SZTMA v Minister for Immigration & Border Protection
[2014] FCCA 504
•14 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTMA v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 504 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed. |
| Legislation: Judiciary Act 1903 (Cth) Migration Act 1958 (Cth) ss.359A, 359C, 360 Federal Circuit Court Rules 2001 (Cth) r.44.12, 44.13 Migration Regulations 1994 (Cth) |
| Cases Cited: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 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 in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 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 |
| Applicant: | SZTMA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2698 of 2013 |
| Judgment of: | Judge Emmett |
| Hearing date: | 14 March 2014 |
| Date of Last Submission: | 14 March 2014 |
| Delivered at: | Sydney |
| Delivered on: | 14 March 2014 |
REPRESENTATION
| The applicant appeared in person with the assistance of a Nepalese interpreter |
| Solicitors for the Respondents: | Ms Michelle Stone (DLA Piper) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2698 of 2013
| SZTMA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”), the applicant seeks judicial review of a decision of the Refugee Review Tribunal dated 8 October 2013 and handed down on 9 October 2013 (“the RRT”).
The first respondent seeks an order pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), that the proceeding before this Court, commenced by way of application on 31 October 2013, be dismissed on the basis that the grounds of the applicant’s application do not raise an arguable case for the relief claimed.
Rule 44.12 of the Rules provides as follows:
“(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”
Relevantly, r.44.13 provides:
“(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”
The proceeding before this Court
On 18 February 2013, the applicant attended a directions hearing before me. I explained to the applicant 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 applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.
I also explained to the applicant that in circumstances where the grounds of the application did not raise an arguable case, the application may be dismissed pursuant to r.44.12 of the Rules.
At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would flow to him if a costs order was made against him. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.
The applicant confirmed that he wished to continue with the application for judicial review. The applicant was given leave to file and serve an amended application and submissions in support giving complete particulars of each ground of review relied upon by 4 March 2014.
At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services.
The matter was then set down for a show cause hearing today pursuant to r.44.12 of the Rules.
The applicant filed an affidavit in support of his application for judicial review on 31 October 2013 annexing a copy of the RRT’s decision record. I accept as accurate the first respondent’s summary of the background to the current proceeding, as follows:
“2. The applicant is a male citizen of Nepal.2 He arrived in Australia on 26 April 2009 as the holder of a Student visa.
3. The applicant applied for a Protection (Class XA) visa on 30 May 2012.
4. The application was refused by a delegate of the first respondent on 3 October 2012.
5. The applicant applied to the RRT for review of the delegate's decision on 22 October 2012.
6. The applicant attended a hearing before the RRT on 27 September 2013. Following the hearing, the applicant provided a short written submission and two items of country information to the RRT.
7. The RRT made its decision on 8 October 2013, affirming the decision under review.
8. The applicant claimed to fear harm in Nepal from members of the Maoist party, although his reasons for this fear changed over time. In his application form the applicant claimed to fear harm due to his active membership in the RPP. At the delegate's interview and the RRT hearing the applicant claimed to fear harm because of a land dispute with the Maoists.
9. The delegate did not accept that the applicant faced harm from the Maoists, due to the inconsistencies in his account as between his application form and his evidence at the delegate's interview.
10. The RRT did not consider the applicant's claimed fear of harm in Nepal, instead finding that the applicant was not a person to whom Australia had protection obligations pursuant to section 36(3) of the Act:
11. Relevantly, section 36 of the Act provides as follows:
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.
12. The RRT found that the applicant had a right to enter and reside in India for the purposes of section 36(3) of the Act, due to the provisions of the 1950 Treaty of Peace and Friendship (see [19]-[20] and [26]-[27]).13. In so finding, the RRT noted the decision of the Full Federal Court in SZRHU v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 91, in which the Court found that the right to enter and reside did not need to be a legally enforceable right and can include the notion of liberty, permission or privilege (see [18]).
14. The RRT also relied on country information regarding the way in which the treaty is implemented in practice to conclude that although the terms of the treaty did not mention a right of entry for Nepalese citizens, its terms are generally understood to imply that such a right exists (see [21]-[22]).
15. The RRT found that the applicant's own experiences were consistent with this country information, as he had travelled to India in 2007 and lived there for two years, and had told the RRT that there were no formalities or paperwork needed for him to travel to India (see [23]).
16. The RRT considered whether the applicant was at risk of persecution or significant harm in India from [28]-[32], and found that he was not. Accordingly, section 36(4) of the Act did not apply.
17. The RRT considered whether the applicant would be returned from India to Nepal or to any other country at [33]-[37] and found that he would not. Therefore, sections 36(5) and (5A) did not apply.
18. The RRT found that the applicant had a right to enter and reside in India, and that the qualifications under sections 36(4), (5) and (5A) did not apply. The RRT found that the applicant had not taken all possible steps to avail himself of the right to enter and reside in India (see [38]-[39]). Accordingly, the RRT found that pursuant to section 36(3) of the Act, Australia is taken not to have protection obligations in respect of the applicant (see [40]).”
The applicant was unrepresented before the Court this morning, although had the assistance of a Nepali interpreter. The grounds of the application were interpreted for the applicant and the applicant was invited to make submissions in support of the grounds.
In the applicant’s application for judicial review, filed on 31 October 2013, the applicant identified the grounds for review as follows:
“1.The RRT made a jurisdictional error when it misapplied the express and implied meaning of term “well-founded fear” and Refugee from UN Convention specifically in relation of applicant’s fear or persecution from the Maoists of Nepal.
2.The RRT made a made a jurisdictional error when it could not afford sufficient weight to the oral evidence at the time of hearing, the applicant was denied procedural fairness.
3.The applicant is from Nepal. The whole time, the RRT spent on issues of relocation in India. The RRT took into account irrelevant matters in the hearing and decision.
4.The real test for fear of persecution was ignored. The decision of the Tribunal was predetermined.”
The applicant made no submissions in support of ground 1. To the extent that ground 1 complains that the RRT did not consider the applicant’s fear of harm in Nepal, the RRT found that the applicant had the right to enter and reside in India and that he would not be harmed there. That finding would appear to be open to the RRT on the evidence and material before it and for the reasons it gave. In the circumstances, there was no obligation on the RRT to consider further the applicants claimed fear of harm in Nepal.
Accordingly, ground 1 does not raise an arguable case for the relief sought.
In ground 2, I asked the applicant in what way was he denied procedural fairness and the applicant responded that the RRT was not interested in Nepal and only interested in the arrangements in India.
For the same reasons as ground 1, ground 2 does not raise an arguable case. The applicant attended the hearing before the RRT and gave evidence and arguments in relation to his claims. The applicant also made post-hearing submissions as to why he could not enter and reside in India. The applicant’s claims were explored with him at the hearing and the RRT’s concerns were put to the applicant for comment.
It is 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).
In support of grounds 3 and 4, the applicant referred to a post-hearing submission that he had provided to the RRT and asserted that the RRT had been ready to give its decision on the day of the hearing and only gave him one week to provide any further documents.
In light of the applicant’s reference to the RRT’s review and decision, including the document provided by the applicant post hearing, the solicitor for the First Respondent, Ms Stone, tendered a bundle of documents identified as Court Book, filed on 11 December 2013, which was marked “Exhibit 1R”
In support of ground 3, the applicant submitted that he had given the RRT a report on 30 September 2013 attached to a submission about problems facing Nepalese in India and that the RRT failed to take that document into account.
Exhibit 1R contains a copy of the submission referred to by the applicant as having been sent by him to the RRT on 30 September 2013. In its decision record, the RRT referred specifically to the submission sent by the applicant on 30 September 2013. The RRT noted that the submission was provided by the applicant to demonstrate that it is not safe and effective for Nepalese people to live, work, and settle in India. The RRT stated that it “carefully considered” the applicant’s submission and acknowledged that the report attached expressed concern that Nepalese migrants may be vulnerable to the same labour rights, violations, and exploitation as other impoverished Indians. The RRT also noted that the report cited instances of discrimination from landlords against Nepalese tenants and the police not taking seriously complaints by Nepalese migrants about workplace abuses.
However, ultimately, the RRT found that, having regards to the applicant circumstances and his past experiences in India and all the country information before it, it did not accept that the treatment of Nepalese in India is such that the mere fact of being Nepalese gives rise to a well-founded fear of persecution for a Convention reason or a real risk of serious harm. The RRT noted that a risk of “significant harm” does not include risk faced by the population of the country generally and not faced by the applicant personally.
The RRT concluded that the applicant did not have a well-founded fear of persecution in India for the purposes of s.36(4)(a) of the Act, or whether he availed himself of the right to enter and reside in India there would be a real risk that he would suffer significant harm for the purposes of s.36(4)(b) of the Act.
The RRT’s findings and conclusion appear to be open to upon the evidence and material before and for the reasons it gave. The RRT plainly considered in detail the applicant’s post hearing material attached to his letter dated 30 September 2013.
In the circumstances, the applicant’s complaint in ground 3 that the RRT did not take into account the applicant’s post-hearing submission and report in not made out. Otherwise, ground 3 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. The applicant’s complaints, such as they are, 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). 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.”
In support of ground 4, the applicant said that the RRT had been ready to give its decision on the day of the hearing. The applicant also complained that he was given only one week to provide any further documents and that was insufficient time. Neither of these complaints raises an arguable case for the relief claimed.
In relation to the applicant’s first complaint in ground 4 that the RRT was ready to give a decision that day, there is no evidence before this Court to support such an assertion.
There was no transcript of the RRT hearing provided to this Court, nor did the applicant provide any evidence to this Court to suggest that the RRT’s decision record is not accurate. At the directions hearing on 18 February 2014, the applicant was given an opportunity to file any further evidence by 4 March 2014. However, no step was taken by the applicant to rely on any further evidence. In the circumstances, the Court accepts as accurate the RRT’s summary of the oral evidence given by the applicant and exchanges it had with the applicant at the RRT hearing. The Court is entitled to accept the RRT’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).
In the circumstances, there is nothing in the RRT’s decision record to support the applicant’s assertion that the RRT was prepared to give its decision on the day of the hearing. Indeed Exhibit 1R discloses that the applicant was given seven days to provide any further material. The applicant did in fact provide the report referred to above three days following the hearing in applicant’s submission, dated 30 September 2013.
In relation to the applicant’s complaint that seven days was insufficient to provide further material, there is no evidence to suggest that the applicant asked for more than seven days and no evidence that seven days was insufficient. In the applicant’s submission, dated 30 September 2013 and sent three days after the hearing, there is no mention by the applicant seeking further time or that he had further documents to provide. There is no other evidence of any further contact from the applicant to the RRT following 30 September 2013.
To the extent that the applicant’s written ground 4 asserts that the decision of the RRT was predetermined, there is no evidence to support such an assertion. A claim of bias is serious and requires evidence, such as a transcript of the RRT hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the RRT makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
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], [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]).
Whilst I make no final decision as to whether the RRT’s decision is affected by jurisdictional error, none is apparent on the face of the decision record and none has been identified by the applicant. The RRT referred to the relevant law and affirmed the decision under review, apparently in accordance with the statutory regime. There is nothing on the face of the RRT’s decision record to suggest that its findings were not open to it on the evidence and materials before it and for the reasons it gave.
In the circumstances, I am not satisfied that the grounds of the application do not raise an arguable case for the relief claimed. Accordingly, the proceeding before this Court, commenced by way of application on 31 October 2013, should be dismissed pursuant to r.44.12(1)(a) of the Rules, with costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 14 March 2014
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