SZTOX v Minister for Immigration

[2014] FCCA 2861

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTOX v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2861

Catchwords:
MIGRATION – Application to review decision of the Refugee Review Tribunal – no arguable case raised by the applicant – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.12, 44.13

SZTBV v Minister for Immigration & Anor [2014] FCCA 2106
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708
Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219
Xie v The Immigration Department [1999] FCA 365
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91; (2013) 215 FCR 35
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1

Applicant: SZTOX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2959 of 2013

Judgment of: Judge Nicholls

Hearing date: 7 November 2014

Date of Last Submission: 7 November 2014

Delivered at: Sydney

Delivered on: 7 November 2014

REPRESENTATION

Applicant: In Person

Solicitors for the Respondents: Ms M Stone for DLA Piper Australia

ORDERS

1. The application made on 29 November 2013 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $3,326.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2959 of 2013

SZTOX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made pursuant to s.476 of the Migration Act1958 (Cth) (“the Act”) on 28 November 2013 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 28 October 2013, which affirmed the decision of the Minister’s delegate not to grant a protection visa to the applicant.

Background

1. I have before me today in evidence a bundle of relevant documents that the Minister has filed in these proceedings. I will refer to it as the Court Book (“CB”). 

2. The following background can be ascertained from the Court Book. The applicant is a citizen of Nepal.  He arrived in Australia on 27 February 2009 as the holder of a student dependant visa (CB 14). It appears that this was granted as a result of what the applicant subsequently described as a “false marriage document” ([11] at CB 117).

3. The applicant applied for a protection visa on 23 May 2012 (CB 1). He was interviewed by the Minister’s delegate on 31 August 2012. The visa was subsequently refused on 26 September 2012. The applicant applied for review to the Tribunal on 22 October 2012 (CB 69 to CB 74).

4. The applicant’s claim to fear harm in Nepal was said to arise from the Maoists, because he was a businessman who had been the subject of extortion demands by them, and because of his membership of the Nepali Congress Party. In his protection via application he claimed that in July 2008 he was abducted and assaulted by Maoists, who demanded a large sum of money and also demanded that he resign from the Nepali Congress Party. He did not do so and, therefore, he feared harm for this reason. Further, he claimed there was no effective protection from the Government of Nepal.

5. The applicant attended a hearing before the Tribunal on 17 October 2013 (CB 104). The Tribunal’s account of what occurred at the hearing is set out in its decision record ([21] at CB 118 to [39] at CB 120).

6. The Tribunal had concerns about the genuineness of the applicant’s stated fear. This derived, in the Tribunal’s view, from the applicant’s failure to apply for a protection visa until more than three years after he had arrived in Australia and in circumstances where, in the intervening period, he had applied unsuccessfully for a number of other visas to remain in Australia ([43] at CB 121).

7. The Tribunal’s concerns, as demonstrated in its decision record, also arose from the applicant’s evidence that he had left his local area in Nepal, and remained in Kathmandu for several months, instead of availing himself of the right to enter and reside in India. Instead, as the Tribunal found, he “undertook an expensive and fraudulent process to come to Australia” ([43] at CB 121).

8. The Tribunal concluded that the applicant’s concerns related only to the economic impact of extortion demands made on him as a local businessman in Nepal ([43] at CB 121).

9. The Tribunal accepted as plausible that he had been the subject of extortion by the Maoists and that he left his home and business in July 2008 without having complied with a final demand by the Maoists for money and went to Kathmandu ([44] at CB 121).

10. However, the Tribunal did not accept that this would lead to the Maoists pursuing him beyond his local area. The Tribunal found he did not have a political profile that would make him such a target. The Tribunal also found that the local Maoists would not have a continuing interest in the applicant after five years, and in circumstances where his business, which had formed the basis for their financial demands on him, had since closed ([45] at CB 121 to CB 122).

11. The Tribunal rejected as being implausible the applicant’s claims that the Maoists continued to harass and threaten his family. This finding was particularly based on the evidence that the Maoists had not actually done anything to them over such a long period ([45] at CB 121 -CB 122).

12. The Tribunal also relied on country information concerning Nepal to find that, as an ordinary member of the Nepali Congress Party, the applicant would not be targeted on return. Noting further, that he had only been a member for a short period of time. The Tribunal concluded that the applicant would not face serious harm on return for any Refugees Convention related reason ([46] – [47] at CB 122).

13. The Tribunal also found that the applicant’s concerns about political instability and, as it said, “weak law enforcement” in Nepal were difficulties faced by the population generally ([48] at CB 122).

14. The Tribunal accepted that the applicant faced a real risk of significant harm in his local area, when he had operated a business there some years ago. However, the Tribunal was equivocal as to whether that risk continued, and would exist in the reasonably foreseeable future. On balance, it appeared the Tribunal accepted that this may give rise to a real risk of significant harm in the reasonably foreseeable future ([49] at CB 122).

15. Taking this finding at its highest, the Tribunal nonetheless found that the applicant, as a matter of practical reality, had a right to enter and reside in India. The Tribunal based this on the existence of the “Treaty of Peace and Friendship” between India and Nepal and various pieces of country information about the relevant situation in Nepal and India, as relevant to the Treaty ([49] – [51] at CB 122).

16. The Tribunal found that the applicant would not face a real risk of serious or significant harm in India. The Tribunal also found that the applicant was not excluded from the provisions of s.36(3) of the Act and that, in essence, he had not taken all possible steps to avail himself of the right to enter and reside in India ([51] at CB 122 to [52] at CB 123).

17. On that basis, the Tribunal found, notwithstanding whatever the situation may have been in Nepal, or may be in Nepal in the reasonably foreseeable future, that Australia’s protection obligations were not engaged in relation to the applicant because of the operation of s.36(3) of the Act ([53] – [54] at CB 123):

    “[53] For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

    [54] Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa), having regard to the provisions of subsections 36(3), (4), (5) and (5A) of the Act.”

Application Before the Court

1. The applicant’s stated grounds of the application to the Court are in narrative form. They appear to be the applicant’s arguments as to why he wants the matter to be returned to the Tribunal for reconsideration.

2. In essence, ground one complains that the Tribunal accepted he had been the subject of extortion attempts by the Maoists but it nonetheless failed to find in his favour. Further, that he was a member of the Nepali Congress Party and spoke out against the Maoists, and therefore, was a refugee because of his political opinion.

3. The ground also makes assertions that the applicant was a member of a particular social group. At best, it appears that the assertion is that the group was, perhaps, “outspoken businessmen subject to extortion from Maoists”.

4. Ground two asserts bias on the part of the Tribunal because, it is said, it relied on media reports in making its decision instead of the applicant’s personal circumstances. I note, relevantly, that ground two also makes reference to s.36(3) of the Act.

5. Ground three is headed “Unfair Judgment” but simply seeks remittal of the applicant’s case to the Tribunal.

Before the Court

1. At the first Court date in this matter on 18 December 2013, a number of orders were made which, amongst other things, gave the applicant the opportunity to file any amended application and any evidence by way of affidavit in support of any grounds that he wished to put before the Court. Given the nature of the grounds, the matter was set down for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”).

2. Today the applicant appeared in person. He was assisted by an interpreter in the Nepali language.

3. In essence, when given the opportunity to address the Court, the applicant said that he was “not happy” with the Tribunal’s decision, that he would not have left Nepal if he had “no difficulty”, that the Government of Nepal could not protect him, and that he could not go to India because he could not stay there permanently. Therefore, that he came to Australia to protect his life. 

4. It is the case, given that this is a hearing proceeding pursuant to r.44.12 of the FCC Rules, that the issue before the Court today is whether the grounds of the application raise an arguable case for the relief that the applicant seeks. In this regard, it can be understood that the relief the applicant seeks, in essence, is to have his case returned to the Tribunal for reconsideration. If the Court cannot be satisfied that an arguable case is raised against the respondent, the application will be dismissed.

5. As I said in SZTBV v Minister for Immigration & Anor [2014] FCCA 2106, I note that the Courts power should be exercised with great caution. Given the summary nature of any such dismissal the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot success (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster v Lampard [1993] HCA 57;(1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3]– [6], Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219) or is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).

Consideration

1. Ground one asks that this Court engage in merits review. This is a course which the law does not permit (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). In relation to his support of the Nepali Congress Party, the Tribunal accepted he was a member. However, it gave reasons probative of what was before it and which were reasonably open to it, as to why this would not lead to harm in the future. The Tribunal’s reasoning as to the “extortion” claim has been referred to above. Here, also, the Tribunal made findings reasonably open to it on the material before it. No arguable case is raised in these circumstances.

2. The reference to “member of a particular social group” does not assist the applicant. Before the Court the applicant was unable to satisfactorily explain how this raised an arguable case of legal error on the part of the Tribunal.

3. In any event, the Tribunal did consider the applicant’s claims in the context of being a local businessman who had been the object of extortion demands. References to membership of a particular social group, in matters of this type, are generally important in establishing a necessary connection to, or nexus with, the Refugees Convention.

4. In this case, it is clear, the Tribunal did not affirm the delegate’s decision because of any finding relying on the absence of a Convention nexus. Ultimately, it is, as the Minister submitted, that the basis for the Tribunal’s decision rested separately on the proper application of s.36(3) of the Act (see further below). In that light, the reference to membership of a particular social group does not raise an arguable case for the relief sought. Therefore, in all, no arguable case is raised by ground one.

5. Ground two asserts bias. It is the case that the law requires such serious allegations to be distinctly made and clearly proven (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425). The reason for this is that an allegation of bias brought against an administrative decision-maker, unlike many other assertions of legal mistake, attacks the very integrity of that decision-maker and for that reason the law requires, as I said, evidence for that to be proven. It is the case that despite opportunity, and despite the length of time that the applicant has had since the first Court date in this matter, no evidence has been provided to the Court relevant to the applicant’s assertion of bias.

6. The applicant has provided no evidence on which to base the serious allegation of bias. In any event, the ground asserts that bias is revealed in the Tribunal’s finding, that the applicant had a right to enter and reside in India, and further, the Tribunal’s finding that he would not be harmed in India. In essence, the ground seeks to disagree with the Tribunal’s conclusion and the findings that informed that conclusion. 

7. A bare disagreement with the Tribunal’s conclusion, as the applicant has presented now, does not give rise to any arguable case. The Tribunal’s analysis, and approach, in relation to s.36(3) and its references properly to ss.36(4), (5) and (5)(a) of the Act do not reveal legal error. Its approach was consistent with the understanding of the concept, or the term, of “right to enter and reside in” as it appears in s.36(3), and what was relevantly said by the Full Federal Court in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91; (2013) 215 FCR 35 (see [30] – [35] and [72] – [79] per Buchanan J, with whom Tracey, Robertson and Griffiths JJ agreed).

8. I agree with the submissions made by the Minister today that the Tribunal’s analysis (at [51] at CB 122) makes reference to the relevant, correct test that applies in relation to s.36(3) of the Act, and note in that regard, that the Tribunal’s satisfaction was based on a matter of “practical reality”. Ground two also does not raise any arguable case for the relief that the applicant seeks.

9. Ground three, as I said earlier, does not appear to assert any legal error on the part of the Tribunal. To the extent that the applicant says that the Tribunal’s decision was unfair, it is the case that the Tribunal is required to provide to the applicant a fair process, but is not required by law to provide an outcome, that the applicant considers to be fair or the “correct” decision (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1).

10. In relation to the process before the Tribunal, there is nothing in the material before the Court, to show that the Tribunal did not provide a fair hearing, and a fair process in the conduct of the review, to the applicant. Therefore no arguable case is raised by ground three.

11. Rule 44.13(1) of the FCC Rules confines the applicant at a show cause hearing to the grounds of the application. As I said, those grounds do not reveal any arguable case for the relief that the applicant seeks. In any event, there is nothing that the applicant has said to the Court today, nor can I otherwise see in the evidence before the Court anything that would cause me to dispense with this rule and apply r.1.06 of the FCC Rules.

12. The applicant today stated that while he may be allowed to go to India, it would be difficult for him, and that he would be harassed. He made reference to the matters of unavailability of ration cards. In essence, that there would be “practical difficulties” for him if he were to go to India. None of these matters, in light of the Tribunal’s relevant finding as to s.36(3) of the Act, which is absent legal error, would assist the applicant in raising any legally arguable case today. Therefore, there is no utility in the Court dispensing with the rule confining the applicant’s case to the grounds, as he has pleaded.

Conclusion

1. In all, therefore, there is no arguable case for the relief that the applicant seeks. It is appropriate, in these circumstances, that I make an order dismissing the application.

2. It is also appropriate, in my view, that an order for costs be made in the usual way (“costs follow the event”). There is nothing that I can see that would argue against the making of such an order. As to the amount, I am satisfied that the amount sought by the Minister, in all the circumstances, is a reasonable amount. I will therefore make the order.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  8 December 2014