SZRKZ v Minister for Immigration
[2013] FMCA 86
•19 February 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRKZ v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 86 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal breached the rules of natural justice, did not act in good faith, did not deal fairly with the applicant’s evidence, made an arbitrary decision, made a decision which was incorrect, failed to provide adequate reasons, failed to consider the applicant’s evidence and did not understand the gravity of the applicant’s situation. |
| Migration Act 1958, ss.422B, 424A, 425, 430, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 |
| Applicant: | SZRKZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 926 of 2012 |
| Judgment of: | Cameron FM |
| Hearing date: | 11 February 2013 |
| Date of Last Submission: | 11 February 2013 |
| Delivered at: | Sydney |
| Delivered on: | 19 February 2013 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 926 of 2012
| SZRKZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Nepal who arrived in Australia on 12 December 2010. On 11 March 2011 he applied to the Department of Immigration and Citizenship for a protection visa, alleging that he feared persecution in Nepal because of his political opinion. That application was refused by a delegate of the first respondent (“Minister”) on 18 May 2011. The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-18 of the Tribunal’s decision. Relevant factual allegations are summarised below.
Primary application
As noted earlier, the applicant lodged his application for a protection visa on 11 March 2011. At the time of lodgment the applicant submitted a certified copy of the fraudulent passport used by him to enter Australia together with what he claimed was his original passport which stated that he was born on 6 August 1977.
The applicant’s original passport was later examined by the department’s Document Examination Unit which concluded that its biographical data page had been fraudulently altered.
The applicant was interviewed by a ministerial delegate on 6 May 2011. On that occasion he provided, amongst other things, a certificate of registration for his construction company dated 18 March 2009 and his Nepalese citizenship certificate which indicated that his date of birth was 6 July 1977. The applicant also provided a statement dated 28 April 2011 in which he made the following claims:
a)he joined the Rastriya Prajatantra Party (“RPP”) on 30 May 2006 because it was the only party that supported the monarchy;
b)he was politically active in his village in April 2008 and was targeted by Maoists as a result;
c)his construction company operated in his home district. On 15 May 2009 the Maoists demanded that he make a “donation” of Rs50,000. He paid them – and did so on many subsequent occasions – so that he could continue to operate his business. The Maoists also threatened to kill him if he failed to meet their demands;
d)later, the Maoists asked him for a large amount of money which he could not afford to pay. He went to the police but they ignored his “reports”;
e)on 20 September 2010 the Maoists called him at his office and told him that they would physically harm him if he failed to pay them. Although he went to the police again, they did not take any action. He had to close down his construction business as a result;
f)he feared that the Maoists would kill him if he returned to Nepal because he had failed to pay them and because he was a monarchist and a member of the RPP; and
g)he travelled to Australia on a fraudulent passport.
The applicant also made the following claims during his interview with the delegate:
a)his original passport was issued by a government agency and he had not been aware that it had been fraudulently altered;
b)he joined the RPP on 30 April 2006;
c)he established his construction company in 2001, the same year that he began receiving threats from the Maoists. He was targeted because of his work in the construction business and because he was a monarchist;
d)he received the threats by telephone whilst at work;
e)the Maoists would order his staff to stop working whenever he failed to fulfil their demands for money. He was issued receipts;
f)in 2009 the Maoists demanded five lakhs, or approximately $7,000 or $8,000, which he could not afford to pay. He went to the police; and
g)the last threat he received was in 2010 when the Maoists called him and demanded that he pay them. He tried to inform the police but they refused to help him so he moved (from his home area) to Kathmandu and then came to Australia.
Review application
The applicant provided a number of documents to the Tribunal at his hearing on 1 September 2011, including:
a)a membership receipt for the Rastriya Prajatantra Party – Nepal (“RPP-N”) dated 30 May 2006;
b)a letter from the RPP-N District Executive Committee dated 22 September 2010 stating that the applicant had been an active member of the party and had been providing donations to the Maoists because of threats to his life;
c)receipts for donations made to the United Communist Party of Nepal (i.e the Maoists) dated 7 May 2007, 9 March 2008, 15 April 2009 and 12 September 2009;
d)a letter from the United Communist Party of Nepal dated 10 May 2010 thanking the applicant for his financial assistance to the party and anticipating that he would continue his financial support in the future; and
e)a letter from the United Communist Party of Nepal dated 12 September 2010 accusing the applicant of disregarding their letter of 10 May 2010 concerning financial support. The letter requested a further payment of Rs.1.2 million within two months, failing which the applicant’s company would be seized and physical action would be taken against him.
The applicant also made the following additional claims:
a)the government agency which issued his passport made a mistake when it recorded his date of birth;
b)he joined the RPP-N on 30 April 2006. People often referred to the RPP-N as the RPP, although the latter was the original party;
c)he worked for a construction company between 2001 and 2006, operated a partnership from 2006 and then started his own construction company in his home town in 2009;
d)he started receiving demands for money in 2007. He later said that he had received demands for money from 2001 but that, as he was working for someone else at the time, it was his employer who paid these amounts. It was not until he started operating his partnership in 2006 that he was asked to pay personally;
e)he went to the police on one occasion only, in around October or November 2009, when the Maoists had demanded five lakhs (i.e. Rs500,000);
f)he moved to Kathmandu on 31 August 2010. He stayed there for a few months before departing Nepal;
g)he received a letter from the Maoists in June or July 2010 demanding a payment of Rs1 million. He went to Kathmandu because he was unable to pay them. When he returned to his home town for a few days in September 2010, he received the letter of 12 September 2010 demanding that he pay them Rs1.2 million;
h)his departure from Nepal on a false passport was reported in the newspapers. As a result, his father and wife were interrogated by the police and threatened by Maoists; and
i)the Nepalese authorities would arrest him and send him to prison for using a false passport.
The applicant wrote to the Tribunal on 26 September 2011 in response to the latter’s s.424A notice and relevantly claimed that until the Tribunal pointed it out to him at the hearing, he had been unaware that his passport incorrectly recorded his date of birth. He also claimed that he went to Kathmandu on 31 August 2010 and returned to his home town in September 2010, following which he received a demand for Rs1 million by telephone and then a further demand of Rs1.2 million by letter. The applicant also claimed that his business was registered on 5 May 2009.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal had serious concerns about the applicant’s credibility and did not find him to be a reliable, credible and truthful witness. It did not accept that the applicant and members of his family had been persecuted in Nepal as he claimed;
b)the Tribunal gave significant weight to the document examiner’s finding that the applicant’s passport had been fraudulently altered and rejected as implausible the applicant’s claim that it was only at the Tribunal hearing that he became aware that the issuing authority had made an error in relation to his date of birth. The Tribunal found that the applicant’s provision of fraudulently altered documentation cast doubt on his overall credibility and on the genuineness of all the documents he had provided;
c)the applicant stated in his protection visa application and in his interview with the delegate that his only employment in Nepal since leaving school had been with the construction company he established in 2001. However, at the Tribunal hearing the applicant stated that he worked as an employee between 2001 and 2006, operated a partnership between 2006 and 2009 and established his construction company in 2009. The applicant also stated that his company was registered on 5 May 2009, whereas the certificate of registration he provided to the delegate stated that his company was registered on 18 March 2009. The Tribunal found that the inconsistent nature of the applicant’s evidence relating to his claimed employment indicated that he had never been employed in the construction business in Nepal, which cast doubt on his claim that he had received extortionate demands from Maoists in the course of his association with the construction business;
d)at the departmental interview the applicant claimed that he started receiving threats for money in 2001 whereas at the Tribunal hearing he said that these threats commenced in 2007. In his written statement to the Minister’s department the applicant claimed that the Maoists called him at his office on 20 September 2010 demanding that he pay them a sum of money, whereas at the Tribunal hearing he stated that he was living in Kathmandu at that time, having moved there on 31 August 2010. The Tribunal found that the applicant’s inconsistent evidence about the timing of the alleged threats and the demands for money cast doubt on his evidence that these events took place;
e)the applicant also provided inconsistent evidence about the manner in which he received the threats. At the departmental interview the applicant stated that the Maoists usually made their demands of him by telephone; he did not refer to receiving any threats or demands for money by letter. However, at the Tribunal hearing the applicant referred to two letters he said he received from the Maoists, dated May and September 2010, in which they demanded Rs1 million and Rs1.2 million respectively. The applicant later said in his s.424A response that the demand for Rs1 million was made by telephone and that, when he did not pay this amount, he received a written demand for Rs1.2 million;
f)further, the applicant provided inconsistent evidence about the amounts of money he was told to pay. At his departmental interview he said that the Maoists demanded Rs500,000 and that, because he could not pay this amount, he had to close his business. However, at the Tribunal hearing the applicant claimed that the Maoists demanded Rs1 million and then Rs1.2 million;
g)in his s.424A response the applicant claimed that after he travelled to Kathmandu on 31 August 2010 he returned to his home town where his office was located, which was why he received the threatening phone call on 20 September 2010. The Tribunal did not accept this explanation because at the hearing the applicant claimed that when he returned to Kathmandu he received a letter of demand, not a phone call. The Tribunal found that the applicant’s inconsistent evidence cast doubt on his claim that he and his family had ever been threatened by Maoists or had ever been asked to pay extortionate demands. This also led the Tribunal to doubt the authenticity of the letters and receipts he claimed to have received from the Maoists and the letters from the RPP-N;
h)in his written statement to the department the applicant claimed that he went to the police after he received a demand for money on 20 September 2010. In the same statement, the applicant also referred to “reports” which he had made to the police, which indicated to the Tribunal that he had made more than one report. However, at the Tribunal hearing the applicant claimed that he had only made one report to the police, which was after he received the demand for five lakhs. The Tribunal found that the applicant had not provided a truthful account of his circumstances which in turn cast doubt on his claim that he made any report to the police or that they refused to protect or assist him;
i)the applicant claimed both at his departmental interview and at the Tribunal hearing that he joined the RPP-N on 30 April 2006. This was inconsistent with the membership receipt the applicant provided to the delegate, which indicated that he became a member of the party on 30 May 2006;
j)the Tribunal found the applicant’s evidence concerning the threats of harm made to his father and wife vague and unconvincing. Further, the applicant’s inability to provide any detail as to the nature of the threats made and when these events occurred indicated to the Tribunal that his father and wife had never been threatened or interrogated by the Maoists or the Nepalese authorities;
k)the Tribunal was not satisfied on the evidence before it that the applicant had ever been persecuted in Nepal in the past. Further, having rejected his various claims, the Tribunal did not accept that there was more than a remote possibility that in the future the applicant would be subject to serious harm in Nepal within the meaning of the Convention; and
l)finally, the Tribunal found that, even if the applicant were to face criminal proceedings in Nepal for using a fraudulent passport, he would be prosecuted under a law of general application which was not related to any of the Convention reasons.
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
1.The Tribunal Member made a legal mistake in my case as I believe that the Tribunal Member failed to give me natural justice and good faith in my case.
2.I am a true victim of the decision made by the Tribunal Member because the Tribunal Member did not treat my documentary and oral evidence fairly and my evidence and response were undermined by the Tribunal Member’s arbitrary view.
3.I told the Tribunal Member the truth about my claims and problems with Maoists and my business. The Tribunal Member’s adverse and arbitrary view has shadowed my claims with credibility issue labelling me as an unreliable witness. I told everything truthfully. I am a Monarchist. I am a member of the RPP Nepal. I am a business man. It is contended that legal error is evidence in the way in which the Tribunal Member established disbelief and overlooked the fact of my claims and evidence.
5.It is contended that my case has been affected by an error of law as there is no legal basis of the legal requirement standard of credibility.
6.I am in need of justice.
At the hearing of this application the applicant also made further allegations concerning the Tribunal’s decision.
Ground 1
The first ground of the application alleged that the Tribunal failed to observe the rules of natural justice or to conduct itself, in the context of its review of his application, in good faith. Neither of the two elements of this allegation was particularised and thus the ground as a whole lacks meaningful substance.
The allegation that the rules of natural justice were breached raises two potential issues. The first is whether the natural justice hearing rule was observed by the Tribunal. For the purposes of the Tribunal’s reviews, the common law natural justice hearing rule has been codified by s.422B in the provisions of div.4 of pt.7 of the Act. The most significant of those sections are ss.424A and 425, neither of which appears to have been breached on this occasion. Information which the Tribunal was required to put to the applicant pursuant to s.424A was included in the s.424A notice which it gave to the applicant after its hearing, and to which the applicant responded. The obligations under s.425, to invite the applicant to a hearing and to put to him any potentially determinative issues of which he might not have been aware, were also observed in this connection. The applicant attended the Tribunal hearing, during the course of which the issue of the credibility of his account was put to him on more than one occasion. As to the other provisions of div.4 of pt.7, to the extent that they were relevant, it is not apparent that they were not observed.
The second element of the rules of natural justice potentially raised by the first allegation in the application is the natural justice bias rule. There is no material before the Court which would support a conclusion that the Tribunal was in fact biased or that a reasonable observer would have apprehended the possibility that it was.
The allegation that the Tribunal did not conduct the review in good faith is similar to an allegation of bias. The criteria for a finding of a want of good faith were discussed in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749. None of the considerations discussed in that case are apparent here.
For those reasons, the first ground of the application is not made out.
Ground 2
In the second ground of the application the applicant alleged that the Tribunal took an arbitrary view of his claim and did not treat his evidence fairly. Again, the applicant did not elaborate on this allegation or point to any evidence before the Court which would support a conclusion that the Tribunal did anything other than conduct a genuine review in good faith. The Tribunal’s conclusion that the applicant was not a witness of truth was supported by its analysis of the evidence which the applicant put before it and the explanations he advanced to explain the inconsistencies in that evidence and the fact that in some important respects he gave more than one version of the relevant facts or events. The Tribunal’s analysis of this material demonstrated a genuine consideration of the evidence and an absence of an arbitrary approach.
Ground 3
To the extent that the third ground of the application does not traverse matters already alleged and addressed in the context of the second ground of the application, it challenges the Tribunal’s conclusions of fact and its ultimate finding on the merits of the protection visa application. Matters such as these are ones for the Tribunal and are not to be reviewed by the Court. For that reason, the third ground discloses no basis upon which the Tribunal’s decision might be set aside.
Grounds 4 and 5
Grounds four and five do not raise intelligible allegations of jurisdictional error.
Allegations made at hearing of this application
The applicant raised three additional matters during the course of his address to the Court.
The first was that the Tribunal either did not provide reasons for its decision or the reasons which it gave were inadequate. A consideration of the Tribunal’s decision record discloses that this allegation cannot be made out on the facts because the reasons given by the Tribunal were thorough and detailed. But, in any event, the obligation to provide reasons which s.430 of the Act imposes on the Tribunal is not a provision whose breach sounds in jurisdictional error. Consequently, even if the Tribunal had failed to provide adequate reasons for its decision, assuming other, reviewable inadequacies were not disclosed thereby, that would be no basis to set the Tribunal’s decision aside.
The applicant also submitted that the Tribunal had not considered his evidence. The applicant did not identify what evidence was not considered by the Tribunal and it appears that this, rather than being an allegation that evidence had been overlooked or disregarded, was an allegation that the Tribunal did not consider the evidence in a manner which would have produced the result which the applicant desired. That is to say, it is a complaint about the findings reached by the Tribunal. For the reasons already given, no jurisdictional error is disclosed on that account.
The applicant also alleged that the Tribunal did not understand the gravity of his situation. This allegation assumes that the applicant’s factual claims had been accepted by the Tribunal and that it failed to appreciate the consequences for the applicant of such proven facts. However, the applicant’s principal allegations were disbelieved and there was no need for the Tribunal to give consideration to the gravity of a situation whose existence it did not accept.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 19 February 2013
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