SZRVK v Minister for Immigration, Multicultural Affairs & Citizenship

[2013] FCCA 965

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRVK v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP & ANOR [2013] FCCA 965

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal erred in excluding from consideration in relation to the complementary protection provision in s.36(2)(aa) of the Act, the matters which the Refugee Review Tribunal had determined in relation to the protection claims in s.36(2)(a) of the Migration Act 1958 (Cth) and article 1A(ii) of the Refugees Convention.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth) Pt 8. Div 2, ss.36, 474.

Cases cited:
SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012)
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 and 291
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

Applicant: SZRVK

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2143 of 2012

Judgment of: Judge Emmett

Hearing date: 11 June 2013

Date of Last Submission: 11 June 2013

Delivered at: Sydney

Delivered on: 31 July 2013

REPRESENTATION

Counsel for the Applicant: Mr John Young

Solicitors for the Applicant: Dehsabzi Lawyers

Counsel for the Respondents: Mr Tim Reilly

Solicitors for the Respondents: Sparke Helmore

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2143 of 2012

SZRVK

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 23 August 2012 and handed down on 23 August 2012 (“RRT”).

2. The applicant claims to be a citizen of Afghanistan and of Sunni Muslim faith and Tajik ethnicity.

3. The issue in this case is whether the RRT erred in excluding from consideration in relation to the complementary protection provision in s.36(2)(aa) of the Act, the matters which the RRT had determined in relation to the protection claims in s.36(2)(a) of the Act and article 1A(ii) of the Convention. This issue is considered below in the context of considering whether the RRT’s decision is affected by jurisdictional error.

4. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s protection visa application claims and the decision of the delegate of the First Respondent and a summary of the RRT’s review and decision.

Background

1. The applicant arrived in Australia on 7 July 2007 on a passport issued in his own name and a subclass 300 (Prospective Spouse) visa which was valid until 11 March 2008.

2. In September 2007, the applicant’s relationship with the visa sponsor broke down and on 7 March 2008, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship under the Act.

3. On 24 February 2012, a delegate of the Department (“the Delegate”) refused the applicant’s application for a protection visa.

4. On 7 March 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

5. On 22 August 2012, the RRT affirmed the decision of the Delegate not to grant a protection visa.

6. On 28 September 2012, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

1. In their written submissions in SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012), Minter Ellison, the solicitors for the first respondent, attached a useful summary of the relevant legislative scheme. That summary is as follows:

   “1. Under section 65(1) of the Act, the first respondent may grant a visa if he is satisfied of a number of matters, including that the prescribed criteria for the particular visa have been satisfied.

   2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (Regulation 2.01 of the Migration Regulations 1994 (the Regulations) and to the Regulations).

   3. Section 36(2)(a) of the Act provides that:

   (2)  A criterion for a protection visa is that the Applicant for the visa is:

   (a)   a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

   4. The 'Refugees Convention' is defined in section 5 of the Act as meaning the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The 'Refugees Protocol' is defined in that section as meaning the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

   5. Subject to certain exceptions, provided for in section 36(3) of the Act, Australia has protection obligations under the Refugees Convention to persons who satisfy the definition of 'refugee' in Article 1 of the Refugees Convention. Article 1A(2) of the Refugees Convention defines a refugee as a person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

   6. Section 36(2)(aa) of the Act provides that:

   (2)  A criterion for a protection visa is that the applicant for the visa is:

   (aa)  a non-citizen in Australia (other than a 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.

   7. Under section 411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

   8. Relevantly, in conducting that review, the second respondent must comply with the natural justice hearing rule, the requirements of which are exhaustively stated in Division 4 of Part 7 of the Act (section 422B(1) of the Act). That Division contains sections 424A and 425, which provide that:

   424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite applicant to appear

   (1)  The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   9. Under section 474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under section 474(1)(a) of the Act, a privative clause decision is final and conclusive.

   10. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.”

The applicant’s application for a protection visa

1. The applicant provided a statement in support of his protection visa application in which he made the following claims:

   a)The applicant is a 34 year old male and originally from Kabul, Afghanistan.

   b)When the applicant was 10 years old, he and his family fled Afghanistan because of the Russian invasion and lived in a refugee camp for 18 years.

   c)The applicant is concerned about returning to Afghanistan as the Taliban will see that he does not have a beard and ask him why he does not pray.

   d)The applicant or his family have never been involved with a political party.

   e)The applicant fears that murderers and kidnappers believe that persons with relatives living overseas are sent money and must be wealthy. He fears that if he returns to Afghanistan, he will be persecuted because he is a person with family members living overseas.

   f)The applicant’s relatives visited Kabul and said that their neighbour’s son had been murdered because his father had refused to give money to a kidnapper who believed the father was sent money from overseas relatives.

   g)The applicant is afraid that if he was to return to Kabul, he would be targeted by kidnappers and murderers.

The Delegate’s decision

1. On 5 January 2012, the applicant attended an interview with the Delegate.

2. On 24 February 2012, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention.

3. The applicant told the Delegate that his religion is Sunni Muslim, rather than Shiaa as stated in his protection visa application. The Delegate noted that the applicant confirmed that he speaks Dari and Pashto fluently and that he does not differentiate between a Tajik and a Pashtun. The Delegate noted that the applicant confirmed that neither he nor any member of his family has suffered harm or mistreatment for any Convention reason while living in Afghanistan.

4. The Delegate noted that the Applicant claimed that the harm that he and his family had fled in 1988 was general violence due to the conflict that was taking place at that time in Afghanistan. The applicant said that his half brother had remained in Afghanistan during the reign of the Taliban and had not encountered any difficulties. The applicant referred to historical disputes between the Pashtuns in the North and the Pashtuns in the South.

5. The applicant told the Delegate that if he returned to Afghanistan he would be of interest to the Taliban because he has two brothers living overseas and he has resided in Australia for the past four years and will be considered a spy.

6. The Delegate did not accept that the applicant would be of any interest given that he is a Sunni Pashtun / Tajik which are the dominant and most powerful religious and ethnic groups in Afghanistan.

7. The Delegate was not satisfied on the basis of independent country information before it that the applicant would be likely to be persecuted for a Convention reason because he was returning from Australia to Afghanistan. The Delegate noted that theft and extortion are likely motivations for violent incidents affecting returnees from Western countries. The Delegate did not accept that the applicant had any profile that would be of particular interest to the Taliban.

8. The Delegate accepted that the applicant may have an understandable fear of criminal activity that affects the general population and that all citizens would be at risk of such criminal activities in Afghanistan.

The RRT’S review and decision

1. On 7 March 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

2. On 16 May 2012, the RRT wrote to the applicant informing him that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 28 June 2012 to give oral evidence and present arguments.

3. On 28 June 2012, the applicant attended the RRT hearing and gave evidence.

4. The RRT noted a pre-hearing submission received by it from the applicant on 26 June 2012 in which the applicant stated that his ex-wife and her current husband belonged to the Tajik tribe and lived in the South of Kabul, whereas the applicant belongs to the Pashtun tribe. The applicant stated that if he was to return to Afghanistan he would be killed by his wife’s family as a result.

5. The applicant confirmed to the RRT that he is a Pashtun and his language is Pashto and that both of his parents are Pashtun. The RRT put to him that the applicant had told the Delegate that his father was Tajik and that in his protection visa application he has stated that he is a Tajik. The RRT noted the applicant’s response that he did not know what he had provided in his protection visa application, but that the first generation of his family, about 300 years ago, were Tajiks but now they are Pashtun and speak Pashtun.

6. The RRT then explored the applicant’s claims with him in significant detail and put to him matters of concern it had arising out of his evidence, noting the applicant’s responses.

7. The applicant stated that he came to Australia in 2007 after being sponsored by his ex wife. The RRT asked the applicant about his early life, his family, his education and his work history. The applicant confirmed his concern that his ex wife’s family in Afghanistan would kill him if he was to return because that is the tradition.

8. The applicant stated the other reason that he did not wish to return to Afghanistan is because he had lived in Australia for about five years and that the Taliban are active in Kabul and he will be at risk as a returnee because they will think he is a spy for the West.

9. The RRT put to the applicant inconsistencies in his evidence and that the RRT may find that he has changed and shifted his evidence and been untruthful. The applicant again confirmed that he is Pashtun and his parents are Pashtun.

10. The RRT also put to the applicant that when he was interviewed at length by the Delegate, at no point did he mention any fear of his ex-wife’s family in Afghanistan or the cultural differences that may lead them to harm him. The RRT put to the applicant that his failure to raise those claims may lead the RRT to find that the claims had been manufactured to strengthen his claims for a protection visa. The RRT also put to the applicant that it may find he is not a credible or reliable witness and disbelieve his claims. The RRT put to the applicant that it was unable to find any independent country information that suggested that the family of a divorced girl would seek to kill the ex husband due to differences in customs and culture.

11. The RRT also put to the applicant that independent country information suggested that there is no real chance that the applicant would be subjected to a real chance of persecution for a Convention reason because he had lived in Australia for a few years. The RRT put to the applicant that it had found no credible reports of returning Afghans being targeted for kidnapping and extortion in Kabul for the reason of having family members overseas.

12. Following the hearing, the applicant’s representative sent a post hearing submission to the RRT on 9 July 2012 requesting another ten days to submit “all the submissions”, as well as unspecified documents that he was expecting to arrive from Afghanistan.

13. On 30 July 2012, the RRT wrote to the applicant informing him that the RRT had not received the submissions or material referred to in the representative’s letter.

14. On 2 August 2012, the RRT received a submission from the applicant’s representative submitting that due to the intensity of the war situation in Afghanistan, the applicant could not return and asking the RRT to give consideration to the fact that the applicant is a “Pasto” (sic). The RRT noted that the applicant’s submission referred to country reports in relation to the mistreatments of Pashtuns by the Northern Alliance, however, no reports were provided to the RRT. 

15. The RRT identified the applicant’s Convention claims to be based on  race, imputed political opinion and membership of a particular social group. The RRT summarised his claims as a fear of harm from his ex-wife’s relatives in Afghanistan, a fear of being extorted for money for having lived in Australia and having family members who resided in other countries. Further, the applicant feared the Taliban because he had lived in Australia for the past few years and the Northern Alliance because he a Pashtun of Arab ethnicity.

16. The RRT found that the applicant was not a credible, truthful or reliable witness.

17. The RRT referred to various changes made by the applicant in his evidence with earlier information provided by him and other internal inconsistencies and evidence shifts. In respect of each of its concerns, the RRT gave the applicant an opportunity to comment. However, ultimately, the RRT did not find the applicant’s explanations to be satisfactory.

18. The RRT found the applicant’s post hearing submission to be confused and contradictory. The RRT was not prepared to place any weight on the submission made by the applicant’s representative regarding his race and religion or any fears the applicant holds for those reasons.

19. The RRT found the applicant’s claims that he is Pashtun, and not Tajik, to be contrived and manufactured to strengthen his case for a protection visa. The RRT found that the shifts in the applicant’s evidence throughout the process in relation to his ethnicity undermined his credibility and the truth of his evidence. The RRT found the applicant’s evidence in relation to his claimed Pashtun ethnicity to be false and found that he holds no genuine fear on that basis.

20. The RRT rejected the applicant’s claims that he was at risk from his  ex-wife’s family, given the lateness of the claim and the fact that such a notion was unsupported by any independent country information or other evidence.

21. The RRT found the applicant’s claimed fear of the Northern Alliance to be “manifestly false” and again was a claim not put forward by the applicant in his application for a protection visa, at the interview before the Delegate, or at the hearing before the RRT. It arose for the first time in the post hearing submission by the applicant’s representative. To the extent that the applicant claimed that he was at risk of harm because of his claimed Pashtun accent or deficiencies in his Dari language skills, the RRT did not accept such a claim having regard to its adverse credibility findings in respect of the applicant.

22. The RRT found that the information before it did not indicate that those who have returned after spending considerable time in the West, whether or not they have unsuccessfully sought protection abroad, are targeted in Kabul for that reason. The RRT found no credible evidence in independent country information before it that returnees in Kabul are targeted for extortion because they are perceived to have money or because some have family members living overseas.

23. The RRT also found that there was no credible country information to suggest that the Taliban have been subjecting the diverse population of Kabul to regular harassment on any of the grounds claimed by the applicant, including that he does not have a beard.

24. The RRT found that the applicant’s claims relating to general violence in Afghanistan not to be Convention related.

25. The RRT did not accept that the applicant has a well founded fear for a Convention reason in Afghanistan.

26. In considering the alternative criterion, the RRT noted that the applicant had made no specific claims in relation to the complementary protection criteria referred to in s.36(2)(aa) of the Act.

27. The RRT concluded that there are no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm.

28. Accordingly, the RRT concluded that the applicant does not meet the refugee criterion in s.36(2)(a) or the alternative criterion in s.36(2)(aa) of the Act and affirmed the decision under review.

The proceeding before this Court

1. The applicant was represented before this Court by Mr John Young, of counsel.

2. At the commencement of the hearing, by consent, Mr Young was granted leave to rely on a single ground in a further amended application filed at the hearing. That ground is as follows:

   “The Second Respondent made jurisdictional error in that it excluded from consideration in relation to the complementary protection provision s36(2)(aa) the matters which the Second Respondent had dealt with in relation to the protection claims in s36(2)(a) and Art 1A(2).”

3. Counsel for the applicant, Mr Young submitted that the complaint as enunciated in the ground of the further amended application  arises from the following in the RRT’s decision record:

   “The applicant has made no specific claims against the complementary protection criterion. On the basis of the evidence available to it, other than the matters discussed and dealt with above there is nothing before the Tribunal giving rise to believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm. With regard to the applicant’s fears of general violence, there was no other evidence before the Tribunal to suggest that the violence the applicant fears is faced by him personally. The Tribunal is satisfied that the applicant fears violence faced by the population generally and not by him personally. The Tribunal finds that there is taken not to be a real risk that the applicant will suffer significant harm in Afghanistan.”

4. Mr Young submitted that by using the words, “other than the matters discussed and dealt with above”, the RRT was removing from its consideration of the alternative criterion its consideration of findings in relation to the applicant’s Convention based claims.

5. Mr Young submitted that if an applicant makes a claim under the Convention, that claim together with any other specific claims or material must be considered in relation to considering the complementary criterion. Mr Young submitted that the RRT excluded from consideration the matters dealt with in relation to the applicant’s protection claims by reason of the use of the wording “other than the matters discussed with and dealt with above”. Mr Young identified the matters to be assessed in relation to complementary protection criterion as the applicant’s risk as a returnee to Afghanistan and whether the applicant was at a risk of harm on the basis of his part Pashtun ethnicity.

6. I do not accept the applicant’s construction of the language used by the RRT. I do not accept that on a fair reading of the RRT’s decision record, the RRT was excluding its consideration of those issues when considered in the context of the Convention. The RRT made a clear finding that it did not accept that the applicant was at risk as a returnee from a Western country. It made a clear finding that the applicant was a Pashtun and that he was not at risk for that reason. I do not accept Mr Young’s submission that the evidence before it suggested otherwise. The RRT found the applicant’s evidence in relation to his claimed Pashtun ethnicity to be false and that he holds no genuine fear on that basis. It found his claims that he is Pashtun to be contrived and manufactured to strengthen his case for a protection visa. The RRT accepted that the applicant’s mother is of Pashtun ethnicity, but found that his father’s side are all Tajik and the applicant identified strongly with his Tajik ethnicity and considers himself to be a Tajik. In any event, the RRT did not accept that if the applicant returned to Afghanistan, that he was at risk of harm for any ethnic reason.

7. The RRT also found that there was no credible information to support the applicant’s claim to be targeted for extortion because he is perceived to have money or because he has family members living overseas.

8. The RRT clearly considered the applicant’s claimed fears of general violence. However, the RRT found there was no other evidence that the violence the applicant feared was faced by him personally. It found that the violence feared by the applicant is faced by the population generally. In those circumstances, the risk the applicant fears is one faced by the general population and is excluded from consideration of the complementary protection criterion in s.36(2)(aa) by reason of s.36(2B)(c).

9. A fair reading of the RRT’s words “other than the matters discussed and dealt with above”, in context, mean that the applicant had made no specific claims in support of complementary protection, and on the basis of the evidence available to the RRT, there was no other evidence to suggest that the applicant may be entitled to complementary protection. A fair reading of the RRT’s word in context make clear that the RRT was simply saying that there was no evidence before it to support complementary protection, none provided by the applicant and no other evidence, other than the evidence with which he had already dealt and made findings in its decision record.

10. I accept counsel for the first respondent’s written submission that in context, those words “other than the matter’s discussed and dealt with above” mean no more than that there are no additional claims engaging the complementary protection provisions, other than the claims made by the applicant to be a refugee and in respect of which the RRT has made findings. I accept counsel for the first respondent’s written submission that:

    “The Tribunal at CB 210 para 81 is plainly considering whether the applicant is owed protection obligations under the Complementary Protection provisions on the basis of its factual findings concerning his refugee claims, not excluding consideration of those claims and findings at all.” 

    I also accept that this reading is reasonable in the circumstances in that the applicant did not make any specific claims under the complementary protection provisions. However, the RRT nevertheless considered whether the applicant was owed protection obligations under those provisions and concluded that he was not.

11. Those findings were open to the RRT on the evidence and material before it and for the reasons it gave.

12. The RRT’s decision record and findings and conclusions should be read fairly without an eye keenly focused on error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 and 291; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at para 56).

13. Accordingly, the ground of the further amended application is not made out and the proceedings should be dismissed with costs. 

Conclusion

1. A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The RRT also put to the applicant independent country information before it and invited the applicant to comment upon it. The RRT also identified independent country information to which it had regard. The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  31 July 2013