SZTOB v Minister for Immigration

[2014] FCCA 1470

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTOB & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1470

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth)

First Applicant: SZTOB

Second Applicant: SZTOC

Third Applicant: SZTOD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2906 of 2013

Judgment of: Judge Driver

Hearing date: 9 July 2014

Delivered at: Sydney

Delivered on: 9 July 2014

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents:

Ms A Wong

DLA Piper

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,900.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2906 of 2013

SZTOB

First Applicant

SZTOC

Second Applicant

SZTOD

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 18 October 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. The applicant is from Nepal and had made claims of persecution based upon his political activities.  The applicant was the principal visa applicant before the Tribunal and his partner and daughter applied as members of his family group.  They are also parties to this application. 

3. The Tribunal was unable to make a favourable decision on the papers and invited the applicant to attend a hearing, which he did.  At that time the Tribunal explored with the applicant his claims to fear the Maoists in Nepal and his claims to have been severely physically assaulted.  The Tribunal had credibility concerns, both because of the nature and content of the applicant’s evidence and his delay in applying for protection in Australia until the student visa he held was about to run out. 

4. The Tribunal considered the applicant’s claims, both before and after 2008 when he came to Australia.  The Tribunal found it difficult to establish a clear chronology in relation to claims of harm before 2008, partly because of attempts to convert Nepalese dates to the Gregorian calendar and partly because of the Tribunal’s difficulty with the claims more generally. 

5. The applicant supported his claims with certain documents, which the Tribunal did not give weight to, given its credibility concerns about the applicant’s claims as a whole and the prevalence of document fraud in Nepal.  The Tribunal accepted that the applicant was a low-key supporter of the Rastriya Prajatantra Party (RPP) in Nepal, but did not accept that he would be targeted by the Maoists should he return there.  The Tribunal found that the applicant did not qualify for protection, either as a refugee or under the complementary protection criteria.

6. These proceedings began with a show cause application filed on 22 November 2013.  The applicant continues to rely upon that application.  The application contains three grounds:

   1. PERSONAL CIRCUMSTANCES NOT CONSIDERED – Paragraph 3 on Page 2 and Paragraphs 13 and 14 on Page 3 under the hearing STATEMENT OF DECISION AND RECORDS, and CONSIDERATION OF CLAIMS AND EVIDENCE respectively on the Refugee Review Tribunal’s Decision Record.

   Both the delegate of the Minister and Review Member at the Refugee Review Tribunal have indicated their concerns and have based their decision on the Delayed lodgement of my Protection Visa Application.  I argue that my personal circumstances of being the eldest son in my family where only my old widow mother lives.  My Socio-cultural obligation as being the only son responsive for taking care of the property left by my father and the obligation to look after my old mother in Nepal was not considered.  I have made it very clear in my statements and evidences given verbally at both the interviews that my intentions to coming to Australia were only to seek safety temporarily.  I have always told that my preference was to return to my own country provided the situation got better and I felt safer.  I arrived in Australia on 10 March 2008 with a Student Visa which was valid until 15 March 2012.  There was no need for me to seek for another visa while I held a valid visa which allowed me to live in Australia.  Therefore I did not seek to apply for any other visas including a Protection Visa while I had my Student Visa valid.  With the responsibilities and obligations I had, I was always hoping for the situation in my country to get better and that I could return.  I have not been an unlawful non-citizen in Australia and I do not have any adverse criminal records.  I did not want to live in Australia unlawfully and since the situation in my country got worse and that I feared persecution if I returned in such situation, I had no other way than to apply for a Protection Visa before my Student Visa ceased.  My argument is, the [T]ribunal should analyse each case individually based upon each applicant’s circumstance.  My application was decided on the basis of other past applicants and their circumstances.

   2. BIAS DECISION (India NOT a safe country for relocation)

   The delegate of the Minister at the Department of Immigration and Border Protection had accepted Under the heading Statutory effective protection, the delegate is satisfied and has accepted my claims of not having the right to enter and reside in a third country.

   The delegate mentioned that I do not have effective protection in a third country including India under section 36(3) of the Migration Act.

   However, 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.          UNFAIR [JUDGMENT]

   I appeal the [C]ourt to refer my case back to the Refugee Review Tribunal for another fair hearing and a fair decision based upon my credibility and merits. (emphasis deleted)

7. I have before me as evidence the applicant’s affidavit, made on 22 November 2013.  I also have before me the court book, filed on 16 December 2013.

8. The first ground in the application is, in substance, an attack upon the merits of both the Tribunal decision and the decision of the Minister’s delegate which preceded it.  I explained to the applicant that the Court had no jurisdiction to review the decision of the delegate as it was, in terms of the Migration Act 1958 (Cth) (Migration Act), a primary decision, reviewable and in fact reviewed by the Tribunal. The Court also has no jurisdiction to review the merits of the Tribunal decision.

9. Ground 2 in the application appears to assert bias.  In his oral submissions the applicant referred to a contention that he could obtain safety by living in India, which he rejects.  It emerged that this was a basis of reasoning by the delegate rather than the Tribunal.  There is no evidence before the Court to support any contention of bias on the part of the Tribunal.

10. The third ground asserts generally that the applicant has been a victim of an unfair judgment and seeks a further opportunity.  I informed the applicant that if the Tribunal decision is a valid one only the Minister for Immigration can change it. 

11. At the outset of the show cause hearing this afternoon the applicant indicated that he would like the assistance of a Nepalese interpreter.  I referred back to my notes of the first court date hearing on 18 December 2013, at which I noted that no interpreter was required.  The applicant at that time attended without the assistance of an interpreter and addressed the court in the English language.  The application filed on 22 November 2013 also indicated that the applicant did not require an interpreter.  The applicant pointed out that at the first court date directions on 18 December 2013 he had requested an interpreter for this later hearing.  Although I made no note of that myself, the information sheet completed by the applicant at that time does indicate that the applicant sought a Nepalese interpreter for this hearing.  Likewise, it appears that the notes of the Minister’s solicitor who appeared on that day corroborated that request.

12. I indicated to the applicant that I would be willing to adjourn to see if an interpreter could be secured to continue the hearing this afternoon, but he told me that he was willing to continue in English as best he could.  As it transpired, it is plain that the applicant is a highly intelligent and articulate man, who is proficient in the English language.  I do not consider that he has been disadvantaged by the absence of an interpreter. 

13. There is nothing in the show cause application which points to any arguable case of jurisdictional error by the Tribunal.  Neither does my own reading of the decision suggest to me that such a case is arguable.  The arrangement of the reasons is somewhat novel, in that the Tribunal dealt with all of the factual issues before addressing the criteria for refugee protection and complementary protection.  That, however, is a matter of style for the Tribunal and the approach of the presiding member was, in my view, a refreshing one.

14. It appears that the Tribunal considered all of the applicant’s claims. There is no indication of any failure by the Tribunal to perform lawfully its statutory obligations under the Migration Act. I have concluded that the application fails to demonstrate an arguable case of jurisdictional error by the Tribunal.

15. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

16. In consequence of the dismissal of the application the Minister seeks an order for costs, fixed in the sum of $2,900.  The applicant did not wish to be heard on costs.

17. I will order that the first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,900.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 17 July 2014