protection should be accepted. The fact that he has failed to do so does not lead to any claim of injustice being made out. As there is no jurisdictional error in the Tribunal’s decision it is appropriate that the application be dismissed. I will make that order today.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 28 November 2016
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