SZTRL v Minister for Immigration

[2014] FCCA 1557

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTRL v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1557

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – no appearance by or on behalf of the applicant – matter heard pursuant to rule 13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth) (Rules) – no jurisdictional error – application dismissed.

Legislation:  

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 13.03C(1)(e), 16.05
Migration Act 1958 (Cth), s.36(2)(aa)

Applicant: SZTRL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3156 of 2013

Judgment of: Judge Manousaridis

Hearing date: 10 July 2014

Delivered at: Sydney

Delivered on: 10 July 2014

REPRESENTATION

No appearance by or on behalf of the applicant.

Solicitors for the Respondents:

Mr R. Baird

Clayton Utz Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs in the amount of $5,000.

3. The first respondent is to arrange to have these orders entered, and the first respondent is to cause a sealed copy of these orders to be served on the applicant by ordinary prepaid post at her nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 3156 of 2013

SZTRL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. There was set down for hearing before me today an application for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a protection visa.  I had the matter called today but there was no appearance by the applicant.  Before the matter was called, my associate telephoned on four occasions the mobile telephone number which the applicant had provided in the application by which he commenced these proceedings.  On each occasion, I had been informed that there was a recorded message to the following effect:

   The mobile service you have called has incoming call restrictions.  Please try again later.

2. I have been informed by Mr Baird, the solicitor for the Minister appearing at today’s hearing, that he, too, shortly before the matter was called, attempted to call the applicant’s mobile number and heard a similar recorded message.

3. In addition, there has been tendered into evidence a letter dated 2 July 2014 from the solicitor for the Minister to the applicant addressed to two addresses, one a street address and one a post office box address.  I am informed by Mr Baird that the post office box address was the address given by the applicant to the solicitors for the Minister.  That letter provided as follows:

   We enclose by way of service the first respondent’s outline of submissions dated 2 July 2014.  We note that this matter is listed for hearing on 10 July 2014 at 2.15 pm in the Federal Circuit Court, John Maddison Tower, 88 Goulburn Street, Sydney.  If you do not attend the hearing, either in person or by legal representative, we are instructed to seek to have your matter dismissed with costs.

4. Then the letter gives the name of a person whom the applicant may contact, should he wish to do so. 

5. I am satisfied that the applicant had notice of the hearing today and that reasonable attempts had been made to contact him and inform him that the hearing was listed before me today. The Minister, in those circumstances, has applied for an order pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth) that the application be dismissed.

6. I prefer not to deal with the matter on that basis.  What I propose to do is deal with the matter pursuant to rule 13.03C(1)(e) which empowers the court to proceed with the hearing generally or in relation to any claim for relief in the proceeding.  In the remainder of these reasons, I will therefore deal with the application. 

7. As I have said, the application before me is one for judicial review of a decision of the Tribunal affirming the decision of a delegate of the Minister not to grant the applicant a protection visa.

8. In his application for review, the applicant, who has not been legally represented, claims that the Tribunal engaged in conduct that in a number of ways prevented him from properly presenting his case to the Tribunal.  To assess the applicant’s claims, it will be necessary to identify the claims for protection the applicant made to the Minister and his delegate, and also before the Tribunal.  It will also be necessary to set out in detail the course of the hearing before the Tribunal to the extent that that can be inferred from the Tribunal’s reasons for decision.

9. The applicant, who is a national of Nepal, set out his claims for protection in a statutory declaration.  The asserted facts set out there on which the applicant relies for in his claim for protection are as follows:  he was born into a middle class family in a district dominated by Maoist groups who treated the applicant’s family as a class enemy.  Maoist groups started to collect money from the applicant’s family as a tax.  The applicant is a strong supporter of the Hindu Kingdom of Nepal and faithful to Nepal’s King.  He was fighting against Maoist groups:

   Many times Maoist tried to kill me and they tortured my family members in their custody.[1]

   [1] CB30

10. The applicant was a “very active member of Rastriya Prajatantra Party (National Democratic Party)”.[2]  He used to paste the King’s photo in the street wall:

    …and Maoist groups attacked us and many of my colleagues have been killed by Maoist underground political members.[3]

    [2] CB30

    [3] CB30

11. The applicant came to Australia on 26 January 2009 as a student but found he could not concentrate on his studies because of his past political and social activities in Nepal.  The applicant has not filed any affidavit which attaches the transcript of the hearing before the Tribunal, and so therefore there is no transcript before the Court of the proceedings before the Tribunal.

12. The Tribunal in its reasons for decision, however, has summarised in a separate attachment to its reasons what occurred at the hearing.[4]  According to that attachment, the Tribunal asked the applicant questions about the following matters:  whether there was any reason for the applicants not having many of the questions in his application for a protection visa completed;  where he was born and details of his family;  how the applicant arranged to travel to Australia;  why the applicant had ceased studying in the middle of 2009;  how the applicant supported himself in Australia;  when the applicant applied for a protection visa;  whether the applicant feared persecution in Nepal because of his political opinion;  whether the applicant understood the significance of a statutory declaration and the penalties involved in making untrue statements in them;  what the applicant meant by the statement made in the statutory declaration that he strongly supported the Hindu kingdom;  how the applicant actively supported the student wing supporter group;  what the applicant meant when he said he had fought against the Maoists, his statement that he could not concentrate on his studies;  why the applicant’s past political and social activities in Nepal caused him fear of going back given that his parents and siblings were in Nepal;  the applicant’s statements that the Maoists tried to kill him;  whether the Maoists tried to kill the applicant;  whether the Maoists had tortured his family members in their custody or whether that was an exaggeration by the applicant’s friends;  whether the applicant was a very active supporter of the RRP;  why the applicant had written he could not relocate to a neighbouring country;  what the applicant thought would happen to him if he returned to Nepal;  why the applicant had not gone to India before coming to Australia;  why, if the applicant had problems with the Maoists, he could not go to India;  what problems the applicant would face in India;  and whether the applicant wanted to add anything.  The Tribunal:

    …did not find the applicant to be credible when discussing his claim that he would be targeted by Maoists in Nepal for his political views.[5]

    [4] Attachment C of the Refugee Review Tribunal Decision Record dated 14 November 2013.

    [5] CB103 [26]

13. It found that the applicant overstated his claims about the situation in Nepal, his involvement with the RRP, his family’s involvement with the Maoists, and his contacts with the Maoists.  The Tribunal summarised three items of evidence the applicant gave on which the Tribunal relied for concluding the applicant was not credible.  The first item related to the applicant’s claim that he had fought the Maoists.  The applicant said that sometimes there were encounters with Maoist groups resulting in fist fights and beatings, that the Maoists attacked at school but, when asked whether the Maoists attacked in the village, the applicant said that the villagers were mostly Maoists and they used to demand food or money from the applicant’s family.

14. The second item of evidence related to how many times Maoists tried to kill the applicant.  The applicant responded that the Maoists demanded that someone from every family go with the Maoists, and that this led to the applicant leaving his village.  The applicant was unable to say, however, whether the Maoists took any of his brothers. 

15. The third item of evidence related to answers the applicant gave to questions about his claims that Maoists had tried to kill him.  The evidence indicates that the applicant was not claiming that the Maoists specifically targeted him and that, to the extent the statutory declaration made a statement to that effect, that may have been due to his friends having written it in that way.

16. The Tribunal also relied on the applicant’s delay after he arrived in Australia to apply for a protection visa.  The applicant arrived in January 2009 but he made no application for a protection visa until 24 May 2012.  While the Tribunal was satisfied the applicant participated in some minor political activity for the RRP, the Tribunal did not accept the applicant was targeted, harmed or threatened by Maoists because of that activity, nor did the Tribunal accept that the applicant’s family was tortured by the Maoists.

17. The Tribunal was not satisfied that if the applicant returned to Nepal he would be persecuted “for a conviction reason”. The Tribunal also found the applicant did not satisfy the criterion specified in section 36(2)(aa) of the Migration Act 1958 (Cth).

18. I now turn to the grounds of application contained in the application filed in this court, and there are three, although as I will show in a moment, there are in fact only two.  The first ground of application is as follows:

    The Tribunal member deliberately persuaded me to answer his questions the way he wanted to hear it.  The Tribunal member was suggestive and persuaded me to admit that I should accept that I would have known whether my brothers were taken by the Maoists or not.  I was misled by the Tribunal member and was persuaded to agree to him.  Furthermore the Tribunal member decided that my brothers were not taken by the Maoists on speculation.

19. There is no substance to this claim.  As I have noted above, there is no transcript before the Court.  There is, however, the Tribunal’s decision and an attachment that summarises what was said in the hearing.  There is no reason why I should not regard that summary as otherwise accurate and as capturing the substance of the questions asked of the applicant by the Tribunal and the answers given by the applicant to the Tribunal.

20. There is nothing in that summary that indicates that the Tribunal persuaded the applicant, intentionally or otherwise, to give evidence that the Tribunal wanted to hear, nor is there anything in that summary that suggests the applicant had agreed that the applicant should have known whether the applicant’s brothers were taken or that the Tribunal intended to persuade the applicant to agree to any such proposition.  Further, the Tribunal did not, in fact, decide that the applicant’s brothers were taken by the Maoists.  For those reasons, ground one fails. 

21. The second ground of application was as follows:

    I submitted a Statutory Declaration duly signed by me with acknowledgement of the contents.  The Tribunal member persuaded me to accept that I was unaware of the consequences of signing a Statutory Declaration.  I was not given the opportunity to answer his question as the Tribunal member stopped me from explaining several times during the interview.  The Tribunal member forced me to answer the way he wanted to hear it (see paragraph 18, 19, 20 and 23 of the decision record of the Refugee Review Tribunal).  The interview was not fair but rather involved lots of persuasion and imputation.

22. In my opinion, there is also no substance to that ground.  I will, however, take the opportunity to go to each of the paragraphs referred to in that ground.  First, there is paragraph 18 in which the Tribunal said the following:

    I noted at the hearing that the applicant had provided a Statutory Declaration in support of his claims.  I said that I had recently seen an almost identical Statutory Declaration in another case.  I asked the applicant if he understood the significance of such a Declaration and the penalties involved in making statements in a Declaration that were not true.  The applicant said that he did not.  He said that he had told his colleagues about his situation and those peoples had written the Declaration for him.

23. There is nothing in that passage which indicates that the Tribunal member persuaded or attempted to persuade the applicant of anything.  There is also nothing in that passage which suggests that the applicant was not given an opportunity to answer the questions put to him by the Tribunal member or that the Tribunal stopped the applicant from explaining anything that he wished to explain. 

24. In paragraph 19 of its reasons for decision, the Tribunal said the following:

    I also noted that in the Statutory Declaration he wrote that he could not concentrate on his studies in Australia because of his past political and social activities in Nepal.  The applicant said this was one of the reasons he stopped studying.  I noted that he had told me a little earlier in the hearing that the reason was that his grandmother could not continue to pay his tuition fees.  The applicant said this was the case.  I asked if he would have continued his course if the fees had been paid.  He said that he would have.

25. Again, there is nothing in that passage which can give even arguable support for what is claimed in the applicant’s second ground of application.  I will not read out – having said I would – paragraphs 20 and 23 of the Tribunal’s reasons but, again, if one looks at those two paragraphs from the Tribunal’s reasons for decision, they too give no support, arguable or otherwise, to the claim made in the applicant’s second ground of application. 

26. That takes me to what appears to be the third ground of the application, which is headed Bias and Unfair Decision.  That ground provides as follows:

    I appeal the court to refer my case back to the Refugee Review Tribunal for another fair hearing with a different interviewer so that a fair decision based upon my credibility and merits can be made.

27. That does not really appear to be a ground of application but a prayer for relief.  To the extent, however, it can be construed as a claim for bias or unfairness, it has no substance.  Therefore, to the extent that the third ground is a ground that, too, fails. 

28. Accordingly, I propose to make orders dismissing the application and an order that the applicant pay the Minister’s costs. I also propose to order that the first respondent is to arrange to have the orders entered that I’m about to make, and that the first respondent is to cause a sealed copy of those orders to be served on the applicant by ordinary prepaid post together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  17 July 2014