SZSKV v Minister for Immigration

[2014] FCCA 384

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSKV v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 384

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – whether Tribunal misunderstood applicant’s claims – whether Tribunal member biased – whether Tribunal fell into jurisdictional error.

Legislation:  

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

Refugee Review Tribunal, Re; Ex parte H (2001) 179 ALR 425
SBBS v Minister for Immigration and Multicultural Affairs (2002) 194 ALR 749
SZHVL v Minister for Immigration and Citizenship [2008] FCA 356

Applicant: SZSKV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3018 of 2012

Judgment of: Judge Raphael

Hearing date: 20 February 2014

Date of Last Submission: 20 February 2014

Delivered at: Sydney

Delivered on: 20 February 2014

REPRESENTATION

For the Applicant: In Person

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant pay the respondents’ costs assessed in the sum of $5,000.00.

3. The name of the first respondent be amended to “Minister for Immigration and Border Protection”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 3018 of 2012

SZSKV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Nepal who arrived in Australia on 14 December 2008 as the companion of a person who came here on a student visa.  When that person left the country in 2011 to go to the United States, the applicant made a claim for a Protection (Class XA) visa some five days before the student visa was due to expire.  On 9 March 2012, a delegate of the Minister refused to grant the protection visa, and the applicant applied for review of that decision from the Refugee Review Tribunal.  The applicant attended a hearing before the Tribunal, which, on 13 November 2012, determined to affirm the decision under review.

2. The claims which the applicant made in support of his allegation that Australia owed him protection obligations were that he was a small businessman in Nepal who had run foul of the Maoists because they had demanded money from him which he was unable to pay.  He had made some small payments to them, but when they asked him for 250,000 rupees in July 2008 he was afraid and left his village for Kathmandu, where he stayed with various people until he left for Australia.

3. The Tribunal questioned the applicant upon his story and found inconsistencies between what he had said in his original statement and what he was then telling the Tribunal.  These matters were pointed out to the applicant:

   “The applicant’s evidence about a crucial aspect of his account and, the events that precipitated his flight from Nepal, is inconsistent.  As discussed above, to the Tribunal, the applicant said that two or four days after the Maoists demanded he pay the  sum of Rs 250,000 he fled from his village (and eventually Nepal) and before doing so complained to the police about a demand made by the Maoists.  He told the Tribunal it was one month after the demand was made that Maoists returned and closed down his business and took his property. 

   In stark contrast, in his statement lodged with his protection visa application, the applicant said that the demand that he pay Rs 250,000 was made (in April 2008) and three months later (in July 2008), because he had not paid that amount, Maoists confiscated his business and property following which he complained to the police who did not take any action and so the applicant decided he had to leave to Nepal to save his life.

   …

   Similarly, in his statement, the applicant said that when detained by the police he was made to lie down and tortured.  To the Tribunal, he said he was beaten and maltreated but that was when he was standing up.  Again he claims a mistake was made in the preparation of the statement but the Tribunal does not believe that is the reason for the inconsistency between his accounts.” [56, 57, and 59 CB138]

4. Based upon these discrepancies, and also the important matter of the amount of time that the applicant allowed to pass between his arrival in Australia and the time he made an application for a protection visa, the Tribunal came to the conclusion that he was not a witness of truth, and it could not accept the claims that he had made.

   “The Tribunal finds highly speculative and vague his claim that on return to Nepal criminals or other groups (including terrorists) will harm him because he has been absent from the country.  As the applicant is not a witness of truth, the Tribunal finds he is not genuinely in fear of any harm in Nepal.  As stated above, there is no credible evidence as to why the applicant does not wish to return to Nepal.” [72 CB140]

5. The Tribunal found that there was no credible evidence that if the applicant returned to Nepal he would suffer persecution based on any convention ground, nor would he suffer persecution based upon the grounds which were covered in the complementary protection regime under s.36(2)(aa) of the Migration Act 1958 (Cth).

6. On 18 December 2012, the applicant filed an application for review of that decision with this court.  He made out five grounds of review.  The first was:

   “Refugee Review Tribunal member ignored me for my safety based on his failure to understand my claims of fear on return to Nepal.”

   There are no particulars of this claim, and after perusing the Tribunal’s decision record, it seems to the court that the Tribunal fully understood his claims of fear to return;  it just did not believe them.  Thus, this ground cannot succeed.

7. The second ground was:

   “Refugee Review Tribunal member did not assess my claims according to good faith.”

   This claim can be associated with the third, which is:

   “Tribunal member found me not to be a witness of truth because the member had no intention to believe me at all and whatever evidence or response I had truthfully given was viewed as no credible evidence.  The Tribunal member intentionally made grounds for not believing me or my claims.”

   This is clearly a claim of bias on the part of the Tribunal member.  It is now well accepted that a claim for bias must be clearly alleged and proved;  SBBS v Minister for Immigration and Multicultural Affairs (2002) 194 ALR 749. To the extent that the claim might be one for apprehended bias although, to my mind, it does not read that way, the applicable test is whether a fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue, and the conduct which is said to give rise to an apprehension of bias might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided: Refugee Review Tribunal, Re; Ex parte H (2001) 179 ALR 425 at [27-28]. The applicant has not provided the court with any particulars or evidence that would illuminate these grounds, and, again, there is nothing that the court has seen in the decision record that would assist him. In so far as that record is concerned, as McKerracher J said in SZHVL v Minister for Immigration and Citizenship [2008] FCA 356:

   “It would be a rare and extreme circumstance that bias on the part of the Tribunal would be established simply by reference to the reasons produced by the Tribunal: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J. See also SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16] per Tamberlin, Mansfield and Jacobson JJ.”

8. The fourth ground of application was:

   “Refugee Review Tribunal member’s decision is unfair.”

   This claim is not particularised, and the applicant did not address it today.  The court is unable to guess at what might be the unfair nature of the decision, but one certainly does not stand out from a reading of the record.

9. The final ground put by the applicant was:

   “I argue that the Tribunal member’s decision in my case has been affected by an error of law.”

   The error of law is not identified.  It could refer to the matters previously discussed, or it could refer to some novel error which neither the court nor the legal representative of the Minister has been able to discover.  Regrettably, the applicant did not provide any clues.

10. The applicant appeared on his own behalf before the court.  He told that he had a problem if he went back to Nepal, and he would like to live here longer.  He also told that he needed justice and would like his case to be heard again.  The definition of justice found in the Oxford English Dictionary online is:

    “The maintenance of what is just or right by the exercise of authority or power.”

    If this is what the applicant has asked for, I believe he has been given it.  If, on the other hand, he associates justice with an acceptance of his argument, then I am afraid that is neither the definition of the word, nor something the court can provide him.  The application is dismissed.  The applicant shall pay the respondent’s costs, which are assessed in the sum of $5,000.00.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  4 March 2014