SZPZM v Minister for Immigration

[2017] FCCA 3220

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZPZM v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3220

Catchwords:
MIGRATION – Judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision of delegate of the Minister for Immigration and Border Protection not to grant applicant Protection visa – whether Tribunal properly reviewed applicant’s case – whether any procedural unfairness in Tribunal not disclosing to applicant certificates issued under s.438 of the Migration Act 1958 (Cth) – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.48A, 417(1), 424A, 438

Cases cited:

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

Applicant: SZPZM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2677 of 2016

Judgment of: Judge Manousaridis

Hearing date: 7 December 2017

Date of Last Submission: 7 December 2017

Delivered at: Sydney

Delivered on: 20 December 2017

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the First Respondent: Mr J Pinder of MinterEllison

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2677 of 2016

SZPZM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Nepal, seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant to the applicant a Protection (Class XA) visa (Protection visa).

2. The applicant arrived in Australia on 1 December 2009 on a false passport. On 17 June 2010 the applicant applied for a Protection visa (First Protection visa application) which was refused by a delegate on 11 November 2010. The delegate’s decision was affirmed by the Refugee Review Tribunal (RRT) on 7 February 2011. The applicant unsuccessfully applied for judicial review.

Claims for protection

1. On 21 May 2014 the applicant applied for a second Protection visa, as he was entitled to do, notwithstanding s.48A of the Migration Act 1958 (Cth) (Act), because of the decision of the Full Federal Court in SZGIZ v Minister for Immigration and Citizenship[1].

   [1] [2013] FCAFC 71

2. In a statement dated 15 November 2014 that was translated from Nepalese to English (Statement) the applicant claimed as follows:[2]

   [2] CB145

   a)The applicant was born in Myagdi District in West Nepal, and is Hindu and of Chhantyal ethnicity.

   b)The applicant was forced to leave Nepal for his own safety after he received death threats from “the Maoists”.  The applicant was “in grave risk of being murdered by Maoist YCL” and was “forced to abandon Nepal by any means at any cost immediately for any country where the Maoists could not locate” him.

   c)The applicant looked for “a broker who could send [the applicant] overseas fast”. Through a friend the applicant found a broker in Kathmandu who advised him that the “process was faster if [he] wanted to go to Australia”.  The broker arranged for the applicant’s travel to Australia and the false passport which the applicant used to enter to Australia. 

   d)Under the influence of a friend the applicant became a member of “Rastriya Prajatantra Party Nepal” (RPPN) on 24 February 2008. The applicant is a monarchist. The applicant opposed the Maoists for their political activities in his village. “More than 95% of the villagers were Maoists and no one could dare to disobey or displease the Maoists as they know the consequences as to what would happen to them.”

   e)The applicant’s brother was a “hardcore monarchist and strong supporter of” RPPN.  In April 2009 the applicant’s brother was killed by the Maoists in Malkabang, Myagdi “to show an example of the consequences if other people oppose them”.

   f)The applicant believes that “it is my duty to seek justice for the murder of my brother” and the applicant cannot return to Nepal because he must take steps “to seek justice” for the murder of his brother.

   g)If the applicant were to return to Nepal the applicant will pressure the authorities to apprehend his brother’s murderers and the applicant fears that he “will be particularly targeted for this by the Maoists and will be killed.” The Maoists have an effective nationwide network and they would easily find the applicant in Nepal. The Nepalese authorities cannot give the applicant assistance or protection if he is harmed because “they are corrupt and weak” and the “Maoists cannot be trusted”.

   h)The applicant believes that the Nepalese “must have the Monarchy” and that he will not keep quiet while this political issue still exists in Nepal.

   i)The applicant will not be able to “manage” his resentment over his brother’s murder and the applicant suffers from depression and is constantly worried about his life.

   j)As the applicant travelled to Australia on a false passport the applicant believes he will be detained and tortured at the Tribhuwan International Airport in Kathmandu by Nepalese authorities and that he will be subject to a jail term for violating the “Nepal Passport Act”.

   k)The applicant cannot go to India because he cannot speak Hindi and he has no friends or relatives there. The applicant fears not being able to obtain employment or housing in India and therefore, believes he will face “immense practical difficulties” if he moved to India.

   l)The Indian Maoists have links with the Nepalese Maoists and as the applicant has a “strong political view against the concept of Maoism” he fears the Nepalese Maoists will use their connections with the Indian Maoists to find the applicant. The applicant will continue to express his opinion against Maoism and he fears that he will be “particularly targeted and harmed in India” for this.

   m)The applicant cannot obtain protection in India and as a Nepali national he will be subject to mistreatment in India.

3. Although in the Statement the applicant claimed he was a member of RPPN, in the First Protection visa application the applicant claimed he was a member of the Rastriya Prajatantra Party (RPP), which is a monarchist political party separate from RPPN. The applicant supported that claim in the First Protection visa application with what purported to be a document issued by the RPP stating, among other things, that the applicant was a member of the RPP.[3] Before the Tribunal the applicant claimed he was a member of RPP, rather than the RPPN. The Tribunal, therefore, treated the applicant as having claimed he was a member of the RPP.

   [3] CB54

Tribunal’s reasons

1. The Tribunal had before it a number of documents the applicant had provided as part of the First Protection visa application (First Protection visa documents). These included documents that had been issued purportedly by the RPP. Following the hearing before it the Tribunal, pursuant to s.424A of the Act, invited the applicant to comment or respond to information which would, subject to the comments or response made by the applicant, be a reason or part of the reason for affirming the decision under review (424A  letters).[4]

   [4] Two letters were issued – the first was issued on 23 June 2016 (see CB201) and the second was issued on 26 July 2016 (see CB205)

2. The Tribunal had a number of credibility concerns with the applicant’s claims and, therefore, was not satisfied as to the truth of the applicant’s substantive claims.[5]

   a)First, the evidence the applicant gave about his involvement in the RPP was not consistent. At the Tribunal hearing the applicant indicated he had become involved with the RPP in 2008, and that he had had no involvement before that time. In the First Protection visa application the applicant had provided a supporting statement that indicated he had been involved with the RPP since he was a student. When this inconsistency was put to the applicant, he said that “he operated generally but not as a member”. In the 424A letters[6] the Tribunal noted this inconsistency and, in a letter he sent to the Tribunal,[7] the applicant stated he was not officially or formally involved with the RPP, that his involvement before 2008 was nominal and that there may have been an interpretation error in the oral evidence. The applicant also provided a letter following the hearing from the RPP dated 23 April 2009 that indicated the applicant had “served long” but that he had only obtained membership in 2008.[8] The Tribunal however drew an adverse inference in relation to the applicant’s credibility as a result of this inconsistency.[9]

   b)Second, the applicant did not demonstrate knowledge of royalist political parties, the core beliefs of the RPP, or other relevant political information that one may be expect of someone who had been a member of the RPP, particularly one who claimed to have been involved with the RPP since his student days.[10]

   c)Third, the applicant’s claims about how his brother was killed were not consistent. In the Statement the applicant claimed his brother was beheaded but during the hearing before the Tribunal the applicant said that his brother was hanged. After the hearing the applicant provided two letters to the Tribunal, one purportedly from the Myagdi RPP,[11] and the other from the Village Development Committee, Myagdi,[12] both of which stated the applicant’s brother died after having his throat slit. The Tribunal found that both letters were inconsistent with the applicant’s claim during the hearing that his brother had been hanged.[13]

   d)Fourth, the applicant gave inconsistent evidence about when his brother was murdered. On the one hand before the Tribunal the applicant said his brother was murdered in the twelfth month of the Nepalese calendar year 2065. On the other hand the two statements the applicant provided to the Tribunal about the matter (which I take to be a reference to the two purported letters from Myagdi RPP[14] and the Village Development Committee, Myagdi[15]) indicated the brother was murdered on the fifteenth day of the first month of the Nepalese calendar year 2066. In the 424A letters[16] the Tribunal noted this inconsistency. In response the applicant said that his ability to recall dates accurately at the hearing due to “nervousness or depression”. The Tribunal was not satisfied with the applicant’s explanation for the inconsistency because had he been so affected the Tribunal considers that the applicant would not have provided the definitive answers that he did.[17]

   e)Fifth the applicant gave inconsistent evidence about the circumstances in which his brother was taken by the Maoists and murdered.  The First Protection visa documents indicate the applicant’s brother had been kidnapped when he was in bed but before the Tribunal the applicant said that the rest of the family were up, but his brother was in bed. In the 424A letters[18]the Tribunal noted this inconsistency. In his response, the applicant referred to the documents he provided in support of the First Protection visa application and indicated that he did not recall everything because he was affected by nervousness and depression. The Tribunal found the applicant’s evidence on this issue to be unsatisfactory and, while it accepted that nervousness is understandable in this context, it found that it was not satisfied that this was the cause of the inconsistency of the applicant’s evidence. The Tribunal found the applicant changed his evidence during the hearing to account for discrepancies in a way that does not reflect the truth, and while the inconsistency of the applicant’s evidence on this issue was a minor detail, the Tribunal nevertheless considered it went to the truth of the applicant’s account.[19]

   f)Sixth, the applicant gave inconsistent evidence about the whereabouts of his family. Before the Tribunal, the applicant said his wife and children had stayed living in his home village in Nepal. Before the delegate, however, the applicant said that his family had to leave this village “due to difficulties”. When this inconsistency was put to the applicant, he said he had nothing to say. The Tribunal found that this inconsistency undermined the general credibility of the applicant.[20]

   [5] CB229, [66]

   [6] CB205

   [7] CB207

   [8] CB210

   [9] CB226, [34]-[39]

   [10] CB226, [40]

   [11] CB210-211

   [12] CB208

   [13] CB226, [48]-[50]

   [14] CB210-211

   [15] CB208

   [16] CB201

   [17] CB227-228, [51]-[54]

   [18] CB201

   [19] CB228, [55]-[57]

   [20] CB228, [58]

3. One final issue the Tribunal put to the applicant in the 424A letters[21] was what the Tribunal considered to be the identical terms in which key parts of the documents from Myagdi RPP[22] and the Village Development Committee, Myagdi[23] were expressed. The Tribunal, however, did not draw an adverse inference from the identical wording because the applicant indicated that the identical terms of the documents could be a product of the translation, and not the originals themselves.[24]

   [21] CB205

   [22] CB210-211

   [23] CB208

   [24] CB229, [60]

4. The Tribunal was not satisfied 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 the applicant will suffer significant harm for having left Nepal on a fraudulent passport, or for returning to Nepal on a valid passport without an exit stamp or for any other reason claimed.

Grounds of application

1. The applicant’s grounds of application stated in his application to this Court are as follows (errors in original):

   1. I am not consent with the Tribunal Member's decision because the decision involved an error of law.

   2. The Tribunal Member based the finding of lack of credibility was based on a clearly erroneous fact.

   3. The Tribunal Member took irrelevant considerations into account and in its decision by ignoring or overlooking relevant material for me.

   4. The Tribunal Member breached its obligations to provide procedural fairness and natural justice to me.

2. At the hearing before me the applicant, who is not legally represented, requested that I consider his case properly and give the applicant justice. After the applicant made this submission, each of the grounds stated in the applicant’s application to this Court was interpreted to the applicant and I asked the applicant whether he wished to say anything in relation to each of the grounds. As will appear shortly, the applicant either made no submission or no substantive submission after each ground was interpreted to him.

3. The first ground reveals no jurisdictional error because it does not identify the error of law the applicant claims the Tribunal made. The only submission the applicant made was to request that I look into the legal error. That submission takes the first ground no further because it does not identify the legal error the applicant claims the Tribunal made.

4. The second ground also reveals no jurisdictional error because it does not identify the fact the Tribunal found or assumed to exist which the applicant claims was erroneous or the grounds on which it is so claimed. After the second ground was interpreted to the applicant and I asked him whether he wished to say anything about the ground, the applicant requested I give him justice. I asked the applicant whether he was in a position to tell me what fact he claimed was erroneous, but the applicant said he could not say.

5. The applicant made no submissions in relation to the third ground. That ground, too, reveals no jurisdictional error because it does not identify the irrelevant considerations the applicant claims the Tribunal took into account or the material the applicant claims the Tribunal overlooked.

6. As to the fourth ground the applicant said he wanted me to consider his case properly and give him justice. This ground, as stated, discloses no jurisdictional error because it does not give any particulars of the respects in which the Tribunal denied the applicant procedural fairness.

Section 438 issue

1. In addition to the grounds stated in the application, the applicant relies on the following contentions made in a document titled “Applicant’s Outline of Submissions”:

   I believe that my case has been affected partly or substantially by the judgment in Singh -v- Minister for Immigration and Border Protection (2016) FCR 305 on the issue of procedural fairness.

   I argue that the decision of the Tribunal Member in my case involved an error of law because the Administrative Appeal Tribunal denied me procedural fairness.

2. Two certificates were issued purportedly pursuant to s.438 of the Act, one dated 16 December 2010, and one dated 10 December 2014.[25] The Minister accepts that the certificates were not validly issued.

   [25] CB76 and CB169

3. The documents covered by the certificates are in evidence,[26] and they are as follows:

   a)Copies of two reports prepared by a person from an officer of the Department of Immigration and Border Protection (then known as the Department of Immigration and Citizenship) (Department) concerning the authenticity of the applicant’s passport. One document contains a report that concluded that the applicant’s passport “is a legitimately manufactured document, issued in the expected manner with no fraudulent alteration”.[27]

   b)A document identical to the document referred to in paragraph 18(a) of these reasons, except it contains the conclusion that the passport “is a legitimately manufactured document that has been fraudulently altered”.[28]

   c)An internal memorandum dated 9 February 2011 noting that on 4 February 2011 the RRT affirmed a decision of the Minister’s delegate refusing refugee status to the applicant and that the applicant’s case did not satisfy the requirements for consideration of the exercise of the Minister’s discretion under s.417(1) of the Act.

   d)A document titled “Forensic Document Examination Request”.[29]

   [26] Affidavit of J L Strugnell, 30.11.2017, exhibits JLS1 and JLS2

   [27] Folios 84-85, 109

   [28] Folio 79

   [29] Folio 38

4. Before I consider the applicant’s contentions, I should note that the Minister initially provided redacted versions of the reports referred to in subparagraphs 18(a) and (b) of these reasons. The Minister claimed public interest immunity to the redacted portions. The basis of the claim for public interest immunity is that the redacted portions, if made public, might disclose forensic techniques used when assessing the authenticity of passports. As a pragmatic solution I suggested that the applicant be given access to an unredacted version of the documents on the basis the applicant would not, without the further order of the Court, disclose the contents to any person. The applicant gave an undertaking in those terms and he was given access to the unredacted version of the documents. I marked as “MFI1” the unredacted version of the copies and I have kept a copy on the file.

5. As I have noted, the Minister accepts the certificates were invalidly issued; and the Minister accepts that the Tribunal did not disclose the existence of certificates to the applicant. These matters by themselves, however, do not imply the applicant was denied procedural fairness. Whether or not the failure to disclose the documents resulted in any unfairness to the applicant depends in the first instance on whether the documents covered by the certificates would reasonably have been relevant to any issue that was before the Tribunal on the applicant’s application for review. The answer to that question in relation to the documents is “no”.

6. I first consider the forensic reports. In its reasons the Tribunal referred to the applicant having entered Australia on a passport using a name that was different to the name in the passport the applicant provided to Department in support of the First Protection visa application; and then noted that “the decision of the delegate with respect to that application noted that the passport provided had been forensically examined and found to be a legitimate passport”.[30] The Tribunal accepted that the applicant’s name was that recorded in the passport on which the applicant relied on the First Protection visa application and it did not otherwise refer to forensic reports or to the s.438 certificates that were issued. In these circumstances, I am not prepared to infer that the Tribunal had regard to the certificates or to the forensic reports. The Tribunal simply accepted that which the delegate had found; namely, that the applicant’s name was that stated in the passport the applicant provided to the Department in support of the First Protection visa application.

   [30] CB221, [10]

1. Even if, contrary to what I have found in the previous paragraph, the Tribunal had regard to the certificates and to the forensic reports covered by the certificates, no unfairness resulted to the applicant. The report concluded the applicant’s passport was authentic; that, in turn, supported an essential element of the applicant’s claims, namely, that he was a citizen of Nepal. Stated another way, the forensic reports contained no information that could conceivably have been treated as being adverse to the claims the applicant made before the Tribunal.

2. The other documents covered by the certificates can be treated shortly. None of them had any apparent relevance to the applicant’s claims. For that reason, I infer the Tribunal did not have regard to the s.438 certificates issued with respect to those documents and, for that reason, their existence did not affect the manner in which the Tribunal conducted its review.

Disposition

1. I propose to order that the application be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date:  20 December 2017