SZTQM v Minister for Immigration & Border Protection

[2015] FCCA 996

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTQM v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 996

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal considered all claims made by the applicant – whether the Refugee Review Tribunal could consider documents provided by the applicant after the Refugee Review Tribunal’s decision was handed down – whether adverse credibility findings were open to the Refugee Review Tribunal – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 411, 422B, 424A, 424AA, 425, 474
Migration Regulations 1994 (Cth), reg.2.01

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 34
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

Applicant: SZTQM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3062 of 2013

Judgment of: Judge Emmett

Hearing date: 20 April 2015

Date of Last Submission: 20 April 2015

Delivered at: Sydney

Delivered on: 20 April 2015

REPRESENTATION

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

Solicitors for the Respondents: Ms Natasha Blake (Clayton Utz)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3062 of 2013

SZTQM

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 5 November 2013 and handed down on the same date (“the RRT”).

2. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the RRT’s review and decision.

Background

1. The applicant arrived in Australia on 25 July 2009 on a passport issued in her own name and a Student (TU) (Subclass 572) visa.

2. On 27 April 2012, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

3. On 12 October 2012, the Delegate refused the applicant’s application for a protection visa.

4. On 14 November 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

5. On 5 November 2013, the RRT affirmed the decision of the Delegate not to grant a protection visa.

6. On 10 December 2013, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa)  a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

6. Sections 36(2A) and 5 of the Act defines “significant harm.”

7. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

8. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:

   “424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite Applicant to appear

   (1)  The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

9. Section 424AA of the Act permits the RRT to give orally to an applicant clear particulars of any information that the RRT considers would be the reason or part of the reason for affirming the decision under review. The RRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The RRT must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

10. Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

    However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a Protection Visa

1. Both the Delegate’s decision and the decision of the RRT are accurately summarised in submissions filed by the first respondent on 13 April 2015. Those submissions are as follows:

   “Background

   The Applicant is a national of Nepal, who arrived in Australia on 25 July 2009 as the holder of a TU 572 student visa.  On 27 April 2012, the Applicant applied for the protection visa.[1]

   [1] Court Book (CB) 1-46.

   On 12 October 2012, the Delegate refused the application.[2]  The Applicant applied to the Tribunal for review of the Delegate's decision.  The Tribunal affirmed the Delegate's decision on 5 November 2013.[3]

   [2] CB 52-67.

   [3] CB 197-211.

   The Applicant commenced the current proceedings on 10 December 2013.

   Applicant's claims

   The Applicant's claims were made at interview with the Delegate (CB 56-64), and through written and oral submissions to the Tribunal (CB 96-182, 201-207).[4]  The Applicant claimed to fear harm for the following reasons:

   [4] Although a statutory declaration was submitted with her protection visa application (CB 35-46) this was subsequently disavowed by the Applicant (CB 56).

   1)   the Applicant is a Christian from Nepal.  When she worked in a childcare centre in Nepal, she would sometimes take the children to church, but did not let her family know for fear of persecution;

   2)   in 2009, the Applicant married her first husband.  She came to Australia with him in July 2009.  The Applicant lived in Bondi Beach with an Australian resident called Mrs Robyn, who was a Christian.  Mrs Robyn took the Applicant to church several times.  The Applicant's husband did not like Christianity.  He started to "torture" and be violent towards her, and they began living separately from 2011; 

   3)   in 2012, the Applicant travelled to Nepal and, according to her culture, went to her husband's house.  Her husband's mother physically assaulted her by pulling her hair, hitting her and pushing her from the house.  They would not let her enter the house because she was a Christian.  Because of this, her parents would not accept her and believed her reputation was ruined.  They told her that she was "cast out" from their family "and society";

   4)   the Applicant fears her own family, who will persecute her due to her religion and evangelism.  She also fears her ex-husband's family, who have threatened to kill her and can afford to pay "some gang" to do so.  They are angry at her for proselytising the Christian religion and for ruining their reputation; 

   5)   in Nepalese society, people from a second marriage are treated differently.  The Applicant belongs to a "dalit family" which is "low caste".  Although Nepal's constitution allows people to practice their own religion, they are forbidden from proselytising to convert people.  As Maoists are now in government, there is increased risk for the Applicant.  The Maoists do not like Christianity.  Maoists know she has fled to Australia, and will persecute the Applicant for her religion.

   Tribunal's findings

   The Tribunal found that the Applicant was not a credible witness on the basis of the "changing, internally inconsistent, and implausible evidence provided by the applicant":[5] 

   [5] CB 207 [44].

   1)   in relation to her contact with Christianity in Australia, the Applicant first referred to attending church with Mrs Robyn on 3 or 4 occasions, and attending a Macedonian church in Bexley on 5 or 6 occasions.  She then added that she had attended a gathering in Marrickville.  It was only after further questioning at the hearing that she gave evidence that she had attended church in Waverley 4 times a week for approximately 3 years.  She was not able to name the church, however, or suggest anything capable of substantiating her claim.  The Tribunal found that the malleable nature of the Applicant's evidence militated against its plausibility;[6]

   2)   also at the hearing, the Applicant stated that she believed that Jesus Christ was born approximately 50 years ago.  The Tribunal found it "totally implausible" that someone with even a basic understanding of Christianity would form such an opinion;[7]

   3)   in light of the above, the Tribunal found that the Applicant was not a genuine Christian.  Although it accepted that she had contact with Australian Christian groups since September 2012, it found that this contact was solely for the purpose of furthering her protection claims.  The Tribunal did not accept that the Applicant had been or would be involved with Christianity in Nepal;[8]

   4)   as a result, the Tribunal did not accept that the Applicant's first husband did not like Christianity, that he was violent to her as a result of her religion, or that he told his family about her conversion.  The Tribunal did not accept that the authorities, or any other group in Nepal, were aware of the Applicant's involvement in Christianity in Australia, or would become aware and/or concerned about such.  Accordingly, the Tribunal did not accept that the Applicant had a well-founded fear of persecution based upon her actual or imputed religious beliefs;[9]

   5)   the Tribunal also did not accept the Applicant's claims to fear her husband's family, her own family, villagers, or people generally in Nepal, due to her previous marriage, separation and claimed domestic violence, and/or her caste as a Dalit.  When questioned regarding her living arrangements with her new husband, the Applicant initially said that they began a de facto relationship 3 or 4 months before she travelled to Nepal in February 2012.  Later during the hearing, the Applicant claimed that she had not commenced a sexual relationship with her now husband until after her return from Nepal in March 2012.  The Tribunal noted that the first child of that relationship was born on 5 December 2012, and found that the Applicant was in a de facto relationship for several months before her trip to Nepal;[10]

   6)   asked why she would travel to her ex-in-laws if she was separated from her ex-husband and living with another man, the Applicant initially claimed to have been unaware that her former in-laws knew of the separation.  Later in the hearing, she claimed to have travelled to Nepal after learning that her mother-in-law spread rumours about her sleeping with other men.  The Tribunal did not accept that the Applicant returned to her ex-husband's parents' home when in Nepal in February 2012, or that her former in-laws assaulted or threatened her or her family at any stage due to the marriage and separation;[11]

   7)   overall, the Tribunal did not accept that the Applicant was at risk of harm from her own family, former in-laws, or any other groups due to her separation from her first husband and/or her caste, status as a divorced woman, religion or any related issues.[12]

   Accordingly, the Tribunal was not satisfied that the Applicant was a person to whom protection obligations were owed.”

   [6] CB 207-208 [45]-[47].

   [7] CB 208 [48].

   [8] CB 209 [50]-[51].

   [9] CB 209 [52]-[54].

   [10] CB 210 [56]-[58].

   [11] CB 210 [56]-[57].

   [12] CB 210 [59].

The proceeding before this Court

1. On 25 March 2014, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.

2. At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would flow to her if a costs order was made against her. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.

3. The applicant confirmed that she wished to continue with the application for judicial review. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the RRT hearing, as well as submissions in support.

4. The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language.

5. The applicant was unrepresented before this Court, although had the assistance of a Nepali interpreter. 

6. At the commencement of today’s hearing, the applicant confirmed that she has not filed any amended application, evidence or submissions in support of her application and that she has no further documents to present to the Court this morning in support of her application.

7. The first respondent tendered a bundle of documents identified as “Court Book” and filed on 8 April 2015, which was marked “Exhibit 1R”. The first respondent also read an affidavit of the first respondent’s solicitor, Natasha Simone Blake, affirmed 19 May 2014. Ms Blake’s affidavit annexed documents in support of the first respondent’s assertion that the RRT’s decision, dated 5 November 2013, was posted to the applicant on 6 November 2013. The content of the affidavit and the purpose for which it was being read was explained to the applicant before she was asked whether she had any objection. Upon that explanation, the applicant stated that she had no objection and, accordingly, the affidavit was read.

8. The applicant confirmed that she relied on the grounds contained in her originating application filed on 10 December 2013 as follows:

   “1. The second respondent made jurisdictional error by failing to consider an integer of the applicant’s claim namely she is a member of Amnesty International in Nepal

   2. The second respondent made jurisdictional error in that it did not consider issue relating to caste concerning the applicant

   3. The second respondent made jurisdictional error assuming that the giving of inconsistent evidence necessitated a finding of lack of credibility

   4. The second respondent made jurisdictional error by not giving importance of statutory declaration which was submitted after the decision was made

   5. The second respondent made jurisdictional error by not concerning on Christian activities where they have been threatened, hurt, killed for involving in Christianity by other authorities like Hindu, Maoist guerrillas, society, etc. ”

9. Each of the grounds was interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

10. In Ground 1, the applicant asserts that the RRT failed to consider an integer for her claim, namely, that she is a member of Amnesty International in Nepal. However, the applicant confirmed to the Court this morning that her membership of Amnesty International in Nepal was not a reason why she feared harm were she to return to Nepal. The RRT records in its decision record that the applicant said that, while she was a member of Amnesty International in Nepal, she did not collect information and was not treated as a state informer and people did not try to kill her for that reason.

11. In the circumstances, the applicant’s membership of Amnesty International in Nepal is not an integer of the applicant’s claim to fear persecution in Nepal. The applicant had lodged a statutory declaration, dated 26 April 2012, in support of her original claim for protection. In that statutory declaration, the applicant did make a claim to fear harm by reason of her membership of Amnesty International. However, the applicant confirmed to the RRT that she did not wish to rely upon any of those claims as they were made by a migration agent without her knowledge.

12. The applicant confirmed that she relied on a second statutory declaration before the RRT, dated 11 November 2012. There is no claim to fear harm by reason of being a member of Amnesty International in that statutory declaration. As stated above, the applicant confirmed that she did not fear harm on that basis before the RRT.

13. Accordingly, Ground 1 is not made out.

14. In Ground 2, the applicant contends that the RRT did not consider her claims in relation to her caste.

1. The RRT’s decision record makes clear that it did consider whether the applicant was at risk because of her caste but was not satisfied that the applicant feared serious harm or persecution from any persons in Nepal for that reason. That finding was open to the RRT on the evidence and materials before it and for the reasons it gave.

2. It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

3. Accordingly, Ground 2 is not made out.

4. In Ground 3, the applicant contends that the RRT committed jurisdictional error in finding that inconsistent evidence given by the applicant necessitated a finding that the applicant lacked credibility.

5. The RRT found the applicant’s evidence before it to be contradictory and internally inconsistent, that she lacked credibility and had provided fabricated evidence to the RRT. Those findings were open to the RRT 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).

6. Accordingly, Ground 3 is not made out.

7. In Ground 4, the applicant’s complaint centres around the failure of the RRT to consider two statements sent to it by the applicant after the date that the RRT’s decision had been dispatched to the applicant.

8. I accept the evidence of the solicitor for the first respondent, Ms Blake, as reflected in her affidavit, that the RRT’s decision record, dated 5 November 2013, was sent by registered post to the applicant at the applicant’s address for service in Australia on 6 November 2013.

9. The documents sent to the RRT by the applicant are contained in Exhibit 1R and are stamped “Received 11 November 2013”, although the documents themselves are dated 4 November 2013 and 6 November 2013 respectively. The documents are from persons in Australia supporting the applicant’s claim for protection. One of the statements says, essentially, that the applicant faces a lot of problems regarding her married life in Australia and that her life would be in danger if she returned to Nepal.

10. The other statement is from a person who is referred to by the RRT in its decision record, confirming that the applicant attended church three or four times and that this person explained the tenants of the Christian religion to her. That is evidence that was otherwise accepted by the RRT. In any event, the RRT wrote to the applicant on 15 November 2013, notifying the applicant that it had received her further documents but that the RRT had become functus officio and had no further power to take any action on the review.

11. There is nothing before this Court to suggest that that statement by the RRT is incorrect. Accordingly, based on the evidence before me, I accept that at the time that the RRT received the applicant’s further documents on 11 November 2013, it was functus officio, having made its decision and dispatched it to the applicant on 6 November 2013.

12. Accordingly, Ground 4 is not made out.

13. In Ground 5, the applicant asserts that the RRT erred in failing to consider the risks faced by Christians in Nepal and those engaging in such activities.

14. However, the RRT found that the applicant was not a genuine Christian and rejected the applicant’s claims to fear harm in Nepal for any reason. In the circumstances, I accept the first respondent’s submission that it was unnecessary for the RRT to consider further the plight of Christians in Nepal generally. In the circumstances, Ground 5 does not identify any jurisdictional error on the part of the RRT and appears more to be a disagreement with the findings and conclusions of the RRT. The applicant’s 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).

15. The RRT concluded that the applicant did not meet the criteria for protection under the Refugees Convention in s.36(2)(a) of the Act or the alternative complementary criterion in s.36(2)(aa) of the Act.

16. 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 her at a hearing and had regard to all material provided by the applicant in support of her claims. The RRT put to the applicant matters of concern it had about her evidence and noted her responses. 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.

17. As stated above, those findings and conclusions were open to the RRT on the evidence and material before it and for the reasons it gave.

18. 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.

19. 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.

20. The proceeding before this Court should be dismissed with costs.  

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:  22 May 2015