SZQOA v Minister for Immigration

[2016] FCCA 3137

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZQOA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3137

Catchwords:

MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – claims of fear of harm because of homosexuality – whether the Tribunal ignored the applicant’s claims – whether the Tribunal’s decision was affected by an error of law – issue of certificate under s.438 of the Migration Act 1958 (Cth) – consideration of decision in MZAFZ v Minister for Immigration & Border Protection [2016] FCA 1081 – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 424, 430, 438, div.4 pt.7

Cases cited:

MZAFZ v Minister for Immigration & Border Protection [2016] FCA 1081
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235; [2013] FCAFC 71

Applicant: SZQOA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3088 of 2015

Judgment of: Judge Smith

Hearing date: 27 October 2016

Date of Last Submission: 27 October 2016

Delivered at: Sydney

Delivered on: 27 October 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr A Keevers, Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3088 of 2015

SZQOA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant is a citizen of Nepal who arrived in Australia on 13 October 2010. On 18 January 2011, he lodged an application for a protection visa. That application was refused by a decision made by a delegate of the Minister on 17 March 2011, and the applicant’s subsequent application for merits review and for judicial review were unsuccessful. Subsequently, however, a new criterion was inserted into the Migration Act 1958 (Cth) in connection with protection visas. That is sub-s.36(2)(aa), or the complementary protection criterion.

2. In light of that, and of the subsequent decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235; [2013] FCAFC 71 , the applicant applied once again for a protection visa on 2 May 2013. He claimed that he faced a real risk of significant harm upon return to Nepal, essentially for two reasons:

   i.his political opinion as being a supporter of the Rastriya Prajatantra Party, Nepal (“RPP”); and,

   ii.because of his homosexuality.

3. On 24 April 2014, a delegate of the Minister made a decision not to grant the applicant a protection visa.

4. Amongst the reasons for that decision were that the delegate did not accept that the applicant was homosexual, and that he had not taken all reasonable steps to engage his right to enter and reside in India. The applicant applied to the Refugee Review Tribunal[1] for review of that decision. The applicant attended a hearing conducted by the Tribunal on 21 May 2015, and the Tribunal made a decision to affirm the delegate’s decision on 15 October 2015. The applicant seeks judicial review of that decision.

Consideration

[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

Ground one

1. There are three grounds in his application. The first is that the applicant disagrees with the Tribunal’s decision, based on the fact that his claims had been ignored by the Tribunal’s arbitrary view.

Ground two

1. The second ground is:

   The Tribunal Member ignored to believe my claims and evidence despite the fact that I am gay and I had problems with the Maoists due to my political view and I have received no natural justice from the Tribunal Member.

Ground three

1. The third ground is that the decision of the Tribunal was affected by an error of law, to the effect that the decision lacks natural justice and fairness.

2. The applicant appeared unrepresented at the hearing and explained that his application for review was based on the fact that he had told the Tribunal the truth and that the Tribunal did not believe him. In addition to those matters, I raised with the solicitor who appeared for the Minister, a document appearing in the evidence purporting to be a certificate under s.438 of the Act.

3. The applicant’s oral arguments at the hearing amounted to no more than a disagreement with the factual conclusions reached by the Tribunal. As such, they only attack the merits of that decision rather than its legality, and therefore, would not justify, even if correct, the orders sought by the applicant. Further, the third ground in the application appears to be no more than a summary of the first two grounds. In light of those two matters, the issues before the Court appear to be the following:

   i.was the decision made by the Tribunal arbitrary;

   ii.did the findings made by the Tribunal amount to a denial of natural justice;

   iii.in light of the decision of Beach J in MZAFZ v Minister for Immigration & Border Protection [2016] FCA 1081 (“MZAFZ”), did the certificate purporting to be under s.438, infect the Tribunal’s decision with jurisdictional error.

   I will deal with those in turn.

4. A decision is arbitrary if it is one made without reason, such as a decision made on the toss of a coin. The current decision made by the Tribunal cannot be described as such. It set out its reasons, relevantly, at [46] and [47] of its reasons for decision prepared under s.430 of the Act.

   [46]I have carefully considered the claims and evidence of the applicant. As discussed with him at hearing I have several significant concerns with his claims and evidence, and these issues significantly impact on his credibility. In particular:

   ·The applicant claims he was a member of the RPPN from age 15. I do not accept this and note the Constitution of the Party indicates that a member can join at 16 years. I do not accept as reasonable to believe that he could join at the age of 15.

   ·He claims he was a person of some profile in the RPPN in his village, and helped arrange a celebration for the King's Birthday in July 2010. At that time he would have been 17 years old. I do not accept as reasonable to believe that a 17 year old would have been of any significance or influence in such a party.

   ·He claims that the celebration in July 2010 was attacked by YCL and Maoists. I do not believe that to be true. As discussed with him there is no evidence that Maoist's were active in his area at that time and the civil war ceased in November 2006. I consider that if attacks had occurred in July 2010, they would have been reported. I do not accept his explanations as to why there was no reporting. I find the attack did not occur.

   ·The applicant’s time frame of when he left the village after the claimed attack does not fit well with his passport being issued on 4 August 2010 (folio 3). As discussed with him the Tribunal is aware that Nepalese passports take 4 to 6 weeks to issue. If that time frame is applied then he would have applied for the passport before the incident that he claims motivated him to depart from Nepal. I have considered his explanations on this, including that if a fee is paid it can be obtained quicker. Whilst I accept that may be the case I do not believe it is the situation here. Given my other concerns I consider the applicant was not in Kuhun, Myagdi as claimed for the King's Birthday in July 2010. I consider he was in Kathmandu at that time and had applied there for a passport. I find the passport was applied for probably in late June or early July 2010.

   ·He has now made claims that he is homosexual. He has said this was not previously mentioned in the prior application. I have considered this in the context of his evidence at hearing and do not believe that he is homosexual. In particular I consider that it is an opportunistic claim made now as his prior claims were not successful. I do not accept as reasonable to believe that if he is homosexual, and had any concern about this that he would not have mentioned it previously. I do not believe that he received poor or the wrong advice, when he first came to Australia.

   ·Additionally his evidence at hearing about not telling anyone apart from one friend, meeting male prostitutes in a bar and taking them back to his bed sit he shares with other Nepalese men as not reasonable to believe as true.

   [47]Overall, I find the applicant is not a credible witness; I do not accept any of his claims of fearing harm on return to Nepal as true. I consider he has fabricated his claims of belonging to the RPPN (and of fearing harm from the YCL and Maoists), and of being homosexual (and fearing harm from his family and society) so as to advance his claims for a protection visa. I find that the claim of being homosexual is an opportunistic claim and is made as his prior claims have been unsuccessful. The applicant has no other claims of fearing harm on return to Nepal.

5. These paragraphs reveal that the Tribunal’s decision turned upon a finding of credit, which in turn had a number of separate logical bases. In those circumstances, the decision was not one made without reason and could not be described as arbitrary. The first ground is rejected.

6. The second ground effectively complains that the failure by the Tribunal to believe the applicant was a denial of natural justice. This ground misunderstands what natural justice entails. Natural justice, or what is now more accurately referred to as procedural fairness[2], is not concerned with the outcome of an administrative process but with the procedure adopted in order to arrive at that outcome.

   [2] See Kioa v West (1985) 159 CLR 550, 583-585 (Mason J) and Justice Alan Robertson, Natural Justice or Procedural Fairness (2016) 23 AJ Admin L 155

7. In the case of the Tribunal, those procedures were relevantly prescribed in div.4 of pt.7 of the Migration Act. In particular was the obligation of the Tribunal to invite the applicant to attend a hearing to give evidence about, and to present arguments concerning, the issues that arose in respect of the decision under review. As the High Court explained in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63, ordinarily the first place to look to determine what the issues on the review are, are the reasons for decision of the delegate.

8. The delegate here, as I have noted, did not accept the applicant’s factual claims, in particular, that of being a homosexual. In that way, the applicant’s credit in respect of the critical aspect of his claim was clearly an issue that was alive at the hearing at which the applicant attended.

9. Further, the questions asked by the Tribunal, which are recorded in its statement of reasons, reveal that the Tribunal gave the applicant every opportunity of being aware of his issues concerning his credibility and to address them. In light of that, I am satisfied that the Tribunal complied with its obligation under s.425 of the Act. There is nothing before the Court to suggest that there was any obligation that arose under s.424A of the Act, subject to what follows. For that reason, I am not satisfied that there was any breach of the procedural obligations prescribed by the Migration Act.

10. In MZAFZ, Beach J found that there was a denial of procedural fairness in connection with a document purporting to be a certificate under s.438. Subject to discussion of that matter, I would reject the second ground.

11. Section 438 of the Act applies to a document or information if the Minister had certified in writing that the disclosure would be contrary to the public interest for one of the reasons specified in the certificate. Importantly, one of those reasons must be able to form a basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information not be disclosed.

12. Beach J at [36] construed that qualification to mean that the document had to be able to be subject to public-interest immunity, also known as Crown privilege. The certificate considered by his Honour described the reason for non-disclosure as “internal working documents”. His Honour found at [37] that that was not a sufficient basis for public-interest immunity. His Honour then turned to consider the question of what consequences flowed from his conclusion.

13. Beach J found that the Tribunal had proceeded or acted on the invalid certificate and that this was not a process according to law and so constituted jurisdictional error (see [44]). One of the three critical steps which led to this conclusion was a finding of fact made by his Honour that the applicant had acted in some unspecified way on the invalid certificate, in particular in relation to the documents subject to that certificate. His Honour drew that inference from, amongst other things, a statement in the Tribunal’s reasons that it had regard to a particular file of the department and that the certificate and documents were contained on that file.

14. This case, however, is different. The certificate in this case is similar to that considered by Beach J in that it discloses the reason for apparent non-disclosure as being “the documents contain internal working documents and business affairs”. In light of Beach J’s decision, that certificate was not a valid certificate under s.438 of the Act. However, and critically, the certificate related to a file of the department described as CLF2011/6547. The file reference for the department’s file concerning the decision which was under review by the Tribunal was different. The reference number for that file was CLF2013/98194.

15. There is nothing in the Tribunal’s decision which suggests that the Tribunal had before it the department file with the reference CLF2011/6547. Just as importantly, there is nothing to suggest that the Tribunal had regard to any information contained in that file. Thirdly, there is nothing to suggest that the documents referred to in the certificate were before the Tribunal. For that reason, I am not satisfied that the Tribunal acted in any way upon the invalid certificate. For that reason, there is no jurisdictional error in the Tribunal’s decision to the same effect as considered by Beach J in MZAFZ.

16. As I noted earlier, Beach J also found that there was a denial of procedural fairness. I cannot see any unfairness in this case, firstly, because the documents the subject of the certificate were not before the Tribunal; secondly, because I am not satisfied that the Tribunal had any regard at all to the certificate and, even if it did, in and of itself, it could not have adversely affected the applicant.

17. The documents referred to in the certificate were in evidence before me. The first page of the document appears to be a printout from an electronic system recording movements and visa details for the applicant and two other people described as the applicant’s parents. The second document is a pro forma document described as “General File Closure Notice” dated 21 July 2011. Neither of those documents could have been relevant or significant to the decision to be made by the Tribunal and so any regard paid to them could not, in my view, have affected the outcome of the application.

18. For those reasons, the decision in MZAFZ is distinguishable and there is no jurisdictional error arising from the existence of the certificate purportedly granted under s.438 of the Act.

19. There is no jurisdictional error in the Tribunal’s decision and the application must be dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 6 December 2016