SZRGL v Minister for Immigration
[2012] FMCA 811
•6 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRGL v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 811 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 422B, 424, 424A, 425, 474, Pt.8 |
| SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Abebe v Commonwealth of Australia (1999) 197 CLR 510 NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 |
| Applicant: | SZRGL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 585 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 6 September 2012 |
| Date of Last Submission: | 6 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 6 September 2012 |
REPRESENTATION
The applicant appeared in person with the assistance of an interpreter in the Nepalese language.
| Appearing for the Respondents: | Ms A Crittenden |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The proceeding before this Court, commenced by way of application filed on 16 March 2012, is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $4,700.
NOTE A: The bundle of relevant documents identified as ‘Court Book’ and filed on 13 April 2012 was tendered by the first respondent and marked Exhibit 1R.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 585 of 2012
| SZRGL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 17 February 2012 and handed down on 20 February 2012.
The applicant claims to be a citizen of the Kingdom of Nepal (“Nepal”) and of Hindu faith and Chhetri ethnicity.
Prior to considering the proceeding before this Court, these reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s protection visa application claims, a summary of the delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.
Background
The Applicant arrived in Australia on 21 May 2009 having departed from Nepal using a false passport.
On 30 June 2010, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and under the Act.
On 15 October 2010, the Delegate refused the applicant’s application for a protection visa.
On 11 November 2010, the applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 25 February 2011, a differently constituted Refugee Review Tribunal (“the First RRT”) affirmed the decision of the Delegate not to grant a protection visa.
On 25 March 2011, the applicant filed an application to the Federal Magistrates Court seeking judicial review of the First RRT’s decision.
On 6 July 2011, Smith FM made orders setting aside the decision of the First RRT and remitted the matter for determination according to law.
On 17 February 2012, the Tribunal affirmed the decision of the Delegate not to grant a protection visa to the applicant.
On 16 March 2012, the applicant filed an application in this Court seeking judicial review of the second Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
Pursuant to s.91R(1) of the Act, a Convention related reason must be the essential and significant reason for the persecution, must involve serious harm to the person and involve systematic and discriminatory conduct. Section 91R(2) of the Act expands on the notion of persecution and serious harm when considering Art.1A(2) of the Convention.
The Applicant’s application for a protection visa
The applicant’s claims for protection were set out in a statement attached to his protection visa application.
The applicant claimed that he fled Nepal because he was threatened with death by the Maoists unless he supported their party.
The applicant claimed to be a businessman in Baglung. The applicant claimed that in April 2000 he became a member of the Rastriya Prajatantra Party, Baglung, (“RPP”) because he is a monarchist.
In mid 2007, the applicant claimed that be began to pay money to the Maoists in order to “remain unharmed and operate [his] business”. The applicant claimed that he paid a total of Rs.2, 50000.00 “just to save [his] life”.
The applicant claimed that Maoists attended his family residence several times for “shelter and foods”. The applicant claimed that he had no option other than “to give them the best [he] can”. The applicant claimed that he could not report the Maoists activities to the police or authorities because he was warned that otherwise he would be killed. The applicant claimed that he did not stop paying the Maoists as he feared for his life and safety.
The applicant claimed that the Maoists also telephoned him asking him to join their party or contribute financially. The applicant claimed that he made the excuse that his office did not have any money available and that his business had “been affected by the struggle”. However, the applicant continued to hand money over when the Maoists requested it.
The applicant claimed that when he realised he could no longer pay the Maoists, he decided to flee Nepal. The applicant claimed that he could not relocate to India because of the presence of the Maoists there. The applicant claimed that, if he is returned to Nepal, he will be targeted by the Maoists for reason of his membership to the RPP and because he is “well known in [his] village and neighbouring villages in Baglung”. He claimed that he will “face life-threatening harm by the Maoists and in particular their youth wing [as] the government has not been able to prevent violence against persons targeted by the Maoists”.
The Delegate’s decision
On 7 October 2010, the applicant attended an interview with the Delegate.
On 15 October 2010, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention.
The Delegate accepted that the applicant had made donations and provided meals to the Maoists against his will but was not satisfied that the applicant was being persecuted for a Convention reason. Further, the Delegate was not satisfied that the applicant has a genuine fear of harm or that there is a real chance that the applicant would be persecuted in Nepal due to his involvement with the RPP, or because he is not a Maoist, now or in the reasonably foreseeable future.
The Tribunal’s review and decision
On 7 October 2011, the Tribunal wrote to the applicant informing him that he had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 28 November 2011 to give evidence and present arguments relating to the issues arising in his case.
At the commencement of its decision record, the Tribunal identified the relevant law in considering whether the applicant had a well-founded fear of persecution for a Convention reason.
The Tribunal recited the background of the applicant’s protection visa application, including reproducing in full his written claims in support, and the evidence and claims before the First RRT.
The Tribunal then summarised various exchanges it had with the applicant about his claims. The Tribunal put to the applicant concerns it had about his evidence and noted the applicant’s responses. For example, the Tribunal noted that the applicant had told the First RRT that he had started thinking about coming to Australia in 2004. The applicant responded that it was correct and related to the problems he was having. The Tribunal then noted that the applicant had delayed making a protection visa application on his arrival and that this delay seemed to relate to his attempt to get work. The Tribunal told the applicant that these inconsistencies caused it concern and noted the applicant’s response.
The Tribunal also noted that the applicant made new claims to the Tribunal that had not been previously made and that were inconsistent with other evidence given by him in support of his review application. The Tribunal put to the applicant that these inconsistencies, together with the applicant’s delay in lodging a protection visa application, may cause the Tribunal not to be satisfied that the applicant was truthful. The Tribunal noted the applicant’s response that he was telling the truth.
The Tribunal put various inconsistencies in the applicant’s evidence that caused it concern to the applicant and invited his comment. The Tribunal offered to give the applicant additional time to comment or respond. The Tribunal noted that the applicant asked for an adjournment of about 10 minutes which was granted. The Tribunal noted that the applicant confirmed that he had sufficient time to consider the inconsistencies in his evidence put to him by the Tribunal.
The applicant was invited to a further hearing on 10 February 2012. The Tribunal stated that it wished to go through the applicant’s involvement in politics in Nepal. The Tribunal put to the applicant that inconsistencies in the applicant’s evidence about this political involvement may lead the Tribunal not to accept that the applicant was associated or involved with the RPP in Nepal. The Tribunal noted the applicant’s responses.
The Tribunal also expressed concern about the applicant’s late claim to have been a member of the teachers union and to have donated a percentage of his teacher’s salary to the Maoists.
The Tribunal then put to the applicant in detail further various inconsistencies in the applicant’s evidence that were inconsistent with information given by the applicant to the Delegate at interview on 7 October 2010. Again, the Tribunal offered the applicant an adjournment to consider his responses. However, the applicant said that he could respond immediately.
The Tribunal identified with particularity the country information to which it had regard, including various summaries of that information.
Ultimately, the Tribunal was not persuaded by the applicant’s explanations of inconsistencies put to him by the Tribunal. Based on those inconsistencies and the delay in making his protection visa application, the Tribunal found that the applicant was not a witness of truth. The Tribunal rejected the applicant’s claims of past harm and his claimed experiences in Nepal. The Tribunal found that his delay of more than 13 months before lodging a protection visa application to be inconsistent with his claim to have left Nepal because he feared persecution. The Tribunal did not accept the applicant’s explanation for this delay.
The Tribunal accepted that the applicant may have some knowledge of and views about the RPP (including the RPP-Nepal), the teacher union and the monarchy. However, the Tribunal did not accept that the applicant came to the attention of or was threatened or harmed by any person in Nepal because of his knowledge of and views about the RPP (including the RPP-Nepal), the teachers union and the monarchy.
The Tribunal was not satisfied that there is a real chance the applicant would face persecution as claimed if he was returned to Nepal, now or in the reasonably foreseeable future.
Accordingly, the Tribunal affirmed the decision under review.
The proceeding before this Court
The applicant was unrepresented at this hearing, although had the assistance of a Nepalese interpreter.
On 15 May 2012, the applicant was represented by a solicitor at the directions hearing before me. Subsequently, the solicitor withdrew as the applicant’s lawyer. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.
At the commencement of the hearing this morning, the applicant confirmed that he had not filed any amended application, evidence or submissions in support of his application and that he had no further documents to present to the Court this morning in support of his application.
The applicant confirmed that he relied on the grounds contained in the application filed on 16 March 2012 as follows:
“1. I am a victim of the purported decision as I believe the Tribunal Member committed jurisdictional error.
2. I argue that the Tribunal Member failed to give me natural justice.
3. I argue that the Tribunal Member ignored my problems that I left Nepal in search of my safety because I was sure that I would be harmed or killed by the Maoists.
4. It is argued that my evidence before the Tribunal was adversely construed against my claims. This is injustice.”
Each of the grounds was interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
Ground 1
Ground 1 was not supported by particulars, evidence or written submissions.
The applicant agreed that ground 1 was more in the nature of submissions and did not identify any error capable of review by this Court.
Ground 2
Ground 2 was not supported by particulars, evidence or written submissions.
Ground 2 asserts that the Tribunal failed to give the applicant natural justice. I asked the applicant on several occasions in what way did the Tribunal fail to give him natural justice. The substance of the applicant’s response was that the Tribunal had not accepted his claims, that he had placed everything before the Tribunal as to why he could not go back to Nepal, that he was truthful, and that I should consider the matter. None of these complaints identifies any jurisdictional error by the Tribunal.
Section 422B of the Act states that Division 4 of the Act is an exhaustive statement of the natural justice hearing rule.
The Tribunal complied with the statutory regime as provided for in Division 4 of the Act in the conduct of its review. As is clear from the summary of the Tribunal’s review and decision record referred to above, the Tribunal complied with its obligations under s.425 of the Act and s.425A of the Act in inviting the applicant to come to a hearing to give evidence and present argument relating to the issues arising in his case.
The Tribunal identified the relevant law applicable to its consideration of whether the applicant had a well-founded fear of persecution for a Convention related reason.
The Tribunal set out the reasons for its decision, including setting out its findings on material questions of fact, and referred to the evidence and material on which those findings were based.
The Tribunal’s decision record makes clear that the applicant was invited to two hearings before it. On each occasion, the Tribunal went to some length and detail to put to the applicant the particular matters of concern it had about his evidence and where it was inconsistent with other evidence given by the applicant both to the Delegate and to the First RRT. The Tribunal also put to the applicant its concerns about the applicant’s 13 month delay in seeking asylum in Australia. The Tribunal noted the applicant’s responses in detail.
The Tribunal also identified country information to which it had regard in relation to Maoist activities in Nepal, in considering whether the applicant was at risk of harm in Nepal for a Convention related reason.
There was no other information before the Tribunal and to which it had regard that enlivened any obligation under s.424A of the Act. It is well established that the Tribunal’s disbelief of an applicant’s evidence arising from inconsistencies therein is not “information” for the purposes of s.424A of the Act. Neither does information include the Tribunal’s subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in an applicant’s evidence (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] per Gleeson CJ, Gummow, Callinan Heydon and Crennan JJ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).
Ultimately, the Tribunal found that the applicant was not a witness of truth. The Tribunal’s adverse credibility findings were based on its assessment of the applicant’s evidence and the applicant’s unsatisfactory explanations for inconsistencies in his evidence, coupled with his unsatisfactory explanation for his 13 month delay in lodging his protection visa application in Australia.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 per Beaumont J at 451; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 per Heerey J at 348).
The Tribunal’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
In the circumstances, ground 2 does not identify any jurisdictional error on the part of the Tribunal and appears more to be a disagreement with the findings and conclusions of the Tribunal. Such a complaint invites merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
It is for the Applicant to satisfy the Tribunal, being the relevant decision-maker, that he meets the criteria for being a refugee. If the Tribunal, as the relevant decision-maker is not so satisfied, pursuant to s.65(1) of the Act, the applicant must be refused a protection visa.
Accordingly, ground 2 is not made out.
Ground 3
Ground 3 was not supported by particulars, evidence or written submissions.
Ground 3 asserts that the Tribunal ignored the applicant’s problems in Nepal. I asked the applicant in what way the Tribunal ignored his problems. The applicant responded that he had placed everything before the Tribunal.
A fair reading of the Tribunal’s decision record as summarised above, makes clear that the Tribunal did not ignore the applicant’s claims and explored them comprehensively with the applicant at two hearings.
I understand ground 3 to be a complaint by the applicant that the Tribunal failed to accept his claims. Such a complaint invites merits review which this Court cannot undertake.
Accordingly ground 3 is not made out.
Ground 4
Ground 4 was not supported by particulars, evidence or written submissions.
Ground 4 states that the applicant’s evidence was “adversely construed against” the applicant and was unjust.
In support of ground 4, the applicant said no more than he could not go back to Nepal and that he did not know if the Tribunal had understood him. However, there is nothing on the face of the Tribunal’s decision record to suggest that the Tribunal had any difficulty understanding the applicant’s claims or that the applicant expressed any concern to the Tribunal about the Tribunal’s understanding of his claims.
There was no transcript of the Tribunal hearing provided to this Court, nor did the applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 15 May 2012 the applicant was given an opportunity to file a transcript of the Tribunal hearing. The applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no step was taken by the applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the applicant at the Tribunal hearing. The Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).
In the circumstances, again, I understand the applicant’s complaint to be no more than a disagreement with the Tribunal’s findings. As stated above, such a complaint invites merits review which this Court cannot undertake.
Accordingly, ground 4 is rejected.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at two hearings; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 6 September 2012
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