SZQOA v Minister for Immigration

[2012] FMCA 476

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQOA v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 476

MIGRATION – Review of decision of the Refugee Review Tribunal – no denial of procedural fairness – potential allegation of bias – alleged failure to consider relevant material and deal with aspects of the applicant’s claim – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.422B, 425, 425A, 426, 426A, 441A, 441C, 476
Migration Regulations 1994 (Cth), r.4.35D
Federal Magistrates Court Rules 2001 (Cth), r.13.03C

SZQQI v Minister for Immigration & Anor [2012] FMCA 221 SZQNL v Minister for Immigration & Citizenship & Anor [2012] FMCA 86 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163; (1995) 131 ALR 595 Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 Saeed v Minister for Immigration & Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 178 ALR 421 Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 Swift v SAS Trustee Corporation [2010] NSWCA 182 Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241

Applicant:

SZQOA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1823 of 2011

Judgment of: Nicholls FM

Hearing date: 29 March 2012

Date of Last Submission: 29 March  2012

Delivered at: Sydney

Delivered on: 12 June 2012

REPRESENTATION

The Applicant: In Person

Counsel for the Respondents: Ms A Mitchelmore

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 19 August 2011 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,400.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1823 of 2011

SZQOA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 19 August 2011, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 19 July 2011, to affirm the decision of a delegate of the respondent Minister not to grant the applicant a protection visa.

Background

1. The applicant is a citizen of Nepal. He arrived in Australia on 13 October 2010 on what was claimed to be a “false” passport (CB 13). He applied for a protection visa on 18 January 2011 (see Court Book – “CB” – CB 1 to CB 37m with annexures).

Claims to Protection

1. The applicant’s claims to protection were originally set out in the answers provided in his protection visa application form (CB 17 to CB 20).

2. He claimed that he had refused to join the Maoist Youth Communist League (“YCL”) and was threatened that if he did not join he would face serious harm (CB 17). The Nepalese authorities could not protect him as there was no stable government and the authorities were ineffective, corrupt, and incapable of offering protection (CB 20).

The Delegate

1. These claims were expanded upon, and added to, before the delegate. The applicant claimed to have been a member of the Rastriya Prajatantra Party (“RPP”) since 2008. In June 2010 the applicant and around 30 people from his village attended a function celebrating the King’s birthday. During the celebration, approximately 30 Maoists “violently interrupted” the celebrations and threatened them. As a result of that incident the applicant felt threatened by the Maoists and sought assistance to leave Nepal (CB 45).

2. The applicant claimed that he did not apply for protection upon arrival in Australia as he was not aware of the existence of protection visas (CB 45).

3. The delegate found that the applicant’s evidence was “… characterised by multiple inconsistencies going to the core of his claims”, and that he was unable to provide convincing explanations for these discrepancies. Further, she was “not satisfied that the applicant’s stories were entirely plausible and without embellishment …”. The delegate found that the applicant’s credibility was undermined and, as a result, was not satisfied that the applicant had a well-founded fear of persecution (CB 50).

4. Further, the delegate did not accept the applicant’s explanation for the delay in applying for a protection visa, and found that this added weight to the finding that the applicant’s claims did not reflect “the reality of his circumstances” (CB 51).

5. Despite these findings, the delegate went on to consider the availability of State protection in Nepal, and the possibility of the applicant relocating within Nepal. The delegate found that the applicant would not be treated differently by the authorities in Nepal as a result of his political opinion, and would thus not face systematic and discriminatory conduct if he were to return (CB 51).

6. The delegate determined that the applicant did not have a genuine fear of harm. Nor was there was a real chance of persecution occurring. As a result he was not a person to whom Australia owed any protection obligations (CB 51).

The Tribunal

1. The applicant applied for review to the Tribunal on 15 April 2011 (CB 53 to CB 56). He was invited to attend a hearing, and attended, on 22 June 2011 (CB 58 and CB 50).The Tribunal’s account of that hearing is set out in its decision record ([33] at CB 74 to [56] at CB 78).

2. The Tribunal found that the applicant had not provided a truthful account of his experiences in Nepal. Nor was there a real chance he would face persecution if he returned ([88] at CB 86 to CB 87 and following at [89] at CB 87 to [102] at CB 89). It comprehensively rejected the applicant’s claims (see in particular [97] at CB 88 and [99] at CB 89 which, with the exception of the first sentence, are in precisely the same terms). This finding was as a result of “significant inconsistencies” in the applicant’s evidence ([89] at CB 87 and [90] to [94] at CB 87 to CB 88).

3. The Tribunal also noted that the applicant’s evidence about what happened at the King’s Day celebration was “… vague and lacking in detail for someone who claimed to have been involved in organising it” ([95] at CB 88). This led the Tribunal to conclude that he had not been involved in the event ([95] at CB 88).

4. The Tribunal also found that the applicant’s delay (of three months) in seeking protection in Australia was inconsistent with his claimed reasons for leaving Nepal ([98] at CB 88 to CB 89). As a result, the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa ([104] at CB 90).

Application to the Court

1. The application to the Court is in the following terms:

   “1. I believe the Tribunal member’s decision was made intentionally and negligently which caused me not getting my natural justice. It is contended that it is more than illogical to think that my involvement with the RPP Nepal and my support for the Monarchy would not put me at risk of being seriously harmed or even killed by the Maoists is an irrelevant consideration, and taking an irrelevant consideration into account to cast a shadow on my credibility was a jurisdictional error.

   2. I do not agree with the purported decision of the Tribunal on the ground of denial of procedural fairness and natural justice. The Tribunal member failed to refer to the duty to observe common law requirements of fairness as a duty to act judicially when the decision was made in my case. It is contended that jurisdictional error is evident in the way in which the Tribunal failed to make a proper genuine and realistic assessment of the real risk of serious harm in the light of country information. I fled Nepal in search of protection because I sensed that it was inevitable that I would be harmed or killed by the Maoists because of my political opinion.

   3. I argue that the Tribunal made no specific finding as to whether hiding would lead to avoidance of an adverse reaction from the Maoists because either it was unlikely to come to the notice of Maoists, or because the authorities were concerned about my safety. Since these issues were not dealt with, it inferred that the Tribunal Member did not consider them to be material, when they were. Thus there was a failure to have regard to relevant material which was so fundamental that it went to jurisdiction.

   4. I contend that the Tribunal’s reasons did not deal with important elements of my claims which included the claim to have an actual political opinion because of my anti-Maoists attitude. The invitation to comment was unnecessarily uninformative and in the circumstances inadequate. I argue that the Tribunal failed to address my claim that I would be denied state protection from the harm feared for reasons of my political opinion, being my non pro-Maoist attitude.”

Before the Court

1. Before the Court the applicant appeared in person. He was assisted by an interpreter in the Nepali language. Ms A Mitchelmore of counsel appeared for the first respondent. In addition to the Court Book, the Court was assisted by written submissions filed on behalf of the first respondent.

2. The applicant’s oral submissions before the Court did not materially advance, or for that matter explain, the grounds of the application. His complaints were, generally, that the Tribunal did not consider his claims and “just made it up”, and that it failed to understand the “reality” in Nepal. This latter complaint I understood to be linked to the assertion that the Tribunal did not understand relevant country information. For the remainder the applicant sought to challenge certain factual findings made by the Tribunal (for example the age at which a person was permitted to vote in Nepal).

Ground One

1. It must be said that the terms of ground one have been seen in similar, if not identical, terms in other cases of this type before this Court recently involving Nepalese citizens who sought protection in Australia (see, for example, SZQQI v Minister for Immigration & Anor [2012] FMCA 221, SZQNL v Minister for Immigration & Citizenship & Anor [2012] FMCA 86 (“SZQNL”) and SZQNM (SYG 1783 of 2011), which was dismissed for non-appearance pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth)).

2. The complaint that the “Tribunal member’s decision” was made “intentionally” still remains unexplained as to exactly what legal error is being asserted. As I said in SZQNL (at [33]), it is hoped that the Tribunal’s decision, and the reasoning supporting it, were in fact made “intentionally”, and not made in any languid fashion lacking conscious consideration.

3. Before the Court the applicant insisted that he had drafted the application to the Court himself and that a “friend” had translated it into English. However when invited to make submissions, specifically in relation to each of the grounds, he was unable to put anything more than what was stated and to, in effect, seek impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)).

4. In any event, taking the first ground as stated at face value, and although by no means clear, the following may be complaints said to emanate from that ground.

5. First, it is the case that a failure to take into account a relevant consideration, and the taking into account of an irrelevant consideration, may lead to the revelation of jurisdictional error (Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163; (1995) 131 ALR 595).

6. Similarly, illogicality “may constitute a basis for judicial review …” (Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (“SZMDS”) at [132] per Crennan and Bell JJ). In this regard “… the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it …” (SZMDS at [133] per Crennan and Bell JJ).

7. The ground asserts that the Tribunal’s illogical reasoning and failures in relation to relevant considerations were revealed in relation to the applicant’s claim that his support for the monarchy and his involvement with the RPP in Nepal would lead to serious harm from the Maoists.

8. The difficulty for the applicant however, as Ms Mitchelmore submits, is that the Tribunal did not make any finding that these matters were irrelevant. Nor did it reason in any way to so suggest. On a plain reading of its decision record it rejected those claims. It did so because it found that the applicant had not been truthful in his account of these claims, had given inconsistent evidence, and had not provided a credible explanation for these inconsistencies.

9. The Tribunal’s relevant findings in this regard were all reasonably open to it on what was before it. It gave reasons probative of that material. No legal error is revealed in these circumstances (Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547). The findings as to the applicant’s credibility and truthfulness were findings made by the Tribunal as the decision maker “par excellence” (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 (“Durairajasingham”)). Therefore, they are within jurisdiction.

10. In this light the Tribunal’s decision, and its relevant reasoning, were not illogical, or for that matter irrational. Ultimately, the applicant’s ground does not rise above a challenge to the Tribunal’s findings which, on its own, is a request for impermissible merits review (Wu Shan Liang and Durairajasingham).

11. I did not understand the applicant’s reference to “not getting my natural justice” to be some assertion of a breach of procedural fairness obligations on the part of the Tribunal. Rather, given what the applicant said before the Court, the complaint appeared to be a challenge to the Tribunal’s findings, including the findings as to credibility. As such, this complaint, also, does not rise above a request for impermissible merits review (Wu Shan Liang and Durairajasingham).

12. In any event, this is a case where s.422B of the Act operates to make the matters set out in Div.4 of Pt.7 of the Act the exhaustive statement of the natural justice hearing rule in relation to the matters that it deals with (see Saeed v Minister for Immigration & Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204).

13. In this case, pursuant to s.425 of the Act, the applicant was invited to, and attended, a hearing. That invitation complied with all the relevant statutory requirements (ss.425, 425A, 426, the reference to ss.426A, 441A, 441C and r.4.35D of the Migration Regulations 1994 (Cth)). But even on any consideration of the principles of procedural fairness at general law the complaint is not made out. The applicant knew the case against him and was given the opportunity to give his evidence and arguments.

14. It may also be said that the applicant’s complaint can be construed as an allegation that the Tribunal was biased, or that bias may be apprehended by a well-informed lay observer.

15. If his complaint is to be so construed then, in the circumstances of this case and given the seriousness of such an allegation, it must be rejected. Given the seriousness of the attack, as it relates to the integrity of the Tribunal member, it must be clearly made, and distinctly proven (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 (“Ex parte H”)). Neither is present in the current case. Indeed, even if the complaint had been distinctly made, it is rare that such an allegation can be made out with reference to the decision record alone (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 per von Doussa J) and the applicant has not sought to put any further, such as a transcript of the hearing before the Tribunal, before the Court.

16. Further, there is no evidence before the Court to show that the Tribunal did not bring an open mind to the proceedings (Ex parte H and Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 178 ALR 421). As such, there is no evidence to support a finding that a fair minded, well-informed law observer would reasonably apprehend bias on the part of the Tribunal.

17. In all ground one is not made out.

Ground Two

1. Ground two asserts a failure by the Tribunal to afford the applicant procedural fairness. This complaint has been addressed above. For the remainder, the complaint appears to be that the Tribunal failed to make a “proper, genuine and realistic assessment” of the applicant’s claims.

2. I agree with Ms Mitchelmore’s submission that High Court authority exists that says that complaints of such a nature should be treated with caution (Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [30], referring with approval to Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45]). As already referred to above, there is no basis for the applicant to complain that the Tribunal did not give consideration to his claim that he was at risk of serious harm if he were to return to Nepal in the reasonably foreseeable future. This again, in the circumstances, does not rise above a request for impermissible merits review (Wu Shan Liang).

3. The applicant asserts that he fled Nepal because it would be “inevitable” that he would be harmed by the Maoists. Even if it is the case that the applicant held such a subjective fear, to succeed before the Tribunal that fear must be objectively made out (Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at [196] per Dawson J). This does not, in the circumstances, reveal jurisdictional error on the part of the Tribunal.

Ground Three

1. Ground three asserts that the Tribunal failed to have regard to “relevant material” that was so “fundamental” that it went to jurisdiction. However it is clear, when regard is had to the ground as a whole, that the complaint is that the Tribunal failed to deal with certain issues (“… made no specific finding ..”). Namely, that the Tribunal did not deal with whether the applicant went into hiding so as to avoid the adverse attention of the Maoists and, second, that the Tribunal was required to address the question of state protection.

2. Both complaints ignore the plain basis of the Tribunal’s decision and the reasoning supporting it. That is, the Tribunal’s comprehensive rejection of the factual base upon which the applicant asserted his claim to fear serious harm if he were to return to Nepal. The Tribunal did not accept that the applicant had fled to Kathmandu to evade the Maoists.

3. Having rejected this, the Tribunal was not required to then consider whether hiding from the Maoists would lead to the applicant avoiding persecutory harm. The import of the Tribunal’s relevant findings were that there was no need for the applicant to hide given that it had not accepted that he was at any risk of harm from the Maoists. The Tribunal was under no obligation to further consider the applicant’s claims in circumstances where the factual premise on which the contention rested was rejected (WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 (“WAEE”)at [47]).

1. Further, the applicant claimed that protection was not available from the Nepalese authorities. It is plain that this was asserted in the context of a fear of persecutory harm and based on certain claimed factual events. Once that factual basis was rejected the Tribunal was not required to consider whether the authorities would effectively protect the applicant. In short, there was nothing in respect of which he needed protection. Ground three is not made out.

Ground Four

1. There appear to be three complaints advanced in ground four. All are said to be examples of a failure by the Tribunal to deal with elements of the applicant’s claims. It is the case that, if proven on balance, such an assertion may well lead to jurisdictional error being established (WAEE and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No2) [2004] FCAFC 263). However, that is not the case in the current matter.

2. The first complains, again, about the Tribunal’s failure to consider the question of state protection. The complaint fails for the reasons given above in relation to ground three.

3. Second, that the Tribunal did not deal with the applicant’s claim to have “an actual political opinion because of my anti-Maoists attitude”. This complaint cannot succeed at the factual level. The applicant’s claim to fear persecutory harm was said to arise from his membership of the RPP and activities on its behalf. These were said to have brought him to the attention of the Maoists.

4. On any plain reading of its analysis, the Tribunal understood the applicant’s claims in this regard. However it did not accept, for reasons given, that the applicant had such a profile, as claimed, as to have brought him to the attention of the Maoists. Further, it did not accept that he had been threatened or harmed in the past for any of the reasons advanced by him. Nor that he would come to the attention of the Maoists in the future.

5. The applicant’s complaint therefore cannot be that the Tribunal did not deal with his claims. It plainly did. It simply did not accept them. The Court cannot review the Tribunal’s findings of fact simply on the basis that the applicant disagrees with them.

6. Third, the applicant complains generally that the opportunity to comment “was unnecessarily uninformative, and in the circumstances inadequate.” He does not say why, or how, or in what circumstances this is said to have occurred.

7. If this is a complaint about what happened at the hearing before the Tribunal then the applicant has brought no evidence to this Court to challenge the Tribunal’s account of what occurred. In the circumstances, it is not open to this Court to make assumptions or draw inferences as to what may otherwise have occurred (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).

8. The account before the Court, that is the Tribunal’s decision record, reveals that the issues determinative of the review (the rejection of the credibility of the applicant’s factual account, the inconsistencies and implausibilities in his evidence) were put to him at the hearing. Further, the matter of the delay in making his application for a protection visa was a live issue following the delegate’s decision. In short, there is no evidence before the Court to support the complaint that the applicant did not know the case against him (“… comment was unnecessarily uninformative …”), or that he was not given a fair opportunity to make his case and respond to the Tribunal’s concerns. No legal error is revealed in ground four.

Conclusion

1. For the applicant to succeed before the Court, the applicant would have to establish jurisdictional error in the decision of the Tribunal. No such error is made out in any of the grounds in his application. Nor can I otherwise discern such error on the material before the Court. As such, the application should be dismissed. I will make an order accordingly.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  12 June 2012