SZUVM v Minister for Immigration
[2016] FCCA 3298
•21 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUVM v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3298 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to provide the applicant with a real and meaningful hearing, failed to act in good faith and failed to consider relevant matters. |
| Legislation: Tribunals Amalgamation Act 2015, item 15AG of sch.9 Migration Act 1958, ss.36, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 NAKF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 210 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 |
| Applicant: | SZUVM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2119 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing date: | 21 November 2016 |
| Date of Last Submission: | 21 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 21 November 2016 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms H. Musgrove of Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,000.00.
The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent in this proceeding.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2119 of 2014
| SZUVM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Nepal who arrived in Australia on 28 February 2009 on a student visa which was cancelled on 30 June 2011. On 24 July 2013 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Nepal because of his religion. On 3 December 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa were summarised by the Minister in his written submissions as follows:
4.The applicant claimed to fear harm because of his conversion from Hinduism to Christianity while in Australia. The applicant made the following factual claims in support of his application for a protection visa. He began going to church and reading the Bible sometime after he was attacked/robbed in September 2009. His parents and extended family were “extreme” Hindus, and occupied “high position[s]” in the Newari Guthi. When the applicant’s family found out about his church going they called him and threatened him, and ceased their financial support. The applicant’s family expelled him from the family because of his Christian beliefs. The applicant had nowhere to return to/live in Nepal. If the applicant went back to Nepal, his family would report him to the authorities to keep their high status in the Guthi. The authorities would harm him. The applicant would be physically and mentally tortured, and would not be able to practise his faith.
5.The applicant gave evidence to the Tribunal that he would not be able to find proper employment in Nepal. The applicant also added to his evidence in relation to his claimed conversion to, and practice of, Christianity. The applicant clarified that he did not believe the Nepali government would harm him or prevent him from worshipping Christianity. He did believe that his community would expel him and torture him mentally by shunning him.
I adopt that summary of the applicant’s claims.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), or s.36(2)(aa) of the Act.
The Tribunal’s findings and reasons were summarised by the Minister in his written submissions in the following terms which I also adopt:
7.In making its decision, the Tribunal considered independent country information about Christianity in Nepal, the Nepalese government’s attitude to religious freedom, and the societal attitudes to religious freedom in that country.
8.The Tribunal was not satisfied that the applicant faced serious harm in Nepal in connection with his claimed Christian religion, reasoning that the applicant:
(a)knew “virtually nothing” on the subject of the Bible;
(b)had not been baptized; and
(c)was ignorant of significant matters, including the meaning of Easter and Christmas, and the relationship of the Western calendar to Christ’s birth.
9.On the basis of the above, the Tribunal was not satisfied that the applicant was a Christian, or that he had converted from Hinduism. Nor was the Tribunal satisfied that the applicant would seek to practise (including proselytise) Christianity in Nepal.
10.Further, on the basis of independent country information, the Tribunal was not satisfied that the applicant would face serious harm in Nepal if he had in fact converted from Hinduism to Christianity. The Tribunal was not satisfied that the applicant would experience more than rejection and ostracism by his family and immediate community for this reason. Insofar as the applicant claimed that his family and community would not give him shelter or financial support, and that it would be difficult to find employment, the Tribunal found it difficult to believe, firstly, that the applicant could not count on at least some of his “many friends at school” for some degree of support and, secondly, that he would be unable to find employment of any kind in Nepal.
11.In considering the complementary protection criterion, the Tribunal accepted that the applicant might face criticism and resentment from his family and community because of his academic failure, and also that he might be shunned by his family so that he would be forced to find his own accommodation and employment. However, the Tribunal was not satisfied that the applicant would face significant harm in Nepal for this reason. Based on its anterior findings, the Tribunal was also not satisfied that the applicant would face significant harm because of his conversion to Christianity (which the Tribunal did not accept).
Proceedings in this Court
In his application commencing these proceedings the applicant alleged the following grounds:
1.Tribunal fail to address the problems faced by Christian convert in Nepal.
2.The decision was not made in good faith.
3.The tribunal fail to provide the opportunity to provide evidence to support my case.
4.RRT fail to address the Nepali culture & tradition is lot different than Australia.
Ground 1
The first ground of the application fails for two reasons. The first reason is that the situation of Christian converts in Nepal would have only been relevant to the Tribunal’s decision if the Tribunal had accepted the applicant’s claim to have become a Christian. However, it did not. Consequently, whatever problems Christian converts might face in Nepal were not relevant to the matters the Tribunal had to decide.
The second reason the first ground fails is that, contrary to the allegation, the Tribunal did consider the situation of Christian converts in Nepal. The third full dot point on page 6 of the Tribunal’s decision and the only full dot point on page 12 of the Tribunal’s decision makes that clear.
Ground 2
An allegation of lack of good faith is really an allegation of bad faith (NAKF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 210 at 217 [16]) and ought to be pleaded and particularised clearly. It is an allegation which implies personal fault on the part of the decision-maker in question. The propositions relevant to an allegation of this sort were set out by the Full Court of the Federal Court in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at 756 [43]-[49].
At the very least, a person making an allegation of a lack of good faith in decision-making must demonstrate that the decision-maker was reckless in the exercise of the decision-making power: SBBS at 756 [48]. The applicant has made no attempt to make out such a factual claim or the alternative and more serious possible claim that the Tribunal knew that its decision was wrong. The applicant’s submissions at the hearing of this application did not rise above a repetition of some of the factual claims he made to the Tribunal and, prior to it, to the Minister’s department.
The applicant’s arguments did not demonstrate a want of good faith, or bad faith, on the Tribunal’s part and consequently ground two is not made out.
Ground 3
The duty to give an applicant a real and meaningful opportunity to put his or her case to the Tribunal is implicit in s.425(1) of the Act, which provides:
425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
In this case, the applicant was invited to a hearing before the Tribunal, which he attended, and the Tribunal’s summary of its hearing shows that it put to the applicant matters which concerned it and which might have been determinative of the review.
Further, at para.16 of its reasons, the Tribunal recorded that, at the end of its hearing, it asked the applicant if he had anything to say. The applicant is recorded as having said that:
… he had not come to Australia to seek protection but to study. He was supported by his parents and could have had a good life had it not been for the robbery. There was no way that he could return to Nepal and lead an ordinary life.
I am not persuaded that the Tribunal failed to give the applicant a real and meaningful opportunity to put his case.
Ground 4
Similarly to the first ground of the application, the final allegation made in the application implies, and depends upon, an acceptance that the applicant had converted to Christianity. The Tribunal did not accept that he had done so. In those circumstances, there was no reason why the Tribunal would discuss in any substantive way cultural differences between Australia and Nepal and any failure to do so did not amount to error on its part.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 19 December 2016
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