SZRDO v MINISTER FOR IMMIGRATION & ANOR - [2012] FMCA 893

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRDO v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 893

MIGRATION – Review of decision of the Refugee Review Tribunal – request for impermissible merits review – Tribunal’s findings were open to it – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss. 36, 65, 476
Federal Magistrates Court Rules 2001 (Cth), Sch.1

SZQQI v Minister for Immigration & Anor [2012] FMCA 221
Minister for Immigration v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259
Re Drakev Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SZQWP v Minister for Immigration & Anor [2012] FMCA 532
SZGXK v Minister for Immigration & Citizenship [2008] FCA 1891
V856/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 1018; (2001) 114 FCR 408
Applicants in V 722 of 2000 v Minister for Immigration & Multicultural Affairs [2002] FCA 1059
SZERD v Minister for Immigration & Multicultural Affairs [2006] FCA 560
SZFBO v Minister for Immigration & Multicultural Affairs [2006] FCA 291
SZGBY v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 35
SZOSU v Minister for Immigration & Citizenship & Anor [2012] FMCA 132
SZMWQ v Minister for Immigration & Citizenship [2010] FCAFC 97
WAGH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 194
SZHYB v Minister for Immigration & Anor [2007] FMCA 311
Minister for Immigration & Multicultural Affairs v Applicant C [2001] FCA 1332; (2001) 116 FCR 154
SZHWI v Minister for Immigration & Anor [2006] FMCA 1924
NBLB v Minister for Immigration and Multicultural Affairs [2005] FCA 1051
Guo Wei Rong & Ors v Minister for Immigration and Ethnic Affairs [1995] FCA 1229
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 215
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407

Applicant:

SZRDO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 313 of 2012

Judgment of:

Nicholls FM

Hearing date:

24 August 2012

Date of Last Submission:

24 August 2012

Delivered at:

Sydney

Delivered on:

24 August 2012

REPRESENTATION

The Applicant:

In Person

Appearing for the Respondents:

Ms E Warner Knight

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application made on 13 February 2012 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 313 of 2012

SZRDO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

This is an application made on 13 February 2012, 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 16 January 2012, which affirmed the decision of the delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

The applicant is a citizen of Nepal. He arrived in Australia on 23 July 2008 as the holder of a student dependant visa. The applicant was issued with a further visa in June 2009 (Court Book – “CB” – CB 3). Following the cancellation of his earlier visa, he applied for a protection visa on 1 March 2011 (CB 1 to CB 30 with annexures).

“Assistance” to the Applicant

The applicant received assistance in making his protection visa application from a Mr Dilip Jan Pun (CB 24). Mr Pun has figured with some regularity as a person assisting applicants in their migration applications and, in a number of other cases, with applications to the Court (in circumstances where Mr Pun is not a registered migration agent or a lawyer in Australia). I have now asked the Minister’s representatives on a number of occasions to refer Mr Pun’s activities to those in the Minister’s department, and other authorities, who are responsible for monitoring matters of this type and the authorities of those who purport to assist applicants and lack any qualifications to do so (see SZQQI v Minister for Immigration & Anor [2012] FMCA 221 (“SZQQI”)).

The Applicant’s Claims

I note that the applicant’s claims to protection were initially outlined in answers that he provided in his protection visa application (CB 7 to CB 10). Essentially, these were that he was a monarchist, a member of a pro-monarchist party, and opposed to the Maoists and others who hated the monarchy in Nepal.
He claimed that he had received constant threats from the Maoists and that he feared kidnap, extortion and serious harm, or even death, should he be returned to Nepal (CB 8).

The Delegate

The applicant attended an interview before the delegate. He provided a number of documents in support of his claims (CB 38 to CB 56). I note that the delegate found that the applicant, who was a citizen of Nepal, did not have the effective protection of a third country (CB 64). Nonetheless, the delegate was not satisfied that the applicant’s claims were entirely plausible or without embellishment, and found that this served to undermined the applicant’s credibility (CB 65 to CB 66).
The delegate relevantly said at CB 66.7:
“From the information before me, I am not satisfied that the applicant has not attempted to create a Convention related profile in order to apply for protection in Australia, considering it the most expedient means of gaining permanent residency.”
In addition, the delegate found adversely to the applicant given the delay in his seeking protection after his arrival in Australia, and his return to Nepal twice during the period before he made his application for a protection visa.
In all, the delegate was therefore not satisfied that the applicant would face serious harm if he were to return to Nepal, and therefore refused the grant of the protection visa.

The Tribunal

The applicant applied for review to the Tribunal on 1 June 2011 (CB 69 to CB 72). He attended a hearing before the Tribunal on 28 September 2011 (CB 76). The Tribunal’s account of what occurred at that hearing is set out in its decision record (CB 91 to CB 106). The Tribunal said that it was satisfied that the applicant was a citizen of Nepal and that it would “assess his claims as against that country”. But the Tribunal further concluded ( [43] at CB 105):
“43. For the reasons that follow, it is not necessary to consider the applicant’s claims for protection in any greater detail as against Nepal, other than to identify who he states will harm him…”
In light of country information before it, the Tribunal found that because of the India-Nepal Treaty of Peace and Friendship of 1950 (“the Treaty”), the applicant had a legally enforceable right to enter and reside in India ([46] at CB 105). Further, the Tribunal found, on what was before it, that the applicant did not face a real chance of persecution in India. Nor would he be at risk of removal from India to Nepal ([50] at CB 106).
Therefore, in those circumstances, the Tribunal concluded, applying relevant Australian law, that Australia did not owe the applicant protection obligations. It affirmed the delegate’s decision, albeit on a different basis. For the purposes of my judgment I note the conclusion to the Tribunal’s reasoning as set out in its decision record ([51] at CB 106):
“51. The Tribunal has found that that the applicant has a presently existing, legally enforceable right to enter and reside in India and has not taken all possible steps to avail himself of that right. Furthermore, the Tribunal finds for the purposes of s.36(4) that the applicant does not have a well-founded fear of being persecuted for a Convention reason in India, or of being returned from that country to a country where he does have a well-founded fear of being persecuted for the purposes of s36(5). Accordingly, s.36(3) of the act applies to the applicant, and Australia does not owe protection obligations to him on that basis.”
In that regard, it is also important to note as being the relevant applicable law, that is, s.36(3), (4) and (5) of the Act:
“(3) Australia is taken not to have protection obligations in respect of a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non‑citizen has a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non‑citizen has a well‑founded fear that:
(a) the country will return the non‑citizen to another country; and
(b) the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.”

Before the Court

The application to the Court puts forward, as grounds of the application, essentially two paragraphs, of what I can only describe as, narrative of factual assertions and some assertions of error.
Before the Court today the applicant appeared in person. He was assisted by an interpreter in the Nepalese language. Ms E Warner Knight appeared for the first respondent. In addition to the Court Book I have the Minister’s written submissions. Nothing further was put to the Court by the applicant by way of any documentation.
As a preliminary matter, although there appeared to be some doubt, given the absence of a Certificate provided by the lawyer assigned to the applicant under the Court’s “RRT Legal Advice Scheme”, the applicant confirmed that he had exercised that opportunity and that he had spoken to a lawyer on the panel assigned to him for the purpose of giving him legal advice.
The applicant’s submissions to the Court can essentially be summarised in two points. One submission challenged the Tribunal’s finding that he would be protected in India. On its own, that did not rise above a challenge to the merits of the Tribunal’s findings. To the extent that that may be a request to the Court to engage in merits review, such a course is not permitted (Minister for Immigration v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shang Liang”)).
The second point made by the applicant was that he was aware of the case involving a friend of his, also a person from Nepal, whose case had been considered by a different Tribunal member, a Mr Jacovides, who the applicant said in similar circumstances, came to a different conclusion. That is, that his friend had been successful before the Tribunal. As I sought to explain to the applicant, whatever another Tribunal member decided about another case cannot assist in revealing legal error on the part of the Tribunal member who considered his case.

Consideration

It is trite to say that the legal requirement in Australia in relation to matters of this type before administrative decision-makers is that each case is to be considered on its own merits. It is the case that it falls to each relevant decision-maker to reach a requisite level of satisfaction based on the facts as presented and found by that decision-maker as to whether a person meets the relevant criteria. In this case, the protection visa for which the applicant has applied. It is here, at this point, while it may not assist the applicant in his application, that I have asked Ms Warner Knight to refer to those who instruct her in the Minister’s department the Court’s concern about inconsistency in decision-making.
During the course of the hearing I made reference to what Brennan J, in his capacity as a presidential member of the AAT, said in Re Drakev Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, specifically at 639:
“Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice. In matters of deportation, which so profoundly affect the interests of the deportee and his family and which are of relevance to the community at large, inconsistency born of the application of differing standards and values should be reduced as far as it is possible to do so.”
What we are left with, in many ways and certainly from the applicant’s perspective, is an unsatisfactory situation that derives from an inconsistency of approach by various decision-makers. That inconsistency, in this case in particular, revolves around the view taken by two different decision‑makers as to the effectiveness of the Treaty and its capacity to provide third country protection to Nepalese citizens.
That inconsistency is also seen in this case as between the delegate and the Tribunal. This is not an isolated case (see SZQWP v Minister for Immigration & Anor [2012] FMCA 532 (“SZQWP”) and SZQQI for matters involving a Nepalese citizen with exactly the same circumstance).
In my respectful view, the Minister must be concerned as to a consistency of approach to decision-making within his portfolio. In any event, as I have said and unfortunately for the applicant, it does not assist him today.
I can only agree with Ms Warner Knight’s submissions that the applicant’s grounds in his application to the Court do not rise above a challenge to, or a complaint about, certain factual findings made by the Tribunal (Wu Shang Liang). As I said earlier, the Court cannot review the merits of the Tribunal’s decision. No error is revealed in circumstances where the findings made by the Tribunal were reasonably open to it on what was before it and for which it gave cogent reasons.
In relation to its finding that the applicant had a legally enforceable right to enter and reside in India, the Tribunal plainly had regard to relevant country information before it. It is the case on any plain reading of its decision record, that the Tribunal considered both the relevant Treaty between the two nations and other relevant independent country information (CB 92 to CB 106).
Again, no error is revealed in these circumstances. I note in particular what was said by Graham J in SZGXK v Minister for Immigration & Citizenship [2008] FCA 1891, particularly at [33], in relation to the point that I have just made:
“33. Plainly, it is not open to this Court to afford the appellant a merits review of the Tribunal’s decision. In my opinion, the Tribunal did not commit any jurisdictional error by relying upon irrelevant material in a way that affected the exercise of its power. In my opinion, it was appropriate for the Tribunal to have regard both to the treaty and also to the relevant Country Information which distinguished the western parts of Nepal from other parts, such as the capital city of Kathmandu.”
There is also a line of authority to support the proposition that the question as to whether the applicant had a right to enter and reside in India was a question of fact for the Tribunal to determine (V856/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 1018; (2001) 114 FCR 408 at [27] per Allsop J, Applicants in V 722 of 2000 v Minister for Immigration & Multicultural Affairs [2002] FCA 1059 at [32] per Ryan J, SZERD v Minister for Immigration & Multicultural Affairs [2006] FCA 560, SZFBO v Minister for Immigration & Multicultural Affairs [2006] FCA 291 at [26] per Emmett J, SZGBY v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 35 at [9] per Moore J and SZOSU v Minister for Immigration & Citizenship & Anor [2012] FMCA 132 at [67]).
The applicant appears to complain, in his application to the Court, that the protection offered by the Treaty is temporary or impermanent in nature. He explicitly complains about the Tribunal’s finding in the context that the Treaty has not been enacted into domestic Indian law. It may be said, therefore, that that complaint invites the Court to find that there was error in the Tribunal’s finding that the applicant would avoid persecution by relocating in India because the protection offered by India was not permanent. However, I note what was said in this regard and, indeed, I am directed by what Rares J said in SZMWQ v Minister for Immigration & Citizenship [2010] FCAFC 97 (“SZMWQ”). The right to enter and reside in a third country is not a right equivalent to the recognition of the non-citizen as being entitled to all the attributes of citizenship, or even refugee status in the third country.
As his Honour also said in SZMWQ, the right can be temporary in nature and last for no particular period greater than the time taken to meet the exigency that gave rise to the non-citizen’s well-founded fear of persecution in the country from which he or she had fled. In this regard also, as Hill J said in WAGH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 194, the fact that the residence of which s.36(3) of the Act speaks may be temporary, is clear on the face of that provision.
Further, as I said in SZQWP at [21], the existence of this right is not dependent on a finding that the right has been enacted into domestic law (see authorities: SZHYB v Minister for Immigration & Anor[2007] FMCA 311 per Barnes FM, Minister for Immigration & Multicultural Affairs v Applicant C [2001] FCA 1332; (2001) 116 FCR 154 at [60] per Stone J and SZHWI v Minister for Immigration & Anor [2006] FMCA 1924 at [30] – [32] per McInnis FM).
While the applicant is clearly aggrieved by the Tribunal’s analysis and findings, and in one sense to which I have already alluded, understandably so, I cannot see legal error in the Tribunal’s application of s.36(3), (4) and (5) of the Act. The Tribunal found that once the right to enter and reside in India was exercised by the applicant he would not be removed by the Indian authorities and that he did not have a well-founded fear of persecution in India.
As I said earlier, these were all findings of fact reasonably open to the Tribunal on what was before it. In any event, I note such authority as NBLB v Minister for Immigration and Multicultural Affairs [2005] FCA 1051 to the extent that s.36(3) of the Act requires the Tribunal to focus on the right to enter and reside, not necessarily on the consequences of entering and residing in the third country.
In ground one of the application the applicant also complains that “there was no pure evidence to support the Tribunal’s findings”. In my view, as Ms Warner Knight correctly submits, it is for the applicant to satisfy the Tribunal that all of the statutory elements for the grant of the visa applied for are made out (see s.65 of the Act and Guo Wei Rong & Ors v Minister for Immigration and Ethnic Affairs [1995] FCA 1229 ).
The Tribunal does not have to possess rebutting evidence. Rather the obligation on the Tribunal is one of reaching the requisite level of satisfaction such that the visa must be granted (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 215). As I have said in this case, the Tribunal had evidence before it, by way of the applicant’s own evidence and country information, on which it based its assessment. It is the case that the weight to be accorded to such country information is for the Tribunal to determine in the proper exercise of its power (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67] per McHugh J).

I also agree with Ms Warner Knight that, if the words in ground two of the application (“pervasive view towards my safety,”) are meant to convey some allegation of bias or prejudgment on the part of the Tribunal member, there is no such basis for such a claim apparent in what is before the Court. For the purposes of my judgment I adopt what has been put in the Minister’s submissions at [20]:
“20. As to apprehended bias, on the face of the material, there is no reason why a fair-minded lay observer would reasonably apprehend that the Tribunal member did not bring an impartial mind to the proceedings: Re Refugee Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [27]-[32]. If ground 2 is intended to allege actual basis arising from prejudgement, such a complaint must be ‘distinctly made and clearly proved’: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; 205 CLR 507 at [69] per Gleeson CJ and Gummow J, at [127] per Kirby J. There is no evidence before the Court which could support such a complaint.”

Conclusion

In all, therefore, no legal, let alone jurisdictional, error is discernible in the Tribunal’s decision. Neither is revealed either by way of the grounds of the application, nor what the applicant has said to the Court. Nor, as I said, can I otherwise discern any such error. In these circumstances, therefore, the application should be dismissed. I will make an order accordingly.

Costs

Nothing that the applicant has put to the Court today argues against the making of an order for costs. While it is the applicant’s right to come to this Court, one of the purposes of the existence of the Court’s “RRT Legal Advice Scheme” is to provide an opportunity for applicants to be given advice about the chances of success of their application before the Court, and to put them in a position of then making a judgment as to whether they should further prosecute their application. This includes for the reason, amongst others, that any unsuccessful application may involve the applicant in the payment of many thousands of dollars.
In the current case the applicant has confirmed that he did obtain legal advice. It then became a matter for him as to whether he chose to prosecute his claim in light of whatever that legal advice may have been.
As to the amount sought by the Minister, I am guided by what is set out in the relevant Schedule to the Federal Magistrates Court Rules 2001 (Cth) (Sch.1) as to what is generally a reasonable amount for matters of this type. However, I am otherwise satisfied, having regard to the work that has actually been done by the Minister’s solicitors, that the amount sought is a reasonable amount. I will make the order in the amount sought by the Minister today.

I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date: 13 November 2012