SZTQN v Minister for Immigration
[2018] FCCA 522
•12 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTQN v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 522 |
| Catchwords: MIGRATION – Application for review of former Refugee Review Tribunal decision – whether there was a breach of procedural fairness – whether there was inadequate interpretation – whether apprehended bias – s.438 certificate – no jurisdictional error –– application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 417, 438, 476 |
| Cases cited: SZTQN v Minister for Immigration & Anor [2015] FCCA 188 |
| Applicant: | SZTQN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1477 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 14 July 2017 |
| Date of Last Submission: | 14 July 2017 |
| Delivered at: | Sydney |
| Delivered on: | 12 March 2018 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Ms H Dejean of Australian Government Solicitor |
ORDERS
The application made on 29 May 2015 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1477 of 2015
| SZTQN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 29 May 2015, seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) made on 27 April 2015, which affirmed a decision of the Minister’s delegate (“the delegate”) to refuse a protection (Class XA) visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”), and the affidavit of Hervee Dejean, solicitor, made on 30 May 2017, with annexure “HD-1” and exhibit “HD-2”.
Background
The applicant is a citizen of Nepal who arrived in Australia on 8 November 2012 as the holder of a visitor visa (CB 2 and CB 3). The applicant applied for a protection (Class XA) visa which was received by the Minister’s department on 16 November 2012 (CB 1 to CB 46). The applicant’s claims to fear harm were contained in a written “Statement” attached to his visa application form (CB 39 to CB 45). The applicant was invited to, and attended a hearing before the delegate on 27 February 2013 (CB 47 to CB 48 and CB 56.5). The delegate refused the grant of the visa on 5 March 2013 and the applicant was notified of the delegate’s decision by letter sent on the same date (CB 49 to CB 63).
The applicant claimed that his father had been a member of the Rastriya Prajatantra Party – Nepal (“RPP-N”), as he was a supporter of the Monarchy, and that “[b]ecause of his involvement in the RPP Nepal the Maoist (sic) targeted our family”. The applicant said that the Maoists demanded “money, food and shelter”, and also beat the applicant and his father because they did not support them (CB 39).
The applicant said that his parents sent him to boarding school for his safety, subsequently he went to college, and it was there that he joined the “Youth wing” of the “National Democratic Youth Organisation” (the youth wing of the RPP-N), as it was “mandatory to be supported by a [s]tudent union to be able to get the recommendations for enrolment in the college” (CB 39).
The applicant claimed to have been a “young and energetic” member who was “prepared to do anything for the party” (CB 39). The applicant also claimed that the Maoists had attempted to recruit him several times. The applicant claimed to have been close to certain committee leaders and active members of the RRP-N, and that while making preparations for the “ex-kings visit” on 20 September 2012, they were approached by members of a certain youth wing of the Maoist Party. The applicant claimed that himself and three other members of the RPP-N were kidnapped in a van and were then made to walk for “several hours” blind folded (CB 41).
The applicant claimed that while he was being held by the Maoists, he was kicked, threatened with being shot, and was given no food or water and was forced to sleep on the ground. After one day, the applicant claimed that one of his fellow RPP-N members “whispered to [him] … if we stay here another day we would either die from their beatings or be shot”, so they escaped (CB 41). The applicant claimed that they helped each other untie their hands and then “snuck” outside and ran to escape while the cadres were asleep. The applicant said that two of them successfully escaped, but they had to leave two friends behind, and he did not know what happened to them.
The applicant said that after phoning his father and informing him of what had occurred, his father told him not to go home, but to go to Kathmandu and “hide”. The applicant claimed that his father subsequently sold some of his mother’s jewellery and obtained a loan to assist him in coming to Australia (CB 43).
The applicant applied for review to the Tribunal on 9 April 2013 (CB 64 to CB 69). The applicant was invited to, and attended a hearing before the Tribunal on 31 October 2013 (CB 83 to CB 88 and CB 98 to CB 99). The Tribunal affirmed the decision of the delegate on 7 November 2013, and the applicant was notified by letter dated 8 November 2013 (CB 101 to CB 118).
The applicant subsequently applied for review to this Court and the matter was remitted to the Tribunal for reconsideration (CB 119 to CB 121 and see SZTQN v Minister for Immigration & Anor [2015] FCCA 188). The applicant was then invited to, and attended a hearing before the Tribunal (differently constituted) on 20 April 2015 (CB 122 to CB 135 and CB 183 to CB 186). The applicant’s representative emailed the Tribunal on 17 April 2015 attaching further submissions on behalf of the applicant (CB 136 to CB 178). Following the hearing, the applicant’s representative sent further submissions by email to the Tribunal (CB 187 to CB 190).
The Tribunal again affirmed the delegate’s decision to refuse a protection (Class XA) visa to the applicant on 27 April 2015. The applicant was notified by email sent to his authorised representative on 28 April 2015 (CB 191 to CB 204).
The Tribunal “found the applicant not to be [a] witness of credibility”, and that many of his claims were “vague and in many instances the applicant was highly evasive when asked specific questions”. Further, there were “several significant inconsistencies in the applicant[‘s] evidence which suggest[ed] he ha[d] not been truthful in his claims” ([14] at CB 196). The Tribunal outlined its many concerns with the applicant’s evidence (see [14](a) – (m) at CB 196 to CB 201).
The Tribunal noted that in written submissions sent to the Tribunal following the hearing, the applicant’s representative “suggested” that it was “natural for people to forget dates and numbers of the past”. The Tribunal rejected this assertion in that it is not unreasonable to expect an applicant to recall certain dates, when the dates refer to such significant events. The applicant’s representative also “suggested” that the applicant had difficulties understanding the questions he was asked by the Tribunal. The Tribunal stated ([15] at CB 201):
“… The Tribunal rejects that explanation. The applicant was expressly advised at the commencement of the hearing that if he had any difficulties understanding the questions, he was to inform the Tribunal. On occasions the applicant did ask for questions to be repeated. At no time throughout the lengthy hearing did the applicant advise the Tribunal that he had no understanding of the questions. In the Tribunal’s view, given the importance of the application process, if the applicant genuinely had any difficulties understanding the questions posed to him or understanding the interpreter or any other difficulties throughout the hearing, the applicant would have informed the Tribunal of these. He had not done so.”
Further, the Tribunal stated ([16] at CB 201):
“The applicant’s representative identified in his submission of 23 April 2015 some deficiencies in the interpretation. The Tribunal considers these to be immaterial to its findings. Specifically, the Tribunal finds that if the information was incorrectly interpreted and if the correct interpretation (as identified by the agent) was provided, it would not have affected the Tribunal’s reasoning or the outcome of this application.”
The Tribunal found that the applicant had been “entirely untruthful in his evidence”, and rejected the entirety of his evidence, and therefore found that there was no real chance the applicant would be harmed on return to Nepal due to his political opinion or membership of a particular social group ([17] at CB 201 to [20] at CB 202). The Tribunal found that the applicant did not meet the criterion under s.36(2)(a) or s.36(2)(aa) of the Act ([20] at CB 202 to [31] at CB 203).
Application to the Court
The application to the Court is in the following terms:
“1. Unfairness in the Procedures
The Tribunal kept asking me questions relating to my childhood days, although I repeatedly told that I had forgotten the incidents while I was a small child, The Tribunal insisted me and kept asking me the same questions over and over again which related to specific dates. It is very natural for anyone to forget exact dates of incidents when one was a small child. The Tribunal treated me unfairly by insisting me to tell the exact dates of when my father was first attacked and when my father moved our family from the village to the city. I was only six to seven years old at the time and I do not recall the dates exactly. The Tribunal was unfair in insisting to tell me the exact dates and the description of each incident. I did not tell any lies but politely told that I forgot the dates. However the Tribunal made up its mind that I was evasive and that I was not to be a witness of credibility.
2. Language Barrier and Miscommunication
I am a person with English as a second language, therefore I requested the Tribunal for a Nepalese Speaking Interpreter to assist me. There were several times. More than twenty times during the Tribunal’s interview where communication was misunderstood. The Tribunal instead of stopping the interview kept on bombarding me with irrelevant questions after questions which made me very nervous. I was giving answers that were not related to the questions being asked. My Agent even brought this subject to the Tribunal Member at times. However the Tribunal member did not give me any chance but suggested that I was being evasive and hiding. The fact was I not understanding was not considered.
3. Apprehended Bias
The Tribunal seemed only to be doing its duty by inviting me for an interview after my case was remitted by the Honourable Judge at the Federal Circuit Court. The Tribunal did not ask any questions about my rights to go a third country, it only aimed to ask me questions about exact dates and exact happenings of incidents which had taken place in my life very long time ago. The Tribunal was asking me vague questions which were irrelevant to my claims such my knowledge of technology and computers. I come from such a country where we suffer load shedding (no power) for 12 to 14 hours each day, where only the International organisations and Government organisations and Academic bodies have access to the internet in the rural areas where I originally come from. There are no roads let alone internet. The Tribunal accused me of not being able to renew my membership of my politically party online.
The Tribunal seemed to have made up its mind to refuse my application there I claim I have been a victim of apprehended bias.
I request the Procedural fairness and a chance to be interviewed again, this time with more relevant questions and understandings and acceptances that people do forget precise dates especially when the incidents related to one’s childhood years. The Interview at the Tribunal was more like a memory test rather than a fair interview to understand one’s genuine claims.”
[Errors in the original.]
Consideration
At the hearing before the Court the applicant appeared in person. He was assisted by an interpreter in the Nepali language. The Minister was represented by counsel.
The applicant essentially raised two matters in his submissions before the Court. One, that after his case was remitted to the Tribunal he attended a hearing. At that hearing, the Tribunal member asked “very difficult” questions, and did so “in a very harsh manner”. This made the applicant “nervous”. This is dealt with below.
Two, the applicant needed to remain in Australia because he was going for “medical check-ups”. This submission does not go to any proposed legal error in the Tribunal’s decision.
Ground one of the application makes various complaints about what occurred at the Tribunal hearing. The ground, when also understood in light of the applicant’s submissions to the Court, reveals the following complaints.
The Tribunal’s style of questioning was to ask questions that related to the applicant’s childhood. This was also in circumstances where he had told the Tribunal that he had “forgotten” what had occurred because he was a “small child”. Notwithstanding this, the applicant submits that the Tribunal unfairly insisted that the applicant provide the “exact dates” of claimed attacks on his father, and when his father moved the family away from the home village.
Two matters of immediate note arise.
Despite the opportunity to do so (given by orders made by a Registrar of the Court on 25 June 2015), the applicant has not provided any evidence by way of affidavit including any transcript of the Tribunal hearing, to support his claims about what occurred at the Tribunal hearing.
This complaint is identical to a complaint made by the applicant’s representative (a registered migration agent), to the Tribunal, after the Tribunal hearing (see the written submissions of 23 April 2015 at CB 188 to CB 190, and in particular CB 188.5 and [15] at CB 201).
It is the case that the Tribunal found that the applicant was not a credible witness ([14] at CB 196). The Tribunal ultimately concluded that the applicant “had been entirely untruthful in his evidence” and “had fabricated his claims” ([17] at CB 201).
The reasons for this are comprehensively set out in the Tribunal’s decision record. In particular items [14]a. – [14]m. (at CB 196 to CB 201). Of the 17 items set out there ([14]m. including “i” to “iv”), only one item, that is, item [14]a., can be said to have relied on the matter of dates as to when the applicant’s family moved from their home village to avoid further harm from the Maoists.
At [14]a. (at CB 196) the Tribunal stated:
“…The Tribunal does not accept that the applicant would be unable to recall when he moved away from the home village as a result of the torture or when he started being tortured by the Maoists.”
It is to be remembered that it was the applicant himself who raised the matter of his family’s move from the home village, and the claimed reasons for doing this (see the applicant’s written “Statement” attached to his protection visa application at CB 39).
It was not unreasonable for the Tribunal in the circumstances, as it explained at [15] (at CB 201) of its decision record, to expect the applicant to give at least some detail in support of the claims to protection he himself had made. This is not a case where the Tribunal expected the applicant to provide details about events which were not personal to him. As the Tribunal found, these were “significant events” in the applicant’s account of past events, which he said was part of the basis for his claim to fear harm if he were to return to Nepal.
The applicant’s ground one asserts that “[t]he Tribunal treated me unfairly by insisting me (sic) to tell the exact dates”. As the Minister submits, there is no evidence before the Court to support that contention. There was also no such assertion made in the applicant’s representative’s written submissions to the Tribunal following the hearing (CB 187 to CB 190).
Finally, as set out above, the applicant has not provided any evidence of what occurred at the Tribunal hearing, despite the opportunity to do so. On the only available evidence (the Tribunal’s references to the hearing in its decision record), there is nothing to indicate that the Tribunal’s questions were asked in a “harsh manner” (in any event, if this was an attempt to assert a reasonable apprehension of bias see SZNVM v Minister for Immigration and Citizenship [2010] FCA 261 at
[38] – [39] and further below at [46] – [49]).
Nor does anything in the Tribunal’s decision record provide a basis to say that part of the reason the Tribunal found adversely to the applicant’s credit, was that he did not provide “exact dates” in relation to his family’s move away from his home village.
It is also important to note that the Tribunal was concerned, that while the applicant was unable to provide dates for “significant events” of the past, he “did remember these [the dates] in his written evidence” ([15] at CB 201).
The applicant’s ground also complains that the Tribunal “insist[ed]” that the applicant provide the “exact dates of when [his] father was first attacked”. There is nothing in the Tribunal’s decision record to say that the Tribunal made any express finding in this regard, let alone that its conclusion was based on any such finding.
In all, ground one is not made out.
Ground two asserts that there were difficulties with the interpretation at the Tribunal hearing. The applicant’s ground two asserts that during the “interview”, there were “[m]ore than 20 times … where communication was misunderstood”. Further, that the Tribunal “kept on bombarding [him] with irrelevant questions after questions which made [him] very nervous”.
The relevant question for the Court raised by the applicant’s ground two is whether there was an error, or errors, in interpretation such that the applicant was denied a fair hearing (SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212 at [25] and see also BZAID v Minister for Immigration and Border Protection [2016] FCA 508; (2016) 242 FCR 310
at [50] – [52]).
The applicant’s ground two lacks particularity as to the errors (whether “twenty” or otherwise), as asserted in the ground. Further, and as mentioned above, the applicant was given the opportunity by orders made by Registrar of the Court on 25 June 2015 to provide evidence by way of affidavit as to what occurred at the Tribunal hearing.
The applicant has not provided any evidence to support the particularised assertions in the ground. The only evidence of what occurred at the Tribunal hearing, are the Tribunal’s references in its decision record.
There is nothing before the Court to indicate, let alone establish, that the Tribunal hearing was affected by any errors in interpretation. Therefore, there is no basis on which the applicant’s ground can be considered.
It is of note that the applicant’s representative in the post-hearing written submissions of 23 April 2015 to the Tribunal, also raised the matter of “difficulties” and a “communication gap” (see CB 188). In particular, the applicant’s representative stated (CB 189.4):
“There were several misunderstandings and confusions due to language barrier and the way the questions were translated into Nepali Language by the interpreter.”
The written submissions of 23 April 2015 also identified such purported errors as follows (CB 190.1):
“1. Our client never said he or his father was tortured while they were in the village. Being tortured and assaulted are two vast different things. The interpreter translated assault as torture.
2. Our client said if he should go back to Nepal, even if the Maoist do not kill him they could possibly break his limbs. This statement from our client was never interpreted by the interpreter.”
The Tribunal addressed the submissions in its decision ([16] at CB 201):
“The applicant’s representative identified in his submission of 23 April 2015 some deficiencies in the interpretation. The Tribunal considers these to be immaterial to its findings. Specifically, the Tribunal finds that if the information was incorrectly interpreted and if the correct interpretation (as identified by the agent) was provided, it would not have affected the Tribunal’s reasoning or the outcome of this application.”
There is no evidence before the Court to say that this finding was not reasonably open to the Tribunal on what was before it.
In all, ground two is not made out.
In ground three, the applicant asserts a reasonable apprehension of bias on the part of the Tribunal. The applicant relies on, amongst other things, the “complaints” referred to above in relation to ground one. To that extent, these have already been addressed above.
The applicant also asserts the Tribunal “seemed to have made up its mind to refuse my application”. The test for the apprehension of bias is that a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an open mind to the proceedings (Re Refugee Review Tribunal; Ex parte H[2001] HCA 28; (2001) 75 ALJR 982, MZAEU v Minister for Immigration and Border Protection[2016] FCAFC 100; (2016) 70 AAR 22, SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80, Minister for Immigration and Multicultural Affairs v SZGMF[2006] FCAFC 138 and NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328, (2004) 214 ALR 264).
In essence, the applicant’s assertion of a reasonable apprehension of bias is said to arise from the Tribunal’s conduct at the hearing, that is, its style of questioning and the types of questions it asked the applicant.
However, as set out above, the applicant has not provided any evidence to support any such claim. On what is before the Court, there is no indication that the Tribunal’s decision could be vitiated on the basis of any apprehension of bias. In all, ground three cannot be made out.
At the hearing, the Minister’s counsel, consistent with the Minister’s obligations as a model litigant, also raised another issue for consideration.
On 24 February 2015 an officer of the Minister’s department issued a certificate pursuant to s.438 of the Act (“s.438 certificate”) in relation to the applicant’s departmental case file (see annexure “HD-1” to the affidavit of Ms Dejean made on 30 May 2017).
The matter of s.438 certificates has been the subject of consideration in a number of Federal Court judgments. Initially in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 245 FCR 1 (“MZAFZ”) and Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 (“Singh”). Then later, after the conclusion of the hearing of this matter, in, Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 (“CZQ15”), Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197 (“BJN16”) and BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198 (“BEG15”). I should note that in the circumstances, it was not necessary to obtain further submissions from the parties concerning these subsequent authorities. The Full Federal Court in BJN16 reviewed MZAFZ and Singh, and other authorities, to provide further “explanation” of the matters raised in the earlier authorities, not to cast doubt on what was held there.
The issuing of the s.438 certificate by the Minister’s department does not reveal jurisdictional error on the part of the Tribunal.
First, the documents covered by the s.438 certificate are relevant to the determination as to whether the applicant had received procedural fairness before the Tribunal. The documents were admitted into evidence on this basis (CQZ15 at [62] – [65], BJN16 at [62] – [69], and BEG15 at [30]).
Second, the documents were also admitted on the basis that they may have been relevant to the exercise of the Court’s discretion as to whether or not to grant the relief sought (see BJN16 at [69], BEG15 at [30] and CQZ15 at [88]).
Third, in the current case, the Minister submitted that the s.438 certificate appeared to be invalid (MZAFZ at [37]). There is no reason not to accept that submission on the evidence before the Court.
Fourth, it is the case that there is no evidence before the Court that the documents which were covered by the s.438 certificate were given to the applicant during the time of the conduct of the review by the Tribunal, or for that matter, before the delegate.
Fifth and however, each of the documents relate to matters of internal case management in the Minister’s department (see exhibit “HD-2” of the affidavit of Ms Dejean). These were, variously, checklists, internal case management documents, interpreter service forms, a notification to the Minister’s department of the outcome of a request by the applicant pursuant to s.417 of the Act, and advice from the Minister’s litigation officers to compliance officers that the applicant’s case had been previously remitted by this Court to the Tribunal for reconsideration.
Sixth, none of the documents on their face, in any way, relate to the applicant’s claims to protection, nor importantly, to the consideration of those claims by the delegate whose decision was the subject of review by the Tribunal. I cannot see that any of the documents could reasonably be said to have any relation to, or bearing on, the consideration and determination of the applicant’s claims to protection by the Tribunal.
Seventh, on the evidence before the Court, the Tribunal made no reference to the documents in its decision record, nor on the evidence, at the hearing with the applicant. There is nothing in the evidence to indicate that at any time the Tribunal considered the documents to be material to its decision.
I agree with the Minister that in the circumstances, the most compelling inference to be drawn is that the Tribunal considered the documents, but did not consider them to be relevant. Otherwise, the Tribunal would have referred to the documents in its decision as it was compelled to do so in such circumstances (Minister for Immigration and Multicultural Affairs v Yusuf[2001] HCA 30; (2001) 206 CLR 323 at [67] – [69]).
Eighth, in any event, and further, there is nothing in the documents to indicate any breach of any of the procedural fairness obligations as set out in Division 4 of Part 7 of the Act, let alone that any breach can be made out.
The existence of the s.438 certificate, and the documents on the departmental file, do not reveal jurisdictional error on the part of the Tribunal.
Conclusion
None of the applicant’s grounds, nor the additional issue, reveal jurisdictional error on the part of the Tribunal. It is appropriate to dismiss the application to the Court. I will make the appropriate order.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 12 March 2018
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