SZTMP v Minister for Immigration & Border Protection

[2015] FCCA 537

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTMP v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 537

Catchwords:
MIGRATION – Whether the Refugee Review Tribunal was biased – whether the Refugee Review Tribunal was required to consider relocation – whether the Refugee Review Tribunal made a typographical error – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36, 474

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
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 Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
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
SZLPH v Minister for Immigration & Citizenship [2008] FCA 744

Applicant: SZTMP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2749 of 2013

Judgment of: Judge Emmett

Hearing date: 10 March 2015

Date of Last Submission: 10 March 2015

Delivered at: Sydney

Delivered on: 10 March 2015

REPRESENTATION

The applicant appeared in person with the assistance of a Nepali interpreter

Counsel for the Respondents: Mr Tim Reilly

Solicitors for the Respondents: DLA Piper

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 2749 of 2013

SZTMP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal, dated 2 October 2013 and handed down on the same date (“the RRT”).

2. The applicant claims to be a citizen of Nepal who fears harm from Maoists in Nepal.

3. The applicant’s claims and the decision of the RRT are briefly summarised by counsel for the first respondent in submissions filed on 3 March 2015 as follows:

   “2. The Applicant is a citizen of Nepal who arrived in Australia on 4 November 2010, travelling on the passport of a different person. He applied for the protection visa on 15 June 2012: CB 1-33. He was invited to an interview by the delegate, which he did not attend, and the delegate refused the visa on 26 September 2012: CB 46-60. The Applicant applied to the Tribunal for review on 15 October 2012: CB 61-66. The Tribunal held a hearing on 13 September 2013: CB 82-84.

   3. The Applicant claimed to fear persecution in Nepal from Maoists. He claimed that Maoists burned down his family house in Dharapani in 2003 and expelled his family from their land. He claimed he then moved with his family to Beni and opened a shop. The Tribunal accepted that the Applicant returned to Dharapani at times, but not that the Applicant was assaulted by Maoists when he did so: CB 97 [28]. The Applicant claimed he moved from Beni to Kathmandu in 2006, and resided in Kathmandu until coming to Australia. He claimed he was still fearful of Maoists in Kathmandu, but the Tribunal found that he was not in genuine personal fear from harm by Maoists there as he claimed: CB 99 [36]. The Tribunal also noted that the Applicant’s failure to explore moving to India or leaving Nepal earlier on his passport issued in 2005 reinforced its finding that he did not genuinely fear Maoists in Kathmandu: CB 100 [41], as did the Applicant’s delay in applying for a protection visa in Australia: CB 100 [43]. The Tribunal concluded that there was no real chance of the Applicant experiencing persecution for a Convention reason if he returned to Kathmandu: CB 101 [49], which the Tribunal had earlier found was in the circumstances the Applicant’s place of reference in Nepal: CB 98 [34]. For the same reasons, the Tribunal found the Applicant was not owed protection under the “complementary protection” provisions in s 36(2)(aa) of the Migration Act 1958 (the Act): CB 101 [50-52].”

4. The applicant was unrepresented before me this morning, though had the assistance of a Nepali interpreter.

5. The applicant confirmed that he had not filed any documents in accordance with directions made by the Court on 18 February 2014 or otherwise and that he had no documents to provide to the Court this morning in support of his application.

6. The applicant confirmed that he relied on the grounds contained in his originating application filed on 7 November 2013 as follows:

   “1. BIAS DECISION – Paragraph 28 on Page 6 under the heading The applicant’s return to the village and the assault in 2003, of the Refugee Review Tribunal’s Decision Record.

   It states the following. “In sum, the Tribunal accepts that the Maoist forced the applicant and his family to leave Dharapani in early 2003, abandoning their home and land. It accepts that the applicant returned to the village to see his aunt and to sound out the prospects of the family regaining the land, but it does not accept that he argued and fought with a local Moaist leader, or that he was attacked a few days after this encounter.” My argument is that the Tribunal’s accepting that my family and I were forced to leave our family home and land by the Maoist, my returning to my village (where I stayed with my aunt) and my voicing or (to sound out the prospects of regaining the land) itself proves that I voiced and had arguments with the local Maoist leader which led to brawl with him. How can anyone sound out or voice to no one? Naturally no sober person would sound out to trees and non-living things. The tribunal has made a bias decision without considering the fact and the consequences one would face after voicing with attempting to regain captured property from the Maoist. The Tribunal made a jurisdictional error of not exploring the facts and giving regards to the most probable consequences one would suffer after voicing against the Maoist in the context of regaining confiscated property.

   2. India NOT a safe country for relocation

   The Tribunal did not consider the facts that Nepali people face discrimination and are not given state protection in India although it is true that no visas are required for a Nepali to enter India. There have been several cases in history where Refugee Review Tribunal, Federal Court of Australia, Federal Circuit Court of Australia, Federal Magistrates Court and Administrative Appeals Tribunal have accepted that India is not considered as a Safe Haven for a Nepali National. The Tribunal made its decision on speculation and not based on reality.

   3. Paragraph 52 on Page 10 under the heading Complementary protection, of the Refuge Review Tribunal’s Decision Record.

   The Tribunal writes “In light of the above findings of fact, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal to Turkey, he will face real risk of significant harm.

   This statement proves that the Tribunal did not conduct adequate findings and only copied and pasted a decision from another applicant claiming to be a refugee, who apparently was from TURKEY. I am a NEPALI and not Turkish. It creates a doubt that the decision I received was not based on my personal circumstances.

   How can a responsible authority such as Refugee Review Tribunal make such blunder mistake?

   I appeal the court to refer my case back to the Refugee Review Tribunal for another fair hearing and a fair decision based on my credibility and merits.”

7. Ground 1 was interpreted for the applicant and the applicant was invited to say whatever he wished in support of Ground 1. The applicant had nothing further to say in support of Ground 1.

8. In Ground 1, the applicant makes a bare assertion of bias that appears to be based on a finding made by the RRT at paragraph 28 of the RRT’s decision record. Paragraph 28 is as follows:

   “28. In sum, the Tribunal accepts that the Maoists forced the applicant and his family to leave Dharapani in early 2003, abandoning their home and land. It accepts that they did so by force, with some violence and further threats. The Tribunal accepts that the applicant returned to the village to see his aunt and to sound out the prospects of the family regaining the land, but it does not accept that he argued or fought with a local Maoist leader, or that he was attacked a few days after this encounter.”

9. I understand the applicant to disagree with the finding by the RRT that it did not accept that the applicant had argued or fought with a local Maoist leader, or that he was attacked a few days later after this encounter. Whilst that is the finding made in paragraph 28, it is based on findings made in the paragraph above at paragraph 27 of the RRT’s decision record. Paragraph 27 is as follows:

   “27. The Tribunal has significant difficulties with the applicant’s claims that he spent about two or three months a year in Dharapani, while at the same time trying to set up and run a small business in Beni. Also of concern is why he, rather than his father or his brother, tried to explore options to have the family’s land returned. The Tribunal accepts, on the basis that it is plausible, that the applicant may have spoken directly with a local Maoist leader, Adik. However, it does not accept that he pushed or otherwise insulted Adik in a manner that led to Adik’s ongoing resentment of him. The Tribunal also does not believe that ten or more Maoists abducted and assaulted the applicant a week or so later, striking him in the head, tying him up, pointing a gun to his head, and then leaving him for dead. First the Tribunal is generally concerned that the applicant has presented exaggerated and unreliable claims. Second, the Tribunal considers that there is a mismatch between such a serious attack by a large group, and the applicant’s account of his ability to return to his aunt’s village, and then to his parents in Chaukel.”

10. As stated above, the RRT found the applicant’s evidence to be exaggerated and unreliable. Whilst the RRT accepted that Maoists forced the applicant and his family to abandon their home and land through the use of force, with some violence, and referred to threats in 2003, the RRT rejected claims by the applicant of further harm in circumstances where the applicant had chosen to return to his village. The RRT found such conduct cast doubt upon the fear that the applicant claimed to have.

11. The applicant’s complaint in Ground 1 is summarised in an assertion that the RRT was biased. 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 the task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).

12. It is well established that it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision of the RRT. The applicant was given every opportunity to file further evidence in support of the grounds of his application, including a transcript or a recording of the RRT hearing. However, as stated above in these Reasons, no document was filed by the applicant to that effect.

13. A fair reading of the RRT’s decision record does not suggest any prejudgment on the part of the RRT such that it did not bring an impartial mind in determining the application for review (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).

14. The RRT’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

15. The applicant’s complaint in Ground 1 appears more to be a disagreement with the findings and conclusions of the RRT. Such complaints invite merits review which this Court cannot undertake (see 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).

16. Accordingly, Ground 1 is not made out.  

17. In Ground 2, the applicant asserts that the RRT did not consider that Nepali people face discrimination and are not given state protection in India.

18. Again, that ground was interpreted for the applicant and he was invited to say whatever he wished in support of that ground. The applicant made no submission in support of that ground.

19. The RRT found that the situation in India was no different to Nepal and noted that the applicant agreed with the RRT that he could enter and live in India and that there were no requirements or obstacles for him to do so. The RRT found the fact that the applicant did not investigate or consider going to India, added doubt to the truth of his claims and his need for protection. I refer to paragraphs 37, 40, and 53 of the RRT’s decision record as follows:

    “37. India: The applicant agreed with the Tribunal that he could enter and live in India. There were no requirements or obstacles to him doing so. However, he had never gone to India or any other country before his current visit to Australia. He said that no one in his village wants to go to India, and it had frankly not occurred to him. There was no direct link there from his village. It is no different from Nepal, as there is no security there.

    …

    40. The Tribunal alerted the applicant that his failure to consider going to India, or making efforts to go to other countries – even if these offered only a short-lived reprieve from his claimed problems in Nepal – added doubt to the truth of his claims, and his need for protection. The applicant replied that he did consider other places, but some of them do not observe human rights, or (like Bahrain) have a conservative religious background. He had heard that Australia is a safe place that observes human rights, and where he could stay in the longer term.

    …

    Third Country Protection

    53. The Tribunal explained to the applicant that Australia is taken not to have protection obligations in respect of him, if he has third country protection in another country, pursuant to ss.36(3)-(6) of the Act. In light of the above findings that he is not eligible for refugee protection or complementary protection, it is unnecessary for the Tribunal to consider further the question of possible third country protection in India.”

20. Those findings were open to the RRT on the evidence and the material before it and for the reasons it gave. In the circumstances, the RRT was not obliged to consider, nor was it not a jurisdictional error for the RRT not to consider, the fact that Nepali people face discrimination and are not given state protection in India beyond the comments and findings that the RRT had already made.

21. Accordingly, Ground 2 is not made out.

22. In Ground 3, the applicant correctly asserts that the RRT made a typographical error in paragraph 52 of its reasons. Paragraph 52 of the RRT’s decision record is as follows:

    “52. In light of the above findings of fact, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal to Turkey, he will face a real risk of significant harm.”

23. Plainly, the applicant is from Nepal and not Turkey. However, I am satisfied that the RRT’s decision, read as a whole, makes clear that the reference to Turkey is no more than a typographical error and, in the circumstances, cannot demonstrate jurisdictional error on the part of the RRT. The following was stated in SZLPH v Minister for Immigration & Citizenship [2008] FCA 744 at [29] by Weinberg J:

    “The authorities dealing with errors of a typographical nature are also relevant. In particular, the Minister drew my attention to the observations of Marshall J in Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875 where his Honour stated (at [48]):

    "Occasionally the RRT, like other decision-makers, delivers reasons for decision without 100% proof reading. Occasionally mistakes are not discovered even when the best proof readers have examined draft reasons. The existence of typographical error is best acknowledged rather than attempted to be exploited; see CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682."”

24. Part of the RRT’s decision to affirm the decision under review was its adverse credibility finding in respect of the applicant and its finding that the applicant did not meet the refugee criteria in s.36(2)(a) of the Act or the alternative complementary protection criteria in s.36(2)(aa) of the Act.

25. Otherwise, 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, put to the applicant matters of concern it had about his claims and noted the applicant’s responses.

26. 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.

27. 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.

28. 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.

29. Accordingly, the proceeding before this Court should be dismissed with costs.

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

Associate:

Date:  17 March 2015