SZRVI v Minister for Immigration
[2012] FMCA 1255
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRVI v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1255 |
| MIGRATION – Application for review of decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss. 36, 65, 476 |
| NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; (2004) 78 ALJR 992 WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 SZMJM v Minister for Immigration & Citizenship [2010] FCA 309 |
| Applicant: | SZRVI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2115 of 2012 |
| Judgment of: | Nicholls FM |
| Hearing date: | 19 December 2012 |
| Date of Last Submission: | 19 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 19 December 2012 |
REPRESENTATION
| The Applicant: | In person |
| Appearing for the Respondents: | Mr O Jones |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 27 September 2012 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $2000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2115 of 2013
| SZRVI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from Transcript)
I have before me today an application made on 27 September 2012, pursuant to section 476 of the Migration Act1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), which, on 24 August 2012, affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.
Background
The background to this matter is that the applicant is a citizen of Nepal. He applied for a protection visa on 15 August 2011. His claims to protection were that if he were to return to Nepal, he feared persecutory harm by the Maoists in that country, and this was said to be because of his involvement as an active member of the Nepal Students Union, and as a supporter of the Nepali Congress Party, who were politically opposed to the Maoists.
The application for a protection visa was refused by the Minister’s delegate on 19 January 2012. The applicant sought review by the Tribunal. [I should just note I have before me today a bundle of relevant documents that the Minister has put before the Court. I will refer to that bundle as the Court Book (“CB”)].
From the Tribunal’s decision record I can see that, and is it not disputed by the applicant, that the Tribunal invited the applicant to a hearing, to which the applicant attended and gave evidence. The Tribunal’s decision record contains an account of what occurred at that hearing ([27] at CB 77 to [47] at CB 80). The Tribunal had regard to various country information and documentary evidence which was also before it ([48] at CB 80 to [71] at CB 84).
Essentially, the elements of the Tribunal’s decision record are as follows:
1)The Tribunal had serious concerns relating to what it said was the applicant’s subjective fear of persecution ([73] at CB 84). That was because of what the Tribunal said was the lengthy delay in the applicant lodging his application after arriving in Australia, and what it also saw as the embellishment of his account of his political profile and political participation that he had claimed in Nepal.
2)However, notwithstanding those concerns, the Tribunal accepted some of the applicant’s factual account, and considered the threat of harm to the applicant on the basis of his claimed activities in support of various political entities in Nepal ([74] – [75] at CB 84).
3)However, the Tribunal preferred information from various sources of country information about the relevant situation in Nepal, and found, ultimately, that given what was set out in that material, that there was no real chance the applicant would face persecution at the hands of Maoists in Nepal ([76] – [79] at CB 85).
4)The Tribunal also looked at the decrease in violent activities by Maoists. It took into account the applicant’s “low political profile” and found that the applicant’s circumstances and profile did not indicate to the Tribunal that the applicant was a person of ongoing interest to the Maoists or their allies ([79] at CB 85).
5)The Tribunal found, and it’s not clear why, given its findings above, that, in any event, the applicant could safely relocate to Kathmandu. The Tribunal also looked at personal circumstances of the applicant and found that any such relocation would be reasonable in the circumstances ([81] at CB 85 to [84] at CB 86).
I note that while it is not explained why the Tribunal, given its earlier findings, went on to consider relocation. However, there is no error that I can see in it having done so.
The Application to the Court
The grounds of the application to the Court are in the following terms:
“1. During the interview, opportunity to provide additional information was not given.
2. Adverse concerns regarding my claims were not discussed.
3. Decision was made on speculation without any investigations.”
Before the Court
At the first court date in this matter, I indicated to the applicant that the grounds as stated were deficient in a number of ways in light of the fact that, for him to succeed, the Court would be required to find that the Tribunal fell into jurisdictional error. That is, committed some legal mistake. The applicant displayed some lack of understanding that the Court’s role was limited on judicial review to discern legal mistake, and had no power to grant the visa that the applicant sought.
In any event, the applicant was referred to a lawyer on the panel of the Court’s “RRT Legal Advice Scheme” for the purpose of assisting the applicant in a number of ways, including to give him an understanding of the nature of the proceedings that he had instituted, to give him advice as to whether any legal error could be discerned in the Tribunal’s decision, and, if necessary, how to go about putting evidence before the Court in support of any such assertion of legal error.
The applicant confirmed today that he did attend to that lawyer and that he did obtain legal advice. However, nothing further has been put before the Court.
Today, when I called upon the applicant to explain his grounds, some brief explanation was given on each, which I will deal with in a moment, but it is clear that the applicant’s case has not advanced, and I say this respectfully, from the poor situation in which it was first presented to the Court.
Today the matter was initially listed for further directions. The applicant appeared in person and was assisted by an interpreter in the Nepalese language. Mr O Jones appeared for the respondent Minister. The Minister sought that the application be dismissed on the basis that there was nothing of substance that has been put by the applicant that would reveal jurisdictional error upon the part of the Tribunal.
In looking at the material before the Court, and considering what has been said, I can only agree with the Minister that it is appropriate that the matter be dismissed today. Any further protraction of these proceedings would serve no useful purpose.
There is no indication from the applicant that there is any prospect that he is able to put anything further before the Court. In addition to confirming that he consulted with the lawyer on the Court’s “RRT Legal Advice Scheme” panel, the applicant confirmed that he had taken no other steps to obtain any other legal advice.
In the circumstances, therefore, it is appropriate that I agree with the Minister’s request.
Consideration of the Grounds of the Application
Turning to the grounds, the applicant confirmed, in relation to ground one, that the interview opportunity that he spoke of was the hearing before the Tribunal. Despite opportunity, the applicant has put no evidence before the Court in support of this ground. For example, he has put no transcript of the Tribunal hearing before the Court. Therefore, in those circumstances, the Court can only proceed on the only record of what occurred at the hearing. That is, the Tribunal’s own account, contained in its decision record. In these circumstances, it is not open to the Court to make assumptions, or to draw inferences, as to what may otherwise have happened at the hearing (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241). The Court can only proceed on the evidence actually before it.
In any event, the applicant’s explanation today was that he was not satisfied with the conduct of the Tribunal hearing, because it was a “conversation”. It is not clear what the applicant means by that. If he means that it lacked some gravity of a more formal occasion, again, there is no evidence to support any claim that the Tribunal approached the hearing in any manner such as to show that it did not give the applicant a meaningful opportunity to give his evidence and put forward his arguments in support (Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188 (“Mazhar”) at [31] per Goldberg J).
Nor, on the material before the Court, can I see that the applicant was denied any opportunity to put any additional information before the Tribunal. Nor did the applicant claim that he had other information of a specific nature that the Tribunal denied him the opportunity to put forward.
Ground two claims that adverse concerns regarding his claims were not discussed. I have had regard to such authorities as Mazhar and the like, which deal with a fair opportunity to present an applicant’s case at Tribunal hearings. I have also had regard to what the High Court said in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. It is quite clear on the Tribunal’s account of the hearing that the issues determinative of the review were raised and were discussed with the applicant. In particular, and for example, the Tribunal records that it asked the applicant to comment on documentary evidence on which it subsequently relied and, further, that it discussed his personal circumstances and his claimed account of past events in Nepal, and the number of incidents of harm which he said was occasioned by the Maoists.
The third ground alleges that the Tribunal’s decision was made on “speculation” without any investigation. In essence, I cannot see that that is really anything more than a challenge to the facts as found by the Tribunal. The applicant seeks impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). What the applicant has described as speculation, in my view, and having regard to the Tribunal’s decision record, is that the Tribunal understood that it was required by s.65 of the Migration Act to reach a requisite level of satisfaction that, relevantly, the applicant met the definition of a refugee as set out in Art.1A(ii) of the Refugees Convention (with reference to s.36(2) of the Act) (SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225, NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
The fact that the Tribunal preferred documentary evidence as to the political and other relevant circumstances in Nepal, contrary to the applicant’s assertions, is not speculation. Rather, it is the Tribunal’s evaluation of the evidence before it, in seeking to determine whether it could reach the requisite level of satisfaction that the applicant met the relevant criterion for the grant of the protection visa. This is within jurisdiction. The choice of country information and the weight to be assigned to it is a matter for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per the Court).
As to the investigations, the applicant’s complaint before the Court, as I understood it, this was, in effect, a complaint that the Tribunal preferred what was described as “general information” rather than what the applicant told it. That implies that the Tribunal should have conducted some further investigation to obtain further information of a more detailed nature. There is no general duty on the Tribunal to further investigate an applicant’s submissions (Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; (2004) 78 ALJR 992 at [43] per Gummow and Hayne JJ; WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at [24] per Heerey, Nicholson and Mansfield JJ). In any event, this is not a case contemplated in such authorities as Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 (at [20] – [25]) and SZMJM v Minister for Immigration & Citizenship [2010] FCA 309 (at [30] – [32] per Bennett J). There is no obvious inquiry about a critical fact that the Tribunal may have been obliged to have pursued.
Conclusion
In all, therefore, nothing that the applicant has put before the Court reveals jurisdictional error on the part of the Tribunal. Nor can I otherwise see that any error is revealed on the material that has been put before the Court. It is appropriate, therefore, that the application made to the Court be dismissed. I will make that order accordingly.
Costs
It is also appropriate that an order for costs be made in this matter. I hear the applicant when he says that he does not have a work permit, so he cannot work and therefore cannot generate income and funds. However the lack of funds is not a sufficient reason not to make the order in the normal, or the usual, course.
As to the amount, as I indicated to the applicant, it is a large amount by any measure. However the applicant’s capacity to pay that amount, or the fact that he has to ask his father for money, must be considered in the context of the relevant test. This is whether the amount sought is reasonable in all the circumstances. Having regard to the work that has actually been done by the Minister’s solicitors, I am satisfied that the amount sought is a reasonable amount. I will make the order in that amount.
[I note for the record, in case there are any consequences that fall from the nature of the proceeding today, it was a final hearing.]
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 31 January 2013
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