SZRNL v Minister for Immigration

Case •

[2013] FMCA 89

•

15 February 2013

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRNL v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 89

MIGRATION – Review of Refugee Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissal.

The Applicant in these proceedings is not to be identified pursuant to s. 91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZRNL.
Migration Act 1958 (Cth), ss. 36(3), 91X, 425(1)
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Minister for Immigration and Ethnic Affairs v Wu Shang Liang & Ors (1996) 185 CLR 259
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
Re Refugee Tribunal & Anor; Ex parte H (2001) 179 ALR 425
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152
Applicant: SZRNL
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1210 of 2012
Judgment of: Lloyd-Jones FM
Hearing date: 28 November 2012
Delivered at: Sydney
Delivered on: 15 February 2013

REPRESENTATION

The Applicant: Applicant appeared in person with the assistance of a Nepalese interpreter
Solicitors for the Respondents: Ms N. Johnson of Sparke Helmore

ORDERS

  1. The Application filed on 4 June 2012 be dismissed.

  2. The Applicant pay the First Respondent’s costs and disbursements, of and incidental to this Application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1210 of 2012

SZRNL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

  1. In accordance with the Court’s orders made on 26 June 2012, the solicitors for the first respondent, the Minister for Immigration & Citizenship (the “Minister”), was required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing.  This order was complied with and the volume of material provided is identified as the Court Book (“CB”), and marked Exhibit A and is the only evidence.   

  2. At the first court date directions hearing the applicant sought to participate in the NSW RRT Legal Advice Scheme.  This referral was made and written advice was provided after the conference with the Panel Advisor.  The applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material, on or before 24 July 2012.  The applicant did not file an amended application.

  3. This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review in respect of a decision of the Refugee Review Tribunal (“the Tribunal”), being RRT Case Number 1200078, a decision of Tribunal Member J. Silva dated 4 May 2012 affirming the decision of a delegate of the first respondent, the Minister to refuse the applicant a Protection (Class XA) visa.

Background

  1. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties.  I have not made further attribution as this would make the summary unwieldy.  Where this information is extracted from the Court Book, each item contains a reference for that material.

  2. The applicant is a citizen of Nepal and arrived in Australia on 16 January 2009 as a dependent of his wife on a Student (Subclass 572) visa.  The applicant later informed the Department of Immigration and Citizenship (the “Department”) that his marriage had been contrived and that he had obtained a fake marriage certificate in order to depart from Nepal (CB 32, 105-6).  The applicant applied to the Department for a Protection visa on 24 May 2011 (CB 1-25).  The applicant provided as part of his Protection visa application a two page statement (CB 31-32) setting out his claims to fear persecution in Nepal for reasons of his pro-monarchy political opinion.  He claimed that his grandfather and father, who had served in the Indian army, had supported the monarchy. 

  3. The applicant claims that in 2007 he decided to become politically active by joining the Rastriya Prajantantra Party-Nepal (“RPPN”).  The applicant attended meetings and rallies, handed out pamphlets and encouraged people to vote for the RPPN during the 2008 election in Nepal.  On 1 July 2008, the applicant invited villagers, supporters and members of the RPPN to attend a party to celebrate the King’s birthday.  The applicant claims that on the following day Maoists came to his home, detained him and threatened to kill him if he did not stop supporting the Monarchy and RPPN.  The applicant complained to the police but was advised that they could not guarantee his safety.  The applicant decided to stay with his uncle in Kathmandu before arranging to come to Australia.  The applicant claims that after he left his village, Maoists made enquiries about his whereabouts with his father and also made several threatening telephone calls to his relatives in Kathmandu.

The delegate’s decision

  1. On 17 November 2011, a delegate of the first respondent invited the applicant to attend an interview scheduled for 28 November 2011 (CB 33-34) which the applicant attended and gave evidence in support of his claims (CB 73).

  2. On 29 November 2011, the delegate made a decision refusing to grant the applicant a protection visa (CB 72-82). The delegate found pursuant to s.36(3) of the Migration Act that the applicant had access to effective protection in India (CB 78). Alternatively, the delegate also found that the applicant “was already able to relocate” within Nepal to Kathmandu (CB 79).  The delegate also rejected the applicant’s claims to have fled Nepal on the basis of his political opinion (CB 81) and found that he sought to prolong his stay in Australia “for reasons other than a fear of returning to Nepal for a Convention Ground” (CB 81).

  3. The delegate was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Convention (CB 82).

The Tribunal proceedings

  1. On 4 January 2012, the applicant lodged an application with the Tribunal to review the delegate’s decision (CB 83-86).  By way of letter dated 8 March 2012, the Tribunal invited the applicant to attend a hearing before the Tribunal scheduled for 5 April 2012 (CB 89-90).  The applicant accepted the invitation (CB 93-94), attended the hearing and gave evidence in support of his claims (CB 95-97; 108-112 at [31]-[62]).  On 23 April 2012, the Tribunal received translations of three documents that the applicant had submitted at the Tribunal hearing (CB 98-100; CB 112 at [63]).

  2. In a decision dated 4 May 2012, the Tribunal affirmed the delegate’s decision to refuse the applicant’s application for a Protection visa (CB 102-123).

  3. The Tribunal accepted that the applicant was from Myagdi, “a remote and relatively poor district of Nepal that the Maoists have held for many years” (CB 117 at [78]).  The Tribunal expressed concerns that the applicant may have exaggerated or mischaracterised his views of the monarchy (CB 117 at [81]), but accepted that he held pro-monarchist views and supported the RPPN (CB 117 at [80]; CB 119-120 at [83]).

  4. The Tribunal had a number of concerns about the truthfulness of the applicant’s account of his experiences in Nepal and his reasons for leaving the country (CB 117 at [79]).  On the basis of these concerns, the Tribunal did not accept that he was a member of the RPPN, played a key role in any political activities, or had come to the adverse attention of Maoists (CB 119-120 at [83]; CB 120-121 at [88]-[90], [91]).

  5. The Tribunal further found that the applicant would reside in Kathmandu on his return to Nepal because his wife and children were well established there, he also had family support, and education and job opportunities in Kathmandu, whereas the “pull factors” in Myagdi were weak (CB 120 at [84]-[85]). 

  6. The Tribunal was satisfied that the applicant would not be motivated to become politically active in the future.  The Tribunal also did not accept that he would have to modify his behaviour in any way to avoid Convention-related persecution (CB 121-122 at [91]).  Accordingly, the Tribunal was not satisfied that the applicant had a well founded fear of persecution if he returned to Nepal (CB 122 at [92]).

  7. The Tribunal was not satisfied, on the evidence before it, that there were substantial grounds to believe that as a necessary and foreseeable consequence of the applicant being removed from Australia there would be a real chance that he would suffer significant harm; s.36(2)(aa) (CB 122 at [93],[95]-[96]).  This finding was open to the Tribunal in circumstances where it expressly found that it was not satisfied that the applicant would face any harm if he returned to Nepal in the reasonably foreseeable future (CB 122 at [92]).

Current Proceedings

  1. The applicant filed an application for judicial review in the Federal Magistrates Court on 4 June 2012.  The applicant sought the following relief:

    1.  I seek the order from the Federal Magistrates Court that the decision of the Refugee Review Tribunal made on 04 May 2012 be quashed.

    2. I seek the order that the matter be remitted to the Refugee Review Tribunal and my application for protection visa be considered and determined by the RRT according to law.

    3.  The respondent should be dismissed with costs.

  2. The applicant’s application contains three grounds, being:

    1.  I argue that the Tribunal Member has undermined my claims based on the Member’s arbitrary view rather than the evidence.  Thus the Tribunal Member failed to give me natural justice and fairness in my case.

    2. I argue that the credibility should not be an issue as I have given the Tribunal Member my oral and written evidence about my claims truthfully.

    3.  I believe the decision of the Tribunal Member in my case is not free of legal error.

Grounds 1, 2 and 3

Applicant’s Submissions

  1. In Ground 1, the applicant submits that his claims were undermined as the Tribunal Member chose to make his decision not based on the evidence that the applicant submitted, but rather, on an arbitrary view.  In Ground 2, the applicant argues that his credibility should not be an issue as he gave his written and oral evidence truthfully.  In Ground 3, the applicant observes that the Tribunal decision “is not free of legal error”.   The applicant did not file written submissions. At the hearing the applicant, when asked if he had any oral submissions to make in support of his claims, stated “No, I don’t have much to say.” (Transcript, p. 2; l.30).

Respondent’s Submissions

  1. The Minister argues that this is a case to which s.422B of the Migration Act is applied. The Tribunal was not required to afford the applicant common law natural justice; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. The applicant was entitled only to the rights afforded to him under Part 7 of the Migration Act. The Tribunal plainly complied with its obligations under Part 7 of the Migration Act.

  2. The Minister contends that the Tribunal complied with s.425(1) of the Migration Act by inviting the applicant to a hearing, which he attended on 5 April 2012. The only evidence before the Court of what occurred at the Tribunal hearing is that the Tribunal’s summary contained in its decision (CB 108-112 at [31]-[62]). The summary indicates that the Tribunal put its concerns about the credibility of the applicant’s claims and evidence to him at the hearing (CB 111). In particular, the Tribunal brought to the attention of the applicant the significant gap in time between the claimed incident and the applicant’s departure from Nepal (CB 111 at [54]). The Tribunal also highlighted the prevalence of false documentation from Nepal which was particularly relevant given the applicant’s evidence that he had relied on fabricated documents to obtain his Australia student visa. The Tribunal Member put to the applicant that “it would need to consider carefully all aspects of the documents he [the applicant] had now provided, in determining what weight and meaning to attach to them” (CB 111 at [56]).  The Tribunal also put to the applicant that the country information indicating that the RPPN has minimal political support which may infer that the Maoists do not regard this party as a serious opponent. Furthermore, they would not put priority on pursuing, in Kathmandu, a RPPN supporter from a remote area (CB 111 at [57]). 

  3. The Tribunal also brought to the attention of the applicant the Tribunal’s concerns that he waited so long before applying for a Protection visa.  The applicant arrived in Australia in 2009 and applied for a protection visa on 24 May 2011. The applicant replied that he was ignorant about Australian Law.  The Tribunal expressed its scepticism that a person, who evidently had access to good resources in Nepal, was unaware of refugee protection for so long (CB 112 at [60]).  The Tribunal then put to the applicant its concerns that the applicant had referred to just one incident in a remote part of Nepal and that, even taken on face value, it was difficult to imagine that he faced a credible threat from the Maoists in Beni or Kathmandu.   In addition to the delay in seeking protection there was the question of whether one incident could give rise to an ongoing threat (CB 112 at [61]).  The Tribunal then advised that it had significant doubts about the applicant’s refugee claim and his supporting evidence.  The Tribunal then gave the applicant an opportunity to tell the Tribunal if he feared significant harm for any reasons apart from those previously discussed.  The applicant stated that he had presented all his evidence relating to his fears.

  4. The Minister argues that the Tribunal put its concerns, on a number of occasions, about the credibility of the applicant’s claims and evidence to him.  By doing this, the Tribunal clearly put the applicant on notice of the determinative issues arising on the review and gave him an opportunity to address those concerns: SZBEL v Minister for Immigration and Multicultural Affairs (2006) 231 ALR 592 at [42]-[44]. Accordingly, the Tribunal complied with its obligations under s.425(1).

  5. The Minister submits that to the extent that the applicant is alleging actual or apprehended bias, the material before the Court does not provide any foundation for a claim that the Tribunal approached the matter with a closed mind, or did not conduct its review in good faith.  Where credibility is in issue, the Tribunal will necessarily have to test the evidence presented, often vigorously: Re Refugee Tribunal; Ex parte H (2001) 179 ALR 425 at [30]. The Tribunal’s approach would not lead a fair minded lay observer to conclude that the Tribunal was not bringing an impartial mind to its investigation of the applicant’s evidence.

  6. Ground 2 of the application seeks to challenge the Tribunal’s adverse credibility findings.  The Minster contends that this complaint constitutes an impermissible request to the Court to review the merits of the Tribunal’s decision and its assessment of the credibility of the applicant’s factual claims.  This is not an appropriate line of attack and fails to establish any basis of jurisdictional error on the part of the Tribunal: Minister for Immigration & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259.

  7. The Tribunal’s adverse credibility findings were based on a number of factors that were open to it as the sole arbiter of the facts and evidence.  For example, the Tribunal found that the applicant provided “little insight” into how and why he assumed, in such a short period, a key role for the RPPN (CB 117 at [82(a)]).  The Tribunal also found that the applicant’s claim to have been a member of the RPPN was undermined by his failure to make any enquiries about the welfare of this fellow party members (CB 118 at [82(b)]) and the minimal involvement or interest that the applicant had shown in the party since 2008 (CB 118-119 at [82(f)]).  The Tribunal found further against the credibility of his claim to genuinely fear persecution in Nepal after allegedly suffering harm in July 2008 (CB 119 at [82(g)]), followed by a subsequent delay his delay of two and a half years in seeking protection after arriving in Australia (CB 119 at [82(h)]).

  8. The Minister argues that the Tribunal found that the applicant had given a credible account regarding the chronology of events since July 2008 (CB 118 [82(d)]) and the steps he took to obtain police protection (CB 118 [82(e)]), but found this did not overcome the concerns the Tribunal identified with other aspects of his evidence. 

  9. The Minister submits that in reaching these findings, the Tribunal expressly had regard to the RPPN membership documents the applicant had provided to the Tribunal in support of his claims.  The Tribunal gave these documents “no weight” on the basis of its identified concerns.  The Tribunal also relied on the accepted country information before it indicated that document fraud was prevalent in Nepal.  The Minister contends that the Tribunal also found that the applicant had demonstrated the availability of document fraud by previously submitting to the Department a fake marriage certificate in connection with his Subclass 572 visa application (CB 118 [82(c)]).  It is argued that it was for the Tribunal to identify such material as it finds relevant to its reasoning and to give it appropriate weight: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46].

  10. The Minister argues that the Tribunal was not required to accept the applicant’s claims at face value and the weight to be given to his claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function: Minister for Immigration & Ethnic Affairs v Wu Shang Liang (supra) at 281-282. The Minister submits that the Tribunal’s conclusion that the applicant was not a witness of truth was a finding of fact for the Tribunal par excellence: Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. These findings were open to the Tribunal on the evidence before it and the Court cannot review the merits of the Tribunal’s decision.

  11. The Minister argues that Ground 3 is merely an unparticularised allegation of “legal error”, and with an absence of particulars this ground cannot succeed.

Consideration

  1. This matter first came before his Honour Smith FM on 26 June 2012, where the applicant sought to participate in the NSW RRT Legal Advice Scheme to assist in the preparation of his application.  The order was made that the Court Registrar would refer the applicant to a panel adviser within that scheme, on or before 3 July 2012.  That referral occurred and the advice slip contained in the Court file indicated that the applicant was invited to attend a conference with that advisor on 25 July 2012.  The applicant was issued with written advice on 15 August 2012.  The applicant was also granted leave to file and amended application including any additional grounds for review with complete particulars, together with any additional affidavit material.  However, the applicant has not availed himself of this opportunity.  The applicant was also ordered to file and serve a short written outline of submissions and list of authorities seven working days before the hearing.  At the commencement of the hearing, when asked whether he had complied with this requirement, he indicated that he had not.  When the applicant was asked whether he wished to make any oral submissions, he responded “No, I don’t have much to say”. After Ms Johnson, appearing for the Minister, had addressed the Court with her submissions, the applicant was asked whether he had received a copy of the Minister’s written submissions and whether he had any comments to make in response to them or the oral submissions made in Court.  The applicant indicated, once again, that he had nothing to say.

  1. Ms Johnson indicated that she relied upon her written submissions to address the grounds of review raised by the applicant in his application.  I am satisfied that Ms Johnson’s written submissions accurately and satisfactorily address the issues raised in the grounds of review contained in the original application in this matter.

  2. On a fair reading of the Tribunal decision, it is not apparent from the face of the document that it contains any jurisdictional error.  The applicant was provided with adequate opportunity to put to the Tribunal Member, both in writing and orally the nature of his claim.  The Tribunal assessed those claims against a comprehensive set of relevant information addressing the issues raised by the applicant.  The Tribunal then proceeded to assess the applicant’s claims against this information.

  3. In the circumstances I am satisfied that the grounds of review contained in the application cannot be sustained and on a fair reading of the Tribunal’s decision there is no apparent jurisdictional error.  Consequently, the application should be dismissed with costs. 

I certify that the preceding thirty-four-four (34) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Date:  15 February 2013

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