SZSNN v Minister for Immigration
[2013] FCCA 836
•27 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSNN v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 836 |
| Catchwords: MIGRATION – Application for review of decision of Refugee Review Tribunal – show cause hearing – no arguable case for relief sought – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12 |
| SZFDE v Minister for Immigration [2007] HCA 35 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63 Saeed v Minister for Immigration & Citizenship [2010] HCA 23; (2010) 241 CLR 252 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22 |
| Applicant: | SZSNN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 120 of 2013 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 27 June 2013 |
| Date of Last Submission: | 27 June 2013 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2013 |
REPRESENTATION
| Applicant: | In Person |
| Appearing for the Respondents: | Ms M Ardita |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application made on 23 January 2013 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $3326.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 120 of 2013
| SZSNN |
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 pursuant to section 476 of the Migration Act 1958 (Cth) (“the Act”), on 23 January 2013, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 7 January 2013 which affirmed the decision of a delegate of the respondent, that is the Minister for Immigration and Citizenship, to refuse the grant of a protection visa to the applicant.
Background
The applicant before the Court is a citizen of Nepal (CB 19). He arrived in Australia on 22 October 2007 (CB 20) and nearly five years later, on 2 August 2012, applied for the grant of a protection visa (CB 1 to CB 65, including attachments). The applicant was assisted in the making of that application by a migration agent who was also appointed as the applicant’s authorised recipient for the purposes of receiving correspondence (CB 1 and CB 58 to CB 59).
The applicant set out his claims to protection in a statutory declaration attached to his protection visa application. The applicant said that he feared harm in Nepal for two reasons. One, because of his and his family’s problems with Maoist. Two, his sexual orientation, which he said was homosexual ([3] at CB 62).
The applicant gave an account of an incident which he said occurred in September 1998, which involved three armed Maoists who came to his family home and requested “shelter, food and financial assistance”
([5] – [6] at CB 62). When this was refused by the applicant’s family, violence erupted, the applicant’s family were attacked and he claimed that ([6] at CB 62):
“…one of the Maoists threw a bomb.”
The applicant feared further attacks and, therefore, he “fled” from his village and went to Kathmandu ([7] at CB 63), which he did some time in September 1998, and, despite staying in Kathmandu until October 2007, the applicant said, nonetheless, he received ongoing threats from the Maoists ([8] at CB 63). Separately, the applicant claimed that from the age of 15, he had realised that he was a homosexual ([10] at CB 63). He knew that his family would not accept his sexuality, and that he would “experience severe discrimination” in Nepalese society if his homosexuality was known ([11] at CB 63).
The applicant claimed, as a result, to be unable to express his sexual preferences in Nepal which inhibited his capacity to “initiate relationships” ([12] at CB 64). The applicant also stated that since arriving in Australia, he had made efforts to explore his homosexuality and that he had told his parents, who, as a result, “no longer consider [him] to be their son” ([14] at CB 64).
His fear was that if he returned, he would be unable to freely express his sexuality and he also feared harm from his family for that reason ([15] at CB 64).
The Delegate
The applicant attended an interview with the Minister’s delegate on 16 August 2012 (CB 68 to CB 69). On 23 August, the delegate decided to refuse the application for the protection visa (CB 72 to CB 94).
In essence, the delegate was not satisfied that the applicant had presented his claims in a “plausible manner” (CB 83.7). Further, the delegate was “not satisfied” that the applicant had made out his claims to have been hurt, and subsequently, threatened by the Maoists (CB 84). The delegate found that even if he was to accept that the applicant’s family had been attacked by Maoists and that the applicant did injure a Maoist in that attack, he was “not satisfied” that that provided a basis for a finding of well-founded fear of harm (CB 84.4).
In respect of the applicant’s claimed homosexuality, the delegate expressed “considerable doubt” (CB 84.4). However, he ultimately found that even if the applicant was of homosexual orientation, no well-founded fear of harm could be made out simply on that basis.
The Tribunal
On 3 September 2012, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 95 to CB 129). He continued to be represented by a migration agent.
By letter dated 17 September 2012, the Tribunal invited the applicant to attend a hearing (CB 139). The applicant and his representative attended on that occasion (CB 195 to CB 197).
Prior to the hearing, on 6 November 2012, the applicant’s representative provided written submissions to the Tribunal (CB 143 to CB 167, and reproduced again at CB 169 to CB 192) and further submissions were provided on 10 December 2012 after the hearing (CB 200 to CB 213 with attachments).
On 7 January 2013, the Tribunal decided to affirm the delegate’s decision and the applicant was notified of that decision in the appropriate way, by correspondence directed to his migration agent (CB 214 to CB 215).
The Tribunal found that given the lengthy delay between the applicant’s arrival in Australia and applying for a protection visa, it had “serious concerns” about his subjective fear of persecution ([72] at CB 231). Further, that the Tribunal had “serious credibility concerns” regarding the applicant being attacked by Maoists ([72] at CB 231).
Despite those concerns the Tribunal gave the applicant the benefit of the doubt. It accepted that the applicant and his family had faced extortion by the Maoists in the late 1990s and early 2000s. However, in light of the applicant’s evidence, and country information that was available and before the Tribunal, it was not satisfied that those events resulted in the applicant having a well-founded fear of persecution in Nepal by the Maoists ([73] at CB 231 to [75] at CB 232).
Having made that clear finding, the Tribunal, somewhat unnecessarily it must be said, then went on to consider the question of whether the applicant could reasonably and safely relocate within Nepal ([76] at CB 232). The basis for its finding that he could safely and reasonably relocate to Kathmandu is unclear ([76] – [77] at CB 232), given that it found that there was no well-founded fear of persecution in his local area. Nonetheless, there is no legal error apparent in the Tribunal proceeding to consider this “alternative” situation. That is, in circumstances where there was no well-founded fear.
In relation to the applicant’s claim to be a homosexual, in light of what the Tribunal said was the applicant’s “lack of knowledge” about homosexuality, his “superficial understanding” of homosexual relationships, and his failure to provide any evidence corroborative of him having had a same sex relationship, the Tribunal rejected the applicant’s claim to have been involved in a same sex relationship, as the applicant had broadly claimed ([90] at CB 233). For these reasons, and a number of other reasons, the Tribunal found that the applicant was not a homosexual, and that the claims advanced by him relating to his sexuality were not credible ([91] at CB 232 to CB 234). As such, the Tribunal found that if he were returned to Nepal, he would not face persecution for this reason.
The Tribunal also considered the further criterion set out in section 36(2)(aa) of the Act, namely, whether the applicant was owed protection on the basis of what can generally be described as the complementary protection criterion. In this regard, the Tribunal found, for reasons that it gave in its decision record, that it was not satisfied that the applicant faced a real risk of significant harm if he were returned to Nepal ([94] at CB 234).
Application to the Court
The grounds of the application to the Court are as follows:
“1. The RRT committed Jurisdictional error in facillng to compel with Migration Act.
2. The RRT deprived me of Natural Justice
3. The decision does not relate to the subject matter of the legislation.”
[Errors in the original.]
Given that I proceeded to a show cause hearing, pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), in this matter (see below at [28]), it is appropriate to note the relief that the applicant seeks before this Court. That is:
“1. In coming & making decision to affirm minister delegate decision not to granto protection visa, the RRT denied me the applicant.
2. An order to redirect the RRT decision and order, the department to take this matter for further consideration.
3. An order that not to remove applicant from Australia”
There are two things that must be said about this.
First, to the extent that the applicant seeks some order against the Minister’s Department (which I can only read as being the delegate who made the initial decision) I note that the delegate’s decision is, in the circumstances of this case, not reviewable by this Court. Given that that decision is a “primary decision”, as explained in s.476(4) of the Act. The Court, as set out at s.476(2), has no jurisdiction in relation to such decisions. Further, I note in this regard that not only was the delegate’s decision reviewable by the Tribunal, it was, in fact, reviewed under Pt.7 of the Act.
Second, for today’s purposes, it can be assumed that what the applicant seeks is relief in the nature of the relevant prerogative writs. In essence, he asks the Court to find jurisdictional error in the Tribunal’s decision and remit the matter to the Tribunal for reconsideration according to law.
Before the Court
This matter was first before the Court on 27 March 2013. At that time, the applicant appeared in person and was assisted by an interpreter in the appropriate language.
On that occasion, I sought to explain to the applicant that the grounds of his application, as stated on their face, were deficient in asserting legal error on the part of the Tribunal. The applicant indicated that he wished to participate in the Court’s “RRT Legal Advice Scheme”. In light of that, I urged him to meet with the panel lawyer and to listen carefully to what the lawyer would say to him. I note also that at that time, orders were made affording the applicant the opportunity to file any amended application and any evidence in support of that application.
The applicant was put on notice at that time that, in the event that nothing further of substance was filed by him, the Minister’s representative could, and likely would, seek to have his application dismissed at the next Court event. Despite the opportunity afforded to the applicant, no amended application has been filed in these proceedings.
Today the applicant appeared in person. He was assisted by an interpreter in the Nepali language. Ms M Ardita appeared for the respondent Minister.
The Minister sought that the matter proceed to a show cause hearing pursuant to r.44.12 of the Rules. I agreed that, in the circumstances, it was appropriate to do so.
By covering letter dated 21 May 2013, the applicant sent a bundle of documents to the registry of this Court. The bundle variously consists of statements, copies of certificates, letters, information that the applicant appears to have obtained from various websites, and a copy of a particular magazine.
Before the Court today, the applicant sought to tender that bundle of documents. The Minister objected to that on the basis of relevance. In essence, the applicant’s complaint to the Court, expressed today, in respect of the documents, was twofold.
First, that the documents went to the issue of his fear of harm if he were to return to Nepal. In this regard, as I sought to explain to the applicant, these proceedings could not be concerned with the merits of his claim to protection. They could only be properly concerned with the question of whether, in coming to its decision, the Tribunal fell into jurisdictional error (“made a legal mistake”). To the extent, therefore, that the documents were documents that went to the question of the merits of his claim to protection in this country, they are inadmissible as evidence, as they are plainly not relevant to a fact in issue before the Court.
The second complaint made by the applicant before the Court, was that his migration agent (I understood that to be the actual person who represented him and assisted him before the Tribunal) had, in some way, not told him about the need to provide evidence to the Tribunal. Further, that had he been properly advised by his migration agent, the bundle of documents presented to the Court now would have been put to the Tribunal. The second complaint raises two issues.
I will deal with the first one, relating to the migration agent, first. That is, as I explained to the applicant, that whether the agent was negligent, deficient, recalcitrant or made a mistake in the advice that he gave to the applicant, would not be sufficient for the applicant to establish jurisdictional error on the part of the Tribunal’s decision.
Such assertion of error may have been available to the applicant if he had been able to assert fraud on the part of the migration agent, as explained by the High Court in SZFDE v Minister for Immigration [2007] HCA 35. However, as the applicant confirmed, he was not in a position to do so. That probably explains the inability to provide evidence in support of any such assertion.
The second element arising from that particular complaint is whether the applicant was otherwise denied the opportunity to put his case before the Tribunal. Such a denial could of itself, irrespective of the conduct or the claimed conduct of the migration agent, reveal jurisdictional error. I will deal with that matter later in this judgment.
I should also just note that the applicant confirmed today that he did meet with a lawyer on the panel of the “RRT Legal Advice Scheme”. He was, on his own statement to the Court today, provided with some legal advice.
It is the case, of course, that communications between a solicitor and a client (as the applicant in the current case) are subject to privilege. However that privilege, of course, is the applicant’s privilege and whatever he volunteered to the Court today about the nature of that advice, was done without prompting, and done voluntarily by him. In any event, it is not necessary for the Court to have regard to what the applicant volunteered that he was told by the panel lawyer.
Consideration
Proceeding, then, with r.44.12 of the Rules in mind, the issue for the Court today is whether what the application presented to the Court raises an arguable case for the relief that the applicant seeks. I have already explained how I have understood the nature of the relief that the applicant seeks (see above at [23] – [24]).
The grounds of the application do not assist the applicant in revealing any such arguable case. In fact, the applicant today, honestly, expressed that he was not in a position to argue for any legal error on the part of the Tribunal.
In essence, the applicant’s appearance today, as was clear in the long submissions that he made about his circumstances in Australia and his fears of returning to Nepal, in effect, seeks impermissible merits review of this Court (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
In any event, turning to each of the grounds stated in the application. I cannot see that the Tribunal failed to comply with the Act, nor that it deprived the applicant of natural justice as grounds one and two in the application to the Court assert. [I read the word “compels” as “comply”]
It is important to note that the applicant was invited to a hearing before the Tribunal, pursuant to s.425 of the Act. That invitation complied with all of the relevant statutory and regulatory requirements that attach to that invitation (ss.425, 425A, 426, the reference to ss.426A, 441A, 441C, 441G of the Act and r. 4.35D of the Migration Regulations 1994 (Cth)). Despite opportunity, the applicant has not put any transcript of the hearing with the Tribunal before the Court. The Court therefore is left with the unchallenged account by the Tribunal of what it said occurred at the hearing (contained in its decision record). That account reveals that the Tribunal exposed to the applicant the issues dispositive of the review (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63).
From the Tribunal’s account, the applicant was given the opportunity to give his evidence and make his arguments. I note the question of whether the applicant was denied the opportunity of putting his case to the Tribunal. The applicant was represented by a migration agent (albeit now with some complaint by the applicant attaching to that representation). Absent any allegation of fraud on the part of the agent, it is clear on the material before the Court, that the Tribunal gave the applicant, and his representative every opportunity to put relevant evidence and to put their arguments. The agent made submissions and provided evidence in support of the claims, both before and after the hearing.
I cannot see that the applicant was otherwise denied the opportunity to provide the documents which he now says he would have provided to the Tribunal.
Returning again, specifically, to the first two grounds. It is important to note that this is a case to which Div.4 of Pt.7 of the Act applies. That is, making the matters dealt with in that division the exhaustive statement of the natural justice hearing rule. Of course, it must be remembered in light of Saeed v Minister for Immigration & Citizenship [2010] HCA 23; (2010) 241 CLR 252, that that is in relation to the matters that that division deals with.
Beyond being given the opportunity of a fair hearing pursuant to s.425, I note relevantly that the obligation in s.424A(1) of the Act was not enlivened in the applicant’s case before the Tribunal. On the material before the Court, the information which the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate’s decision, fell into the various exemptions set out in s.424A(3) from any obligation under s.424A(1) of the Act.
I should note in particular that, while the Tribunal made reference in its decision record to the interview before the delegate, and I refer here to [37] (at CB 222) of its decision record, it was clear that the information that the Tribunal recorded there was, at least subsequently, given to the Tribunal by the applicant for the purposes of the review, and therefore fell within the exemption set out in s.424A(3)(b) of the Act.
In any event, I note that this information was given in writing by the applicant in relation to his application for a protection visa, and therefore came within s.424A(3)(ba) of the Act.
For the remainder, the country information plainly fell within the exception set out in s.424A(3)(a) of the Act and what the applicant told the Tribunal at the hearing and what he gave to the Tribunal in writing through his agent, fell under s.424A(3)(b) of the Act.
On the material before the Court, the Tribunal conducted the review in accordance with s.414 of the Act. It properly addressed the relevant and applicable criteria for the visa that the applicant had applied for, as set out in s.36(2)(a) and (aa) of the Act. I cannot see that the Tribunal failed to comply, or even was required in the circumstances of this case, to particularly comply with any other provision of the Act. In these circumstances, therefore, not only is ground one not made out, it lacks substance and cannot be said to raise an arguable case for the relief sought.
This is also the case with ground two. As I have already said, the applicant was given the opportunity to make out his case. That the Tribunal did not believe the applicant in certain aspects of his evidence and claims does not, in the circumstances, reveal any legal error on its part, and certainly not jurisdictional error. Findings of fact, including findings on credibility, are for the Tribunal to make in the exercise of its jurisdiction (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407).
In the current case, the Tribunal made findings that were reasonably open to it on what was before it, and for which it gave reasons (Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547). The fact that the Tribunal, in light of those findings, was unable to reach the requisite level of satisfaction, such that the protection visa must be granted under s.65 of the Act, again does not reveal any jurisdictional error on its part in the circumstances (SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22). It can only be said, therefore, that the applicant’s complaint, as expressed in ground two is either formulaic, or he seeks merely to challenge the factual findings made by the Tribunal. In either case, no arguable case is raised for the relief that the applicant seeks.
With respect to the applicant, it must be said that ground three, as it reads, and in the circumstances, can only be described as a nonsense. The Tribunal’s decision, plainly related, to the relevant subject matter in the Act. Such relevance is dictated by the type of application made by the applicant himself, and the statutory path, with regulatory prescription that is consequential on of the making of such an application. On the evidence before the Court, the Tribunal complied with that statutory path and prescription. The assertion that the Tribunal’s decision did not relate to the subject matter of the legislation, simply can only be seen, in the circumstances, as being inexplicable. This also, quite obviously, does not raise an arguable case for the relief sought.
As I have already said, nothing that the applicant has said today assists the issue that the Court was required to consider. I accept from the applicant that, in one sense, he did understand the legal limitations of the case that he brought to this Court, but his submissions were essentially directed either to seeking impermissible merits review or to giving an account of his migration history in this country, which, with respect, was irrelevant to the question of whether the Tribunal’s decision could reveal jurisdictional error or, relevant to today, whether any such arguable case could be raised.
In all the circumstances therefore, it is appropriate that the application be dismissed. I will make an order pursuant to r.44.12(1)(a) of the Rules.
It is also appropriate in this case that an order for costs be made in the usual way. There is nothing that I can see, nor has the applicant raised any argument, against the making of such an order. As to the amount, I note that the Minister seeks the amount put forward in the relevant part of the Schedule to the Rules of this Court. I am otherwise satisfied that the amount sought, in the circumstances, is a reasonable amount. I will make the order in that amount.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 16 July 2013
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