SZRQA v Minister for Immigration
[2013] FMCA 147
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRQA v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 147 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. 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 SZRQA. |
| Migration Act 1958 (Cth), ss.91X, 424A, 425, 474 |
| Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Re JRL; Ex Parte CJL (1986) 161 CLR 342 Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 |
| Applicant: | SZRQA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1498 of 2012 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 8 February 2013 |
| Delivered at: | Sydney |
| Delivered on: | 22 March 2013 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Nepalese interpreter |
| Solicitors for the First Respondent: | Ms M Stone of DLA Piper |
| The Second Respondent: | The Second Respondent filed a submitting notice of appearance |
ORDERS
The Application filed on 10 July 2012 is dismissed.
The Applicant is to pay the First Respondent’s costs and disbursements of, and incidental to, this Application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1498 of 2012
| SZRQA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In accordance with the Court’s orders made on 7 August 2012, the solicitor 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”), marked Exhibit A and is the only evidence before the Court.
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 applicant’s conference with his allocated panel adviser. 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 18 September 2012. The applicant did not file an amended application.
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 1200145, a decision of Tribunal Member P. Millar dated 12 June 2012 affirming the decision of a delegate of the first respondent, the Minister, to refuse the applicant a Protection (Class XA) visa.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister’s representatives. 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.
The applicant is a male citizen of Nepal, born 22 September 1989 (CB 26). He arrived in Australia on 22 October 2008 (CB 48). The applicant applied for a Protection (Class XA) visa on 27 May 2011 (CB 1-25). The applicant claims were set out in a statement provided on 7 December 2011, at the time of his interview with the delegate (CB 35-41). The applicant’s statement of claim is a two page document and has been certified by the Nepalese Interpreting and Translating Services (CB 35-37). The applicant claimed that he was forcibly taken away from his school in Myagdi, and that he was forced to attend Maoist education classes. He states that his home district is an area of high Maoist activity (CB 35). The applicant claimed that he first became involved with the Communist Party of Nepal (Unite Marxist Leninist) (“CPN”) in July 2006 and became a member in December 2006 (CB 35). The applicant claimed that he was intimidated by the Maoists due to his political opinion and that he would be killed if he did not “get involved” with the Maoists and give up his membership of the CPN. He claimed that he had no option and pretended to disown his membership of CPN and support the Maoists (CB 35).
The applicant submitted in his statement of claim that he continued supporting the CPN by attended meetings and rallies, and by distributing leaflets encouraging villagers to join (CB 36). The applicant claimed that in May 2008 he gathered local villagers and they beat up the Maoists cadres who had tried to abduct a local business man. The applicant claimed that he was aware that he was in danger after this event and left his village and went to Kathmandu. He stated that his father informed him that around seven Maoists went to his house looking for him (CB 36).
The applicant claimed that he came to Australia on 22 October 2008 as a dependent of a student visa holder. He stated that through the aid of an agent he was able to procure a false marriage document and come to Australia (CB 36).
The delegate’s decision
The application was refused by a delegate of the Minister on 8 December 2011 (CB 46-55). The delegate concluded that on the evidence available to him, the applicant was found not to be a person of interest to non-State agents in Nepal because of his political opinion and would not be of interest to them on return. The delegate found that the applicant took delayed advantage of his student dependent visa to apply for protection because his visa was expiring, and that his reasons for wishing to remain in Australia were not Convention related.
The Tribunal’s decision
The applicant applied to the Tribunal for review of the delegate’s decision on 5 January 2012 (CB 56-59). The applicant was invited to, and attended a hearing before the Tribunal held on 17 April 2012 (CB 62-63 and 65-68). The Tribunal made its decision on 12 June 2012 (CB 79-95) and affirmed the decision under review not to grant the applicant a Protection (Class XA) visa and informed the applicant of this decision on 13 June 2012.
The applicant claimed to be a member of the CPN and claimed to fear the harm from the Maoists as a result of his political activities.
The Tribunal made an adverse credibility finding at [98] (CB 93) on the basis of the following:
a)Significant aspects of the applicant’s account were not mentioned in the Protection visa application form (CB 90 at [77]-[80]);
b)The applicant’s evidence at the Tribunal hearing about when he became interested in politics and about a claimed incident involving the Maoists was not consistent with his written statement (CB 90-92 at [81]-[84] and [91]-[92]);
c)The applicant’s account at the Tribunal hearing about the claimed incident was not plausible (CB 91-92 at [85]-[90]); and
d)The Tribunal considered relevant, the delay between the applicant’s arrival in Australia in October 2008 and his application for a Protection visa in May 2011. The Tribunal considered that applicant’s explanations for the delay, but did not accept them (CB 92-93 at [93]-[96]).
On the basis of its credibility finding, the Tribunal rejected all of the applicant’s claims at [99] and found that his account was false.
Legislative Framework
The decision of the Tribunal is a privative clause decision as defined by s.474(2) of the Migration Act. Section 474 operates to prevent the judicial review of all decisions under the Migration Act except those vitiated by jurisdictional error.
Application before the Court
The applicant filed an application for judicial review in the Federal Magistrates Court on 10 July 2012. Pursuant to the application, the applicant sought the following order:
A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.
The application pleads three grounds:
1. I argue that the Refugee Review Tribunal Member ignored to look at the favourable and supportive evidence of my claims and regarded me as an implicit economic refugee whereas I am a refugee of persecution.
2. I argue that the Refugee Review Tribunal Member has committed an error of law by placing material weight on the delay of lodging my protection visa application.
3. I argue that the decision in my case has been adversely affected by apprehended bias as the Tribunal Member failed to conform to standards of procedural fairness.
Federal Magistrate Smith made orders on 7 August 2012 granting leave to the applicant to file an amended application or any additional affidavits on or before 18 September 2012. The applicant elected not to file an amended application or any additional affidavits. At the hearing, when asked if he had any oral submissions to make in support of his claims, the applicant stated “I just feel they have made legal errors, and I didn’t get proper justice, so I would like this court to give me justice, your Honour” and “They have said that I haven’t come here for my protection, but I am here for the economical reasons, which is not true, and secondly, about the visa, that I applied late. That’s all I have to say” (Hearing Transcript 8 February 2013; p. 2.35-45).
Respondent’s Submissions
Ground one
The Minister argues that the first ground of the application has two aspects. The first is an assertion that the Tribunal ignored evidence and the second is that the Tribunal incorrectly regarded the applicant as an economic refugee.
The Minister contends in relation to the first assertion, there was no documentary evidence submitted by the applicant in support of his claims, and the Tribunal did not have regard to any externally obtained evidence, such as country information. The Minister argues that the Tribunal’s conclusions rested solely on its view of the applicant’s credibility which, in turn, rested entirely on a consideration of the applicant’s Protection visa application form, his written statement and his oral evidence. The Minister argues that this argument must be understood as an assertion that the Tribunal should have accepted the applicant’s evidence as credible. The Minister submits that credibility is a question of fact for the Tribunal and this aspect of the first ground therefore seeks impermissible merits review.
The Minister argues in respect of the applicant’s second assertion the Tribunal did not make any finding that the applicant was an economic refugee. This argument merely asserts that the Tribunal should have accepted that the applicant was a genuine refugee and it therefore goes no higher than to seek impermissible merits review.
Ground Two
The Minister submits that the second ground of the application takes issue with the Tribunal’s reliance on the applicant’s delay in seeking protection in Australia and the Tribunal was entitled to take this factor into account and to give it such weight as it thought appropriate in all the circumstances of the case: Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347 per Heerey J. The Minister argues that this ground takes issue with the merits of the Tribunal’s decision and does not establish any jurisdictional error.
Ground Three
The Minister submits that the third pleaded ground makes assertions, first that the Tribunal decision was affected by apprehended bias, and secondly, that the Tribunal breached its procedural fairness obligations. The Minister argues that an allegation of bias must be firmly established, distinctly made and clearly proved: Re JRL; Ex Parte CJL (1986) 161 CLR 342 at 352 per Mason J; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 51 [69] per Gleeson CJ and Gummow J and at 546 [127] per Kirby J. The applicant’s assertion is unparticularised and the applicant has not produced any evidence in support of his allegation. The applicant’s allegation of bias therefore cannot be made out.
The Minister also submits that no bias on the part of the Tribunal is borne out on the face of the Tribunal decision record, noting that the test is whether a fair-minded lay observer, who is properly informed as to the nature of the proceedings, the matter in issue of the proceedings might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question to be decided; Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 at 434 [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ.
The Minister submits in respect of the second assertion made that the Tribunal has complied with its procedural fairness obligations as set out in Part 7, Division 4 of the Migration Act. The Minister contends that:
a)There was no information before the Tribunal which enlivened its obligations under s.424A of the Migration Act; and
b)The Tribunal complied with its obligations under s.425 of the Act. The applicant was invited to, and attended, a hearing before the Tribunal at which he gave evidence and presented arguments in relation to the dispositive issues on the review. The Minister notes that the delegate reasoned that the applicant “may have been” a CPN supporter, and then went on to otherwise make strong findings regarding the applicant’s credibility including a finding that his account had been fabricated. The Minister submits that the applicant was on notice from the delegate’s decision that his overall credibility was in issue. The applicant therefore was on notice that the Tribunal may doubt the entirety of his claims, including his interest and involvement in politics.
It is the Minister’s submission that the application should be dismissed.
Consideration
The Tribunal’s adverse credibility finding and consequent rejection of the applicant’s claims is a matter for the Tribunal par excellence: Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67] where his Honour said:
… A finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence…
I am satisfied that the Tribunal’s findings, in this respect, were open to it on rational grounds on the material before it and they disclose no error of treatment of the applicant’s credibility: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547. The Tribunal’s reasons, which are the only evidence before the Court in relation to the conduct of the hearing, indicate the concerns it had about aspects of the applicant’s evidence which were raised with him during the hearing. The applicant was unsuccessful because the view the Tribunal took of the facts and, in particular, the finding that he was not credible.
The Tribunal made the adverse credibility finding on the basis of four issues which are set out at [11] above, each with the relevant passage references to each of those issues. A fair reading of each of those four credibility issues clearly identifies the claims advanced by the applicant and clearly explains why each set of circumstances was found not to be credible.
In W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703, their Honours Lee, Tamberlin and RD Nicholson JJ at [64] stated:
The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472 at 479 (per Brennan, Gaudron and McHugh JJ):
"If the trial judge's finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge `has failed to use' or `has palpably misused his advantage' or has acted on evidence which was `inconsistent with facts incontrovertibly established by the `evidence' or which was `glaringly improbable'".
See also Abalos v Australian Postal Commission [1990] HCA 47; (1988) 171 CLR 167 at 179. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the Court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.
The Tribunal, in its Decision Record, has provided substantially more than is required by the authorities referred to above. The section “Findings and Reasons” is devoted to setting out the four identified adverse credibility findings, together with a detailed conclusion on the issue of the applicant’s credibility which indicate that when considering each of these issues cumulatively, the applicant was not a witness of truth and the account of the events on which his protection claims are based were false (CB 93 at [98]).
Turning to the three grounds of review advanced by the applicant I have considered the written submissions prepared and submitted by Ms Stone appearing for the Minister. I am satisfied that those issues have been satisfactorily addressed and require no further comment.
As the applicant is self-represented and does not appear to understand the function of judicial review of the administrative decision of the Tribunal I have reviewed the contents of the Court Book, together with the Decision Record. I note in the original application (CB 25) that in response to questions 43, 44, 45 and 46, the applicant has indicated “please see the statement”. In respect to question 45 and 46 the response is recorded “see the statement which will be provided soon”. That statement was not attached to the visa application lodged on 27 May 2011. At CB 38 - 41 appears a hand written statement in Nepalese which carries an execution date of 18 August 2011. A translation of that statement (CB 35-37) carries a translation stamp indicating that the statement was translated from Nepalese to English on 25 September 2011. The Department of Immigration and Citizenship receipt stamp states 7 December 2011, which is the date of the scheduled hearing before the delegate (CB 33). In the decision record this delay is noted by the delegate (CB 53).
Despite this delay, the contents of the statement were considered by the delegate and subsequently the Tribunal in respect of a number of identifiable inconsistencies which ultimately went to the applicant’s credibility.
Conclusion
The original application has been prepared or provided by some unidentified third party, who does not appear to be fully conversant with the operations of the Migration Act and, more specifically, the actual Tribunal Decision under review. The grounds of review do not distinctively arise from the published decision of the Tribunal Member and I accept the written submissions of Ms Stone as the appropriate approach to the pleaded grounds. I am satisfied that none of the grounds pleaded in the application can be sustained. Nor is it apparent that any other ground of review exists which suggests that the Tribunal has made a jurisdictional error in its decision to reject the applicant’s application for a Protection visa. The substantial and significant finding of the Tribunal is focussed on the applicant’s credibility in respect to the claimed circumstances for him seeking protection. This decision was not addressed in the application of review. Consequently, the application should be dismissed with costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Date: 22 March 2013
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