SZTXL v Minister for Immigration and Border Protection
[2016] FCA 26
•2 February 2016
FEDERAL COURT OF AUSTRALIA
SZTXL v Minister for Immigration and Border Protection [2016] FCA 26
Appeal from: Application for extension of time: SZTXL & Ors v Minister for Immigration & Anor [2015] FCCA 1210 File number: NSD 712 of 2015 Judge: COLLIER J Date of judgment: 2 February 2016 Catchwords: MIGRATION – r 31.02(1) Federal Court Rules 2011 (Cth) – application for extension of time – no error in decision of primary Judge – appeal doomed to fail – application dismissed Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Federal Court Rules 2011 (Cth) r 31.02(1)
Cases cited: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
SZTXL v Minister for Immigration & Border Protection [2015] FCCA 1210
Date of hearing: 24 August 2015 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 25 Counsel for the First, Second and Third Applicants: Mr JR Young Solicitor for the First, Second and Third Applicants: G&S Law Group Counsel for the First Respondent: Mr O Jones Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
NSD 712 of 2015 BETWEEN: SZTXL
First Applicant
SZTXM
Second Applicant
SZTXN
Third Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
2 FEBRUARY 2016
THE COURT ORDERS THAT:
The application be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLLIER J:
This is an application for an extension of time pursuant to r 31.02(1) of the Federal Court Rules 2011 (Cth) in which to lodge an appeal from a decision of the Federal Circuit Court of Australia in SZTXL v Minister for Immigration & Border Protection [2015] FCCA 1210. In that case, the primary Judge dismissed an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal), in which the Tribunal had refused to grant the applicants a Protection (Class XA) visa under the Migration Regulations 1994 (Cth) (the Regulations). At all stages of this proceeding only the first applicant has made independent claims endeavouring to satisfy the criteria for a visa under the Regulations (the second and third applicants are, respectively, the wife and child of the first applicant).
The Minister takes no issue with the preferred reason for the lateness of the applicants in filing their notice of appeal from the decision of the Federal Circuit Court – namely that the legal representatives of the applicants were only able to contact the applicants at a date after expiry of the date by which an appeal could have been filed in accordance with the Federal Court Rules. Rather, the Minister claims that the present application ought be dismissed on the basis that it is doomed to fail.
Before turning to the application before me it is appropriate to examine the background facts to this application.
Background
The first applicant is a citizen of Nepal, who first arrived in Australia on a student visa in May 2009. He departed Australia in early 2011, returning to Australia one month later. The applicants applied for protection visas on 14 October 2011.
The first applicant claims to be a supporter of the Nepal Congress Party. In Nepal he was in a health-related profession. While in Nepal the first applicant referred a person to another practitioner, whose actions apparently caused the person’s death. The first applicant was charged, but later acquitted, in connection with the homicide of the deceased person.
The first applicant claims that he has been threatened by the family of the deceased person.
When the applicants sought protection under the Migration Act 1958 (Cth) the delegate of the Minister found that the first applicant had fabricated his claims.
Decision of the Tribunal
After detailing the evidence the Tribunal said that it too considered that the first applicant had fabricated his claims. This was because there were material inconsistencies and variations in his claims in his written statement and his oral evidence to the Tribunal, in particular:
·he gave inconsistent and implausible evidence about missing information from his protection visa application;
·he gave inconsistent and implausible evidence about bail and his detention after being charged;
·he gave implausible evidence about his bail conditions;
·he gave exaggerated evidence about his activities with the Nepalese Congress Party;
·he gave implausible evidence about the shooting of senior Maoist leaders in his home village;
·he gave inconsistent evidence about being abducted by Maoists in 2008;
·he gave implausible evidence about the threats he faced from Maoists and others.
The Tribunal accepted the first applicant’s story concerning his arrest and acquittal on homicide charges. However the Tribunal then went on:
34.The Tribunal maintains concerns about the lateness of the first named applicant raising the claim regarding the homicide charges and in particular, the claimed threats from Mr S and associated parties. The Tribunal is not persuaded by the first named applicant’s explanation he withheld making that claim to the delegate while the first named applicant was trying to settle a dispute with Mr S. The efforts evident from the number of documents he provided and some of the being dated as early as January 2012 indicate he had already spent considerable time preparing those documents, well prior to the interview with the delegate. This makes the Tribunal conclude the first named applicant was not just trying to settle a dispute with Mr S. For the first named applicant to be trying to settle with Mr S too suggests the first named applicant must have been in some form of contact with Mr S, yet Mr S is threatening to kill the first named applicant. The Tribunal consider it implausible the first named applicant would be contacting Mr S if Mr S was threatening to kill him. The evidence of the first named applicant regarding the threats of Mr S and others is vague and without detail. The first named applicant provided no evidence of Mr S trying to find he or threaten him as the first named applicant relocated from town to town within Nepal. He provided. I evidence of his making a complaint to the police as he claimed to have done when he received the first Maoist extortion letter (albeit the Tribunal has rejected that document as not being credible). The only other evidence of the threats is in the 1 March letter of the Nepalese lawyer, which the Tribunal places no weight on. The Tribunal in particular notes the lead co-accused in the death of Mr S’s wife was convicted and given life imprisonment. The Tribunal considers it unlikely Mr S, his family or the society where he lives would harbour any desire, let alone continuously threaten to kill the first named applicant given the conviction of the lead co-accused. The Tribunal rejects the claims Mr S is blood thirsty for the first named applicant and considers this another one sample of the first named applicant fabricating claims in order for protection in Australia.
35.In summary, the Tribunal accepts the applicant was charged and acquitted of homicide. Due to cumulative [sic] the material inconsistencies in his evidence, implausible claims and non-persuasive explanations, the Tribunal reject that he was threatened by Mr S, the family of Mr S or society where Mr S lives. The Tribunal considers the first named applicant has fabricated these claims as means to remain in Australia.
The Tribunal considered whether the first applicant was at risk of harm, not just currently but into the reasonably foreseeable future, and after examining the material concluded that he was not. In conclusion, the Tribunal said:
43.The Tribunal has also considered the application of s.36(2)(aa) to the first named applicant’s circumstances. In making its findings, the Tribunal has considered the Complementary Protection Guidelines as required by Ministerial Direction No 56, made under s.499 of the Act.
44.The Tribunal found above the first named applicant does not have a well-founded fear of persecution on any ground. Given the real chance test for well-founded fear of persecution is the same as the real risk test of significant harm, for the same reasons set out above, the Tribunal is not satisfied the first named applicant has a real risk of significant harm. The Tribunal considers there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the first named applicant being removed from Australia to Nepal there is a real risk the applicant will suffer significant harm, in the form of: arbitrary deprivation of life; the death penalty being carried out; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore the first named applicant does not meet the requirements of s.36(2)(aa).
Federal Circuit Court
The applicants sought review of the decision of the Tribunal on two grounds:
1.The Second Respondent made jurisdictional error by making at [35] a decision which was incoherent, irrational or unreasonable given the Second Respondent’s own findings favourable to the Applicants claims (“Ground 1”)
2.The Second Respondent made jurisdictional error at [44] by inconsistency. The legal issue for consideration under s 36(2)(aa) of the Migration Act 1958 (“Ground 2”)
(Errors in original.)
In particular in the Court below the applicant submitted that:
·The Tribunal accepted the first applicant’s principal claim that he was charged and acquitted of murder in Nepal. This was inextricably linked to his claimed fear of retribution. Further, the Tribunal did not consider whether these facts gave rise to a well-founded fear of persecution.
·At [35] of its decision the Tribunal assessed the credibility of the first applicant on the basis of evidence it did not accept.
·The refusal of the Tribunal to accept that the family of the deceased person might not accept the verdict of acquittal of the first applicant was capricious and irrational.
·The general finding of the Tribunal that the first applicant fabricated his claims is flawed because in fact the Tribunal accepted his primary claim relating to his acquittal of criminal charges in Nepal.
In relation to the first ground of review, the primary Judge observed that comments at [35] of the Tribunal’s reasons could not be read in isolation. At [12]-[47] of the Tribunal’s reasons it provided a detailed account of the claims and evidence, and found many inconsistencies, fabrications and concerns with the account of the first applicant. In particular the primary Judge noted:
60.Despite the above findings, the Tribunal accepted the evidence of the applicant that he had been arrested and charged with homicide... In the absence of the tribunal being able to make a clear positive finding that the Nepalese court documents were fraudulent, it gave the applicant the benefit of doubt, accepted that they were genuine and that he was the person named in them…
61.The applicant complains that the Tribunal accepted the largest claim, being that the applicant was charged with and acquitted of murder. However, his claim that he fears retribution, an assertion inextricably linked this [sic] finding, was not accepted by the Tribunal for reasons that were incoherent, illogical or unreasonable.
The primary Judge then considered the decision-making approach of the Tribunal, including that:
·the Tribunal was not required to give a line by line refutation of the evidence for the applicant; and
·the Tribunal’s statement of reasons is given at the end of a decision-making process. So, at [35] the Tribunal summarised its earlier findings and said that due to cumulative material inconsistencies in the applicants’ evidence, it rejected the claims concerning threats by the family of the deceased person.
Further his Honour examined numerous authorities including Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, and the principle that it is only if no decision-maker could have followed the path of reasoning and despite the reasons given by the actual decision-maker, that the decision will be found to have been made by reason of a jurisdictional error. His Honour observed:
77.I accept the Minister’s submission that as a matter of logic the finding that the applicant was charged with and acquitted of murder has no compulsory relevance on the second finding that the applicant had not been threatened with reprisal by the murdered woman’s family. The Tribunal has reliably identified the inconsistencies in the applicant’s evidence...and given weight to the applicant’s inconsistent and implausible evidence, and fabrication of most of his claims over the benefit of the doubt of a single claim.
In relation to the second ground of review before the primary Judge the applicants argued that the first applicant’s claim to fear harm beyond the threat of the family of the deceased person, but society generally, had a wider application which the Tribunal did not consider. In particular, this related to the applicants’ fear of Maoists and Janatantrik Tarai Mukti Morcha (JTMM). His Honour noted however that at [27] and [29] of its decision the Tribunal specifically identified the first applicant’s claims to fear harm from these groups, and rejected those claims.
Application to this Court
I have already noted that the applicants seek an extension of time in which to file an notice of appeal from the decision of the primary Judge, and that the Minister opposes the grant of an extension of time primarily on the basis that the proposed grounds of appeal have no merit. A draft notice of appeal has been filed, containing the following proposed grounds of appeal:
1.His Honour Judge Llyod-Jones erred by not finding that the Second Respondent made delays which were unreasonable or capricious or so internally inconsistent as to be irrational
2.His Honour Judge Llyod-Jones erred by not having proper regards to a finding that a person whose principal claim was that he had not been charged with an acquitted of murder which was found to be true but nonetheless The Second Respondent found that the he had fabricated his claims.
3.His Honour Judge Llyod-Jones made legal error at [83] and [84] as to the construction and relevance of Section 35(2)(aa) - The Complementary protection provisions - in relation to the circumstances of the case.
(Errors in original.)
The applicants did not press the third proposed ground of appeal.
At the hearing before me the applicants and the Minister were represented by Counsel.
In support of the application, Counsel for the applicants submitted, in summary:
·The first and second proposed grounds of appeal could be considered together.
·The decision of the Tribunal was irrational in that it found that facts relevant to his primary claim – namely, relating to the charge and acquittal of murder in Nepal – were true, but the Tribunal then went on to find that he had fabricated his fear of reprisals. To that extent the Tribunal’s finding that the first applicant lacked credibility was not logical, because it had already accepted the truth of the first applicant’s primary claim.
·The findings of the Tribunal in this respect were more than findings of fact – they involved a process of reasoning.
In my view however, these submissions lack merit, and the proposed grounds of appeal of the applicants are doomed to fail.
The applicants in their submissions relate the facts concerning the murder charges/acquittal (which the Tribunal accepted) to the claims of the applicants that the first applicant would be subject to reprisals if he returned to Nepal (which the Tribunal did not accept). As both the Tribunal and the primary Judge observed however, these circumstances are not inextricably linked – it is perfectly logical that the Tribunal should have accepted the claims concerning the murder charges and subsequent acquittal of the first applicant without necessarily accepting that he would then be the subject of reprisals from the deceased person’s family. Further, I do not accept that it was not open to the Tribunal on the facts to find that the first applicant lacked credibility in relation to his alleged fear of reprisals simply because the Tribunal accepted other evidence put to it in respect of the first applicant’s criminal charges.
The other submissions of the applicants lack merit to the extent that the applicants contend:
·The Tribunal acted irrationally in referring to the lateness of the applicants’ claim concerning the charges/acquittal and the claimed fear of reprisals. While at [34] the Tribunal expressed concern that this claim was made late in the proceedings, the tenor of the discussion at [34] focussed on the first applicant’s fear of reprisals, and his interactions with the spouse of the deceased person.
·The Tribunal erred in stating that the first applicant claimed the spouse of the deceased person was “blood thirsty”. Rather, at [20] of the Tribunal decision the Tribunal noted:
In a cover letter attached to the bundle of documents, the first named applicant submitted:
...
...
c.His involvement in that case meant Mr S and the deceased person’s family are blood thirsty against him. They would assault and mistreat him were he to return to Nepal.
In this respect it appears that the use by the Tribunal of the term “blood thirsty” derived from correspondence from the applicants. Even if it had not, I do not consider the use of such a term gives rise to jurisdictional error in the Tribunal’s decision.
Conclusion
In my view the appellants can point to no error in the decision of the primary Judge. Even were an extension of time in which to appeal granted, I consider the appeal would fail. It follows that it is appropriate to dismiss the application before me, with costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 1 February 2016
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