SZRZK v Minister for Immigration

[2013] FCCA 1598

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRZK v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1598

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s. 424A

Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485

Applicant: SZRZK

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2266 of 2012

Judgment of: Judge Manousaridis

Hearing date: 30 August 2013

Delivered at: Sydney

Delivered on: 11 October 2013

REPRESENTATION

The Applicant in person.

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs.

3. The name of the first respondent recorded in the application is amended to “Minister for Immigration and Border Protection”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2266 of 2012

SZRZK

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a national of Nepal, seeks judicial review of a decision of the second respondent (Tribunal) which affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a protection visa.

2. The ground on which the applicant sought a protection visa was fear of persecution by Maoists if he returns to Nepal. The Tribunal affirmed the delegate’s decision because it found the applicant was not a witness of truth and that his account of the events on which his claims were based is false.[1]

   [1] CB185 [167]

3. In his application to this Court, the applicant states three grounds of review. The first is that the Tribunal did not investigate the applicant’s claims adequately, and made “decision with speculation”. The second ground is that the Tribunal did not offer the applicant “opportunities to provide further documents”. And the third ground is that correspondence was “sent to wrong address”.

4. In addition, at the hearing, the applicant submitted the Tribunal closed its mind to the applicant’s claim. Although this claim was not included as a ground in his application, I permitted the applicant to make such submissions as he desired in support of that claim.

5. Before I consider these claims, it will be useful to set out the claims the applicant made before the Tribunal, and the course of the proceedings before the Tribunal.

The applicant’s claim for protection

1. In his application for a protection visa, the applicant claimed he joined the Nepal Communist Party in 2001;[2] in 2004 the army killed two Maoists on land which the applicant owned which led the Maoists to look for the applicant, and to seek to extort money from his family;[3] this resulted in the applicant fleeing to Kathmandu, but in March 2005 Maoists attacked him causing him injuries which required treatment in a hospital for twelve days;[4] the applicant then went to live in the area of Beni where he worked as a labourer;[5] while in Beni, Maoists continued to ask the applicant’s parents of his whereabouts;[6] in 2009 he returned to Kathmandu, and there obtained a visa for entry into Australia;[7] after he entered Australia, the applicant received reports from his family that the Maoists continued to look for him.[8]

   [2] CB164 [23]

   [3] CB164 [23]

   [4] CB164 [23]

   [5] CB164 [23]

   [6] CB164 [23]

   [7] CB164 [23]

   [8] CB164 [23]

2. The applicant supported his application to the Tribunal with a statutory declaration which gave more detailed information than the information he included in his application for a protection visa.[9] The claim the applicant set out in his statutory declaration, however, was in essence the same as the claim he made in his application for a protection visa.

   [9] CB166-169 [32]

3. In addition, the applicant provided to the Tribunal a number of documents, most of them letters[10]. Some of the letters contain statements to the effect that the applicant has been the subject of threats by the Maoists. One of these is from the Nepal Maoist Victims Association (NMVA).[11] Three letters are from the United Tamang National Freedom Front Nepal. Two of these demand money,[12] and one, dated 16 July 2011, expresses displeasure at the applicant having departed Nepal and threatens physical retribution should he return to Nepal.

   [10] CB165 [31]

   [11] CB165 [31], CB71

   [12] CB165 [31], CB73, CB76

The course of proceedings before the Tribunal

1. The applicant first appeared before the Tribunal on 24 May 2012. The applicant’s representative expressed concerns about the accuracy of the translations the interpreter was making. The Tribunal member elected to continue with the hearing after which the Tribunal issued a letter (424A letter) pursuant to s.424A of the Migration Act 1958 (Act). Shortly after 19 June 2012, however, the applicant’s representative provided to the Tribunal a statutory declaration from an accredited interpreter in the Nepal and English languages stating there had been errors of interpretation. The Tribunal accepted what was said in the statutory declaration and decided to conduct a fresh hearing and to disregard the evidence the applicant gave at the hearing of 19 June 2012.

2. A fresh hearing took place on 24 August 2012. The Tribunal noted that a “different interpreter was obtained for this hearing and the applicant stated that he could understand her”.[13] The Tribunal also noted in its reasons the following:[14]

   At the beginning of the hearing, the Tribunal told the applicant that if, at any stage of the hearing, he could not understand the interpreter or express himself properly then he should say so. The hearing proceeded without any objection from the applicant or his representative to the interpreter and, to the Tribunal’s observation, the applicant communicated through the interpreter without difficulty.

   [13] CB169 [42]

   [14] CB169 [43]

Ground 1 – failure to properly investigate the applicant’s claim

1. The applicant claims the Tribunal “did not investigate my claims adequately and made decision with speculation”. To assess this claim, it will be necessary to first identify what the Tribunal did.

2. First, the Tribunal read, and set out in its reasons the substance of the documents the applicant submitted in support of his application for a protection visa before the delegate and before the Tribunal.[15] Second, the Tribunal conducted a hearing in which the applicant gave evidence. The Tribunal summarised in detail the evidence the applicant gave before the Tribunal.[16]

   [15] CB165-168, [31] - [33]

   [16] CB169-170, [45] - [59]

3. Third, the Tribunal questioned the applicant. It asked questions about whether the applicant received threatening telephone calls from the Maoists;[17] the circumstances in which the applicant became a member of the Nepal Maoist Victims Association and the consistency of these answers with other answers the applicant gave;[18] the extent to which the applicant’s cousin was the object of attention from the Maoists, the nature of that attention, why the applicant would stay with his cousin given the Maoists’ interest in the applicant’s cousin, and differences between the answers the applicant gave to the Tribunal and what the applicant said in his statement about his cousin;[19] why the applicant did not apply for a protection visa earlier than he did;[20] and whether the applicant wished to make any comment about the possibility of the Tribunal not placing weight on the documents the applicant submitted in support of his application if the Tribunal was to find that the applicant’s evidence was not credible.[21] The Tribunal also asked the applicant questions in relation to the matters raised by the 424A letter about the application for a student visa made by a woman jointly with the applicant who claimed the applicant was her husband, and in particular, documents which suggested he planned to come to Australia in 2008.[22]

   [17] CB171 [60] - [63]

   [18] CB171-172 [64] - [69]

   [19] CB172-174 [70] - [85]

   [20] CB174-175 [86] - [95]

   [21] CB175-176 [96] - [97]

   [22] CB176-177 [98] - [111]

4. Fourth, the Tribunal concluded that the applicant was not a witness of truth, and set out its reasons for that conclusion. The Tribunal found the applicant made inconsistent statements about his receiving threatening telephone calls from the Maoists;[23] the applicant made inconsistent statements about his leaving the army camp at Beni and changed his statements when the Tribunal explored the inconsistencies with him;[24] the applicant gave inconsistent statements about Maoists going to his cousin’s home and changed his statements when the Tribunal explored the inconsistencies with the applicant;[25] and the applicant’s delay in applying for a protection visa was inconsistent with his claimed fear of persecution.[26]

   [23] CB178 [114] - [118]

   [24] CB178-179 [119] - 124]

   [25] CB179-180 [125] – [132]

   [26] CB180-181 [133] – [141]

5. Lastly, the Tribunal considered the documents on which the applicant relied, but decided to give the documents no weight.

6. In my opinion, this summary of what the Tribunal did indicates that the Tribunal did properly investigate the applicant’s claim; and that its conclusion that the applicant was not a witness of truth was not based on speculation. Ground 1, therefore, fails.

Ground 2 – not providing applicant opportunity to provide further documents

1. The applicant claims the Tribunal “did not offer me opportunities to provide further documents”. This ground is not particularised.

2. At the hearing, in response to my asking whether the applicant had anything to say in support of this ground, the applicant said he wanted to hand up documents which he said showed “what’s happening in my country, condition of my country”. I informed the applicant that I could not receive documents which dealt with what is happening in Nepal because that was something that could have been dealt with only by the Tribunal. In response, the applicant submitted that the Tribunal did not want to listen to him. I will deal with this submission later when I deal with the applicant’s claim of bias.

3. In my opinion, there is nothing in the material before me which suggests the applicant had not been given an opportunity to present documents or any other material to the Tribunal. This ground, too, fails.

Ground 3 – correspondence sent to wrong address

1. The applicant claims that “[c]orrespondences were sent to the wrong address”. During the hearing, the applicant confirmed that this ground related to correspondence sent by the delegate; it did not relate to anything the Tribunal did or did not do. This ground also discloses no reviewable error.

Bias claim

1. At the hearing, the applicant made the following submissions:

   I just have to say that second time they called me for the interview but they did not listen to anything I was saying; nothing at all. Whenever I said - I was trying to say what had happened to me and things in my country, they just said, “This is what happens in your country. That is what happens in your country”, and I felt that they just didn’t want to listen to me. . . .  And I feel that second time also when they called me, they didn’t look happy when I went for the interview. First time when I went, the mistakes were made by the interpreter, and I had explained everything through my solicitor but mistakes were made.

2. A difficulty in the way of my accepting these submissions is that there is not before the Court a transcript of what occurred before the Tribunal at the first and second hearing. All I have is the reasons of the Tribunal which states what occurred at the second meeting, and further states that the Tribunal disregarded the evidence the applicant gave at the first hearing “in view of the objections made to the interpreter used at the hearing”.[27] The Tribunal’s reasons do not support the applicant’s submission. The Tribunal did indeed listen to what the applicant had to say. There is no merit, therefore, in the applicant’s claim of bias.

   [27] CB184 [164]

Tribunal’s disregard of documents

1. Although not raised as a ground by the applicant, I have considered whether the Tribunal made any jurisdictional error in the reasoning by which it concluded to attach no evidentiary weight to the documents the applicant provided it. In particular, I propose to consider whether the Tribunal’s reasoning is consistent with the following observations of North and Lander JJ in Minister for Immigration and Citizenship v SZNSP:[28]

   Several further observations should be made concerning the type of situation addressed in Applicant S20/2002 77 ALJR 1165; 198 ALR 59. The case does not relieve the RRT from giving consideration to corroborative evidence. It concerns only the timing of that consideration. The case establishes that the RRT does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence.

   The RRT would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. Applicant S20/2002 77 ALJR 1165; 198 ALR 59 does not sanction a practice of disregarding corroborative evidence. It still requires that the corroborative evidence be assessed and weighed in the balance with all the other evidence.

   [28] (2010) 184 FCR 485 at 492 ([37] and [38]); Katzmann J agreeing.

2. I am satisfied that although the Tribunal made credit findings adverse to the applicant without reference to the documents the applicant provided to the Tribunal, the Tribunal did not disregard the documents. Although the Tribunal deals with documents in a number of passages,[29] the following passage from its reasons illustrates its approach:[30]

   The Tribunal does not give evidentiary weight to these letters or any other documents because, for the reasons given above the Tribunal finds the applicant is not a witness of truth and these documents do not outweigh those concerns.

   [29] CB182 [149] [151], CB183 [154] [156] [157]

   [30] CB183 [153]

Conclusions and disposition

1. The applicant has not made out any of his grounds of review. I am satisfied the Tribunal made no jurisdictional error in its review of the delegate’s decision and in its deciding to affirm that decision.

2. I propose to order that the application be dismissed, and that the applicant pay the Minister’s costs. I will also order that the Minister’s title as it appears in the application be amended to reflect his current title.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 11 October 2013