SZUPD v Minister for Immigration & Border Protection

[2014] FCCA 2691

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUPD v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 2691

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth) s.36
Federal Circuit Court Rules 2001 (Cth) r.44.12, 44.13

Cases Cited:
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

Applicant: SZUPD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1760 of 2014

Judgment of: Judge Emmett

Hearing date: 14 November 2014

Date of Last Submission: 14 November 2014

Delivered at: Sydney

Delivered on: 14 November 2014

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter.

Solicitors for the Respondents: Ms Hervee Dejean (Australian Government Solicitor)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1760 of 2014

SZUPD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application by the applicant pursuant to r.44.12 of the Federal Circuit Rules 2001 (Cth) (“the Rules”) for an order requiring the respondent to show cause why the Court should not grant the relief sought in the application filed on 26 June 2014.

2. On 14 October 2014, the applicant attended a directions hearing before me, on that occasion I explained to the applicant that this Court had no power to interfere with the decision of the Refugee Review Tribunal (“the RRT”) unless this Court was satisfied that it was affected by a mistake that went to the RRT’s jurisdiction. I also explained the costs consequences that may flow to the applicant if she was unsuccessful. The applicant confirmed that she wished to continue with her application for judicial review. On that basis, the applicant was given leave to file and serve an Amended Application, any additional evidence by way of affidavit and submissions in support by 24 October 2014. At the directions hearing the applicant was provided with the contact details of legal services providers and translating and interpreting services in documents headed in her own language, together with a copy of r.44.12 of the Rules, pursuant to which her matter was set down for hearing today, and a copy of the relevant costs schedule of this Court.

3. At the commencement of the hearing today, the applicant confirmed that she had not filed any documents in accordance with the directions made by the court on 14 October 2014, and that she relied on the grounds of her initiating application filed on 4  July 2014.  Those grounds are as follows:

   “1. The Tribunal failed to exercise its jurisdiction under the migration Act Particulars that relied on country information for India as a safe 3rd country, which is incorrect. The Tribunal had jurisdiction to make decision on refugee protection as sought to be protected in Australia.

   2. The relied on information of Nepal saying “the interim constitution reportedly protected religious freedom is incorrect. Fail to consider Christian religion converters are continuing being arrested and prosecuted in Nepal. Nepal interim constitution does not protect Religion Converters.

   3. Fail to consider as Australia is one of 147 signatory countries to the Refugees Convention and the Refugees Convention defines a refugee as a person according to Fact Sheet 61 – Seeking Protection within Australia and A refugee is defined by the 1951 United Nations Convention and the Status of Refugees, and its 1967 Protocol.”

4. The applicant was unrepresented before the Court this morning, although had the assistance of a Nepalese interpreter. 

5. The applicant had a series of documents that she wished to tender in response to the respondent’s written submissions.  Two of the documents are identified as “Interim Constitution of Nepal” and “RIT Research Response dated 31 August 2005”. Those documents were admitted together as Exhibit 1A.  A document on “Psych Central” letterhead, dated 27 May 2014, and a report on “Allcare Medical Centre” letterhead, dated 20 June 2014, were together marked Exhibit 2A. The first respondent tendered a bundle of relevant documents, filed on 26 October 2014, which was marked Exhibit 3R. All the documents in Exhibits 1A and 2A are reproduced in Exhibit 3R.

6. I understand the applicant’s complaint in relation to those documents to be that the RRT did not consider them.  However, for the reasons that appear below, that complaint is not made out. 

7. The applicant’s claims and the Tribunal decision are accurately summarised in the first respondent’s submissions, filed on 30 October 2014, as follows:

   “The applicant’s background is briefly set out below.

18 April 2013	Lodged application for a PV
11 November 2013	Delegate refused to grant the applicant a PV
28 November 2013	Lodged application for review of delegate’s decision with the Tribunal
30 April 2014	Tribunal hearing
2 June 2014	Tribunal decision
26 June 2014	Present proceedings commenced

Applicant’s claims

The applicant claimed that on 1 January 2013 she was threatened by Hindu extremists, the Youth Communist League and Shiva Sena that she would be harmed for proselytising unless she paid them money. She refused to pay the individuals money, so she was attacked and hospitalised. She also claimed she would be harmed by her relatives, Limbu society and Hindu society generally because she is a Christian.

She claimed Nepalese authorities warned her that if she continued to proselytise she would be imprisoned because proselytising was prohibited under Nepalese law. She claimed that although the Nepalese government tolerates individuals who convert to Christianity, they do not protect those who actively convert others to Christianity.

The Tribunal Decision

The Tribunal did not find the applicant to be credible, which it found ‘significantly undermine[d] her claims for protection’: Relevant Documents (RD) 377 [66]. For instance, the Tribunal found that the applicant had not been truthful in her dealings with the Department. She represented to the Department that she had never used any passport other than the one she used to travel to Australia. However, the Department’s enquiries revealed that this was untrue. The applicant initially denied the Department’s information, however later admitted that it was true: RD 372-373 [29]-[33].

The Tribunal accepted that the applicant received medical treatment for trauma on 1 January 2013, however found that the applicant’s account of how she had been assaulted in early January 2013 was not credible. The Tribunal found that the evidence that she was admitted to hospital on 1 January 2013 did not establish that she was attacked that morning, as claimed. The evidence of the hospital admission suggested that the applicant manifested symptoms of an injury the day before: RD 374 [45]-[46]. Additionally, the applicant did not provide any evidence of her claim to have returned to the hospital later that day after being discharged: RD 374 [44].

The Tribunal rejected the applicant’s evidence of her proselytising role because it did not accept the documentary evidence was genuine in addition to noting that the applicant’s evidence on this issue was contradicted by other evidence: RD 376 [55]-[59].

In summary, the Tribunal found there was not a real chance the applicant would suffer serious harm by reason of her religion if she returned to Nepal because it did not accept the applicant had suffered harm in the past because of her religion and country information indicated that although individuals may be reported for proselytization, none were reported in 2012 and ‘adherents of Nepal’s many religions generally coexisted peacefully and respect places of worship’: RD 380 [84].

Further, although the Tribunal accepted that she was a member of the “particular social group ‘Christians in Nepal’”, it was not satisfied that she would suffer harm by reason of her membership of that group for the reasons discussed above: RD 381 [89].

The Tribunal also considered the applicant’s claim to have a well-founded fear of serious harm for reason of her membership of the particular social group ‘single mothers in Nepal’. The Tribunal accepted that she had suffered ‘social stigma and familial discrimination because she had a child at a very young age’, however it found that she had not suffered, and would not suffer, serious harm by reason of her membership of that group: RD 382 [92].

The Tribunal concluded the applicant did not have a well-founded fear of persecution for a Convention reason in Nepal, nor was it satisfied that there were grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Nepal there is a real risk she will suffer significant harm as defined in s 36(2)(aa) of the Migration Act 1958 (the Act).”

1. Each of the grounds was interpreted for the applicant, and the applicant was invited to say whatever she wished in support of each of the grounds. 

2. The only submission made by the applicant was in relation to Ground 1, where she said she could not go to India.  In relation to Grounds 2 and 3, the applicant said she had nothing to say. 

3. The RRT’s decision record makes clear that the RRT had regard to the applicant’s claims. The RRT noted that the applicant was interviewed by a delegate of the first respondent on 24 September 2013, resulting in a decision, dated 11 November 2013, the subject of review before the RRT. 

4. Before the RRT, the applicant’s representative provided a prehearing submission and a post-hearing submission, both of which were specifically referred to in the RRT’s decision record.  The second document in Exhibit 2A formed part of the post-hearing submissions. 

5. The RRT considered in some detail the applicant’s credibility, that being the substantive issue of concern to the delegate of the Minister in refusing the applicant’s protection visa application.  The RRT noted that, at the hearing before it, the applicant admitted that she had been in Israel between 2006 and 2010, a matter that she had continued to deny before the Delegate. 

6. The RRT noted the applicant’s explanation that she had been frightened to admit that she had not told the truth at the beginning of her interview with the Delegate.  The RRT did not accept that explanation, and found that the applicant had deliberately not mentioned her four-year stay in Israel, which the RRT found significantly impacted on her overall credibility.

7. In relation to the applicant’s claim of having been attacked on 1 January 2013, the RRT accepted that the applicant had suffered a head injury in the past, and had regard to hospital records that were provided to it in support of the applicant’s injury.  That document is part of Exhibit 2A, being the report on “Allcare Medical Centre” letterhead, dated 20 June 2013.  However, the RRT did not accept that report as supportive of the cause of the applicant’s injury. 

8. The RRT also specifically had regard to the report on “Psych Central” letterhead, dated 27 May 2014, being part of Exhibit 2A. However, the RRT gave that document little weight as supporting the applicant’s claims.  The RRT noted that the report provided detail not mentioned at any other time during the process. 

9. The RRT found the applicant’s accounts of the incident on 1 January 2013 to be inconsistent, and did not accept that the inconsistency arose because of residual health problems, or because the applicant is suffering from depression.  The RRT ultimately found that the applicant’s claim of having been attacked on 1 January 2013 not to be credible, having regard to the manner and the inconsistent evidence given by the applicant in the course of discussing that incident with the RRT. 

10. The RRT accepted that the applicant is a Christian, but rejected her claim of having carried out proselytising activities in Nepal since 2009.  The Tribunal noted that, at that time, she had admitted to having been living in Israel.  Ultimately, the RRT rejected the applicant’s claims as not credible, and did not accept that she would be harmed in Nepal for reason of her religion. 

11. The RRT accepted that the applicant’s relatives may not have accepted that the applicant and her mother had become Christians, but noted that neither had suffered serious harm as a consequence.  The RRT also had regard to the applicant’s claims to fear social stigma and familial discrimination as a single mother, however, did not accept that she had suffered serious harm as a consequence. 

12. The RRT made comprehensive adverse credibility findings, summarised as follows:

    “I found the applicant not to be credible. I note the submission and the medical documentation about the medication the applicant is taking. I accept that she has suffered serious head trauma in the past. I do not accept that this trauma explains the applicant’s willingness to provide false information in support of her application for protection or that it caused her to not tell the truth about her stay in Israel. I find that her lack of credibility significantly undermines her claims for protection.”

13. The RRT also had regard to the documents forming Exhibit 1A, to which it specifically referred. 

14. In considering complementary protection, the RRT concluded that it did not find the applicant to be credible and that there was nothing before it to allow it to conclude that there are substantial grounds for believing that it as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal that there is a real risk that the applicant would be assaulted or suffer other significant harm for any reason.

15. The RRT noted that in light of its findings, it had not considered whether the applicant has taken all reasonable steps to avail herself of her right to enter and reside in India. The RRT therefore concluded that the applicant did not meet the refugee or the criterion either under ss.36(2)(a) or 36(2)(aa) of the Act.

16. There is nothing on the face of the RRT’s decision record to suggest that its findings were not open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings.  Credibility findings are a matter, par excellence, for the court (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

17. It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

18. The RRT’s adverse creditability findings were based on the unsatisfactory nature of the applicant’s evidence. The RRT considered the applicant’s documents provided in support of her claims. Its findings in relation to those documents, as referred to above, would appear to be open to it on the material and evidence before it and for the reasons it gave.

19. Ground 1 of the applicant’s application appears to misunderstand the RRT’s findings and conclusions.  In light of its adverse findings about the applicant and its comprehensive rejection of the applicant’s claims to have suffered harm in India for the reasons claimed and having rejected the applicant’s claim to have proselytised in Nepal, the RRT determined that it was not necessary to consider whether the applicant had taken all reasonable steps to avail herself of her right to enter and reside in India. It is well-established that in circumstances where the RRT has comprehensively rejected the applicant’s claims to have suffered past harm, it is not necessary for the RRT to consider relocation (see Randhawav Minister for Immigration, Local Government and Ethnic Affairs (1994) 125 ALR 265).

20. Ground 2 also appears to misunderstand the RRT’s reasons. The applicant appears to suggest that the RRT incorrectly found that the “Interim Constitution of Nepal”, being part of Exhibit 1A, protected religious freedom. Ground 2 appears to contend that the RRT failed to consider that religious converters were continuing to be arrested and prosecuted in Nepal and that the RRT did not accept that fact. However, the RRT specifically noted that the “Interim Constitution of Nepal” banned proselytising which, I accept, would include religious converters. In the circumstances, the applicant’s complaint in Ground 2 cannot be sustained.

21. Ground 3 appears to assert that the RRT failed to consider that Australia is one of a 147 signatory countries to the Convention.  Such an assertion is not capable of establishing jurisdictional error on the part of the RRT. 

22. Whilst I make no final conclusion as to whether or not the RRT’s decision is affected by jurisdictional error, none is apparent on the face of the RRT’s decision record and none has been identified by the applicant.

23. In the circumstances, I am not satisfied that the applicant’s application before this court raises an arguable case for the relief claimed.

24. Accordingly, pursuant to r.44.12 of the Rules, the proceeding before this court commenced by way of application filed on 4 July 2014 should be dismissed with costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Emmett.

Associate: 

Date:  19 November 2014