SZSLJ v Minister for Immigration & Border Protection

[2013] FCCA 1756

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSLJ & ANOR v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2013] FCCA 1756

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision was affected by jurisdictional error – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 425, 474
Migration Regulations 1994 (Cth), reg.2.01

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

First Applicant: SZSLJ

Second  Applicant: SZSLK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3093 of 2012

Judgment of: Judge Emmett

Hearing date: 30 October 2013

Date of Last Submission: 30 October 2013

Delivered at: Sydney

Delivered on: 30 October 2013

REPRESENTATION

The Applicants appeared in person with the assistance of an interpreter

Counsel for the Respondents: Bora Kaplan

Solicitors for the Respondents: Sparke Helmore

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3093 of 2012

SZSLJ

First Applicant

SZSLK

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

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 28 November (“the RRT”).

2. The applicants claim to be citizens of Nepal and of Hindu faith and Newari caste. The second applicant is the wife of the first applicant and her application for protection is dependent on the outcome of the first applicant (“the Applicant”). The second applicant has not made any application for protection in her own right.

3. 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 claims in support of a protection visa and the decision of the delegate of the first respondent (“the Delegate”)  and a summary of the RRT’s review and decision.

Background

1. On 27 June 2008, the applicants arrived in Australia, having departed legally from Nepal on passports issued in their own names. The Applicant entered on a student visa, issued on 10 June 2008. He was granted a further TU visa 572 visa on 9 November 2009, which was cancelled by the Department of Immigration and Citizenship on 12 November 2010 on the basis that the Applicant had failed to complete the requirements of the visa.

2. On 6 December 2011, the applicants lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship under the Act (“the Department”).

3. On 16 May 2012, the Delegate of the Department refused the applicants’ application for protection visas.

4. On 12 June 2012, the applicants lodged an application for review of the Delegate’s decision by the RRT.

5. On 28 November 2012, the RRT affirmed the decision of the Delegate not to grant a protection visa.

6. On 21 December 2012, the applicants filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. 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 (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an Applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a 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, 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.”

4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

5. 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.”

6. Under s.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.

7. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.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.”

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

9. 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. (see 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 stated the following:

   a)The Applicant was born in Nepal in 1987 and is part of a family belonging to the Karmacharya caste, within the Newari caste. The Applicant stressed the importance of Guthi, the community of people of the same caste, of which he was a part, which dictates social interaction, religion and ritualistic activity. It is regarded as “one of the most important and significant element[s] of the Newari culture”.

   b)Approximately five years ago while studying at college, the Applicant met and fell in love with the second applicant. The second applicant who was born into the Dangol caste, which is recognized as a low class level caste. Nevertheless, the Applicant and the second applicant decided to get married.

   c)In the Applicant’s culture, marriage is, as a rule, patrilocal and monogamous, and parents traditionally make arranged marriages for their children. Partners for marriage must belong to different descent-group lineages within the same caste and class. When the Applicant told his parents that he wanted to marry the girl from a different caste, they did not support him and told him that if he married her, he would be dead to them and they would never support him.

   d)On 22 November 2008 the applicants secretly married without their families’ support. For a time, the Applicant continued to live in his parents’ home, acting as though he was not married.

   e)The applicants both applied for visas to Australia, the second applicant having told her parents that she was leaving to study. The applicants then departed Nepal for Australia.

   f)In March 2010, the applicants returned to Nepal to see the Applicant’s sister, who had been diagnosed with cancer and subsequently died. Following his sister’s death, the Applicant told his parents about his marriage. The Applicant’s parents and members of the Guthi community became very angry and refused to let the applicants enter their house. The Applicant’s parents threatened him, so the applicants returned to Australia on April 2010.

   g)On returning to Australia, the Applicant received notification that his visa was cancelled. The Applicant sought review of the decision to cancel his visa by the MRT and subsequently applied for intervention by the Minister for Immigration, however both requests were denied.

   h)The Applicant claimed that they cannot return to Nepal due to the hostile attitudes of their families towards their relationship.

   i)The Applicant fears that were they to return to Nepal, they will not be safe, will be shunned from society, and be at risk of harm from virtually anyone as there is “no strong government rules and regulations.”

The Delegate’s decision

1. On 4 May 2012, the applicants attended an interview with the Delegate.

2. On 16 May 2012, the Delegate refused the applicants’ application for a protection visa on the basis that they were not people to whom Australia has protection obligations under the Convention.

3. The Delegate found the applicants’ failure to seek protection in Australia at the earliest opportunity to be inconsistent with his claim to fear serious harm in Nepal.

4. The Delegate concluded that the applicants’ claim to fear persecution in Nepal for a Convention reason not to be well founded. Further, the Delegate was not satisfied that the risk of discrimination and ostracism in Nepal claimed by the Applicant was not ‘significant harm’ for the purposes of s.36(2A) of the Act.

The RRT’s review and decision

1. On 12 June 2012, the Applicant lodged an application for review of the Delegate’s decision by the RRT. The Applicant nominated a registered migration agent as his authorised representative and recipient in relation to the review. The Applicant provided further documents in support of his review application.

2. On 30 July 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 11 September 2012 to give oral evidence and present arguments.

3. On 11 September 2012, the applicants attended the RRT hearing and gave evidence. The applicants supplied copies of their passports and submitted articles concerning inter-caste marriage in Nepal. The Applicant’s representative did not attend the hearing.

4. The RRT had several concerns regarding the credibility of the applicants. For example, the RRT did not accept the Applicant’s claims that his parents were unaware that he and the second applicant had married in circumstances in which the Applicant’s parents had sponsored the Applicant’s visa application. When this was explored with the Applicant, the Applicant first stated that his parents “more or less knew” about his marriage to the second applicant, and added that his parents did not have any detailed interest in the documents they were signing.

5. The RRT then considered the claims of the second applicant that her parents were unaware of the fact that she was travelling to Australia with the Applicant. In her evidence, the second applicant claimed that she had convinced her parents to allow her to travel to Australia on the basis that she had friends studying in Australia and she would do the same. She claimed her parents blindly trusted her and that they would not wish to see any documentation as they were not educated.

6. The RRT considered these explanations, but did not find them to be credible. It found that even if the second applicant’s parents were uneducated, it was unlikely that they would have given their daughter the money to travel to Australia without seeing some form of documentation or knowing the basis on which she was travelling. The RRT did not accept that the second named applicant’s parents would accept her claims about her travel at face value.

7. The RRT finally considered the delay by the applicants in seeking protection in Australia. Notwithstanding the Applicant’s claims regarding his return to Australia in April 2010, the RRT found that the Applicant had elected to take no steps to enquire about how he might remain in Australia on the basis of his claimed fear of harm in Nepal. The RRT took the view that the Applicant appeared content to pursue the uncertain avenue of undertaking studies in Australia with the hope of attaining residency at a later time and that such conduct was not consistent with the actions of a person who genuinely feared harm.

8. The RRT noted the explanation given by the second applicant that the applicants were unaware of the possibility of applying for a protection visa until they made inquiries as to how they might stay in Australia in 2011. The RRT rejected this claim, as the second applicant similarly claimed fear of harm in Nepal and that her actions were also inconsistent with the actions of somebody who feared harm were she to return to Nepal.

9. The RRT found that the applicants were not witnesses of truth.

10. The RRT noted the country information before it which indicated that violence or ostracism with respect to inter-caste couples in Nepal almost always concerns an inter-caste marriage involving a Dalit. The RRT further noted that the available country information indicated that within the Newar group, inter-caste marriages are tolerated. The RRT found that there was no credible evidence that the applicants’ families or anybody else would disapprove of their marriage. The RRT considered the documents produced by the applicants at the hearing regarding the treatment of inter-caste couples in Nepal, but did not consider them persuasive as they either related to the Dalit group or did not mention to which group they referred.

11. On the basis of the finding that the applicants were not witnesses of truth, the RRT did not accept the applicants’ claims of fearing harm in Nepal on the basis of their marriage and that there was no credible evidence that the applicants had been harmed or threatened with harm by anybody in Nepal.

12. The RRT also found that there was no credible evidence before it was to why the applicants had left Nepal in 2008, and why the Applicant had left in 2010, and why they did not wish to return there. It found that there was no real risk that the applicants would suffer persecution in Nepal for a Convention related reason.

13. The RRT then considered the complementary protection criterion. The RRT found that there was no credible evidence that anyone in Nepal has disapproved of the applicants’ marriage or threatened to harm them.

14. The RRT concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of their removal from Australia to Nepal, there was a real risk that the applicants would suffer significant harm and accordingly affirmed the decision under review.

The proceeding before this Court

1. The Applicant was unrepresented before this Court, although had the assistance of a Nepali interpreter. 

2. On 15 March 2013, the applicants attended a directions hearing before me. I explained to the applicants that this Court has no power to interfere with the decision of the RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the applicants that the ground of the application made bare assertions that was unsupported by particulars and did not by itself disclose an error capable of review by this Court. The Applicant confirmed that the applicants wished to continue with the application for judicial review. The applicants were given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the RRT hearing, as well as submissions in support.

3. At the directions hearing, the applicants were referred to the Court’s Legal Advice Scheme for free legal advice. The applicants have participated in the Court’s Legal Advice Scheme and received free legal advice. The applicants were also provided at the direction hearing with the contact details of legal services providers and interpreting and translation services should they wish to take other advice.

4. At the commencement of the hearing, the applicants confirmed that they have not filed any amended application, evidence or submissions in support of their application and have no further documents to present to the Court this morning in support of their application.

5. The Applicant confirmed that the applicants relied on the ground contained in the application filed on 21 December 2012 as follows:

   “1. The Refugee Review Tribunal misunderstood my claim and I look forward to receive the CD of the hearing to provide a transcript and particulars to support my claim.”

6. This ground was interpreted for the assistance of the applicants, who each were invited to say whatever they wished in support of the ground and in support of their application to this Court.

7. In relation to the applicants’ reference in the ground of the application to the receipt of the CD of the RRT hearing, counsel for the first respondent, Mr Kaplan, tended a letter dated 16 April 2013, from the first respondent’s solicitors to the applicants’ panel advisor, marked Exhibit 2R. Exhibit 2R enclosed a copy of the RRT audio files. The applicant informed the Court that the applicants still had not received the CD of the RRT hearing, however conceded that they had not made any request to the RRT or any other person for the provision of the CD.

8. The applicants did not make any other complaint about not having received the CD.

9. In the circumstances, there is no jurisdiction error demonstrated by the applicants arising from whether or not they received the CD of the RRT hearing.

10. In relation to the general complaint in the ground of the application that the RRT misunderstood the Applicant’s claim, the complaint was not supported by particulars, evidence, or submissions, other than a brief restatement of the applicants’ claims.

11. A fair reading of the RRT decision record makes clear that the RRT understood the nature of the applicant’s claims to fear persecution in Nepal. At the heart of the applicant’s claimed fear of harm in Nepal was their inter-caste marriage. The Convention grounds were claimed to be religion and membership of a particular social group, being people who marry out of their caste.

1. The RRT found that the applicants did not genuinely fear harm in Nepal on the basis of their marriage, or any other basis, based on the RRT’s adverse credibility findings in respect of each of the applicants, which I have dealt with in detail above. In particular, the RRT found that the applicants three and a half year delay in seeking protection demonstrates that they are not genuinely in fear of harm in Nepal. The RRT found that, based on their evidence, the applicants took no steps to make inquiries about protection after they came to Australia until after the cancellation of the Applicant’s student visa. 

2. Further, the RRT found that any violence or ostracism with respect to inter-caste couples in Nepal almost always concerns an inter-caste marriage involving a Dalit. The RRT found that country information before it about inter-caste marriages within the Newar group indicated that such unions were tolerated. The RRT put this information to the applicants for comment but was ultimately not satisfied that there is any credible evidence that anyone, including their families, disapproved of the applicants’ marriage.

3. The RRT noted some media articles provided by the applicants, one of which claimed that more incidents of harm had occurred regarding “caste apartheid” marriages. However the RRT preferred the country information which it identified and put to the applicants as reflecting the correct position that inter-caste marriages within the Newar group are accepted.  

4. It is well settled that the country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

5. It is also well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

6. The RRT also considered whether the applicants met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that they did not. The RRT found that there was no credible evidence before it that anyone in Nepal had disapproved of the applicants’ marriage or threatened to harm them. Accordingly, the RRT found that there are not substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, Nepal, there is a real risk that the applicants would suffer significant harm.

7. The RRT’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

8. In the circumstances, the ground of the application to this Court does not identify any jurisdictional error on the part of the RRT and appears more to be a disagreement with the findings and conclusions of the RRT. Such complaints invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

9. The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] by North, Lander and Katzmann JJ:

   “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

10. It is for an applicant to satisfy the RRT, being the relevant decision-maker, that the applicant meets the criteria for being a refugee. As stated in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]:

    “…The proceedings before the [RRT] are inquisitorial and the [RRT] is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The [RRT] must then decide whether that claim is made out.”

11. Section 65.1 mandates that if the RRT, as the relevant decision-maker, is not so satisfied the applicant must be refused a protection visa.

12. Accordingly, none of the complaints identified by the applicants demonstrate any jurisdictional error on the part of the RRT and none is apparent on the face of the RRT’s decision record.

Conclusion

1. A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicants; explored those claims with the applicants at the hearing; and, had regard to all material provided in support. The RRT put to the applicants matters of concern it had about their evidence and noted the responses. The RRT also identified independent country information to which it had regard. The RRT also put to the applicants the adverse independent country information upon which it relied and invited the applicants to comment upon it.

2. 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.

3. 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.

4. 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.

5. 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:  30 October 2013