SZTTR v Minister for Immigration
[2014] FCCA 1196
•4 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTTR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1196 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – whether Tribunal required to provide applicant with country information – whether Tribunal failed to take into account relevant information – whether Tribunal misapplied real chance test – whether Tribunal fell into jurisdictional error. |
| Legislation: Migration Act 1958 (Cth) ss.36(2)(aa), 424A, 424AA |
| Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 NARD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 27 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZTTR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 75 of 2014 |
| Judgment of: | Judge Raphael |
| Hearing date: | 4 June 2014 |
| Date of Last Submission: | 4 June 2014 |
| Delivered at: | Sydney |
| Delivered on: | 4 June 2014 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 75 of 2014
| SZTTR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Nepal. He arrived in Australia on a Student (Subclass 572) visa on 13 February 2008. After six months he left his course, as he could not continue to fund it. He worked in various jobs and changed residences a number of times. He has relations in Australia. On 26 May 2010 his student visa ceased. He remained unlawfully in Australia until he was located on 21 March 2013 and placed into immigration detention.
It was there that he made an application for a Protection (Class XA) visa. His application was considered by a delegate of the Minister, who declined to grant the visa, and the applicant sought review of that decision from the Refugee Review Tribunal. He attended a hearing before the Tribunal at which he gave evidence and presented arguments. On 12 December 2013 the Tribunal determined to affirm the decision under review.
The ground upon which the applicant claimed that he was a person to whom Australia owed protection obligations arose out of his participation, in around 2007, with an incident that involved his brother. He claimed that his brother was a student activist who had come into dispute with the Nepali Young Communist League (YCL). He claimed that 11 men had attacked his brother and injured him so severely that he remained in hospital for approximately one month, after which he immigrated to the United States.
The applicant, although a young man at the time, told that he organised a group of friends to seek retribution on behalf of his brother. They found the man they were targeting as the principal of the attack upon the brother and attacked him. The applicant says that he got scared and ran away but nonetheless he was known to be a leader of the attack. He told that the next week his family received a telephone call advising them that the YCL were looking for him, that they should not try and hide him and that they would find him. Shortly thereafter the applicant left for Australia on the student visa previously referred to.
The applicant told that there had been no further contact between the YCL group and any members of his family since he had come to Australia. In response to questioning from the delegate and from the Tribunal he told that, so far as he was aware, none of the other members of his group who had been involved in the bashing of this man had been approached.
The Tribunal accepted much of the applicant’s story, namely, that his brother was an active member of the Nepalese students’ union, that he had been attacked by a group of YCL or Maoist youths in 2007, that he was in hospital for a month and had left for the United States. The Tribunal accepted that the applicant and a group of nine of his brother’s friends retaliated, and that the applicant was the person who instigated this revenge attack. It accepted that he ran away from scene and that the victim did telephone his house one week after he had left in 2008.
The matter that concerned the Tribunal was whether or not the applicant could satisfy it that there was a real risk of serious harm should he return to Nepal now or in the reasonably foreseeable future. This is a requirement of the Migration Act 1958 (Cth)[1] and, indeed, of the Convention. The applicant must have a well-founded fear of persecution which, essentially, involves the existence of a real chance of serious harm.
[1] The Act.
At [35 and 36] [CB 117], the Tribunal sets out its understanding of the real chance test as articulated by the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379[2] at 389 per Mason CJ and at 429 per McHugh J. The Tribunal accepted that there could be a well-founded fear of persecution even though the possibility of persecution occurring was well below 50 per cent, indeed, even as low as 10 per cent. It noted that a fear is not well-founded if it is merely assumed or if it is mere speculation: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572.
[2] Chan.
At [37] CB 117 the Tribunal concluded that it did not accept that there was a real chance of serious harm on the principles enunciated in Chan and then set out the reasons for coming to that conclusion. Essentially, those reasons were that, according to the applicant’s story, the only threat that had been made was the one made a week after he had left the country and that there was no evidence that any of the other participants in the beating had been the subject of any threats or action.
This was coupled, in the Tribunal’s mind, with the fact that the applicant had not applied for protection until he had been discovered as an over-stayer under his student visa. The Tribunal considered that if he had a genuine fear of persecution from these people, he would have applied for a protection visa at the earliest opportunity. And, even though the applicant had told the Tribunal that he had discussed this matter with a migration agent, the Tribunal referred to the fact that the applicant spoke English and had a sister and other relations in Australia who could have advised him. “The Tribunal notes that he was attempting to avoid being deported (on his own evidence) and this is why he did not contact the Department to arrange a new visa when his previous visa ceased.” [42] CB 118.
The Tribunal considered the applicant’s story under the criteria for the grant of a protection visa under s.36(2)(aa) of the Act, noting that it was required to consider whether there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal there was a real risk of significant harm. The Tribunal rightly referred to the decision of the Full Court in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33[3] which had determined that the real risk test imposed the same standard as the real chance test in connection with a well-founded fear. The Tribunal also noted that the Act defines serious harm as an applicant being arbitrarily deprived of his life, subject to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
[3] SZQRB.
The Tribunal had already concluded that there was no real risk that the applicant would suffer such treatment should he return to Nepal, for the reasons already discussed, and in those circumstances the applicant was not entitled to complementary protection pursuant to s. 36(2)(aa).
On 13 January 2013 the applicant lodged an application with the Court for review of the decision of the Refugee Review Tribunal. There were six grounds of application. The first was:
“The Tribunal was in error because it had made the decision in denial of procedural fairness and denial of natural justice to me.”
There are no particulars provided in the application, even though the applicant was granted leave to file an amended application when the matter came before the Court for directions on 19 February 2014. However, the applicant appeared today and explained to the Court that he believed that the Tribunal had not provided him with procedural fairness by not complying with the provisions of s.424AA of the Act. It is now clear that s.424AA is no more than an articulation of a manner in which the provisions of s.424A may be applied by a Tribunal, and so the appropriate section to look it is s.424A: SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415.
When the Court asked the applicant what information it was that had not been provided to him in the manner required, he pointed to certain information which is found as attachment ‘B’ to the Tribunal decision, commencing at [CB124]. As the Court explained to the applicant, this type of information is information that is not included within the provisions of s.424A by virtue of subsection 424A(3)(a), which refers to information that is not specifically about the applicant or another person and is just about a class of persons to which the applicant or other person is a member.
The applicant was unable to advise the Court of any information that was personal to him that had not been properly discussed and it is, of course, important to note that the Tribunal accepted all the personal information that the applicant had put to it, save his view that he was still the subject of interest from the persons in Nepal. The Tribunal's view about that matter is not information, but opinion. On that basis, this ground cannot succeed.
The second ground is:
“The Tribunal had constructively failed to exercise jurisdiction.”
This claim is also not particularised and I do not believe that anything that the applicant said to me in Court today has gone anywhere to illuminate it. It is not for the Court to hazard guesses as to what an applicant might mean by these phrases that are clearly either extracted from other applications or dictated to him by a "friend".
The third ground of application is:
“The Tribunal have failed to take into account relevant materials and considerations.”
Again, this is not particularised, but the applicant did tell the Court that the Tribunal had ignored certain independent country information that was favourable to him and had relied solely on other country information that was not. The difficulty which the applicant has in this claim is that the Full Bench of the Federal Court in NARD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 27 at [13] had noted:
“We have already noted that the RRT is entitled to prefer evidence from independent country information rather than the appellant, and to do so for the reasons that it outlines. The weight it gives to such evidence is a matter of fact and degree for it to evaluate and not for this Court.”
In NAHI vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Bench, Gray, Tamberlin and Lander JJ said at [11]:
“The appellants' submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’… To some extent, this material could have been considered to be helpful to the appellants' case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants… There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function.”
For these reasons the applicant's claims concerning the Tribunal's failure to utilise the more favourable information cannot be sustained.
The fourth ground of application was:
“The Tribunal had ignored relevant materials.”
It is not clear what the relevant materials are. To the extent that they may be the independent country information discussed above, the Tribunal's decision to ignore it, if it did, is one for it rather than this Court. Ignoring relevant material in this context is, to the Court's mind, not the same as failing to take it into account. It seems to the Court that what the applicant is arguing is that the Tribunal did not prefer it to the other information. There is certainly no evidence that the Tribunal ignored the information. It was information that the Tribunal itself produced.
The fifth ground of application was:
“The Tribunal had failed to ask relevant questions prescribed by law and its decision was beyond power.”
The applicant provided no assistance to the Court in pointing out what the relevant questions prescribed by law were or why the decision was beyond power, and the Court does not propose to enter upon this debate in those circumstances.
The final ground of application was:
“The Tribunal misapplied the test of whether there was a real risk of significant harm to the Applicant if returned to his country of nationality.”
It appears from what the applicant told the Court, that he did not agree with the views of the Full Bench in SZQRB, that the real risk test imposes the same standards as the real chance test. This Court is bound by the decision of a Full Bench of the Federal Court, but the applicant's complaint is noted so that if this matter should travel as far as the High Court of Australia, he can make that argument to their Honours.
The applicant did raise some other matters at the hearing but these went, in the Court's view, to the merits of the case. They constituted arguments about why the Tribunal had come to certain findings of fact with which the applicant disagreed. As the Court explained to the applicant, merits review is not within the jurisdiction of the Court in these matters.
It follows from the above that the Court is unable to provide the applicant with the review he seeks. The application must be dismissed. The applicant shall pay the respondent's costs assessed in the sum of $5,000.00.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Raphael
Associate:
Date: 10 June 2014
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