SZTZB v Minister for Immigration

[2014] FCCA 3096

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTZB & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 3096

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – whether Tribunal failed to consider a claim – whether Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth) – whether Tribunal made an error of law– no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 422(B), 424AA, 424A, 425, 476,

Federal Circuit Court Rules 2001 (Cth)

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252)
SZBEL v Minister for Multicultural and Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152

First Applicant:

Second Applicant

SZTZB

SZTZC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 553 of 2014

Judgment of: Judge Nicholls

Hearing date: 1 December 2014

Date of Last Submission: 1 December 2014

Delivered at: Sydney

Delivered on: 1 December 2014

REPRESENTATION

First Applicant: In Person

Second Applicant: In Person

Solicitors for the Respondents: Ms A Carr of DLA Piper

ORDERS

1. The application made on 7 March 2014 is dismissed.

2. The applicants pay the first respondent’s costs set in the amount of $5400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 553 of 2014

SZTZB

First Applicant

SZTZC
Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. This is an application made on 7 March 2014, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 31 January 2014 which affirmed the decision of the Minister’s delegate to refuse protection visas to the applicants.

2. The relevant background to this matter can be derived from the bundle of relevant materials in evidence before the Court (“the Court Book” – “CB”).

Background

1. The applicants are both Nepalese citizens. Both applicants arrived in Australia in September 2008 as the holders of student visas (CB 1 to CB 40).

2. The applicants applied separately for protection visas in February 2012. The first named applicant (“the applicant”) set out his claims in the visa application form and in an attached statement (CB 58 to CB 62). He claimed that he was a member of an ethnic minority group in Nepal, the Chhantyals. He further claimed that he had become interested in politics because of his ethnic group, which had not been well served by “corrupt politicians”.

3. The applicant claimed to have been a student activist with the Nepalese Students’ Union and to have been a member of the Nepali Congress Party. The applicant became critical of, and opposed to, the Maoist Party, whom he said were “undemocratic”. He claimed to have been harassed by the Maoists and was threatened by them.  He also claimed that in March 2008, he was beaten and injured by Maoists, and further, that the Maoists seized his home, and the police would not assist.  The applicant stated that he came to Australia after he was told by an “agent” that he could obtain permanent residency after studying for two years.

4. The second named applicant (“the second applicant”) set out her claims in a written statement attached to her visa application (CB 63 to CB 65). She claimed to have been a member of the Nepali Congress Party for some years.  She also was opposed to the Maoists and she feared harm from them for this reason.  She claimed to have been threatened and harassed by them and to have been pressured to join the Maoist Party.

5. The Minister’s delegate interviewed the applicant and accepted his factual account of what he said were the relevant events in Nepal. However, the delegate found that the applicant did not have a prominent political profile and would not be targeted by the Maoists for this reason, if he were to return to Nepal.

6. The delegate also found that the delay of three years in applying for a protection visa, after arriving in Australia, cast significant doubt on the genuineness of the claimed fear in Nepal. Therefore, the delegate refused the application.

7. The second applicant also attended an interview with the delegate. The delegate accepted some of her claims, as they related to the factual account of what occurred in Nepal. However, the delegate found that she did not have a sufficiently high political profile, nor that she had been targeted by Maoists.

The Tribunal

1. The applicants applied for review to the Tribunal on 29 August 2012 (CB 106 to CB 111) and they attended a hearing before the Tribunal on 30 October 2013 (CB 147). The applicants provided a number of documents to the Tribunal which were put in support of their claims. The Tribunal hearing resumed on 18 November 2013 and the applicants gave further documents to the Tribunal (CB 172 to CB 178).

2. As can be seen from the Tribunal’s decision record, the Tribunal had a number of concerns about the applicant’s credibility in relation to his account of his personal circumstances in Nepal ([12] at CB 185 to CB 189).

3. These concerns arose from what the Tribunal described as his confused and evasive responses, in relation to how he was able to pay the agent such a large sum of money to arrange travel to Australia. Further, the Tribunal found that the applicant’s description of his political activities in Nepal to be brief and vague, and which the Tribunal said was lacking in circumstantial detail. The Tribunal also found that he provided a document identifying him as a member of the Nepali Student Union some 18 months after his protection visa application had been made.

4. Despite all these concerns, the Tribunal gave the applicant the benefit of the doubt. On that basis, the Tribunal accepted that he had joined the student’s union, that he was involved in supporting the Nepali Student’s Union and the Nepali Congress Party in his local area, and that he had conducted some activities for the Nepali Student’s Union. However, even accepting that, the Tribunal found it highly implausible that he had engaged in such activities, or duties, on a voluntary, full-time basis, as he had claimed. 

5. In any event, the Tribunal found that the activities it accepted as having occurred, would not have given the applicant any particular profile as a leader, or as a political activist.

6. The Tribunal further found that the applicant had not gained any adverse profile resulting from his marriage to the second applicant. The Tribunal accepted that he may have been injured in a clash with Maoists at a political meeting in March 2008. It also accepted, with some reservations, that his family relocated after the seizure of their family house in 2008.

7. However, the Tribunal found that the applicant would not now be a target of the Maoists because of his support of the Student’s Union, or the Congress Party. The Tribunal found that he would not be targeted for a number of reasons, including, his low level political activity, the time he had lived outside of Nepal, and based on country information the Tribunal had before it, that violence involving Maoists had decreased significantly since 2008. The Tribunal’s finding was reinforced by, what it said was, the applicant’s delay in leaving Nepal, after the student visa had been issued to him.

8. The Tribunal noted that the applicant had returned to Nepal for five weeks in March 2011. Plainly the Tribunal saw this return to Nepal as being inconsistent with a claim to fear harm in Nepal. The Tribunal found that his return was incompatible with the claim that he would be abducted, and killed, by Maoists. The Tribunal also found that further doubt was cast over the applicant’s claimed fear, by the delay of some years in applying for protection after arriving in Australia.

9. The Tribunal could not be satisfied that he would involve himself in political activity in Nepal in the future, or attract harm in such a way that would lead to the applicant satisfying the relevant criteria for the grant of a protection visa.

10. The Tribunal accepted that the second applicant was a member of the Nepali Student’s Union, and the Congress Party, but found that her activities for these organisations was “low-level” ([17] at CB 191 to CB 192). The Tribunal found that she had not played any significant role in encouraging others to support the Congress Party, or to oppose the Maoists, as she had claimed.

11. The Tribunal accepted that the Maoists has seized her parents-in-laws’ house and it accepted that she, and her husband, had relocated to Kathmandu in 2008. However, the Tribunal further found that, at the time she left Nepal, she did not fear harm from the Maoists because of her own low-level political activities, or because of her relationship with her husband. The Tribunal found that its view was supported by the second applicant’s delay in leaving Nepal after the grant of the visa, and her delay in applying for a protection visa after arrival in Australia.

12. The Tribunal also considered the second applicant’s claims that she would be targeted for extortion by the Maoists because she would return to Nepal from a Western country. In this regard, the Tribunal accepted that a relevant, particular, social group existed. That is, for the purposes of the Refugees Convention, it can be said that there was a particular social group, consisting of persons who returned from a Western country, and who would be subject to extortion. However, the Tribunal found there was nothing on the information before it to suggest that the second applicant would be at risk of harm because of any such membership.

13. The Tribunal considered its findings under both of the criteria at s. 36(2) of the Act, and was not satisfied that the applicants were persons to whom Australia had protection obligations and, therefore, on that basis, affirmed the delegate’s decision.

Before the Court

1. The grounds of the application to the Court are as follows:

   “1. I argue that the Tribunal member has ignored or failed to consider and assess my claims and evidence fairly and correctly.

   2. I have no doubt that the Tribunal member has failed to provide me natural justice.

   3. It is argued that there is an error of law on the part of the Refugee Review Tribunal Members’ purported decision in my case.”

2. Before the Court both applicants appeared in person. They were assisted by an interpreter in the Nepali language. Ms A Carr appeared for the first respondent.

3. It is important to note the history involving the progress of the applicants’ case before this Court. The applicants were unrepresented at the first court date on 2 April 2014. Nonetheless, I made orders on that day giving the applicants the opportunity to file any amended application or any evidence by way of affidavit in support of their grounds.

4. At that time, I noted with the applicants that the grounds of the application were unparticularised and were formulaic in their character. They were asked to consider obtaining legal advice and it appears that they did attempt to do so. The matter was set down for mention at a callover on 9 July 2014. On that occasion the applicants again appeared in person and were legally unrepresented. The matter was set down for final hearing on 27 August 2014.

5. At the final hearing, a lawyer did appear for the applicants and successfully argued for an adjournment of the final hearing, in order to prepare for that hearing. I therefore adjourned the final hearing until today. However, I note that on 23 September 2014, the applicants’ lawyers have filed a notice of withdrawal as lawyers representing the applicants.

6. One matter that emerges from that brief history is that unlike many other applicants who are unrepresented before the Court, the applicants have at least had the opportunity to obtain some legal advice. However, as I said to the applicants, whatever advice they did receive is a matter between them and their former legal advisor.

Consideration

1. What remains, however, is that nothing further has been filed by the applicants in support of their application. Nor was anything that they said to the Court today of assistance to them in supporting their application to the Court, given the notice of judicial review of the Tribunal’s decision.

2. In essence, both applicants stated that what they put in support of their claims for protection was genuine, that all their documents were “true” and that they were dissatisfied with the Tribunal’s findings, as they felt that they had not obtained “justice” from the Tribunal. The applicants asked the Court to consider their case carefully. 

3. As I sought to explain to the applicants, even if the Court were to accept all of their claims, and even if the Court were of the view that they should be given protection visas, the Court cannot intervene to give them protection visas, because the law does not permit it. The only way that the Court can intervene to assist the applicants is if some jurisdictional error can be found in the Tribunal’s decision. 

4. As the Minister’s representative submitted, correctly in my view, what the applicants put in oral submissions to the Court, was nothing more than a disagreement with the conclusion, and the factual findings made by the Tribunal, which informed that conclusion. In short, the applicants seek impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”).

5. Ground 1 of the application asserts that the Tribunal ignored, or failed to consider and assess, the applicants’ claims and evidence fairly and correctly. When read as a whole, and in the absence of any particulars, the ground can only be properly understood as a complaint that it was unfair, or incorrect, of the Tribunal to find that their claims did not satisfy the criteria for the grant of the protection visas. Based on what the applicants’ have said to the Court today through oral submissions, it is clear that that indeed is what the applicants meant by their first ground.

6. This does not assist the applicants. First, the Tribunal’s findings were all reasonably open to the Tribunal on what had been put before it. The Tribunal gave reasons for its findings, probative of that evidence and material (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). In that circumstance, the applicants again really seek impermissible merits review from this court (Wu Shan Liang).

7. Second, the Tribunal is not obliged to conclude whatever the applicants say is the “correct” or “fair” or “just decision” in their case. The Tribunal’s obligation as to fairness, or, as it can be described, “natural justice”, extends to the process that it adopts in conducting the review of the delegate’s decision (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1). In the current circumstances, given that the findings made by the Tribunal were all within the scope of what can said to be reasonably open to it, the applicants’ complaint of incorrectness, or unfairness, does not assist them in showing jurisdictional error on the part of the Tribunal, given that that claimed incorrectness, injustice, or unfairness is directed to the decision, and not to the process of the conduct of the review.

8. Third, and as a matter of an abundance of caution, I considered the following. If the ground were to be understood as an attempt to assert  failure by the Tribunal to consider a claim expressly made, or clearly arising from the circumstances as presented by the applicants (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No.2) [2004] FCAFC 263; (2004) 144 FCR 1), then no such claim is identifiable in the material presented to the Tribunal.

9. On the evidence that has been put before the Court, I cannot see that any claim to protection can be said to have arisen, that was not considered by the Tribunal. In all, ground one is not made out.

10. Ground two asserts that the applicants were denied natural justice. The absence of any particulars renders the ground so general as to be lacking any substance. In any event, this is a case to which s.422B of the Act applies. Section 422B makes Division 4, of Part 7 of the Act the exhaustive statement of the natural justice hearing rule, in relation to the matters dealt with in that part of the Act (Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252).

11. In this context, the evidence reveals that the applicants were invited to a hearing pursuant to s.425 of the Act. On the evidence before the Court, the applicants were given a meaningful opportunity to give their evidence to the Tribunal and put their arguments in relation to the issues dispositive of the review (SZBEL v Minister for Multicultural and Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152).

12. Nor is any breach of s.424A(1) of the Act apparent. In this regard, the “information” that could be said to be information that the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate’s decision was the following. Information given by the applicants in writing in relation to their protection visa application or given to the Tribunal for the purposes of the review. This includes their oral evidence to the Tribunal, and separately, information discussed by the applicants with the delegate at the interview with the delegate.

13. The issue that arises is whether there was any breach by the Tribunal of its obligation pursuant to s.424A(1) of the Act. It is clear that information given by the applicants to the Tribunal, including oral evidence, and information given by the applicants in writing to the Minister’s department, falls within the exceptions to s.424A(1) of the Act, set out in ss.424A(3)(b) and (ba) of the Act.

14. As to the matters that were discussed with the delegate at the interview, for example, the matter of the delay in leaving Nepal and applying for protection after arrival in Australia, these matters were set out in the delegate’s decision record. This decision record was provided to the Tribunal, by the applicants, with their application for review. In this light, that information therefore also falls within the exception set out in s.424A(3)(b) of the Act.

15. In any event, the matters of delay, were, on the evidence before the Court, discussed at the hearing with the Tribunal, and discussed in such a way that even if there had been some obligation under s.424A(1) of the Act, this was discharged by the Tribunal’s use of the facility available to it, pursuant to s.424AA of the Act. No other breach of any section in Division 4, of Part 7 of the Act is apparent on the evidence.

16. I further note, that even if the common law rules of natural justice were to apply, on the evidence that is before the Court, the applicants knew the case that was being put against them. They were given notice of the matters that were considered adverse to their claims, and they were given the opportunity to respond at the hearing with the Tribunal. There is no evidence before the Court to dispute the Tribunal’s account of what occurred at the hearing. Ground two is not made out.

17. Ground three simply asserts that the Tribunal made an error of law. The ground is not particularised. On the material that is in evidence before the Court, I cannot otherwise discern that the Tribunal made any error at law. Ground three, therefore, is not made out.

Conclusion

1. Absent any error in the exercise of the Tribunal’s jurisdiction, the application made to the Court should be dismissed. I will make an order accordingly.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 28 January 2015