SZUUL v Minister for Immigration
[2014] FCCA 2918
•12 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUUL v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2918 |
| 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) of the Federal Circuit Court Rules 2001 (Cth). |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 422B, 425 Federal Circuit Court Rules 2001 (Cth), rr.44.11(b). 44.12(1)(a) |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Muin v Refugee Review Tribunal & Ors (2002) 190 ALR 601 Rudhravaram v Minister for Immigration and Border Protection [2014] FCA 960 VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 |
| Applicant: | SZUUL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2051 of 2014 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 26 November 2014 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2014 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person. |
| Solicitor for the First Respondent: | Ms A Carr of DLA Piper |
| 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 and disbursements of and incidental to the application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2051 of 2014
| SZUUL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 22 July 2014 by the applicant, SZUUL, seeking review of a decision of the second respondent, the Refugee Review Tribunal (the “Tribunal”), made by Member B. Henry on 25 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 15 September 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 as 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.
The applicant is a male citizen of Nepal born in August 1982 (CB 154). He arrived in Australia on 14 August 2005 as the holder of a Student (Class TU) Subclass 572 visa.
The applicant applied for a Protection (Class XA) visa on 6 March 2013 (CB 1-26). His claims were set out in a statement accompanying the application (CB 27-28). The applicant claimed that he was a member of the Rastriya Prajatantra Party (“RPP”), which supported the monarchy. The applicant claimed that, in February 2005, he gave a speech at college encouraging students to fight for the monarchy. The applicant claimed that, he was consequently attacked by the Maoists which caused him to be hospitalised for three days. The applicant claimed that the Maoists threatened the applicant if he continued to support the monarchy.
The application was refused by the Minister’s delegate on 17 December 2013 (CB 117-123).
The applicant applied to the Tribunal for review of the delegate's decision on 3 January 2014 (CB 124-129).
The applicant gave oral evidence and made further claims before the Tribunal on 16 June 2014 (CB 150-153). The applicant claimed that a leading member of the Maoist insurgency, Som Ghale, who lived in the applicant's neighbourhood, was arrested and tortured and, consequently, the applicant was blamed for the arrest. The applicant claimed that when Som Ghale has seen the applicant's mother he has asked when the applicant is returning to Kathmandu.
The Tribunal handed down its decision on 26 June 2014.
Tribunal’s Decision
On the basis of country information, which confirmed that the monarchy no longer exists in Nepal and that the RPP has abandoned its support for the monarchy, the Tribunal was not satisfied that the applicant held a well-founded fear of persecution because of his support for the monarchy (CB 170-171 at [42]), nor that the applicant held fears of being arrested or imprisoned by the Maoists (CB 171 at [43]).
In respect of the claim that the applicant would be harmed by Som Ghale in retribution for his arrest, the Tribunal found the applicant's evidence to be vague and unconvincing (CB 171 at [45]), and, consequently, found this claim not to be credible (CB 172 at [49]).
Ultimately, the Tribunal was not satisfied that, if returned to Nepal, the applicant had a well-founded fear of persecution for a Convention reason (CB 172 at [51]), or that there was a real risk that the applicant would suffer significant harm (CB 172 at [52]).
Current Proceedings
The application filed in this Court on 22 July 2014 pleads the following two grounds of review:
1. I am not satisfied with the RRT’s decision because the decision has been affected by an error of law.
2. I argue that I challenge to a purported decision of the Tribunal Member on the ground of denial of procedural fairness or natural justice as the Tribunal Member ignored to consider my case that arises from the evidence before it regardless how I had put my case.
At the first court date directions hearing on 11 November 2014, I indicated to the parties I would set the matter down for a show cause hearing on 26 November 2014, pursuant to r.44.11(b) of the Federal Circuit Court Rules 2001 (Cth) (the “FCC Rules”). Leave was granted to both parties to file and serve written submissions prior to the hearing.
Applicant’s Submissions
The applicant elected not to file any written submissions in support of his application despite leave being granted for him to do so, and this was confirmed at the show cause hearing.
At the hearing, the applicant did not, in any detail, address the grounds of his application. The applicant did, however, seek an adjournment of the proceedings. His reasons for seeking an adjournment were that he did not have enough money to engage legal representation and that he wanted more time so he could get money to engage a lawyer.
Minister’s Submissions
Ground 1
The Minister submits that Ground 1 of the application, in stating that the applicant is “not satisfied” with the Tribunal’s decision, appears to cavil with the factual findings made by it. The alleged “error of law” is not particularised and, consequently, this ground appears to invite the Court to engage in impermissible merits review.
Ground 2
The Minister submits that the Tribunal complied with Div.4 of Part 7 of the Migration Act. It invited the applicant to attend a hearing before it, pursuant to s.425 of the Migration Act. That hearing invitation complied with all of the relevant stator and regulatory requirements (see ss.425, 425A, 426, 426A, 441A, 441C of the Migration Act and reg.4.35D of the Migration Regulations 1994 (Cth)). Further, at the hearing before the Tribunal, the issues dispositive of the review were traversed with the applicant.
The Minister contends the findings made by the Tribunal were open to it to make on the material and evidence before it, and for the reasons it gave. The Tribunal clearly set out the relevant law and the applicant’s claims for protection, and made findings in respect of those claims.
The Minister notes, however, that the Tribunal did not refer to all of the material before it in its Decision Record, such that it did not make reference to:
a)The documents relating to the applicant’s education in Nepal (CB 29-36);
b)A national police check (CB 49); and
c)A pathology report relating to the applicant’s drug addiction in Australia (CB 107-108).
However, the Minister submits the Tribunal’s failure to mention these documents in its Decision Record did not lead the Tribunal into jurisdictional error.
In order for the applicant to establish there has been jurisdictional error on the part of the Tribunal, the Minister submits the evidence which was not referred to must be “centrally important” to the issue under consideration, such that the document or evidence needs to be more than merely relevant. To that extent, the documents relating to the applicant’s education in Nepal and the national police check were not relevant to the Tribunal’s consideration of whether there was a real chance that the applicant would suffer serious or significant harm if returned to Nepal. Further, at [40] of the Decision Record (CB 170), the Tribunal recorded that the applicant did not claim to fear any harm because of his previous drug addiction and it was satisfied the applicant had no reason to fear significant harm because of this previous addiction. Consequently, the Minister argues the Tribunal did not fall into error by not referring to the documents set out at [21](a)-(c) above.
Adjournment application
The Minister contended there was nothing before the Court to support the applicant’s application for an adjournment and opposed any such adjournment.
Consideration
Adjournment application
I first intend to address the adjournment sought by the applicant at the show cause hearing on 26 November 2014. When invited to make oral submissions, the applicant indicated he had nothing to say in support of his grounds of review. He did, however, seek to have the proceeding adjourned as he needed more time to get money and engage a lawyer.
The application before the Court was filed on 22 July 2014 by the applicant as a self-represented litigant. The show cause hearing occurred on 26 November 2014, 15 days after the proceeding was listed for a first court date directions hearing. From the date of the filing of the application, there is no evidence before the Court that the applicant has sought, at any time, to engage legal representation.
Further, no statement was made by the applicant to the Court at the first court date directions hearing that he was attempting to seek legal representation or needed time to get more money so that he could do so.
In Rudhravaram v Minister for Immigration and Border Protection [2014] FCA 960, her Honour Mortimer J stated at [31]:
31. The decision whether to grant or refuse an adjournment being discretionary, the particular circumstances of each case are generally determinative of the way in which the discretion should be exercised. That said, it is well established that the Court is entitled to consider the demands on the resources of the Court and the needs of other litigants in the Court. The “interests of justice“ and the concept of prejudice extend to such matters: see Squire v Rogers (1979) 39 FLR 106 at 113–114 per Deane J; Sali v SPC Ltd (1993) 116 ALR 625 at 629 per Brennan, Deane and McHugh JJ.
I am not satisfied that the reasons raised by the applicant in support of his adjournment application warrant the Court to exercise its discretion to grant such an adjournment.
The following factual events circumstances in the present proceeding should be noted. The applicant has failed to demonstrate that he has actually sought some form of legal representation, despite a period of four months passing between the filing of his application in this Court and the show cause hearing. Further, no submissions were filed by the applicant, despite orders being made by the Court to do so. I note that despite a Nepali interpreter being booked and present at the two listings of the proceeding before the Court, the applicant indicated he did not need any assistance and spoke English competently. No attempt was made by the applicant to draft and provide the Court with any amended application or to address his extant application in any detail.
Accordingly, the applicant should not be granted an adjournment by the Court.
Ground 1
This ground of review alleges there has been an error of law on the part of the Tribunal, but is not in any way particularised. Further, the applicant has failed to address this ground in any more detail, despite being granted leave to do so. Accordingly, it is not in any way clear what the purported “error of law” is alleged to be and this ground seeks 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 271-272.
No arguable case for the relief claimed has been raised by this ground.
Ground 2
Ground 2 of the application alleges that:
a)The Tribunal failed to afford the applicant procedural fairness or natural justice; and
b)There was bias or an apprehension of bias on the part of the Tribunal in dealing with the applicant’s claims.
In respect of the first aspect of this ground, Div.4 of Part 7 (ss.422B-429A) of the Migration Act prescribes the Tribunal’s procedural fairness obligations in relation to the conduct of reviews. The applicant has not identified what, if any, breach or breaches were made by the Tribunal and, on a fair reading of the contents of the Court Book and Decision Record, there has been no such error on the part of the Tribunal (see the Minister’s submissions reproduced above at [19]). The applicant was validly invited to a hearing before the Tribunal which he attended and where he gave evidence in support of his claims.
In VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 their Honours Hill, Sundberg and Stone JJ stated at [77] (referring to the reasons of his Honour Gleeson CJ in Muin v Refugee Review Tribunal & Ors (2002) 190 ALR 601):
77. These comments make clear that whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In this case the Tribunal failed to consider a document, the UNP Letter, which was not only particular to the first appellant but arguably of critical importance to the claims of all the appellants. This is not a situation of the kind to which Mason J referred in Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24 at 40, where the factor was so ‘insignificant that failure to take it into account could not have materially affected the decision’. …
The Tribunal iterated the applicant’s claims for protection related to the following matters at [41] of its Decision Record where it stated:
· His support for the monarchy in Nepal;
· His membership of the RRP, which was in conflict with the Maoists when he was in Nepal prior to 2005;
· His fear pf arrest and imprisonment by the Maoists when they were governing Nepal; and
· His fear pf retribution by the Maoist insurgent Som Ghale.
(CB 170)
In this proceeding, the three documents not referred to the Tribunal are noted at [21](a)-(c) above. The documents relating to the applicant’s education in Nepal and the AFP national police check are not relevant to any of the applicant’s protection claims and, accordingly, were not considered by the Tribunal.
The Tribunal stated at [40] (CB 170):
40. The applicant also told the Tribunal that he has been free of drugs for more than five years and is on no ongoing treatment. He said that he has never been charged or convicted of any offence, including drug related matters. He made no claim to fear any harm because of his previous drug addiction, and the Tribunal is satisfied that he has no reason to fear significant harm because of that issue.
(CB 170)
On a fair reading of the psychiatrist’s report (CB 107-108), no claim or evidence is raised therefrom of the nature that could be described as having the ability to have materially affected the decision of the Tribunal. There is brief reference in the report to the applicant having filed a Protection visa application and his stated history, however, none of the statements contained therein could have materially affected the Tribunal in its assessment of the applicant’s protection, particularly given its statement at [40] (see immediately above). It is clear from that statement the Tribunal considered whether the applicant might have a protection claim in relation to his drug use, however, as a result of the applicant making no such claim at the hearing, found there was no such obligation. This was open to the Tribunal on the material before it. Further, three of the four aspects of the applicant’s protection claims were rejected on the basis of country information or because the applicant himself was aware the situation in Nepal no longer existed (see Decision Record at [41]-[43] CB 170-171). The final claim, in respect of Som Ghale, was rejected on the basis of credibility (see Decision Record at [44]-[50] CB 171-172), a finding which was open to the Tribunal on the material before it. On a fair reading of the contents of the psychiatrist’s report and the Decision Record, I am satisfied nothing contained therein could have materially affected the decision of the Tribunal.
The final aspect of the ground, though not strictly pleaded, alleges bias or an apprehension of bias on the part of the Tribunal. This allegation, however, has not been expanded on in any way by the applicant.
An allegation of bias must be clearly made and distinctly proved (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]). In the current proceeding, however, this has not occurred. No attempt has been made by the applicant to obtain a transcript of the Tribunal hearing or particularise this claim. On a fair reading of the Decision Record and Court Book it is extremely difficult to see how such an allegation could succeed in the absence of other evidence.
Having regard to the above findings, I am satisfied no arguable case for the relief claimed has been raised in Ground 2 of the application.
Conclusion
On a fair reading of the Court Book and, particularly, the Decision Record, there is no apparent error on the part of the Tribunal. For the reasons stated above, no arguable case for the relief claimed has been raised by the applicant.
The application should be dismissed pursuant to r.44.12(1)(a) of the FCC Rules, with costs awarded to the Minister.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 12 December 2014
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