SZRPJ v Minister for Immigration - [2013] FMCA 221

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRPJ v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 221

MIGRATION – Review of decision of RRT – some remarks concerning manner in which Tribunal dealt with the question of complementary protection.

Migration Act 1958 (Cth), s.36(2)(aa)

Applicant:

SZRPJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1372 of 2012

Judgment of:

Raphael FM

Hearing date:

13 March 2013

Date of Last Submission:

13 March 2013

Delivered at:

Sydney

Delivered on:

13 March 2013

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

Minter Ellison

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,700.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1372 of 2012

SZRPJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Nepal who came to Australia in 2008 upon a student visa. When that visa expired he remained in the country and was eventually placed into immigration detention. On 13 February 2012 he made an application for a protection (Class XA) visa from Villawood. Although the Tribunal refers to the date as 27 January 2012, the documents at the commencement of the Court Book, seem to indicate that the claim was received on 13 February 2012 and signed on 12 February 2012. On 19 March 2012 a delegate of the Minister refused to grant a protection visa and on 23 March 2012 the applicant applied for a review of that decision from the Refugee Review Tribunal.
On 2 April 2012 the Tribunal wrote a letter to the applicant inviting him to comment or respond to information, which the applicant did, providing the Tribunal with a series of documents found at [CB 127-137]. The Tribunal interviewed the applicant. On 24 May 2012 the Tribunal determined to affirm the decision not to grant the visa.
The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations were the convention ones of political opinion/membership of a particular social group. He told that he was a Madhesi living in the Terai region in Nepal. He claimed that Madhesis were discriminated against by other Nepalese to the extent that it was difficult for him and other Madhesis to obtain more than the most menial forms of employment. He also told that his father had been the subject of extortion attempts from an organisation known as the TMM which is a group that is in conflict with the government on behalf of Madhesis. The applicant claimed that the TMM wanted to enrol him with them and because of his refusal to do that he was the subject of a beating as a result of which he suffered considerable harm, particularly to his eyesight. The applicant claimed that if he returned to Nepal he would be both discriminated against as a Madhesi and subject to further threats and possible persecution from the TMM.
The Tribunal questioned the applicant about his claims and put to him a number of concerns which it had about them. In particular, a number of inconsistencies within those claims that were discussed with him and are set out in detail at [84] [CB 164 - 165] in the Tribunal’s findings and reasons. It was these inconsistencies in his interview with the Tribunal, being inconsistencies between his application form, what he told the delegate and what he told the Tribunal, together with the Tribunal’s concern about the applicant’s delay in making his application for a protection visa until he found himself in detention that persuaded the Tribunal that the applicant was not a witness of truth and had not given a truthful account of his circumstances in Nepal, his reasons for leaving or his fear of harm if he were to return now or in the reasonably foreseeable future:
“ [87]The Tribunal does not accept that either the applicant or his father were targeted or harmed in any way by the TMM or people associated with the TMM and is not satisfied there is a real chance that the applicant will be targeted or harmed in any way by the TMM or people associated with the TMM if he were to return to Nepal now or in the reasonably foreseeable future.[CB 166]
The Tribunal noted the independent country information which indicated that there were problems with groups such as the TMM in the Terai and that some people had been threatened and harmed but did not believe that the applicant or his father were such people. [88] [CB 166].
The Tribunal also noted the independent country information relating to discrimination of Madhesis, mostly in the Terai, but did not accept that the applicant had suffered discrimination as told to the Tribunal. It noted that the applicant had studied in Kathmandu up to university level and could continue those studies should he return to Nepal. It also noted that for all the claims relating to discrimination against Madhesis the country had, in fact, had a president and vice-president of Madhesi origin.
The Tribunal accepted that the applicant had problems with his eyesight but did not accept that they had occurred in the way in which had had claimed or that the problem affected his ability to read and write, attend the university or do the work that he was engaged in before he was taken into Villawood. The Tribunal did not believe that the applicant would suffer serious harm for reasons of his eyesight problems.
The Tribunal also considered the applicant’s claims under the provisions of s.36(2)(aa) of the Migration Act 1958. These are known as the complementary protection claims. The manner in which the Tribunal dealt with these is liable to be open to criticism, although this was not referred to by the applicant who has no legal representation. What the Tribunal has done is to set out, at paragraphs 94 to 97, its reasons why it does not accept that Australia has complementary protection obligations to the applicant, but the paragraphs are just repeats of paragraphs 87 to 91, which were paragraphs dealing with his protection visa claim.
Looked at objectively, one can see that what the Tribunal was attempting to do was to say that because of the rejection of the applicant’s evidence on credibility grounds there was no basis for making a claim for complementary protection. But it is to be remembered that there is a difference between the criteria for granting complementary protection and the criteria for granting a protection visa under s.36. Reference is made to ss.36(2)(a) and 36(2)(aa). This text appears below:
“Protection visas
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or”
In its decision record the Tribunal does at [16 to 18] indicate the appropriate tests for a complementary protection visa and at [98] it states:
“[98]Having considered the applicant’s claims singularly and cumulatively, the Tribunal finds that they are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nepal, there is a real risk that the applicant will suffer significant harm. The Tribunal therefore finds the applicant does not satisfy the criteria set out in section 36(2)(aa).
This formula is also found in the last sentence of [94] [CB 167] under the heading Complementary Protection.
This court has, on occasion, criticised the use of template or repeat findings in Tribunal decisions and most particularly in those of the independent merits reviewers. However, it is now established that this does not amount to jurisdictional error. But it is a practice which can lead to concerns in the minds of those affected by it that the decision-maker is taking shortcuts in his consideration of the applicant’s case. It would, to my mind, be best if such concerns could be avoided phrasing the decision on complementary protection more clearly to the definition and acknowledging the difference in the criteria.
The applicant appeared before me today having filed in this court an application for review of the Tribunal’s decision on 27 June 2012. That application listed only one ground:
“There is some jurisdictional error in RRT decisions.”
This ground is not particularised and although the applicant was required to file submissions 14 days prior to the hearing, none have appeared, so that the court has little assistance in understanding why he claims the Tribunal made an error of law in the manner in which it reached its decision. Before me today the applicant said the he felt that the Tribunal did not look at the documents properly and that they did not believe him. They said that he was telling lies but that was not the case. Ms Given, who appears on behalf of the respondent, pointed to [CB] [127 - 137] where the documents appear, noting that they relate mostly to problems with the applicant’s eyesight, but not to how they occurred, and some details about his father’s farm. She noted that at [47] [CB 155] the documents are set out and summarised. They were considered by the Tribunal at [55] [CB 157] and the inconsistencies in them were referred to at [60] [CB 158] and discussed.
In the findings and reasons at [CB 163] and [CB 164] at [84], in particular 84(a) and 84(b), omissions and inconsistencies are evident and the documents were referred to. I am satisfied that the Tribunal gave an appropriate consideration to those documents and to the evidence of the applicant before coming to its conclusions.
In all the circumstances I am unable to assist the applicant by providing him with a review of this decision. The application must be dismissed and the applicant must pay the first respondent’s costs which I assess in the sum of $5,700.00.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Date: 28 March 2013