SZSTK v Minister for Immigration

[2013] FCCA 864

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSTK v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 864

Catchwords:

MIGRATION – Review of Refugee Review Tribunal decision – whether the Tribunal assessed the complementary protection criteria according to law – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.36, 65, 412, 414, 415, 476

Applicant: SZSTK

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 765 of 2013

Judgment of: Judge Manousaridis

Hearing date: 16 July 2013

Delivered at: Sydney

Delivered on: 25 July 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms McCaughan
Clayton Utz

ORDERS

1. The name of the first respondent recorded in the application be amended to “Minister for Immigration, Multicultural Affairs and Citizenship”.

2. The application be dismissed.

3. The applicant pay the first respondent’s costs assessed in the sum of $6,646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 765 of 2013

SZSTK

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application brought under s.476 of the Migration Act 1958 (Act) for 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 claimed he was entitled to a protection visa is the fear that, if he returned to his country of citizenship, Nepal, he would face extortion, kidnapping, or death at the hands of “the Communists”. The Tribunal rejected the applicant’s claim because it did not accept most of what the applicant said or advanced in support of it.

3. The application lists five grounds of review, and is supported by written submissions the applicant filed on 28 May 2013. On 2 July 2013, however, the applicant filed further written submissions (second submissions) in which he stated it was wrong for him to have claimed the Tribunal erred and that he did not provide to the Tribunal “crucial evidence and enough information on Nepal extortions which according to Maoists . . . means donations”. The applicant annexed to the second submissions the information he did not provide to the Tribunal.

4. Before me, the applicant confirmed he intended to abandon the five grounds of review set out in the application, and that he instead intended to rely on the information referred to in the second submission. I informed the applicant that if he withdrew the grounds set out in the application, and proposed to rely only on the additional material he attached to the second submissions, I would dismiss the application.

5. After further discussion, the applicant indicated he wished to press only one of the five grounds of review, namely, that the Tribunal did not assess the applicant’s claim for complementary protection according to law. This is the only ground of review I will consider in these reasons, and I will treat all other grounds listed in the application as having been withdrawn.

Preliminary matters

1. To properly determine the applicant’s contention that the Tribunal did not assess the applicant’s claim for complementary protection according to law, it is necessary to first consider:

   a)what, in the context of this application, “complementary protection” means;

   b)the nature of the Tribunal’s jurisdiction to assess claims for complementary protection; and

   c)the meaning I attach to the applicant’s contention that the Tribunal did not assess the applicant’s claim for a protection visa “according to law”.

Meaning of “complementary protection”

1. The expression “complementary protection”, as used by the applicant, is intended to refer to the criterion for the granting of a protection visa specified in s.36(2)(aa) of the Act.[1] That sub-section provides:

   “(2)  A criterion for a protection visa is that the applicant for the visa is

   .    .    .    .

   (aa)  a non-citizen in Australia (other than a non-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 . . . .”[2]

   [1] See, for example the applicant’s submission to the Tribunal at Exhibit CB, page 145.

   [2] The “non-citizen mentioned in paragraph (a)” is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugee Convention as amended by the Refugee Protocol. And the expression “significant harm” is defined in s.36(2A).

Nature of Tribunal’s jurisdiction to assess complementary protection claims

1. The Tribunal’s jurisdiction to assess an application for a protection visa (including an application based on the criterion specified in s.36(2)(aa) of the Act) is engaged when the Minister refuses to grant a protection visa[3] and an application for review is made to the Tribunal in accordance with s.412 of the Act. Once its jurisdiction is engaged the Tribunal must “review the decision”.[4] When doing so the Tribunal is empowered to “exercise all powers and discretions that are conferred by this Act on the person who made the decision”.[5] This includes the power conferred on the Minister by s.65(1) of the Act to grant a visa if the Minister is satisfied that, among other things, the criteria for the granting of a visa have been satisfied.

   [3] S.65(1) of the Act.

   [4] S.414(1).

   [5] S.415.

2. Thus, when dealing with an application for a protection visa which relies on the criterion specified in s.36(2)(aa) of the Act, the Tribunal must consider whether it is satisfied it 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” (as that expression is defined in s.36(2A) of the Act). Unless the Tribunal satisfies itself that it holds such belief on substantial grounds, the criterion provided for in s.36(2)(aa) cannot be satisfied, and the decision refusing to grant a visa stands.

Not assessing complementary protection “according to law”

1. Although it is the fact of the Tribunal’s holding or not holding the belief specified in s.36(2)(aa) of the Act which determines whether or not the criterion specified in that sub-section is satisfied, there are legal rules which the Tribunal must follow in the course of its considering whether or not it should form such belief.

2. For all practical purposes, the rules the Tribunal must follow are those whose non-observance will render the Tribunal amenable to one or more of the remedies referred to in s.75(v) of the Constitution. The non-observance of most[6] of these rules will result in the Tribunal’s decision being characterised as having been made in excess or beyond jurisdiction, and in the Tribunal being adjudged to have made a jurisdictional error.

   [6] This qualification is made to take account of the possibility of the availability of an injunction under s.75(v) of the Constitution for non jurisdictional error of law.

3. To claim, therefore, as the applicant does, that the Tribunal did not assess the applicant’s claim for complementary protection “according to law”, is to claim the Tribunal, when considering the applicant’s claim, did not observe at least one of the rules referred to in paragraph 11 of these reasons.

“Not according to law” as a ground of review

1. A bald claim that the Tribunal did not conduct a review “according to law” does not state a proper ground of review. That is so because such claim does not identify the legal rule or rules with which it is claimed the Tribunal did not comply, or the manner in which the Tribunal did not so comply. Thus, an application for review to this Court which lists as the only ground of the application a claim that the Tribunal has not conducted a review “according to law”, is liable to be summarily dismissed on the first court date of the application as raising no arguable case for relief.[7]  

   [7] Under r.44.12(1)(a) of the Federal Circuit Court Rules 2001.

2. Although the application filed in this proceeding baldly claims that the Tribunal did not assess the applicant’s claim for complementary protection “according to law”, the applicant, both in writing and during the hearing, did identify the grounds on which he claims the Tribunal did not assess his claim according to law. It is these grounds that I will consider in these reasons. In order to understand those grounds, however, it will be necessary to set out the claims the applicant made before the Tribunal, and the Tribunal’s reasons for not accepting them.

Claim before and decision of Tribunal

1. As I say earlier in these reasons, the applicant claimed before the Tribunal that he feared that, if he returned to Nepal, he would face extortion, kidnapping, or death at the hands of “the Communists”.

2. In support for his claim, the applicant relied on a number of asserted facts, including the following:

   a)in 1972 the applicant’s grandfather, when minister of finance, was assassinated by extremists;[8]

   b)the applicant’s father was always being threatened, sometimes once a week, sometimes every couple of weeks, and sometimes once a month;[9]

   c)if he returned to Nepal “the Communists” would kill him and his father and take his father’s land;[10]

   d)the applicant and his family had not been targeted by communists purely on the basis of their wealth; they were also targeted because they were members of a family which included members who had been involved in politics;[11]

   e)for several years the Maoists had continued to extort money from his family, and his and his family’s lives had always been in danger;[12] and

   f)all his life the applicant had lived in fear.[13]

   [8] Exhibit CB, page 232 [21], [26]

   [9] Exhibit CB, page 232 [26]

   [10] Exhibit CB, page 233 [28]

   [11] Exhibit CB, page 233 [32]

   [12] Exhibit CB, page 233 [32]

   [13] Exhibit CB, page 233 [33]

3. The Tribunal made findings which included the following:

   a)although the Tribunal accepted that the applicant’s grandfather was assassinated in 1972, it did not accept that this is relevant to any threat which the applicant or his family may be facing now;[14] nor did it accept there is a real chance such an event will be repeated if the applicant returns to his home in the Jhapa District of Nepal now or in the reasonably foreseeable future;[15]

   b)although the Tribunal accepted that the applicant’s father had made donations to the Nepal Transport Unions, the Federal Limbuwan State Council, and to the All Nepal Federation of Trade Unions, this did not suggest that the applicant’s father was facing demands for money from extortionists;[16]

   c)the applicant’s father had always lived at his home in Arjundhara and continues to live there;[17] the Tribunal did not accept that the applicant’s father would have continued living in the family home in Arjundhara and running the family business if he had felt in imminent danger of attack at any time;[18] and

   d)the Tribunal did not accept that the applicant himself would have continued living in his family home until he was aged 25 years old if he had been living in fear as he claims.[19]

   [14] Exhibit CB, page 246 [101]

   [15] Exhibit CB, page 246 [102]

   [16] Exhibit CB, page 247 [104], [107]

   [17] Exhibit CB, page 246 [104]

   [18] Exhibit CB, page 247 [107]

   [19] Exhibit CB, page 247 [108]

4. On the basis of these findings, the Tribunal did not accept that:

   a)if now or in the foreseeable future the applicant returns to his home in Arjundhara in the Jhapa District in Nepal, there is a real chance that the applicant will be killed, kidnapped or physically assaulted, or that he will be mentally tortured or that his liberty will be effectively curtailed by his fear of physical harm;[20] or

   b)there is a real chance that the applicant will be persecuted for reasons of his real or imputed political opinion, his caste, his membership of a wealthy, prominent and respected family.[21]

   [20] Exhibit CB, page 227 [108]

   [21] Exhibit CB, page 248 [109]

5. The Tribunal also considered the applicant’s claim for complementary protection. The Tribunal dealt with this claim in the following way:[22]

   “Having regard to my findings above, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. Accordingly I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.”

   [22] Exhibit CB, page 250 [111]

The applicant’s submissions

1. The grounds on which the applicant claims the Tribunal did not assess his claim according to law can be identified in three of the applicant’s submissions. The first is in the applicant’s written submissions filed on 28 May 2013.

2. In those submissions, the applicant comments on a number of paragraphs of the Tribunal’s reasons for decision, including the paragraph which contains the passage set out in paragraph 19 of these reasons. Each comment follows the same pattern. The applicant first quotes the passage from the Tribunal’s reasons for decision and then, after the words “My view of the truth”, sets out his comments.

3. In relation to the passage set out in paragraph 19 above, the applicant states:

   “The member did not assess my Complementary Protection according to law. Also trying to send me back home will result in jeopardising my life, pushing me into life threatening situations being physically harmed, mentally tortured and emotionally unstabled [sic].”

4. This is the only passage in the applicant’s written submission of 28 May 2013 that specifically mentions the Tribunal’s assessment of the applicant’s claim for complementary protection. The unparticularised assertion that the Tribunal did not undertake that task according to law by itself discloses no reviewable error. And the balance of the comments the applicant makes in this and in the remaining part of his written submissions only manifests disagreement with conclusions which it was within the jurisdiction of the Tribunal, and not of this Court, to make. These comments also, therefore, disclose no reviewable error.

5. The second submission in support of the applicant’s claim that the Tribunal did not consider his application for complementary protection according to law was made during the hearing. The applicant directed my attention to an article from the Hindustan Times published on 30 June 2013 which was attached to the second submissions. The applicant submitted that the article showed that the Tribunal’s conclusion at paragraph 104 of its reasons for decision is wrong.

6. The submission the Tribunal erred, even if correct, discloses no reviewable error. It is for the Tribunal, not for this Court, to make or decline to make findings of fact relevant to the formation of the belief specified in s.36(2)(aa) of the Act.

7. Lastly, during the hearing, the applicant submitted the Tribunal did not sufficiently regard the documents at pages 170 and 203 of Exhibit CB. This submission, however, simply expresses disagreement with the Tribunal’s not giving weight to these documents. This was a matter entirely within the jurisdiction of the Tribunal, not of this Court, to consider. The applicant’s submission, therefore, discloses no reviewable error by the Tribunal.

Conclusion and disposition

1. For the reasons set out above, the applicant has not shown the Tribunal made any reviewable error.

2. I should add there is nothing in the material before the Court that suggests the Tribunal did not properly consider the applicant’s claim.

3. The application should therefore be dismissed and the applicant should pay the first respondent’s costs which I fix at $6,646.[23]

   [23] Pursuant to Federal Circuit Rules 2001 – Schedule1, Part 3, Division 1 – Costs for migration proceedings that have concluded.

4. Finally, the name of the first respondent changed after the commencement of the proceeding. I will order that the name of the first respondent currently on the application be amended to reflect the current name.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  25 July 2013