SZTQL v Minister for Immigration

Case •

[2014] FCCA 2147

•

4 August 2014

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTQL v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2147
Catchwords:
MIGRATION – Application for review of decision of the Refugee Review Tribunal – whether Tribunal applied correct test in respect of a “well‑founded fear of persecution” – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 430, 476
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
NACB of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 140
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164
Minister for Immigration and Citizenship v MZYHS [2011] FCA 53
Applicant: SZTQL
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 3060 of 2013
Judgment of: Judge Nicholls
Hearing date: 4 August 2014
Date of Last Submission: 4 August 2014
Delivered at: Sydney
Delivered on: 4 August 2014

REPRESENTATION

Applicant: In Person
Appearing for the Respondents: Mr M Wiese
Solicitors for the Respondents: Clayton Utz

ORDERS

  1. The title of the first respondent is amended to read ‘Minister for Immigration and Border Protection’.

  2. The application made on 9 December 2013 is dismissed.

  3. The applicant pay the first respondent’s costs set in the amount of $4,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3060 of 2013

SZTQL

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 Act 1958 (Cth) (“the Act”) on 9 December 2013. The applicant seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 11 November 2013 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Background

  1. In evidence is a bundle of relevant documents that the Minister has filed in these proceedings (“the Court Book” ‑ “CB”). The following background can be seen from this material. 

  2. The applicant is a citizen of Nepal (CB 7, CB 33 and [2] at CB 272). He applied for a protection visa on 28 September 2011, after having arrived in Australia on 18 February 2009 (CB 1 to CB 36). He received assistance with this application from a registered migration agent (CB 27). 

  3. His claims to protection were initially set out in a written statement provided at the time of making the application, as well as in the application form (CB 11 to CB 14 and CB 35 to CB 36). 

  4. The applicant, who said he was from a Hindu family, claimed to have had a sexual relationship with a Muslim woman in 2007. She became pregnant and told her family, who were conservative Muslims.

  5. The applicant claimed that the woman’s family, her relations and community friends attended at the applicant’s family’s house. In his written statement, he described that their actions had “changed our affair to political and religious matter” (CB 35.5). He claimed that the Nepalese government did not provide any help to his family. He said that he could not return to Nepal because he feared harm from the “whole Muslim community” and the Youth Communist League (“the YCL”), who had become involved in the matter by the woman’s family (CB 36).

  6. On 5 March 2011, the delegate refused to grant the visa (CB 65 to CB 79).

The Tribunal

  1. The applicant applied to the Tribunal for review of the delegate’s decision on 29 March 2012. He continued to be represented by a registered migration agent (CB 87 to CB 93).

  2. The Tribunal, differently constituted, affirmed the delegate’s decision on 21 August 2012.

  3. However, orders made by the Full Federal Court on 25 July 2013 quashed that Tribunal decision (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80). The Full Court found that that Tribunal decision was affected by a reasonable apprehension of bias. The application for review, therefore, was remitted to the Tribunal so that the Tribunal could reconsider it according to law (CB 193 to CB 235).

  4. The applicant appeared at what, in effect, was a “second” hearing before the Tribunal on 7 November 2013. He continued to be represented by a migration agent (CB 251 and CB 262).

  5. At that hearing, the applicant pressed the claims to which I have already referred. He also claimed that the Muslim woman’s family had reported the matter of their relationship to the Maoists in Nepal. This was in the claimed context of “mutual support” between the Maoists and the Muslims. The Maoists then sought compensation for the woman and donations for themselves from the applicant and his family ([16] – [18] at CB 279). The applicant left his home and went to Kathmandu. The Maoists then started to threaten the applicant’s family, particularly his brother ([19] at CB 279).

  6. He further claimed that his father was also targeted by the Maoists because of his father’s involvement with the Communist Party in Nepal (“the UML”) ([28] at CB 280). It appears the distinction was that, unlike the Maoists, the Communist Party of Nepal described itself as being “Marxist-Leninist” in its ideology. The applicant also claimed to be a member of the party to which his father belonged (CB 71.6).

  7. The Minister’s written submissions, which have been filed in these proceedings, in my view, provide an accurate summary of the Tribunal’s findings. For purposes of convenience today, I adopt those parts of the Minister’s written submissions that address the Tribunal’s findings ([12] – [18] of the Minister’s written submissions):

    “[12] The Tribunal found that there were inconsistencies in the applicant's evidence at various points, some of which related to matters of substance: for example, whether he and his family were in fact attacked or harmed by the Young Communist League (YCL) within the Maoist party or Jasmine's [the Muslim woman] family, and the level of involvement the applicant had in the UML.  The Tribunal found that, whatever substance lay at the heart of the applicant's claims, he had embroidered and embellished them in order to strengthen his claims for protection (CB 283[42]).

    [13] The Tribunal also had concerns about the genuineness of the applicant's claimed fear of persecution at the time he left Nepal for Australia.  This was because his application for a protection visa was not made until September 2011, 2½ years after his arrival in Australia (CB 283[43]).

    [14] The Tribunal considered a purported newspaper article submitted by the applicant which reported an attack on the applicant's home.  Noting the delegate's and previously constituted Tribunal's concerns with the authenticity of that report, the Tribunal found that physical indications of the authenticity were inconclusive but that in a number of respects the report was inconsistent with the evidence provided by the applicant directly at hearing.  The Tribunal was therefore not prepared to accept the news report as reliable or authoritative corroborative evidence (CB 283[44]).

    [15] The Tribunal accepted that the applicant had had a relationship with Jasmine who was the daughter of a Muslim neighbour to which the girl's family objected and, although having some doubt, that Jasmine fell pregnant.  The Tribunal did not accept that the family had attacked the applicant or threatened him or his family in any way (CB 283-84 at [45]). 

    [16] In light of not being satisfied that the girl's family had made a specific demand or threats, the Tribunal found it difficult to accept that the YCL would take up their cause and make demands on the applicant and his family on behalf of Jasmine and her family.  It found that the YCL had not assaulted the applicant or any member of his family (CB 284[46]).

    [17] The Tribunal accepted that YCL members had made threats to the applicant's father for donations, which had been unmet and which had not resulted in any harm.  The Tribunal did not accept that those requests for donations and threats were related to the issues with Jasmine.  It further found that those threats had been made of the applicant's father only, not the applicant himself.  The Tribunal found that the threats were not politically motivated but rather because the applicant's father ran a business and was therefore opportunistically extorted as someone in a position to provide money.  The Tribunal did not accept that the YCL and/or Maoists had targeted the applicant or that they had pursued him to Kathmandu (CB284-85 at [47]-[49]). 

    [18] The Tribunal concluded that there was not a real risk of significant harm or persecution from either the Maoists or the YCL, or Jasmine's Muslim family (CB 285-86 at [50]-[52]). 

  8. I note also that the Tribunal found that even if it had determined that the applicant was prima facie entitled to protection in Australia, he would be excluded from being given protection by s.36(3) of the Act, given that, as a Nepalese citizen, he could go to India in circumstances where it did not accept that he would be subject to harm ([57] at CB 286).

  9. However, as is plain, this was not the reason that the Tribunal affirmed the delegate’s decision. The reason was that the Tribunal could not be satisfied that the applicant met either of the criteria that are set out in s.36(2) of the Act for the grant of a protection visa. In particular, the Tribunal found that the applicant would not suffer serious or significant harm, as those terms are understood in the context of the Act, if he were to return to Nepal in the foreseeable future ([54] at CB 285 and [58] – [60] at CB 286).

Application Before the Court

  1. The sole ground of the application before the Court is in the following terms: 

    “The second respondent has made a jurisdictional error by applying a wrong test to assess whether the applicant has a


    well-founded fear of persecution when he returns to Nepal.

    Particulars

    (a) Chan Yee Kin v Minister For Immigration And Ethnic Affairs requires that a real chance test be applied in assessing a well founded fear persecution. 

    (b) The second respondents’ assessment was based on balance of probabilities, giving more weight to some information and less weight to other information. 

    (c) The way the second respondent made the assessment is contrary to the test propounded in Chan”

    [Errors in the original.]

Before the Court

  1. At the hearing today, the applicant appeared in person. He was assisted by an interpreter in the Nepalese language. Mr M Wiese appeared for the Minister.

  2. Despite the opportunity given to the applicant by orders made by this Court on 12 February 2014, the applicant has not filed anything further, such as an amended application or evidence by way of affidavit, in support of his application to the Court.

  3. When given the opportunity to address the Court, the applicant stated at first, that his case was “genuine” and that he could not go back to Nepal. At its highest, this can only be seen as an attempt by the applicant to dispute, or cavil with, the factual findings made by the Tribunal, which resulted in its conclusion that the delegate’s decision should be affirmed. The applicant therefore seeks impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)).

  4. Second, the applicant complained that he could not go to India. I saw this as referring to the Tribunal’s comment at [57] at of its decision record (at CB 286 and see [15] above). As I said earlier, the Tribunal’s decision was not based on any finding that the applicant could avail himself of protection in India and has not taken the steps to do so. There is no error in the Tribunal, for the sake of completeness, noting this matter. As I said, in any event, it was simply the Tribunal’s explanation of how it would have proceeded, had it not made the relevant findings that it actually did as to whether there was a real chance that the applicant would suffer serious or significant harm on return to Nepal.

  5. When asked if he could speak to the sole ground of the application, ultimately the applicant explained that he could not. What I understood from the applicant was that that ground had been drafted by a “solicitor” whom the applicant had consulted. I note that no notice of address for service had been filed by any solicitor, nor did a solicitor sign the “Lawyer’s Certification” on the application form.

Consideration

  1. The sole ground of the application asserts error on the part of the Tribunal claiming it applied the wrong test in assessing whether the applicant has a well-founded fear of persecution if he were to return to Nepal. Plainly, the reference to the word “persecution” directs attention to s.36(2)(a), and not s.36(2)(aa) of the Act.

  2. As I said earlier, the applicant was unable to explain the ground that had been drafted for him before the Court. Some limited explanation of the ground may be ascertained from the particulars. However, ultimately, they do not assist in revealing jurisdictional error on the part of the Tribunal.

  3. At particular (a), the application asserts that the High Court in Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (“Chan Yee Kin”) requires that a real chance test be applied in assessing a well-founded fear of persecution. 

  4. Article 1A(2) of the Refugees Convention defines a “refugee”, in essence, as a person who, amongst other things, has a well-founded fear of persecution for any one of five reasons that are set out in that definition. 

  5. In Chan Yee Kin, the High Court found that a fear of being persecuted is well-founded if there is a “real chance” of a person being persecuted (see Mason CJ at page 389, Dawson J at 396 – 398, Toohey J


    at 406 – 407, and McHugh J at 428 – 429). It is important to note that the term “real chance” is used as an explanation of the term


    “well-founded” as that term is used in the Refugees Convention. It is not a substitute for that term. As was subsequently said by the High Court in Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559, and by the Full Federal Court in NACB of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 140, it is the language used in the Convention itself that is important and relevant.

  6. The particular does not expressly assert any jurisdictional error on the part of the Tribunal in this regard. However, I saw the particular as being a part of the applicant’s argument that the Tribunal applied the “wrong test” and was to be understood, therefore, in light of particular (c) of the ground.

  7. Particular (c) in the application, when read with particular (b), asserts that the Tribunal was in error in basing its assessment of the applicant’s claims on a balance of probabilities, rather than the real chance test which it says was propounded in Chan Yee Kin. 

  8. Particular (b) explains that this is revealed because the Tribunal gave more weight to some information, and less weight, to other information. As I have already said, with respect, I understand the use of the term “real chance”, as explained by the authorities above, as a vehicle or an avenue through which to explain or clarify the Refugees Convention term of “well-founded”. 

  9. As Mason CJ said in Chan Yee Kin, the expression “a real chance” clearly conveys the notion of a substantial, as distinct from a remote, chance of persecution occurring. As his Honour went on to say (Chan Yee Kin at 389):

    “If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring.”

  10. In a similar light, Dawson J said (Chan Yee Kin at 397 to 398):

    “…a fear can be well-founded without any certainty, or even probability, that it will be realized …  A real chance is one that is not remote, regardless of whether it is less or more than 50 per cent.”

  11. In the same case, Toohey J said (Chan Yee Kin at 407):

    “[A real chance] does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial.” 

  12. As against this, therefore, the applicant’s complaint can be understood as follows. The Tribunal found that his fear was not well-founded because it approached its task by assessing, or weighing, the probability of persecution, rather than applying the real chance test, as was explained in Chan Yee Kin. The particulars to the ground state that this is revealed because the Tribunal assigned certain weight to different pieces of information before it.

  13. On any plain, let alone a fair, reading of the Tribunal’s decision record, there is no support for the applicant’s assertion, as expressed in the ground of his application. Further, any plain reading of the Tribunal’s decision record reveals that the Tribunal did apply the correct test.

  14. One, it must be noted while the applicant’s ground makes this assertion, there was no explanation whatsoever from the applicant, or whomever drafted the ground, as to how the Tribunal can be said to have acted in the way that the ground asserts.

  15. Two, the Tribunal expressly referred to the correct test in its decision record when it set out the relevant law to which it said it must have regard ([9] at CB 288). Further, the language used by the Tribunal elsewhere in its decision does not give rise to any suggestion it applied the wrong test. It is also important to note that despite the applicant’s assertion that the assessment was based on the “balance of probabilities”, there is no reference to any balance of probabilities anywhere in the Tribunal’s decision record.

  16. Three, in my view, the applicant’s ground misunderstands the relevant process the Tribunal was required by law to undertake and misrepresents what the Tribunal actually did.  The ground of the application confuses, or conflates, different aspects of the Tribunal’s relevant task.

  17. In properly conducting the review of the delegate’s decision, that is, in exercising the jurisdiction that has been given to it, the Tribunal is required to do at least a number of things.

  18. First, it must understand the relevant and applicable law.  In relation to the concept of a well-founded fear of persecution, the Tribunal set out the relevant law in unexceptional terms.

  19. Second, it must understand and consider, in the sense of engaging with, all of the applicant’s claims and, indeed, each aspect of those claims which are expressly made or can be said to be clearly arising from the circumstances that are presented to it (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1). In the current case, there is nothing in the ground of the application to complain that the Tribunal did not do this. Nor can I see, on what is before the Court, that there was any such failure on the part of the Tribunal.

  20. Third, as provided for in s.430 of the Act, the Tribunal must make findings of fact in relation to the claims and evidence before it. The findings of fact must be probative of the evidence or material that is before the Tribunal. There is no legal error where the Tribunal’s findings are reasonably open to it to make on what is before it, and where it gives reasons (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1). There is nothing in the current case to indicate that the Tribunal fell into legal error in this aspect of its task.

  1. Four, having made its findings of fact, the Tribunal is required to apply the relevant law to these facts. Here, the Tribunal was required to determine if, on the facts as found, it could be satisfied that the applicant, relevant to the complaint in his grounds, met the definition of a “refugee” as set out in Article 1A(2) of the Refugees Convention, and noting, of course, as it is further explained s.91R of the Act. If it could be satisfied, then, if all other requirements for the grant of the protection visa were met, the visa must be granted (see s.36(2)(a) and s.65 of the Act).

  2. In the current case, the applicant’s ground takes the Tribunal’s acceptance of some of the applicant’s claims and evidence, its rejection of other parts of his claims and evidence, and its analysis, including the reasoning employed to make its findings of fact, to say that it applied a balance of probabilities test.

  3. The applicant’s ground fails to understand that a nuanced approach to factual decision-making does not, on its own, equate to, or result in, any application of a balance of probabilities test. In making its findings of fact, the Tribunal is required to analyse and to weigh the evidence before it and to assign weight to that evidence (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] – [14], Wu Shan Liang, Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [33] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, Minister for Immigration and Citizenship v MZYHS [2011] FCA 53 at [36] – [43] per Kenny J).

  4. I respectfully understand the relevance and importance of the High Court’s judgment in ChanYee Kin to be directed to the Tribunal’s assessment, on the facts as found, as to whether there is a real chance of persecution. That is, whether the applicant has a well-founded fear of persecution if he were to be returned to the country of claimed persecution.

  5. In the current case, there is nothing to show that the Tribunal misapplied the relevant test as explained by the High Court. The Tribunal’s findings of fact were reasonably open to it, and arrived at after a process of evaluation and assessment, probative of the evidence before it. Its inability to reach the requisite level of satisfaction such that the protection visa must be granted, was not affected by any notion of the balance of probabilities, but rather the application of the correct test. 

  6. Further, as I said earlier, nothing that the applicant stated before the Court today was directed to any proper assertion of jurisdictional error on the part of the Tribunal. A mere declaration that the applicant could not return to his home country or, indeed, go to India is not any assertion of legal error on the part of the Tribunal. At best, it was an attempt to engage the Court in impermissible merits review


    (Wu Shan Liang).

Conclusion

  1. The sole ground of the application before the Court does not reveal jurisdictional error on the part of the Tribunal. Further, there is no other jurisdictional error apparent in the Tribunal’s decision record. The application to the Court should be dismissed. I will make the appropriate order accordingly.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  15 September 2014

Actions
Download as PDF Download as Word Document