SZTMB v Minister for Immigration

[2016] FCCA 1707

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTMB v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1707

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – real chance test – whether the Tribunal failed to consider an integer of the applicant’s claims – whether the applicant was denied procedural fairness – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424A, 424AA, 476

Cases cited:

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

Applicant: SZTMB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 301 of 2016

Judgment of: Judge Street

Hearing date: 7 July 2016

Date of Last Submission: 7 July 2016

Delivered at: Sydney

Delivered on: 7 July 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: Mr T Galvin
Minter Ellison Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 301 of 2016

SZTMB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 20 January 2016 affirming the decision of the Delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Nepal and his claims were assessed against that country.

2. The applicant had previously lodged an application for protection on 18 May 2011 which had been refused on 8 December 2011, and the applicant had unsuccessfully sought review in respect of that decision on 11 May 2012. Consistent with the principles in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 the applicant lodged a further application for protection on 5 July 2013. That decision supports the applicant having an entitlement to have the protection claim in relation to complementary protection assessed by the Tribunal.

3. What, in fact, occurred was that both the delegate and the Tribunal re‑assessed the applicant both under Refugee Convention grounds, as well as complementary protection. The Tribunal was in error in doing so. That error did not in any way disadvantage the applicant. The Tribunal and the delegate in this case considered both the applicant’s claims and evidence in the context of whether the applicant could establish an entitlement for protection under the Convention or in relation to complementary protection. 

4. I accept the first respondent’s submissions that the error in considering the broader ground as to whether the applicant was entitled to protection under the Convention has no materiality in respect of the current application for review. The error is one within jurisdiction and is not a jurisdictional error. Further, the error has no impact on the independent findings made by the Tribunal on the complementary protection grounds.

5. The applicant arrived in Australia on a sub-class TU-572 student visa on 9 February 2009 and it was not until 18 May 2011 that he applied for protection.

6. The applicant’s claims for protection in summary were a fear of harm from his family or community by reason of an earlier relationship with a different caste woman, and/or by reason of conversion to Christianity, and/or by reason of his mental illness.  The delegate rejected the applicant’s second application for protection on 30 September 2014 and the applicant applied for review, following which the applicant on 13 November 2015 was sent a letter inviting the applicant to appear before the Tribunal on 16 December 2015.

7. The applicant appeared on that date to give evidence and present arguments.  The Court has had tendered before it the transcript.  The transcript identifies that the applicant raised the recent death of his brother before the Tribunal and it is apparent from the transcript that the Tribunal raised with the applicant whether he was able to proceed, and there is nothing in the transcript to convey that the applicant at any time was unable to understand and properly participate in the hearing that took place.

8. To the extent that the applicant was asked questions pursuant to s.424AA of the Migration Act 1958, the applicant identified a reluctance to respond to that issue at the hearing and was given a further opportunity until 11 January 2016 to put on further submissions. Following the hearing, the Tribunal sent the applicant a letter in accordance with s.424A of the Migration Act 1958 to which the applicant responded on 4 January 2014.  The Tribunal identified the applicant’s claims and evidence and expressed serious concerns about the credibility of the applicant’s claims and evidence.

9. It was in those circumstances that the Tribunal found that it was not satisfied the applicant was ever in a genuine relationship with a woman of lower caste, or that his family or his community had disowned or mistreated him, or any other member of his family as a consequence of that relationship.  The Tribunal was not satisfied that the applicant’s family blamed him for his father’s death, given the evidence that his father was elderly and suffered from a serious medical condition.

10. The Tribunal noted that it was not satisfied that the applicant’s brother’s death was, or is perceived to be, in any way connected with the applicant’s inter-caste marriage.  The Tribunal found that nothing in the documents submitted to the Tribunal suggested that the applicant’s brother’s death related to the applicant in any way.  It was in these circumstances that the Tribunal found that it was not satisfied there is a real chance or risk of the applicant suffering serious or significant harm from any family member, from any member of his family or community as a consequence of his marriage.

11. The Tribunal also found that it was not satisfied after the passage of more than seven years and the cessation of Maoist insurgency that Maoists would have any interest in the applicant now or in the reasonably foreseeable future.  The Tribunal was not satisfied there is a real chance of the applicant suffering serious or significant harm from Maoists were he to return to Nepal now or in the reasonably foreseeable future. 

12. The Tribunal referred to the applicant’s claims of conversion to Christianity and found that it was not satisfied that the applicant had continued to attend church or engage in proselytising activities since June 2013.  The Tribunal was not satisfied the applicant would wish to practice Christianity or engage in proselytising if he were to return to Nepal now or in the reasonably foreseeable future.  The Tribunal did not accept that the applicant would engage in such activities or have any genuine desire to engage in such activities or proselytising.

13. The Tribunal accepted that the applicant came from a Hindu Brahmin family, however, the Tribunal was not satisfied that the applicant would wish to practice Christianity in Nepal and, given the findings by the Tribunal in relation to the applicant’s marriage, the Tribunal was not satisfied there is a real risk or chance that the applicant’s family or members of his community would seriously or significantly harm him due to his 2013 baptism.

14. The Tribunal was not satisfied that the applicant would be unable to obtain medical treatment and support in Nepal, having regard to the country information that it identified.  The Tribunal was also not satisfied that the applicant would lack family support were he to return to Nepal.  It was in these circumstances where, relevantly, the Tribunal found that it was not satisfied in the evidence that there are substantial grounds for believing it is a necessary and foreseeable consequence of the applicant being removed from Australia there is a real risk that he would suffer significant harm.

15. The Tribunal found that it was not satisfied that the applicant was a person in respect of whom Australia had complementary protection obligations under s.36(2)(aa) of the Migration Act 1958.  As indicated, the Tribunal also found, irrelevantly, that the applicant was not a person in respect of whom Australia had any obligation under the Refugee Convention.  For the reasons earlier given, that error does not affect in any material way the Tribunal’s consideration of the applicant’s complementary claims and evidence.

16. On 7 April 2016, a Registrar of the Court made orders availing the applicant an opportunity to file an amended application and affidavit evidence and submissions.  The applicant filed an affidavit annexing the transcript and on the day of the hearing the applicant provided to the Court written submissions.  The ground of the application is as follows:

    The Tribunal Member had strong evidence concerning my conversion to Christianity and my fear of persecution as well as my major depression yet ignored my fear of persecution. The decision is contrary to the facts before the Tribunal and the evidence given to the Compliance Section which was mentioned but the Tribunal failed to take into consideration.

17. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether or not the Tribunal’s decision was affected by relevant legal error.  The Court explained that relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.  The Court explained that, in summary, this meant the Court was determining whether the decision was lawful and whether the decision was fair.

18. The Court explained to the applicant that it would identify the evidence and then hear submissions from the applicant, and then hear submissions from the first respondent and hear submissions from the applicant in reply.  The applicant confirmed that he understood the nature of the hearing, as explained by the Court.

19. In relation to the grounds of review, it is apparent that the Tribunal did not ignore the applicant’s claims in respect of conversion to Christianity.  The Tribunal made adverse credit findings that were open on the material before the Tribunal.  In relation to the applicant’s evidence, those adverse findings cannot be said to lack an evident and intelligible justification. 

20. To the extent that the applicant suggests the Tribunal ignored his depression and the impact of his brother’s death, it is apparent from the Tribunal’s reasons that it took that matter into account and was of the view that the applicant was able to effectively participate in the hearing.  The transcript tendered in evidence supports that finding by the Tribunal. I find that the applicant had a genuine and meaningful hearing. Further, the Tribunal took into account the applicant’s mental condition and found that the applicant would not be unable to obtain appropriate mental health treatment and support in Nepal.

21. Accordingly, there is no substance in the contention that the Tribunal ignored the applicant’s fear of persecution. To the extent that it is submitted that the Tribunal’s decision was contrary to the facts before the Tribunal, the Tribunal has identified, in an orthodox manner, the applicant’s claims and evidence and it was a matter for the Tribunal to determine the applicant’s credit. It is apparent from the transcript that credit was a live issue, quite apart from the s.424A letter sent to the applicant.

22. The proposition that the decision of the Tribunal was contrary to the facts is not supported by the material before the Court and does not disclose any jurisdictional error.

23. The applicant’s reference to evidence given to the compliance section, relates to steps taken by the applicant to work and there is no reason why the Tribunal was required to take any steps to obtain material relating to the applicant’s endeavours to work. Nothing before the Tribunal identified that the material would advance the applicant’s claims or fears in relation to complementary protection. The application fails to identify any jurisdictional error.

24. In the applicant’s written submissions, the applicant has taken issue in substance with the same topics and seeks to cavil with the adverse findings made by the Tribunal.  This Court does not have the power to make fresh findings of fact in relation to the applicant’s claims.  It is apparent that the Tribunal did take into account the applicant’s disclosure of the recent death of his brother and the impact on the applicant. 

25. To the extent that the applicant’s submissions take issue with the conduct of the hearing, there is nothing on the face of the transcript to support any denial of procedural fairness by the Tribunal in the conduct of the hearing. It was appropriate for the Tribunal to test the applicant’s evidence. The testing of the applicant’s evidence by the Tribunal is not a basis upon which any jurisdictional error could be established and the applicant’s submissions, otherwise, invite the Court to engage in an impermissible review of the merits. The applicant’s written submissions do not identify any jurisdictional error.

26. The applicant, from the bar table, maintained that the Tribunal had failed to take into account his mental state and its impact on the evidence he was able to give. That proposition is inconsistent with the Tribunal’s reasons and inconsistent with the transcript. Nothing said by the applicant from the bar table identified any jurisdictional error.

27. From the material before the Court, the Tribunal’s decision was conducted in accordance with the statutory regime and on the material before the Court, the Tribunal’s decision was conducted in accordance with the requirements of procedural fairness.

28. The application fails to make out any jurisdictional error. The application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 19 July 2016