SZTOG and Ors v Minister for Immigration and Anor
[2017] FCCA 1429
•26 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTOG & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1429 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – protection visa – whether the Tribunal was inconsistent in considering the applicant’s evidence – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476. |
| First Applicant: | SZTOG |
| Second Applicant: | SZTOH |
| Third Applicant: | SZTOI |
| First Respondent | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 624 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 26 June 2017 |
| Date of Last Submission: | 26 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 26 June 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Newman Newman & Associates |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The amended application is dismissed.
The first and second applicants to pay the first respondent’s costs fixed in the amount of $6,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 624 of 2016
| SZTOG |
First Applicant
| SZTOH |
Second Applicant
| SZTOI |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 24 February 2016 affirming a decision of the delegate not to grant the applicants protection visas. The first applicant was the primary applicant for a visa; the second applicant, his wife; and the third applicant, his son.
The first applicant previously visited Australia in July/August 2010 and again arrived in Australia on a temporary business visa in July 2012 and returned to Nepal in August 2012 and then returned to Australia 12 days later. The second and third applicants last arrived in Australia in July 2012. The applicants were found to be citizens of Nepal and their claims were assessed against that country.
On 15 February 2013, the delegate of the first respondent refused to grant the applicants protection visas and on 27 February 2013 the applicants filed an application with the second respondent to review the decision. A differently constituted Tribunal affirmed the delegate’s decision to refuse to grant the applicants protection visas. Pursuant to orders made by a Judge of this Court the matter was remitted to the Tribunal for reconsideration.
Current Tribunal decision
The first applicant was invited to attend a hearing before the Tribunal and the first applicant appeared on 5 August 2015 to give evidence and present arguments together with the third applicant and a migration representative. The first applicant claimed to be a successful businessman in Nepal, a part owner and chairman of a large company that sold SIM cards and prepaid phone cards. The first applicant claimed to be the target of frequent extortion by Maoists and the Madhesi and other political parties who regularly demanded money from the first applicant due to his successful business profile. The first applicant claimed to be targeted as a supporter of the Nepal Congress Party (“NCP”).
Refugee Criterion
The Tribunal identified the first applicant’s background and set out the relevant law. The Tribunal accepted the first applicant was a successful businessman and that he had been both chairman and a shareholder of a certain business distributing SIM cards and prepaid cards since 2009. The Tribunal found that the first applicant was not a part owner of another business but rather was a distributor.
The Tribunal found that the first applicant had travelled to the UK and Thailand in 2007 and to Australia in 2010 and also 2012, arriving on 13 July and departing on 15 August 2012 and arriving again in Australia on 27 August 2012 and that he had been involved in the non-resident Nepal Association Australia since April 2013.
The Tribunal did not accept the first applicant as a credible witness and did not accept that he suffered harm in his country for the reasons claimed by the first applicant. The Tribunal found the first applicant’s evidence to be inconsistent and implausible, amounting to a fabrication for reasons detailed by the Tribunal. The Tribunal found the first applicant was not a witness of truth and was not targeted in Nepal in the manner he claims for the reasons he claims. Having considered the matters cumulatively, the Tribunal found the first applicant was not a credible witness and was not credible as to being targeted in the manner claimed by Maoists, Madhesi parties including the Terai Freedom Party, any other political parties, criminal elements, or anyone else in Nepal in any manner whatsoever as a successful businessman and a member of the NCP or for criminal reasons or for any of the reasons claimed by the first applicant.
The Tribunal did not accept the first applicant as a credible witness as to ever being involved in the NCP in the manner claimed. The Tribunal did not accept that the first applicant’s father was tortured or killed or faced any of the difficulties claimed by the first applicant at the hands of Maoists. The Tribunal, having considered the claims cumulatively, found the first applicant not to be a credible, truthful or reliable witness and was of the view that the first applicant had fabricated claims and concocted evidence to achieve an immigration outcome.
On the basis of the credibility findings the Tribunal did not accept the first applicant as a credible witness and could not be satisfied on the evidence before it that the first applicant is a truthful witness as to his claims. On the basis of the credibility findings the Tribunal did not accept as true that the first applicant was ever a member of the NCP, was targeted in Nepal by the Maoists, Terai Freedom Party, or any other political party for donations or threatened, intimidated, physically or verbally harmed for the reasons he claims including as a successful businessman, member of the NCP, for criminal reasons singularly or cumulatively or any other reason. The Tribunal did not accept as true that the first applicant left Nepal for those reasons or that he feared any harm to him or his family because of any past harm that he claimed he faced.
The Tribunal rejected in their entirety the claims advanced by the first applicant as to the reasons he fled Nepal and the difficulties he faced in Nepal before departure.
The Tribunal made reference to the letters and documents supplied by the first applicant in support of his claims. The Tribunal noted that it had raised with the first applicant widespread document fraud in Nepal and, taking that into account with the first applicant’s lack of credibility, the Tribunal placed no weight on any of these letters from Nepal as evidence of any involvement in the NCP or that the first applicant had been targeted by Maoists or anyone else or forced to pay donations and forced to flee his home area, and the Tribunal did not place any weight on the claims made in those letters. The Tribunal found the first applicant had given inconsistent evidence and evidence lacking in detail and that he was not a witness of truth as to being targeted by the Maoists or any political party in the manner claimed or that he was involved in the NCP.
The Tribunal made reference to the letter from the NCP in Australia and found it did not overcome the Tribunal’s cumulative concerns about the first applicant’s lack of credibility as to these claims.
The Tribunal did not believe the first applicant was truthful as to the reasons he departed Nepal, the difficulty faced being a successful businessman and member of the NCP, which he claims led him to leave Nepal and why he fears return. The Tribunal did not accept that the first applicant was involved in the NCP or that his family were or are involved in the NCP and that he therefore faced any difficulties in Nepal because of any association, involvement, activities for or any membership of the NCP.
The Tribunal was not satisfied on the evidence before it that at the time the first applicant departed Nepal in August 2012 he was of any interest of political parties including Maoists, the Madhesi parties, Terai Freedom Party, and others, or criminal elements, or anyone else. The Tribunal was not satisfied there is a real chance the first applicant will face serious harm were he to return to Nepal in the reasonably foreseeable future on the basis of his father’s claimed involvement in the NCP, the difficulties he claims his father faced at the hands of the Maoists, or on the basis of his claim his brother was taken by Maoists in 2004.
The Tribunal was not satisfied that the first applicant faces a real chance of serious harm for any of the reasons claimed or arising on the evidence either singularly or cumulatively for a Convention reason in the reasonably foreseeable future. The Tribunal found that it was not satisfied the first applicant has a well-founded fear of persecution in Nepal for a Convention reason in the reasonably foreseeable future. The Tribunal found that it was not satisfied that the first applicant was a refugee under s.36(2)(a) of the Act.
Complementary protection
The Tribunal did not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the first applicant being removed from Australia to Nepal there is a real risk that he will suffer significant harm as defined in s.36(2A). The Tribunal found that the second and third applicants were unable to satisfy the criterion in s.36(2)(b) or (c) and accordingly affirmed the decision of the delegate.
Proceedings before this Court
Grounds of the application
The grounds of the amended application are as follows:
1. The tribunal erred in law and in its jurisdiction when it claimed to have applied a test of 'consistency' to the evidence of the applicant, but failed to apply that test, and substituted another test [never fully articulated] which appeared to have mistaken consistency for omission with the result that mostly irrelevant reasons for non-acceptance of the applicant's evidence were published.
Submissions
Mr Newman, solicitor for the applicants, submitted that the Tribunal had engaged in inconsistent findings because it had accepted part of the first applicant’s evidence as to being a successful businessman but had rejected the first applicant’s evidence in relation to his claims of extortion. Mr Newman submitted that the Tribunal had cherry-picked the evidence and had not been consistent in its approach to the first applicant’s evidence.
Mr Newman pointed out that there were documents that supported the first applicant being a successful businessman, which the Tribunal accepted, and submitted that the Tribunal, in those circumstances, was acting inconsistently in rejecting the documents in support of the first applicant’s claims to extortion and involvement in political parties.
Mr Newman took the Court to the positive findings made by the Tribunal and to the adverse findings specifically in relation to the documentary evidence the Tribunal did not accept and placed no weight.
I accept the first respondent’s submission that the Tribunal based its findings on the first applicant having given significant inconsistent evidence about past instances of financial demands from political parties and criminal elements. Further, taking into account the first applicant’s migration history and return to Nepal, it was open to the Tribunal to find that that behaviour was inconsistent with the first applicant’s alleged fears and open for the Tribunal to find the first applicant’s explanation for that conduct to be implausible.
Consideration
The Tribunal also took into account the first applicant’s failure to initially apply for protection on arrival in Australia and did not accept that the first applicant’s explanation that he had not known about protection visas.
On reaching the adverse credibility findings, the Tribunal took into account that the first applicant gave inconsistent evidence as to when he was actively involved and the level of his involvement. The Tribunal took into account when questioned during the Department interview the first applicant was unable to describe the principles of the party. The Tribunal took into account, since the first applicant’s arrival in Australia he had no involvement in the NCP or politics in Australia.
I accept the first respondent’s submission that the adverse credibility findings by the Tribunal were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.
There is no inconsistency by the Tribunal in accepting some of the first applicant’s evidence and rejecting other evidence for rational and logical reasons. The Tribunal provided rational and logical reasons in relation to the claims that it had rejected, advanced by the first applicant. There is no illogicality or unreasonableness in those different credibility findings. No jurisdictional error is made out by ground 1 of the amended application.
The Court notes that the first applicant, on the evidence before the Court, is no longer in Australia.
Conclusion
The amended application is dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 20 July 2017
0
2