SZSSU v Minister for Immigration and Border Protection

[2014] FCA 512

FEDERAL COURT OF AUSTRALIA

SZSSU v Minister for Immigration and Border Protection [2014] FCA 512

Citation:	SZSSU v Minister for Immigration and Border Protection [2014] FCA 512
Appeal from:	SZSSU v Minister for Immigration and Border Protection [2013] FCCA 2099
Parties:	SZSSU v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 2610 of 2013
Judge:	FOSTER J
Date of judgment:	19 May 2014
Legislation:	Migration Act 1958 (Cth), s 36(2), s 424AA Federal Court Rules 2011, r 40.02(b)
Date of hearing:	19 May 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	27
Solicitor for the Appellant:	The Appellant appeared in person with the aid of an interpreter
Solicitor for the First Respondent:	Mr R Baird of Clayton Utz
Solicitor for the Second Respondent:	The Second Respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2610 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZSSU
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FOSTER J
DATE OF ORDER:	19 MAY 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave be granted to the first respondent to file in Court the affidavit of Alice Valerie Drury affirmed on 19 May 2014.

2.The appeal be dismissed.

3.The appellant pay the first respondent’s costs of and incidental to the appeal assessed as a lump sum, pursuant to r 40.02(b) of the Federal Court Rules 2011, at $2,500.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2610 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZSSU
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FOSTER J
DATE:	19 MAY 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

1. The appellant is a citizen of Nepal who arrived in Australia on 8 March 2008 on a student visa (TU-572). 

2. On 19 October 2011, the appellant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship. 

3. On 20 February 2012, the appellant attended a departmental interview before a delegate of the first respondent (the Minister). 

4. On 21 March 2012, the delegate refused the appellant’s application for a protection visa. 

5. On 17 April 2012, the appellant lodged an Application for Review of the delegate’s decision with the Refugee Review Tribunal (the Tribunal).  The Tribunal is the second respondent in the present proceeding.

6. On 1 March 2013, the Tribunal affirmed the delegate’s decision not to grant a protection visa to the appellant. 

7. On 4 April 2013, the appellant filed an Application in the Federal Circuit Court (then called the Federal Magistrates Court of Australia) seeking judicial review of the Tribunal’s decision. 

8. On 6 December 2013, a judge of the Federal Circuit Court dismissed the appellant’s Application.  The primary judge concluded that the Tribunal’s decision was not affected by jurisdictional error. 

   THE APPELLANT’S CLAIMS

9. In his application for a protection visa, the appellant claimed to fear persecution in Nepal on the basis of his political opinion as an anti-Maoist.  The appellant claimed that he was a peaceful man who was politically opposed to violence.  He said that he was opposed to the Maoists because they are violent.  He asserted that he had refused to comply with demands made by the Maoists because they are violent and criminal.  He claimed to be a supporter of the monarchy in Nepal.  He said that the Maoists had threatened him and said that they would harm him if he did not comply with their demands.  He said that he had left Nepal in order to avoid being harmed or even killed by reason of his political opinions and beliefs.  He said that he was a member of the Rastriya Prajatantra Party Nepal (RPP).  He claimed that, in October 2007, he had been abducted by a group of 7–9 Maoists and released on condition that he disown his membership of the RPP and join the Maoists.  After his release, he continued his RPP membership.  The Maoists continued to threaten him and that is why he fled, initially to Kathmandu, and then to Australia.  

   THE DECISION OF THE TRIBUNAL

10. The Tribunal concluded that the claims which had been made by the appellant were not truthful.  The Tribunal had serious doubts about the credibility of the appellant.  A matter of significance before the Tribunal was the fact that the appellant had copied his claims verbatim from a statement submitted to the Tribunal by another applicant for a protection visa six months before the appellant had made his application.  The Tribunal put the proposition to the appellant that he had simply copied someone else’s claims for protection and had not been truthful when making his own claims for protection.  The Tribunal gave him additional time within which he might seek to deal with the Tribunal’s concerns.  The appellant denied copying another person’s claims and reasserted that his claimed reasons for needing protection were true and did apply to him.  Ultimately, the Tribunal did not accept the appellant’s story.  In particular, the Tribunal rejected the core elements of the appellant’s story, namely that: 

    (a)The appellant or his father were members of the RPP;

    (b)The appellant had promoted the monarchy and condemned the Maoists;

    (c)The appellant had been abducted by the Maoists and had hidden in Kathmandu;

    (d)The appellant had organised a party conference in his village at which he and his father had been attacked by the Maoists;

    (e)The appellant had been accused of spying on the Maoists and had hidden in Kathmandu; and

    (f)The appellant’s father’s land had been seized and the Maoists had been asking his father for donations.

11. The Tribunal concluded that it was not satisfied that the appellant is a person in respect of whom Australia has protection obligations.  The Tribunal went on to conclude that the appellant did not satisfy the criteria for a protection visa set out in par 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Act). 

    THE PROCEEDING IN THE FEDERAL CIRCUIT COURT

12. In the Federal Circuit Court, the appellant sought Constitutional writ relief against the Minister and the Tribunal.  The grounds upon which the appellant relied were specified as follows:

    1.The Tribunal Member failed to give me natural justice because the Member treated and considered my claims and evidence as fabrication expressly in relation on his firm arbitrary view substantially believing that I have made claims copying someone’s statement or claims despite the fact that I told the truth that I did not copy someone’s statement or claims. 

    2.I gained the impression that the Tribunal Member had already made up his mind that I was not a refugee and that anything else would be a waste of time at the hearing as the tone of the Member’s comments at the hearing made it clear that he wanted to finish the hearing as soon as possible and I believe the Tribunal Member had conducted the hearing just for formality in my case.  Even though the Tribunal member did ask me if I wanted to add anything, take a break or comment on the issue of statement which the Member believed that it was copied from someone’s claims.

    3.It is contended that the Tribunal Member failed to satisfy the conduct of fairness test in my case.  The conduct of the Tribunal member at hearing went well beyond simply putting adverse view to me and the member’s responses to my answers were frequently dismissive as the Tribunal member expressed profound disbelief to me despite I told the truth. 

    4.I believe there is a legal error on the part of the Tribunal Member. 

13. After dealing with the relevant background facts, the legislative framework, the appellant’s application for a protection visa, the delegate’s decision and the Tribunal’s decision, the primary judge turned to address the four grounds advanced by the appellant before her.

14. As far as ground 1 was concerned, the primary judge found that there had been no breach of the rules of natural justice and that the Tribunal had dealt with the information that it considered may be the reason, or part of the reason, for affirming the decision under review appropriately and in accordance with s 424AA of the Act. In addition, the primary judge found that the Tribunal had offered to allow to the appellant further time to consider the proposition that he had copied someone else’s statement. He had declined that offer.

15. Ultimately, the primary judge concluded that, on a fair reading of the Tribunal’s Decision Record, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings.  Her Honour concluded that ground 1 had not been made out. 

16. As far as ground 2 was concerned, the appellant had been cautioned by the primary judge well prior to the hearing to bring forward at the hearing, either a transcript of the Tribunal hearing, or a tape recording of that hearing, or both, if he wished to press his allegation of bias.  He did not do either of these things.  The primary judge was, therefore, confined to looking at the Decision Record of the Tribunal in order to assess the appellant’s assertion that the Tribunal had been biased against him. 

17. At [66]–[68] of her Reasons for Judgment, the primary judge said:

    A fair reading of the RRT’s decision does not disclose any prejudgment on the part of the RRT in the sense that the RRT was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], and [127]).

    A fair reading of the RRT’s decision does not suggest that the RRT approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the RRT, might reasonably apprehend that the RRT may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).

    Accordingly, ground 2 is not made out.

18. As far as ground 3 was concerned, the primary judge recorded that the appellant had made no submission in support of that ground.  In addition, the primary judge remarked that the significant replication in the appellant’s claims documents of material which had appeared in earlier statements from a different matter, was something which the appellant could not explain as being a mere coincidence. 

19. As far as ground 4 was concerned, the primary judge correctly noted that merely to assert that there was “a legal error” is hardly a sufficient basis upon which an applicant should expect to make a successful challenge to a Tribunal decision. 

20. At [82]–[86], the primary judge set out her ultimate conclusions in the following terms.

    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, including its concerns about an earlier substantially similar statement of claims from another applicant. The RRT gave that information to the applicant for comment in accordance with s.424AA of the Act

    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.

    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.

    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.

    The proceeding before this Court should be dismissed with costs.

    THE PROCEEDING IN THIS COURT

21. On 27 December 2013, the appellant filed a Notice of Appeal in this Court.  The grounds of appeal relied upon were specified in that document in the following terms:

    1.The learned Federal Circuit Judge erred by simply agreeing with the respondent’s arguments and failed to find the legal error which was made by the Tribunal Member in its purported decision.

    2.I contend that the Refugee Review Tribunal Member’s decision is not based on well-balanced evidence but it is based on the Member’s arbitrary view and the decision has been affected by lack of natural justice and procedural fairness in my case.

22. In a sense, these two grounds capture, in a rolled-up fashion, the grounds argued before the Circuit Court.  However, for the appellant to succeed in this Court, it is necessary for him to demonstrate appellable error on the part of the Circuit Judge. 

23. As far as ground 1 is concerned, the learned primary judge did not merely repeat submissions put to her but rather, quite clearly, gave independent and appropriate consideration to all of the matters raised by the appellant before her.  As was submitted on behalf of the Minister at the hearing before me, her Honour’s judgment reveals that she gave thorough and detailed consideration to the grounds relied upon by the appellant in his application. 

24. As far as ground 2 is concerned, there are no particulars of what was intended to be covered.  However, it seems to me that ground 2 is intended to constitute another way of putting the appellant’s proposition that the learned primary judge erred in not granting the relief which he had sought in the Circuit Court.  This is nothing more than a general assertion which has not been supported by any particulars, by any argument, or by any authorities.  I reject ground 2. 

25. Before me, the appellant did not come to grips with the need for him to demonstrate appellable error.  He did not file a Written Submission and he made only very brief oral submissions.  Those submissions were, in effect, that he had not received justice and he was hoping to receive justice in this Court.

26. For the above reasons, I do not think that the appellant has made out either of the grounds of appeal upon which he relies. I therefore propose to dismiss his appeal with costs assessed, pursuant to r 40.02(b) of the Federal Court Rules 2011, at $2,500. 

27. There will be orders accordingly.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:
Dated:        20 May 2014