SZSUD v Minister for Immigration

Case •

[2013] FCCA 2353

•

1 November 2013

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSUD v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2353
Catchwords:
MIGRATION – Application for review of decision of the Refugee Review Tribunal – application raised no arguable case – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 424A, 425, 476, 477.

Federal Circuit Court Rules 2001 (Cth) r. 44.12.
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] FCA 30
Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parteH [2001] HCA 28; (2001) 179 ALR 425
Applicant: SZSUD
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 879 of 2013
Judgment of: Judge Nicholls
Hearing date: 1 November 2013
Date of Last Submission: 1 November 2013
Delivered at: Sydney
Delivered on: 1 November 2013

REPRESENTATION

Applicant In Person
Appearing for the Respondents Mr R White
Solicitors for the Respondents: Sparke Helmore

ORDERS

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

  2. The application made on 26 April 2013 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

  3. The applicant pay the first respondent’s costs set in the amount of $3,326.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 879 of 2013

SZSUD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

  1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 26 April 2013 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 2 April 2013, which affirmed the decision of the first respondent’s delegate to refuse a protection visa to the applicant. Before the Court, in an evidentiary context, is a bundle of relevant documents, filed by the Minister in these proceedings, (the Court Book, “CB”), and the Minister’s formal response to the application.

Background

  1. The applicant is a citizen of Nepal. She arrived in Australia on 21 November 2010 and applied for a protection visa on 6 December 2010 (CB 1 to CB 38). She was represented in making that application by a registered migration agent (CB 1 and CB 28). Attached to her application were a number of supporting documents (CB 9, CB 32 to CB 34 and CB 49 to CB 52).

The Claims to Protection

  1. The applicant’s claims to protection were as follows. She claimed that her husband (who had been in Japan for some years) had been an “active member” for a particular political party opposed to the Maoists in Nepal. Further, that the Maoists had sought to extort money from her husband and had recently approached her for money as well (CB 53).

The Delegate

  1. The delegate gave the applicant the “benefit of the doubt” that her husband had been involved with a political party, despite his concerns about some of the documents the applicant had provided. However, the delegate found the applicant did not have the “profile of someone”, who would attract the adverse interest of the Maoists (CB 67.4). The delegate refused the application, essentially on this basis.

The Tribunal

  1. The applicant sought review by the Tribunal on 6 December 2011. She continued to be represented by a registered migration agent (CB 63 to CB 73). She first attended a hearing before the Tribunal (differently constituted) on 26 March 2013. Her representative was not present (CB 77).

  2. The Tribunal, as constituted previously, affirmed the delegate’s decision (CB 83 to CB 97). This decision was found to be affected by jurisdictional error and the decision was remitted to the Tribunal  for reconsideration according to law (CB 98 to CB 99).

  3. The applicant sought to proceed without representation (CB 113). She attended another hearing before the Tribunal, as constituted for present purposes, on 26 March 2013 (CB 120). The Tribunal’s account of the hearing is set out in its decision record ([28] at CB 132 to [41] at CB 134).

  4. The Tribunal had a number of concerns about the applicant’s credibility. These included inconsistencies in her evidence about the timing and frequency of the claimed threats from the Maoists and “incongruities” and difficulties with her evidence about her husband’s claimed problems with the Maoists (see [51] at CB 135 to [54] at CB 136).

  5. The Tribunal concluded that the applicant was not a witness of truth, and that the account on which her protection claims were based was false ([54] at CB 136). The Tribunal rejected the factual basis of the applicant’s claim. It also found the documents provided in support of her claims did not overcome its concerns about her credibility that the Tribunal emphasised were concerns which arose from the applicant’s own evidence. In those circumstances, the Tribunal did not give weight to those documents ([59] at CB 136).

  6. Ultimately, the Tribunal could find no credible evidence that that applicant had a well-founded fear for a Refugees Convention reason or that she would suffer significant harm on return to Nepal ([68] at CB 137)

  7. I should note, for the sake of completeness that, during the course of the conduct of the review, in addition to claims arising from her husband’s situation, the applicant also made claims to fear harm from her parents-in-law, largely because of what can be described as “differences” in caste. She asserted that having come to Australia, she had become aware of the “issue of human rights”, and were she to return to Nepal, she would “stand up” to the Maoists and that this would place her in a position of attracting harm from them. She also generally feared “discrimination”.

  8. It is important to note that the Tribunal dealt with each of those claims in a Refugee Convention context, and then separately turned its mind to the complementary protection criterion for a protection visa set out in s.36(2)(aa) of the Act. The Tribunal could not find any credible evidence that the applicant had a well-founded fear or that she would suffer significant harm on return to Nepal, having regard to the two sets of criteria set out in the Act for the grant of a protection visa. (See [68] at CB 137 to [70] at CB 138.)

The Application

  1. The application before the Court is in the following terms:

    “1. I am not satisfied with the Tribunal Member’s decision in my case because I notice that the Member treated my protection claims as fabrication alleging me that I am not a witness of truth.

    2. I argue that the Tribunal member failed to satisfy or define the requirement of credibility test in my case.

    3. It is contended that the Tribunal’s member’s responses to my answers were frequently dismissive based on the Tribunal Member’s arbitrary view and I believe the Tribunal Member in my case is not a fair minded member.

    4. I believe that the Tribunal Member in my case has committed a legal error.”

  2. At the first Court date for this matter, the applicant appeared in person and was assisted by an interpreter in the Nepali language. The applicant was put on notice that a disagreement with the Tribunal’s credibility findings, on its own, would not assist her in revealing legal error on the part of the Tribunal. She was referred for legal advice through the “Refugee Review Tribunal Legal Advice Scheme” (“RRTLAS”). Orders were also made giving her the opportunity to file any amended application and supporting evidence. The application was set down for a “show cause” hearing pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) today, 01 November 2013, at 2.15pm.

Before the Court

  1. The issue before the Court is, therefore, whether the application raises an arguable case for the relief that the applicant seeks. The relief sought by the applicant is, in essence, that the matter be returned to the Tribunal for reconsideration. No further documents have been filed by the applicant. The applicant appeared in person at the “show cause” hearing today and was assisted by an interpreter in the Nepali language. Mr R White appeared for the Minister.

  2. Despite having access to legal advice, nothing further was put before the Court by the applicant. The applicant simply stated today that the Tribunal “did not believe her” and she wanted the Court to return her case to the Tribunal to give her another opportunity to put forward her claims.

Consideration

  1. The grounds of the application seek impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). The applicant’s continued grievance with the Tribunal’s adverse credibility findings is simply a challenge to the Tribunal’s relevant findings which were all reasonably open to it on what was before it. The Tribunal is not obliged to uncritically accept any or all of what an applicant put to it (Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437).

  2. [The relevant statutory test set for the Tribunal was whether it could reach the requisite level of satisfaction such that the protection visa must be granted (s.65 and s.36(2) of the Act)]. The Tribunal’s disbelief of the applicant’s claims was arrived at in circumstances where its findings of fact were not only reasonably open to it, but for which it gave cogent reasons. Grounds one and two do not raise an arguable case. To the extent that ground four may be seen as being some general assertion in line with grounds one and two, it also does not raise an arguable case.

  3. I should note, as submitted by the Minister, that, in case it may be said that ground four was an assertion of some breach of the statutory requirements imposed by the Act on the Tribunal, no breach of s.424A of the Act is evident. I note, as was made clear by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, and the reference at [17] and [18] of that judgment to the Federal Court judgment in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123, that the Tribunal’s identification of inconsistencies in the applicant’s evidence and its subjective appraisals of the applicant’s evidence, is not information for the purposes of s.424A.

  4. Further the applicant has not provided any transcript of the hearing, or for that matter any other evidence, to the support her allegation that the Tribunal conducted the hearing in the fashion alleged. In the circumstances, the Court can only refer to the Tribunal’s decision record as to what occurred at that hearing. It is abundantly clear from the Tribunal’s decision record that the Tribunal raised with the applicant concerns with her evidence to the extent that the Court can be satisfied that the applicant would have been put on notice of the central and significant issue in the view, that is, the credibility of her factual account of past events and as they related to her claimed fear of harm. 

  5. In these circumstances and in circumstances, where the applicant had obviously been invited to a hearing, it is sufficient to say that no breach of s.425, and no breach of the Tribunal’s procedural fairness obligations as explained by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 can be ascertained in the current circumstances.

  6. I should also note that, in relation to the applicant’s documents that she provided to the Tribunal, the Tribunal gave those documents “no weight”.

  7. The Minister put to the Court that the Tribunal’s comprehensive rejection of the credibility of the applicant and her claims would have been sufficient for it to have proceeded, in what he described as the “Applicant S20 principle” , to reject the corroborative evidence, that is the documents that the applicant put to the Tribunal in corroboration of her claim. Presumably this is a reference to Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] FCA 30. However, the Tribunal did more than this. With reference to [59] (at CB 136) of the decision record, the Tribunal considered the documents and came to a specific view that the documents were such that they could not overcome the Tribunal’s concerns regarding the applicant’s credibility. As was described by the Minister, this was an entirely plausible approach.

  8. At ground three, the applicant appears to take issue with the Tribunal’s conduct of the hearing and alleges that the Tribunal did not bring an “open mind” to the proceedings. Such serious complaints require that such an allegation must be “distinctly made and clearly proven” (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J, see also SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [43] per Tamberlin, Mansfield and Jacobson JJ, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parteH [2001] HCA 28; (2001) 179 ALR 425).

  9. The applicant has not provided any transcript of the Tribunal hearing, or, for that matter, any other evidence, to the Court to support her allegation that the Tribunal conducted the hearing in the alleged fashion. No such allegation is available on the evidence before the Court. In these circumstances ground three does not raise an arguable case.

  10. This is an application that is baseless, in the sense that there is no evidence to provide some basis for the applicant’s complaints. I note also that in her affidavit filed at the same time as her application to the Court the applicant says that she is in need of “justice”. As was submitted by the Minister today, this does not advance her case in any meaningful sense nor assist in raising the nature of her complaints to an “arguable case”.

  11. I should also note for the sake of completeness that, as properly and helpfully pointed out by the Minister’s representative today, the Court Book does contain one irregularity regarding the notification to the applicant of the Tribunal’s decision. I have regard here to what is set out at CB 125 and to CB 127, which indicates that the notification of the decision was sent to the applicant’s migration representative.  However, as was clear at that time, the representative had ceased to act for the applicant. I note that the applicant was re-notified by the Tribunal in the appropriate, and “correct manner” on 2 May 2013, one month after the making of the decision.

  12. This irregularity is of no practical consequence that would assist the applicant in her application to the Court today. No injustice to the applicant arises in these circumstances. The application to the Court was made within the time set out by the Act for the making of such applications (s.477).

Conclusion

  1. No arguable case for the relief sought is raised by the grounds of the application to the Court. In all the circumstances, it is appropriate that the application be dismissed pursuant to r.44.12(1)(a) of the Rules. I will make that order.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 31 January 2014

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