SZQNL v Minister for Immigration and Citizenship

[2012] FCA 515

FEDERAL COURT OF AUSTRALIA

SZQNL v Minister for Immigration and Citizenship [2012] FCA 515

Citation:		SZQNL v Minister for Immigration and Citizenship [2012] FCA 515
Appeal from:		SZQNL v Minister for Immigration and Citizenship & Anor [2012] FMCA 86
Parties:		SZQNL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 399 of 2012
Judges:		GRIFFITHS J
Date of judgment:		17 May 2012
Legislation:		Migration Act 1958 (Cth) ss 476, 424AA, 424A(1)
Cases cited:		Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 – referred to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 – referred to
Date of hearing:	17 May 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	27
Solicitor for the Respondents:	Clayton Utz
Counsel for the Appellant:	The Appellant appeared in person (with the aid of a Nepalese interpreter)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 399 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQNL
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRIFFITHS J
DATE OF ORDER:	17 MAY 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant is to pay the respondents’ costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 399 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQNL
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRIFFITHS J
DATE:	17 MAY 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Federal Magistrate Nicholls delivered on 20 February 2012, in which his Honour dismissed an application for review under s 476 of the Migration Act 1958 (Cth) (the Act).

2. The appellant is a citizen of Nepal who arrived in Australia on 23 November 2008. On 30 December 2010 (and very shortly after his 2 year student visa expired), he lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused that application on 25 March 2011. On 12 April 2011, the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision.  Having failed before the Tribunal, the appellant then sought a review in the Federal Magistrates Court. 

BACKGROUND

1. In his protection visa application, the appellant claimed that:

   (a)he arrived in Australia as the holder of a student visa, having used a false marriage document to obtain the visa;

   (b)he is a monarchist and a committed member of the Rastriya Prajatantra Party (RPP);

   (c)he is a Hindu and according to his faith the King is the incarnation of the god Vishnu;

   (d)he is opposed to the Maoists in Nepal and has witnessed supporters of the Young Communist League (YCL) attack supporters of the monarchy;

   (e)the risk of harm posed by the Maoists, the YCL and other anti-monarchists caused him to leave Nepal;

   (f)he fears harassment and physical assault by Maoists and other anti-monarchists if returned to Nepal; and

   (g)the Nepalese authorities will not protect him from such violence if he returns to Nepal.

2. On 31 January 2011, the appellant attended an interview with the Minister’s delegate. He gave further evidence in support of his protection visa application. This evidence included claims that:

   (a)       he had owned a clothing shop in the Myagdi district of Nepal;

   (b)       he was required to give monthly donations to the Maoists;

   (c)in around 2008 the Maoists forced him to close his shop because he was a pro-monarchist;

   (d)       also in 2008 he was attacked when leaving an RPP meeting; and

   (e)       after the attack he was afraid to go out in public and remained in hiding.

DELEGATE’S DECISION

1. On 25 March 2011, the delegate refused the protection visa application.  The delegate was not satisfied as to the appellant's credibility or the veracity of his claims. The delegate was not satisfied that the appellant had a genuine fear of persecution when he left Nepal, that he had an active political profile in Nepal or that he would face a real chance of persecution for reasons of his political opinion in the reasonably foreseeable future if he were to return to Nepal.

TRIBUNAL’S DECISION

1. On 12 April 2011, the appellant applied to the Tribunal for a review of the delegate's decision. On 22 June 2011, he attended a hearing before the Tribunal, at which he was assisted by a Nepalese interpreter.

2. On 14 July 2011, the Tribunal affirmed the delegate's decision. The Tribunal summarised its findings at [96] of its reasons in relation to the appellant's claims as follows:

   In the Tribunal's view, the applicant has not provided a truthful account of his experiences in Nepal. Whilst the Tribunal accepts that the applicant may have views about the [RPP] and the monarchy, it does not accept that the applicant came to the attention of, or was threatened, or harmed by the Maoists, or the YCL, because he was an [sic] member of the [RPP], or because of his involvement in [RPP] activities, or for expressing views about the monarchy or for any other reason. It follows that the Tribunal does not accept that the applicant was required to make donations to the Maoists or the YCL, that he was threatened or attacked by the Maoists or the YCL, or that he closed his business in Beni because of the Maoists or the YCL. The Tribunal also does not accept that there is a real chance the applicant would face persecution as claimed if he returned to Nepal now or in the reasonably foreseeable future.

3. The Tribunal reached these adverse credit findings by relying on the following matters:

   (a)the appellant's failure to mention in his protection visa application his claim to have been attacked when leaving an RPP meeting. This claim was first raised at the interview with the delegate;

   (b)       inconsistencies in his evidence as to the date of the alleged attack;

   (c)inconsistencies in his evidence as to the date when he closed his business;

   (d)inconsistencies in his evidence as to his activities between 2006 and 2008. In his protection visa application, the appellant had said that he rarely went out after the fall of the monarchy (which occurred in 2006), yet this was inconsistent with his evidence at the Tribunal hearing that between 2006 and 2008 he attended RPP meetings and continued to work and travel in Nepal;

   (e)the appellant's failure to mention in his protection visa application his claim to have paid donations to Maoists or his claim that his business was forced to close. Again, these claims were first raised at the interview with the delegate;

   (f)inconsistencies in his evidence as to where he was living in Nepal at various points in time; and

   (g)the appellant's delay in applying for a protection visa until more than two years after his arrival in Australia. 

APPLICATION TO THE FEDERAL MAGISTRATES COURT

1. On 12 August 2011, the appellant applied to the Federal Magistrates Court under s 476 of the Act for a judicial review of the Tribunal's decision. His application contained 5 grounds of review. They are set out in [20] of the learned Magistrate’s reasons for decision and need not be repeated here. The appellant also filed an affidavit containing two further complaints about the Tribunal's decision.

2. The proceedings in the Federal Magistrates Court were heard on 9 February 2012.  On 20 February 2012, the Court delivered judgment and published detailed written reasons. The Court’s findings and reasons may be summarised as follows:

   (a)as to the first ground of review, the appellant had failed to identify any claim, or integer of a claim, which the Tribunal had omitted to take into account. Further, the Tribunal was not under any general duty to make inquiries or obtain further evidence to make out the appellant's case for him, citing Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12.

   (b)as to ground 2, Nicholls FM found that there was no basis for the appellant’s complaints of denial of natural justice, illogicality or that an irrelevant consideration had been taken into account. On the natural justice complaint, Nicholls FM found that the Tribunal had put to the appellant its concerns about his credibility in the manner required by s 424AA of the Act. His Honour also gave reasons why he found that the requirements of sub-s 424A(1) of the Act were not engaged in this case. As to the allegation of illogicality, his Honour found that this complaint was, in substance, a challenge to the factual findings made by the Tribunal and beyond the scope of judicial review, even allowing for certain relevant observations in the High Court’s decision in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. As to the alleged irrelevant considerations ground, his Honour rejected the appellant’s argument, describing it as misrepresenting the Tribunal’s findings and analysis and misunderstanding the relevant law.

   (c)as to ground 3, Nicholls FM found that the effectiveness of the protection available to the appellant from the Nepalese authorities did not arise for the Tribunal's consideration because it rejected his claim to have a well-founded fear of any harm in Nepal;

   (d)as to ground 4, the learned Magistrate found that there was no substance to the language of the complaint which attempted to establish a jurisdictional error.  His Honour found that the Tribunal did not ask itself the wrong question or misunderstand or misapply the definition of “refugee” as set out in the Convention and related Australian law; and

   (e)as to ground 5, Nicholls FM concluded that the appellant failed to establish that the Tribunal had not made a proper and genuine assessment  of the real risk of serious harm to the appellant in the light of the available country information.  His Honour found that, on a fair reading of the Tribunal’s reasons, its conclusion that the appellant was not a person at risk or harm was one necessarily arrived at in the light of the available country information.

3. The Federal Magistrate also dealt with the 2 further complaints about the Tribunal’s decision raised by the appellant in his affidavit filed at the hearing in the Federal Magistrates Court.  The first oral complaint was that the Tribunal had effectively pre-determined the case and had actual bias against him.  This complaint was rejected by his Honour on the grounds that it appeared to be based upon the Tribunal having put to the appellant for comment its concerns about his evidence given at the hearing before the Tribunal.  His Honour concluded that such conduct did not reveal bias; on the contrary, it was consistent with according the appellant procedural fairness. 

4. The second oral complaint asserted a denial of natural justice because it was said that the Tribunal had not considered whether the appellant had been a “victim” of the Maoists, and also had not determined his claims for protection based on politics and membership of a particular social group.  Nicholls FM had difficulty in understanding how such complaint amounted to a denial of natural justice but, in any event, concluded that, in substance, the complaint was one against the Tribunal’s fact finding and did not reveal jurisdictional error. 

THE APPEAL

1. The appellant filed his notice of appeal on 12 March 2012 from the decision of Nicholls FM.  It contains the following grounds of appeal:

   1.I argue that his honour Federal Magistrate Nicholls failed to discern the error of law in connection with the Tribunal’s decision in my case as I believe the Tribunal Member deprived me of the natural justice. My oral evidence before the Tribunal was not fairly treated as the Tribunal Member regarded me as an implicit economic refugee other than a refugee of persecution because the Tribunal Member has no experience in being a refugee. My evidence before the Tribunal was inferentially adversely construed against my claims. This is just injustice.

   2.I argue that the Tribunal Member’s finding and analysis about my claims implied that my claims were overlooked by the Tribunal as I believe the Tribunal Member failed to complete its required review function.

   3.I contend that the Tribunal committed a jurisdictional error in that there was no evidence to support certain factual findings made by the Tribunal and that its findings were irrational as to my claims regarding the Maoist’s treatment towards me was dismissed as fabrications. Its decision to give no weight to my claims and evidence was based upon reasons which the evidence it cited was incapable of supporting. In the context of the Tribunal’s reasoning for rejecting my claims that its failure genuinely to assess the evidence favourable to me and a propensity to adopt illogical or unbalanced reasons.

   4.I am a victim of the Tribunal Member’s unqualified, unbalanced and unfair assessment in my claims as I am very sure about the fact that the Tribunal Member displayed bias against me in making its findings as to my problems with the Maoists and my political opinion. The Tribunal Member was biased in basing its rejections of my claims on assumptions and arbitrary view of the Tribunal Member rather than evidence.

   5.I believe the Tribunal Member lacked a deeper understanding of the real situation I face as a victim of the Maoists. The Tribunal Member has relied too much heavily upon cross-examination of myself to highlight seeming inconsistencies and memory lapses and then to discount my evidence on that basis. This has led to the Tribunal member making incorrect conclusions on information supplied and thus amounting to jurisdictional error.

2. The first thing to note about these five grounds of appeal is that only the first ground expressly relates to the decision of Nicholls FM.  The other four grounds of appeal all directly relate to the appellant’s dissatisfaction with aspects of the Tribunal’s decision. 

3. This Court’s jurisdiction is directed to the decision of the Federal Magistrate.  Grounds 2-5 of the appellant’s notice of appeal effectively leapfrog Nicholls FM’s decision and impermissibly invite this Court to review the Tribunal’s decision and reasons for judgment, rather than those of Nicholls FM. 

4. The first respondent has objected to another aspect of the notice of appeal.  The first respondent opposes the appellant being permitted to raise new grounds of appeal which were not argued before Nicholls FM.  I note, however, that despite that formal objection, the first respondent did not point to any prejudice if the grounds were all permitted to be argued before me.  The first respondent also contends that, in any event, the fresh grounds of appeal invoke the language of judicial review, are legally misconceived and cannot be made out on the evidence. 

5. In my view the appropriate course is to allow the appellant to argue each of the five grounds of appeal in his notice of appeal, notwithstanding the difficulties with some or all of those grounds as summarised above. 

6. Focussing on the appellant’s first ground of appeal, the gravamen of the appellant’s complaint is that Nicholls FM erred in not finding that the Tribunal had denied him natural justice.  Although this ground of appeal is expressed in terms of deprivation of “natural justice”, it is difficult to see any proper basis for that allegation.  The appellant’s complaint is that his oral evidence before the Tribunal was not fairly treated by the Tribunal member because it was said that the member regarded the appellant as an “implicit economic refugee” and the member had no experience of being a refugee.  Neither of these matters appear properly to arise under the rubric of natural justice. 

7. Assuming in the appellant’s favour that the first aspect of that complaint amounts to an allegation of prejudgment on the part of the Tribunal member, I agree with the learned Magistrate’s reasons for rejecting the appellant’s complaints concerning natural justice (see the summary above of Nicholls FM’s reasons for rejecting the appellant’s complaints of denial of natural justice under ground 2 of his application to the Federal Magistrates Court, and the Federal Magistrate’s reasons concerning the first of the two additional oral complaints made by the appellant during the course of the hearing before him).

8. The appellant’s complaints in ground 1 of his notice of appeal to this Court claim that the Tribunal member had no experience himself as a refugee.  It is also alleged that the Tribunal “inferentially adversely construed” the appellant’s evidence before the Tribunal against his claims.  In my view neither of those matters, even if established, would constitute a denial of natural justice on the part of the Tribunal.  Moreover, I cannot see any other proper basis upon which it could be concluded that either matter, even if established, would amount to jurisdictional error.  Plainly there can be no jurisdictional error in the mere fact that a Tribunal member hearing and determining the appellant’s case was not himself or herself a refugee.  Likewise, merely because the Tribunal had regard to the appellant’s evidence in the Tribunal and used that evidence as part of its reasoning in rejecting his claims cannot, without more, amount to jurisdictional error.  On the contrary, it is to be expected that the Tribunal would proceed in that fashion. 

9. In my view, the appellant has failed to make good any aspect of ground 1 of his notice of appeal to this Court.

10. As to ground 2, the appellant has failed to establish before me that any of his claims were overlooked by the Tribunal, or that the Tribunal failed to discharge its review function.  The appellant’s claims were carefully considered by the Tribunal and it gave detailed and comprehensive reasons why it did not accept those claims.  The appellant was unable to identify any claim made by him which was not addressed by the Tribunal. 

11. As to the third ground of appeal, the appellant failed to make good his claims of no evidence, irrationality, illogicality or lack of balance in the Tribunal’s reasons.  The appellant failed to specify which factual findings of the Tribunal formed the subject of this ground of appeal.  In my opinion, for the reasons given by Nicholls FM, his Honour correctly rejected the appellant’s challenge to the Tribunal’s decision on similar grounds to those now raised by him.

12. As to ground 4, which involves an allegation of bias on the part of the Tribunal member, this ground appears to be based on the fact that the Tribunal rejected the appellant’s claims.  It was open to the Tribunal member not to accept the appellant’s claims or evidence put forward by him in support of those claims.  Such rejection cannot without more provide a proper basis for an allegation of bias, which is a serious matter to allege against a Tribunal member.  I find that there is no basis for this ground of appeal and I reject it. 

13. As to ground 5, the essence of the complaint appears to be that the Tribunal relied too heavily upon the appellant’s cross-examination in finding inconsistencies in the appellant’s claims and in then discounting his evidence.  The appellant alleges that this caused the Tribunal to make incorrect conclusions and that is said to amount to jurisdictional error.  In my view this ground should also be rejected.  The appellant failed to particularise the specific matters the subject of this ground of appeal.  In essence it amounts to a generalised complaint about the Tribunal’s fact finding and the merits of that exercise.  It is well established that errors in fact finding do not amount to jurisdictional error (putting to one side jurisdictional facts, but that did not arise here). 

1. Finally, I should add that I agree with the first respondent’s submission that the appellant’s grounds of appeal essentially question the merits of the Tribunal’s decision.  The appellant has failed to make good any of his five grounds of appeal against Nicholls FM’s decision.  Nor has he established any jurisdictional error in the Tribunal’s decision.

2. For these reasons, I dismiss the appeal and order that the appellant pay the respondents’ costs. 

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

Associate:

Dated:       17 May 2012

Place:	Sydney
Division:	GENERAL DIVISION
Category:
Number of paragraphs:	27