SZUSL v Minister for Immigration
[2014] FCCA 2663
•25 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUSL v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2663 |
| Catchwords: MIGRATION – Application seeking review of decision of Refugee Review Tribunal to refuse to grant applicant a Protection (Class XA) visa – application set down for show cause hearing pursuant to r.44.11(b) of the Federal Circuit Court Rules 2001 (Cth) – no arguable case raised for the relief claimed – application dismissed pursuant to r.44.12(1)(a). |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(3), 91X, 424A, 424AA Federal Circuit Court Rules 2001 (Cth), rr.44.11(b), 44.12(1)(a) |
| DZADW v Minister for Immigration & Anor [2014] FCCA 1943 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 MZYWO v Minister for Immigration and Citizenship [2013] FCA 470 MZYXP v Minister for Immigration and Border Protection (2013) 137 ALD 348 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Parramatta City Council v Hale (1982) 47 LGRA 319 SZCIJ v Minster for Immigration and Multicultural Affairs [2006] FCAFC 62 SZJZB v Minister for Immigration and Citizenship (2008) 105 ALD 226 |
| Applicant: | SZUSL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1944 of 2014 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 14 November 2014 |
| Delivered at: | Sydney |
| Delivered on: | 25 November 2014 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with a Nepali interpreter. |
| Solicitor for the First Respondent: | Ms H Musgrove of Sparke Helmore |
| The Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
The application be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $3,326.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1944 of 2014
| SZUSL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 11 July 2014 by the applicant, SZUSL, seeking review of a decision of the second respondent, the Refugee Review Tribunal (the “Tribunal”), made by Member A. Mullin on 10 June 2014, affirming the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister“), to refuse to grant the applicant a Protection (Class XA) visa.
The applicant, pursuant to s.91X of the Migration Act 1958 (Cth) (the “Migration Act”), has been granted a pseudonym and cannot be identified by name.
The solicitors for the Minister filed on 5 November 2014 a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided has been identified as the Court Book (“CB”) and has been marked Exhibit “A”.
Background
In setting out the following background material I have quoted directly from the Court Book and written submissions prepared by the Minister’s representatives. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material. I have not made further attribution as this would make the summary unwieldy.
Applicant’s Claims
The applicant is a citizen of Nepal who arrived in Australia in November 2010 travelling on a Student visa (CB 68). On 17 July 2013 the applicant applied for a Protection visa (CB 1-26). Attached to the Protection visa application was a statutory declaration prepared by the applicant setting out his protection claims (CB 27-30).
The applicant claimed to fear harm in Nepal from Maoists because of his support for the Rastriya Prajatantra Party (the “RPP”). The applicant claimed that, as a result of the influence of his father and father’s friend, he became a supporter of the RPP and then joined in 2002. At the end of 2002 Maoists threatened the applicant and his family. In March 2003 the Maoists abducted the applicant and some students from the local school at which he was teaching. The applicant was allowed to return home after a few weeks.
During July 2003 the applicant held a program in his village to celebrate the then Nepalese King’s birthday, but Maoists came and killed two members of the RPP, and also hit the applicant with a knife and wooden rod. The next day the applicant’s parents’ properties were destroyed and they were forced to give money to the Maoists. The applicant lodged complaints, but no action was taken.
Shortly afterwards, the applicant left his village and went to Lalitpur to stay with his sister. He feared being killed by Maoists and did not leave the house often. An agent in Kathmandu arranged for the applicant to be granted a working visa for Kuwait where the applicant went for 27 months. The applicant thereafter returned to Nepal, but engaged the same agent to arrange a visa for him to work in Qatar. The applicant then went to Qatar for four years.
The applicant joined the Rastriya Prajatantra Party Nepal (the “RPP Nepal”) when he returned from Qatar in 2010 as they were the only party who supported the Monarchy. The applicant remained only in Kathmandu, but he was still harassed by Maoists after a Maoist from his village detected his presence. He claimed he is constantly under threat if he remains in Nepal from Maoists because of his political opinion as a supporter of the Monarchy.
Tribunal’s Decision
On 10 June 2014, the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa (CB 116 at [29]).
The applicant had claimed that, in 2003, Maoists in his village abducted and detained him for a number of weeks, that they later assaulted him and destroyed family property, and that they extorted money from his family. The Tribunal said although the applicant produced no substantiation for these claims, and his evidence at the hearing about them was notably sketchy and vague, it was prepared to give him the benefit of the doubt by accepting he suffered harm in two incidents in 2003 (CB 114 at [22]).
The Tribunal put to the applicant that he had the right to enter and remain in India. The applicant said he feared the people who had targeted him in his village would be able to follow him and harm him in India. The Tribunal put to the applicant it seemed hard to believe anyone would be able to find him in India, and noted there were no reports of Nepalese living in India being targeted by Nepalese Maoists. The Tribunal explained the operation of s.36(3) of the Migration Act and its possible relevance for the applicant’s protection claims. The applicant confirmed he understood this, but made no comment in relation to it (CB 112-113 at [16]).
The Tribunal asked the applicant why he had waited three and a half years to lodge his Protection visa application. The applicant said he had not known much about this possibility, and after he came to know of it there were long delays in obtaining his certificates from Nepal. The Tribunal noted the only certificates the applicant supplied related to his citizenship and education. The applicant said there were some mistakes in one of these documents (CB 113 at [16]).
Even giving the applicant the benefit of the doubt the Tribunal concluded it was unable to be satisfied the applicant now faced harm from Maoists in his village for the following reasons (CB 114 to 115 at [23]):
a)It was not satisfied the applicant’s minimal presence in his village would have allowed him to play a role of any kind in support of the RPP/RPP Nepal. Further, the Tribunal said the applicant’s comments at the hearing about the nature of his political activism were so vague it was unable to be satisfied they were credible;
b)It did not accept the applicant ever took a leading role in arranging celebrations for the King’s birthday, or that he was known as a prominent member of the RPP/RPP Nepal. The Tribunal said the applicant’s description of fundraising for the them King’s Birthday party event while he was overseas was so vague it was unable to be satisfied he played any part in arranging it;
c)It noted the applicant’s wife and children continued to live with his parents in the village, and were experiencing no problems there. The Tribunal said these circumstances cast strong doubt on the applicant’s claim to be at risk of harm in his village. The Tribunal did not accept the applicant’s claim that on some occasions when he returned to his village Maoists would try and extort money from him;
d)It said if the applicant had feared serious harm it was difficult to understand why he was prepared to risk returning to his village at any time, or why he was prepared to leave his family in the village; and
e)It said the applicant produced no convincing reason for his delay in submitting his protection visa application.
The Tribunal was not satisfied the applicant had a well-founded fear of persecution because of his political opinion, or that he faced harm in Nepal for the purposes of the complementary protection criteria for the same reasons (CB 116 at [25] and [26]).
Current Proceedings
The application filed on 11 July 2014 pleads the following three grounds:
1. I am not happy with the Refugee Review Tribunal Member’s decision in my case because I am a genuine refugee and the RRT Member ignored to give me natural justice and fairness in my case and refused me.
2. I argue that the Refugee Review Tribunal Member’s decision is not free from legal error when the decision was made in my case.
3. I seek justice in my case.
At the first court date directions hearing on 28 October 2014, the application was set down for a show cause hearing on 14 November 2014, pursuant to r.44.11(b) of the Federal Circuit Court Rules 2001 (Cth) (the “FCC Rules”). Leave was granted to both the applicant and the Minister to file written submissions. Both parties availed themselves of that opportunity.
Applicant’s Submissions
The applicant filed his written submissions on 7 November 2014, as ordered by the Court on 28 October 2014. It is convenient to reproduce these submissions. The applicant stated therein:
1. The Tribunal Member overlooked my claims that I feared serious harm at the hands of Maoists due to my political opinion. I am a member of RPP-Nepal and I was the only person in my family being targeted by the Maoists due to my political activity as other members of my family did not involve with the politics after my father had retired from politics. My wife, children and parents are politically not involved and the Maoists do not harm them apart from me.
2. I was unable to make comments on some issues raised by the Member as I was very stressful at the hearing. The Tribunal’s error involved the failure to give me the opportunity to comment in writing.
3. I find fault with the RRT decision in my case concerning its use of the country study information on brief account of political that partly related only to capital and major cities of the country is not accurate but it is quite inapplicable to the life and circumstances of myself and acting on it resulted injustice in my case.
4. I argue that the Tribunal Member was biased because the Tribunal Member gave no weight to the concern expressed by me and ignored that understanding of the real situation I would face in Nepal. The RRT relied far too much on Country Information and media reports and The Tribunal Member also relied too much heavily upon cross examination of myself to highlight seeming inconsistencies and then to discount my evidence on that basis. I was unable to comment orally in a way that I would clarify the issues raised the Member during my hearing because I was nervous.
5. The Tribunal member’s decision in relation to my case was taken in breach of the rules of natural justice as the Tribunal Member did not consider it necessary to come to a concluded view as to whether I was a victim of the Maoists or protected by the government authorities. The substantial conclusion in my claims of fear of serious harm from the Maoists upon my return to Nepal reached by the Tribunal member was poorly justified and made its decision on speculation and not based on reality.
6. My claims of serious harm on return to Nepal had been adversely construed by the Tribunal Member’s arbitrary view on the issue of my delay in lodging a protection visa application because the Tribunal Member refused to accept my reasons for delay and it is unfair.
7. I am unable to relocate to India for my protection because I do not have a legally enforceable right to remain permanently in India. The Tribunal Member failed to consider the fact that I face discrimination and am not given state protection in India although I require no visa to enter India.
8. As a Nepalese citizen I cannot expect justice from Indian Authority so it leads to a feeling of lack of power over my life choice and a deep-seated insecurity for my life and I argue that India should not be considered as a Safe Haven for me as a Nepalese.
At the show cause hearing, the applicant indicated he did not wish to make any further comments in chief. The applicant also indicated he had translated to him a copy of the Minister’s written submissions, but did not want to make any substantive submissions in reply.
Minister’s Submissions
On 7 November 2014, the applicant filed an outline of submissions, by which the Minister submits he raises new grounds.
The Minister submits that contrary to the applicant’s submission the Tribunal overlooked his claim to fear serious harm due to his political opinion, the evidence in the Decision Record indicates the Tribunal considered this claim squarely (CB 114 at [20]-[22]), but was ultimately unable to be satisfied the applicant faced harm from Maoists in his village for the reasons outlined (see [14] above).
The applicant submits the Tribunal erred by failing to give him the opportunity to comment in writing, assumedly in accordance with s.424A of the Migration Act. In response, the Minister submits the Tribunal is not obliged to invite an applicant to comment on information pursuant to s.424A if it gives clear particulars of the information to the applicant orally, and invites the applicant to comment on the information under s.424AA (s .424A(2A)). While the applicant submits he was unable to comment on some of the issues raised by the Tribunal because he was stressed, the Minister contends there was no evidence before the Tribunal that the applicant was unfit to give evidence, and it could not therefore be held he was denied a real and meaningful opportunity to participate in the hearing in contravention of s.425(1) of the Migration Act.
In response to the applicant’s submission in relation to the country information considered by the Tribunal, the Minister submits that the choice and assessment of country information is a factual matter for the Tribunal.
The applicant submits the Tribunal exhibited bias. The applicant attempts to prove this serious allegation by criticising certain findings of fact made by the Tribunal. In response, the Minister submits the weight to be given to the applicant’s claims was a matter for the Tribunal to assess as part of the Tribunal’s fact-finding function. The Minister argues that the Tribunal’s findings were open to it for the reasons it gave, and there is nothing in the Decision Record to indicate the Tribunal was guilty of prejudgment or was biased in any way.
The applicant submits the Tribunal breached its procedural fairness requirements. In response, the Minister submits the Tribunal is not required to afford the applicant common law natural justice. The Tribunal is only required to afford the applicant the procedural requirements prescribed in Part 7 of the Migration Act. There is no evidence in the Decision Record or before the Court to indicate the Tribunal made such a breach. Contrary to the applicant’s submission, the Tribunal specifically found it was not satisfied the applicant feared harm on return to his village, or there was any reason to believe he would be at risk there from Maoists (CB 115-116 at [24]). In response the Minister submits that the Tribunal’s findings in relation to same were open to the Tribunal on the material before it.
Contrary to the applicant’s submission it was unfair for the Tribunal to take his delay in lodging his Protection visa application into account, it is legitimate for the Tribunal to take delay into account as a relevant factor when assessing an applicant’s fear of persecution and credibility. It should also be noted that the applicant’s delay was not treated by the Tribunal as concluding the question in relation to those matters.
The applicant submits he does not have a legally enforceable right to remain permanently in India, and the Tribunal failed to consider he would face discrimination there. The Minister reiterates that the choice and assessment of country information is a factual matter for the Tribunal. Contrary to the applicant’s submission, the Tribunal specifically considered that there were no reports of Nepalese living in India being targeted by Nepalese Maoists (CCB 112 to 113 at [16]). Contrary to the applicant’s submission India should not be considered as a safe haven for him, the Minister submits the Tribunal was permitted to consider whether the applicant has a right to enter and reside in India pursuant s.36(3) of the Migration Act.
Consideration
Substantive Application
I first intend to address the pleaded grounds in the application. The substantive application pleads two grounds of review, being:
a)The Tribunal did not afford the applicant natural justice or fairness; and
b)The Tribunal’s decision is not free from legal error.
The third ground of the application does not raise any claim in respect of legal error on the part of the Tribunal and, accordingly, requires no consideration.
In respect of the first claim, the Tribunal was not required to afford the applicant common law natural justice. In SZCIJ v Minster for Immigration and Multicultural Affairs [2006] FCAFC 62 their Honours Heerey, Conti and Jacobson JJ stated at [6]-[8] (citing Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214):
6. The Magistrate, after discussing a number of first instance Federal Court decisions, some of which are in conflict, held that s 422B of the Act excluded the common law natural justice hearing rule.
7. In another decision handed down today, Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61, we have dealt with the same point in relation to s 51A of the Act, which is the equivalent of s 422B in relation to visa applications at Departmental level (see also s 357A in relation to reviews by the Migration Review Tribunal).
8. For the reasons given in Lay Lat at [59]–[67] we hold that the common law natural justice hearing rule did not apply. The appeal will be dismissed with costs.
Accordingly, this aspect of the ground raises no arguable case for the relief claimed.
To the extent that the applicant asserts that he was not afforded his legislative rights under Part 7 of the Migration Act, such a claim raises no arguable case for the relief claimed. On a fair reading of the Court Book and Decision Record assessed against the statutory requirements, no breach thereof is apparent. Further, the applicant has failed to, in any manner, particularise this claim (noting the applicant’s claims as against s.424A of the Migration Act will be addressed below).
The second ground of the application makes a general assertion of legal error, however, is not particularised. It is well established that it is the applicant’s onus to establish breach (see SZJZB v Minister for Immigration and Citizenship (2008) 105 ALD 226 at [23] per Jagot J; citing Parramatta City Council v Hale (1982) 47 LGRA 319 at 345). Accordingly, this ground raises no arguable case for the relief claimed.
Applicant’s Submissions
As stated in the Minister’s written submissions, a number of new grounds have been raised in the applicant’s written submissions. It is convenient to address the new grounds in the submissions by reference to their paragraph number.
Ground 1
In this ground the applicant claims the Tribunal overlooked his claims that he feared serious harm because of his political opinion. Having regard to the Tribunal’s Decision Record, it can be seen that the Tribunal summarised the applicant’s written claims at [10] (CB 108-109) and his oral claims made at the hearing at [16] (CB 110-113). The Tribunal considered this claim to fear harm due to his political opinion squarely at [20]-[23] of the Decision Record (CB 114-115). Further to the extent that the applicant restates his substantive protection claims, these statements invite the Court to engage in impermissible merits review (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272). This ground raises no arguable case for the relief claimed.
Ground 2
The applicant claims he was not invited by the Tribunal to comment on “issues raised by the Minister”, presumably in breach of s.424A of the Migration Act.
The Tribunal is not obliged to invite an applicant to comment on information pursuant to s.424A if it gives clear particulars of that information to the applicant orally at the hearing and invites him or her to comment on the information under s.424AA (also see s.424A(2A). In the decision of MZYWO v Minister for Immigration and Citizenship [2013] FCA 470, his Honour Barker J stated at [25]-[28]:
25. The appellants do not, however, identify the “adverse information” which they claim attracts the application of s 424A of the Act.
…
27. The term “information” in s 424A does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 96 ALD 1 at [18]; see also ss 424AA and 424A(2A) of the Act. Nor does it, generally speaking, extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to such deficiencies.
28. Further, the first appellant’s evidence, whether given in support of the application for protection visas or the application to the Tribunal for review, was information to which s 424A did not apply: s 424A(3)(b) and (ba). General country information about the situation in India was also information to which s 424A did not apply: s 424A(3)(a).
In this proceeding, the applicant has not identified what information the Tribunal should have invited his comment on pursuant to s.424A and, on a fair reading of the Court Book and Decision Record, there is nothing apparent that would have enlivened such an obligation.
In respect to any claim made by the applicant in relation to being stressed at the hearing, no evidence was before the Tribunal that the applicant was unfit to give evidence or that he raised this issue during the course of the hearing. In MZYXP v Minister for Immigration and Border Protection (2013) 137 ALD 348 her Honour Justice Kenny stated at [109]:
109. In considering whether the tribunal had duly considered the mental health issue, the federal magistrate referred to the tribunal’s assessment that the appellant “had capacity to participate in the [tribunal] hearing despite any stress he may have been suffering”: see FMC judgment at [42]. This kind of consideration is commonly mentioned when questions of fair hearing and credibility are raised by the appearance of mentally ill refugee applicants before the tribunal: see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 ; 198 ALR 293 ; 75 ALD 151 ; [2003] FCAFC 126; Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 ; 114 ALD 666 ; [2010] FCAFC 41. In this case, the tribunal treated this consideration as contributing to its assessment of the appellant’s mental health more generally. The federal magistrate discerned no error in this approach; and, in the circumstances of this case, nor do I. Ground 5 therefore is not made out.
The application before this Court, however, is different in that no evidence is before the Court to support this assertion, other that the applicant’s submission that he was stressed. In my view, it could not be held that the applicant was denied a real and meaningful opportunity to participate in the hearing before the Tribunal and this aspect of the ground raises no arguable case for the relief claimed.
Ground 3
The applicant, in Ground 3, claims the Tribunal only used independent country information relating to capital and major cities of Nepal which was not accurate and inapplicable to the particular circumstances of the applicant.
In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, their Honours Gray, Tamberlin and Lander JJ stated at [13]:
13. … It is clear from its reasons for decision that the Tribunal did rely on ‘country information’ in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.
Paragraphs [17]-[18] of the Tribunal’s Decision Record address country information. Broadly put, this information related to the 2013 general elections in Nepal and insurgent violence. On a fair reading of the Decision Record, the Tribunal did not, in any case, place much reliance (if any) on that country information in its findings in respect of the applicant’s claims on country information. Notwithstanding, the choice and assessment of weight of such material were matters for the Tribunal. Accordingly, this ground raises no arguable case for the relief claimed.
Ground 4
The applicant claims the Tribunal was biased against him in its assessment of his claims. The particulars of this claim are that:
a)The Tribunal gave no weight to the applicant’s concerns and ignored the real situation in Nepal;
b)The Tribunal relied far too heavily on country information; and
c)The Tribunal relied too heavily on inconsistencies in the applicant’s evidence in “cross-examination”, but this occurred because the applicant was nervous.
In relation to this claim, there is no arguable case raised for the relief claimed. As stated above at [39]-[41] the assessment and weight given to country information was a matter a matter for the Tribunal.
As his Honour Kirby J stated in Wu Shan Liang (supra) at 281-282, the weight to be given to the applicant’s claims was a matter for the Tribunal to assess as part of its fact-finding function. The Tribunal’s findings were open to it to make for the reasons it gave. On a fair reading of the Decision Record and Court Book there is nothing contained therein to indicate the Tribunal did prejudge the application or was biased in any way.
Any allegation of bias (or apprehended bias) must be distinctly made and clearly proved (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]). In the application before the Court, this is not the case.
Accordingly, no arguable case for the relief claimed by the applicant has been raised and this ground must fail.
Ground 5
The applicant raises two claims in this ground. The first claim is the Tribunal’s decision was in breach of the rules of natural justice. I refer to [29] above and, insofar as this aspect of the ground raises such a claim, find that no arguable case for the relief claimed has been raised. No error, on a fair reading of the Decision Record and Court Book, can be seen to have been made by the Tribunal in respect of its obligations under Part 7 of the Migration Act.
The second aspect of this ground claims the Tribunal failed to come to a concluded view as to whether the applicant was a victim of Maoists or protected by government authorities. However, at [24] of the Decision Record (CB 115-116) the Tribunal stated:
24. Taking these considerations together, I am not satisfied that the Applicant does fear harm on return to his village or that there is any reason to believe he would, in fact, be at risk there, from Maoists or anyone else. I am not satisfied there is a real chance that he would suffer harm of any kind, because of his political opinion, real or imputed. He does not claim to fear any harm for any other reason in Nepal and no other reason is apparent on the face of the information before the Tribunal.
It is clear from the Decision Record the Tribunal did, in fact, come to a concluded decision in this respect and, as a result of its findings, did not need to consider whether there was adequate state protection available to the applicant. Further, the Tribunal’s findings were open to it on the material before it and for the reasons it gave (see Decision Record at [23] (CB 114-115). This ground seeks to engage the Court in impermissible merits review and cannot be sustained. No arguable case for the relief claimed has been raised by the applicant.
Ground 6
The applicant claims in this ground that the Tribunal’s findings in respect of his delay in lodging his Protection visa application were made in an arbitrary fashion as a result of the Tribunal not accepting his application.
In DZADW v Minister for Immigration & Anor [2014] FCCA 1943 her Honour Judge Harland stated at [31]:
31. One of the issues that the Tribunal referred to quite properly was the delay by the applicant in applying for a protection visa. The applicant says she did not understand the legal system and did not know what her rights were and that was why she hesitated. She said that it was only when she was in the detention centre that people there explained to her the options and that this explains the delay. In Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347 Heerey J held that the delay by an applicant in lodging an application for a protection Visa is a legitimate factual issue for tribunal to take into account in assessing the applicant’s fear of persecution. Barnes FM (as she then was) reviewed the authorities addressing delay in SZJYM V Minister for Immigration & Anor [2008] FMCA 652. It is clear from the Tribunal’s reasons that delay alone was not the reason for rejecting the applicant’s claims.
Similarly, in these proceedings, it is clear from a fair reading of the Decision Record the delay in the applicant lodging his Protection visa application alone was not the reason for rejecting the applicant’s claims. Accordingly, this ground raises no arguable case for the relief claimed.
Ground 7/8
The last two paragraphs of the applicant’s submissions should be read together as they address the same claims. The applicant claims he does not have a legally enforceable right to remain in India and the Tribunal failed to consider the fact that he would face discrimination and not be given state protection there.
To the extent that this ground raises a complaint in respect of the Tribunal’s reliance or use of country information, the choice and weight given to country information is a matter for the Tribunal (see [40]-[41] above). Further, the Tribunal was permitted to consider the applicant’s right to enter India pursuant to s.36(3) of the Migration Act.
Ultimately, however, the Tribunal was not satisfied that the applicant feared harm from Maoists (or anyone else) or that there was a real chance he would suffer serious harm as a result of his political opinion, actual or imputed (see Decision Record at [24] (CB 115-116). It also was not satisfied there was a real risk of the applicant suffering significant harm under the complementary protection provisions of the Migration Act. Accordingly, having made those findings, the Tribunal was not obliged to consider the applicant’s right to enter and reside in India as it was not satisfied there was any basis for him to fear harm in Nepal.
Paragraphs [7] and [8] of the applicant’s written submissions raise no arguable case for the relief claimed and cannot be sustained.
Conclusion
There has been no arguable case for the relief claimed by the applicant in his application, written submissions or oral submissions.
Further, on a fair reading of the Decision Record and Court Book no jurisdictional error on the part of the Tribunal is apparent.
Accordingly, the application should be dismissed pursuant to r.44.12(1)(a) of the FCC Rules with costs awarded to the Minister in the sum of $3,326.00.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 25 November 2014
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