SZPAB v Minister for Immigration

[2016] FCCA 1328

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZPAB v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1328

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal erred in making adverse credibility findings against the applicant – whether the applicant was denied natural justice in the conduct of the hearing before the Tribunal – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa) & 476

Cases cited:
SZGIZ v Minister for Immigration and Citizenship & Anor (2013) 212 FCR 235

Applicant: SZPAB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2669 of 2015

Judgment of: Judge Street

Hearing date: 1 June 2016

Date of Last Submission: 1 June 2016

Delivered at: Sydney

Delivered on: 1 June 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: Mr L Gell
Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2669 of 2015

SZPAB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 25 August 2015 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Nepal, and her claims were assessed against that country. The applicant arrived in Australia on 2 July 2009 on a fraudulently obtained passport. On 29 April 2010, the applicant first applied for a protection visa, which was refused on 8 October 2010.

2. On 31 January 2011, the then-named Refugee Review Tribunal affirmed the decision not to grant the applicant a protection visa.  On 4 April 2011, the Full Federal Court upheld the decision of the RRT not to grant the applicant a protection visa.  The High Court of Australia dismissed an application for judicial review of the first Tribunal’s decision on 11 January 2012.  The applicant lodged a second application for protection on 9 May 2013, consistent with the decision in SZGIZ v Minister for Immigration and Citizenship & Anor (2013) 212 FCR 235, on the grounds of complementary protection.

3. The applicant claims to fear harm or persecution at the hands of local Maoists (YCL) in Nepal.  The applicant claimed that in March 2009 she was raped in front of her husband and her husband was beaten during the attack, leaving him disabled.  The applicant claimed that because she lived in a Maoist-controlled area she was unable to report the incident to the authorities for fear of displeasing the Maoists.  The applicant claimed she suffered endless threats due to her failure to support and obey Maoists and claims that they threatened to kill her. 

4. The applicant claimed that she was vulnerable to violence and exploitation in Nepal and that the police and government in Nepal are not responsive to providing protection, especially to women.  The applicant claimed that she arrived in Australia using a false passport and was initially too afraid to approach the department for assistance for that reason.  The applicant also claimed she was unaware about protection visas when she arrived in Australia. 

5. The applicant raised new claims that since her arrival in Australia her husband had died and this meant she will suffer as a widow from rejection, poverty, loneliness, blame, mistreatment, vulnerability to abuse and torture and suffering, economically and emotionally, in conservative Nepal society.  The applicant fears being raped, tortured, murdered at the hands of criminals because of Maoists and criminals are everywhere in Nepal.  The applicant claims to fear being considered as a lawbreaker and being detained and tortured in police detention because she travelled to Australia on a false passport. 

6. The delegate made adverse findings in relation to the applicant’s credibility in relation to the second visa application on the grounds of complementary protection and on 21 July 2014 refused to grant the applicant a protection visa.  The applicant applied for review before the Refugee Review Tribunal on 13 August 2014.  By letter dated 7 July 2015, the applicant was invited to attend a hearing before the Tribunal on 14 August 2015.  The applicant appeared on that date to give evidence and present arguments. 

7. The Tribunal found the applicant not to be a credible, truthful or reliable witness in relation to matters central to and related to her claims.  The Tribunal provided detailed reasons in relation to the adverse credibility findings.  The Tribunal, in its reasons, identified raising the dispositive credit issues with the applicant.  The Tribunal found the applicant was not a credible witness.  The Tribunal expressed concern throughout the hearing that the applicant’s evidence was evasive, vague and changing and expressed concern about her failure to answer questions and her interruptions of the interpreter and her portrayal as a person who is uneducated and simple. 

8. The Tribunal noted that the applicant advanced her lack of education as an explanation for her failure to provide proper explanations and also to suggest that she was vulnerable.  The Tribunal was not prepared to accept the applicant’s explanation in this regard and found that the applicant’s vague and evasive manner of giving evidence indicated that the applicant had fabricated her claims and was not a credible witness.  The Tribunal expressly considered the applicant’s assertion that she was anxious, depressed and tense, and the Tribunal found that it was satisfied the applicant was able to present evidence and arguments to the Tribunal and to understand the proceedings. 

9. It was in those circumstances that the Tribunal found the applicant was not a witness of truth and the applicant had fabricated accounts of events in Nepal as well as future fears and circumstances.  It was in those circumstances that the Tribunal, on the evidence before it, found that it was not satisfied that the applicant had been truthful about her circumstances in Nepal or that she faced a real risk of significant harm upon return to Nepal in the post-earthquake environment or because she is a woman or because she has returned from Australia or for any other reason. 

10. The Tribunal found, having considered the applicant’s claims individually and cumulatively, that it was not satisfied the applicant faces a real risk of significant harm in Nepal. The Tribunal found that it was not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal there is a real risk she will suffer significant harm. It was in those circumstances the Tribunal found that the criteria under s.36(2)(aa) in respect of complementary protection was not made out and affirmed the decision of the delegate.

11. On 12 November 2015, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  The applicant did file an affidavit annexing part of the transcript.  The applicant was asked why only the part of the transcript was tendered, and the applicant responded that it was too long.  The applicant also provided a submission in writing asserting that the Tribunal did not ask or allow the applicant to explain the core reasons why she could not return to her country and asserting that she did not have a chance to state her substantial fear and asserted that she could not express her real situation. 

12. The applicant, in her written submission, identified that she had submitted “the major part” of the translated audio.  The applicant asserted that the Tribunal ignored the applicant’s kids and asserted that the applicant was not well on the day.  The grounds of the application are as follows:

    1. I disagree with the Tribunal Member's decision because I told the truth but the Tribunal Member made its arbitrary view on my claims and the problems with the Maoists.

    2. The Tribunal Member failed to give me natural justice.

    3. I argue and believe that the Tribunal member's decision involved an error of law.

13. At the commencement of the hearing, the Court explained to the applicant that the hearing was a final hearing to determine whether the decision of the Tribunal was affected by relevant legal error. 

14. The Tribunal explained that the relevant legal error had to be either an excess of statutory power by the Tribunal or a denial of procedural fairness to the applicant.  The Court explained that in summary, this meant the Court was deciding whether the decision was lawful and whether the decision was fair.  The Court explained to the applicant that she would be given the opportunity to put submissions after the evidence was identified and that there would then be submissions from the first respondent and that the applicant could respond in reply. 

15. The applicant confirmed that she understood the nature of the hearing as explained by the Court.  From the bar table, the applicant maintained that she had explained her claims in writing and the events that occurred and that what she had said was the truth, and the applicant asserted that she believed she had not been given justice and that she wanted to have a protected life and expressed fear in relation to her wellbeing if returned to Nepal. 

16. In relation to ground 1 of the application, it was for the Tribunal to determine the credibility of the applicant.  The Tribunal has provided cogent and comprehensive reasons in relation to its adverse credibility findings.  Those adverse credibility findings were open on the material before the Tribunal and cannot be said to be unreasonable.  Accordingly, ground 1 of the application fails to make out any jurisdictional error. 

17. In relation to ground 2, on the material before the Court the applicant had a genuine hearing. At the commencement of the transcript that has been tendered in evidence, it is apparent that the Tribunal explained the nature of the hearing in which the RRT was engaged in determining the issues of complementary protection, and the section of the transcript that has been tendered does not establish that the applicant was not allowed to explain her fears and does not support any unfairness in the conduct of the hearing. 

18. It is apparent from the transcript tendered that the Tribunal raised with the applicant credit issues in relation to the applicant’s evidence.  The raising of those issues was consistent with the Tribunal complying with its obligations of procedural fairness. 

19. It is apparent from the Tribunal’s reasons that the Tribunal took into account the applicant’s assertion about being anxious, depressed and tense as well as the applicant’s assertion about her limited education in assessing the applicant’s credibility.  The Court is not persuaded that the Tribunal denied the applicant natural justice or denied the applicant procedural fairness in the conduct of the hearing and in the adverse determination of the applicant’s claims.  Ground 2 fails to make out any jurisdictional error. 

20. Ground 3 is a generalised allegation that does not identify any jurisdictional error.  The applicant’s submissions from the bar table were, in substance, an invitation to engage in an impermissible merits review in relation to the adverse findings by the Tribunal.  The applicant’s disagreement with the adverse findings does not of itself identify any jurisdictional error. Given the comprehensive reasons of the Tribunal in respect of the adverse credit findings, as indicated, those credit findings were open and cannot be said to be unreasonable.  Nothing said by the applicant from the bar table identified any jurisdictional error. 

21. I note that the applicant’s written submissions also make reference to the applicant having children.  There was no claim identified on the material before the Court that the applicant feared harm by reason of her children.  Nor was that a claim that arose on the material before the Tribunal.  A claim that is not advanced and that is not open cannot give rise to any jurisdictional error by the Tribunal. 

22. The application is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 9 June 2016