SZUWL v Minister for Immigration
[2015] FCCA 2369
•4 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUWL v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2369 |
| Catchwords: MIGRATION – Protection visa – review of decision of Refugee Review Tribunal – whether the Tribunal failed to consider all of the applicant’s explanations for the delay in his application for a protection visa – whether the Tribunal failed to comply with its obligations under s.425 of the Migration Act 1958 – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.415, 425 |
| Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage & the Arts (2011) 180 LGERA 99 Tickner v Chapman (1995) 57 FCR 451 |
| Applicant: | SZUWL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2175 of 2014 |
| Judgment of: | Judge Smith |
| Hearing date: | 16 June 2015 |
| Date of Last Submission: | 21 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 4 September 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Young |
| Solicitors for the Applicant: | G & S Law Group |
| Counsel for the Respondents: | Mr O. Jones |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2175 of 2014
| SZUWL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Nepal. He arrived in Australia on 12 July 2009 on a student visa that was to expire on 27 November 2012. At some point his visa was cancelled and the applicant applied unsuccessfully to overturn that decision. On 26 November 2012, the day before that student visa would have expired, the applicant applied for a protection visa on the basis that he feared for his life from the group called Youth Communist League (YCL) which had targeted the applicant and his family since October 2008.
On 15 November 2013 a delegate of the first respondent made a decision to refuse the applicant a protection visa and the applicant applied to the Refugee Review Tribunal for review of that decision. The Tribunal affirmed the delegate’s decision because it did not believe the applicant. There are two aspects of the Tribunal’s reasons that are critical to these proceedings. The first is that one of the reasons for which the Tribunal disbelieved the applicant was that he had delayed for three years in applying for a protection visa and it did not accept his explanations for that delay. The second concern is the findings made by the Tribunal about documents relied upon by the applicant to corroborate his claims.
As for the first of these matters, the applicant argues that the Tribunal failed to consider one of the explanations given by him for the delay in applying for a protection visa. In respect of the second matter, the applicant argues that the Tribunal failed to afford him procedural fairness in that it did not give him any opportunity to address its concerns about his documents.
Although these arguments concern apparently discrete matters within the Tribunal’s reasons, in order to properly understand them and their resolution, it is necessary to consider the claims that were made by the applicant as well as the balance of the reasoning of the Tribunal.
The applicant’s claims for protection
The applicant’s claims were accurately summarised by the Tribunal at [9] and [10] of its reasons. First, in his protection visa application and an attached statement, the applicant claimed the following:
· He came to Australia to save his life. For political reasons Maoists tortured him physically and mentally and he fears he will be attacked and killed if he returns.
· He was born in Kathmandu in 1987 and lived at an address there up to July 2007 when he travelled to Singapore for a year of study. He completed his education in Nepal in 2006 and arrived in Australia as the holder of a student visa on 17 July 2009. He is unmarried and his father and brother live in Nepal. Another brother lives in the United States.
· His father is an active member of the Nepali Congress party (NCP). The applicant is a supporter of the Party, as are most of the people in his village. For this reason the Maoists do not like his family. He and his father hate the Maoists for killing innocent people and extorting donations.
· In about October 2008, two or three months after he returned to Nepal from Singapore, a group of Young Communist League (YCL - the youth wing of the Unified Communist Party of Nepal-Maoist (UCPN-M)) came to his house, threatening his father and telling him and the Applicant to leave the NCP and join them. They threatened to bomb the house if the family did not comply.
· The Maoists regularly threatened his father and family and tried to abduct and mentally torture the Applicant. One day he received an abusive telephone call from them and replied in kind. After some days a group came to his house and attacked him. During the course of the fight he hit one of them. When neighbours gathered the group identified themselves as belonging to the YCL. They broke the windows of the house and continued to threaten him. As a result of this targeting he began living in his maternal uncle’s house.
· The YCL members continued to telephone his father to threaten to kill him and members of his family as a result of the Applicant’s having struck one of their members and having made negative comments about them. He decided to leave Nepal and, with his family’s agreement, travelled to Australia on 17 July 2009.
· After a few months he heard his father was seriously ill and he returned to Nepal for fifteen days. The YCL continued to threaten him and subject him to mental torture, forcing him to return to Australia. His father was forced to relocate.
· The group is still searching for him and threaten that they have a spy at the airport and will abduct him as soon as he lands there.
· Many groups identifying themselves as YCL come to the house to demand donations. If their demands are not met they threaten the family. He and his family are living a stressful life. They have begged him not to return. His father has cardiac problems because of the tension and if he returns to Nepal it will aggravate his condition.
· The Nepal police are not effective and do whatever the political party in power asks them. As the Maoists are in power the police take no action against their leaders and cadres.
Secondly, at an interview with the delegate on 9 April 2013, the applicant reiterated those claims and added that a group of four to five Maoists had tried to abduct him about a year after he returned to Nepal from Singapore. The Tribunal further relevantly summarised the evidence given at that interview as follows:
[10] …
·He agreed he had not mentioned his fear of returning to Nepal during any of his interactions with the Department or the MRT (in respect of the cancellation of his student visa) prior to his application for a protection visa. It was put to him that his failure to do so indicated that he had applied for protection simply to prolong his stay in Australia and that his current claims had been invented. He said his life was at risk -if this were not the case he would obviously return to Nepal.
...
·Asked why, if he had come to Australia to save his life, he had delayed seeking protection for over three years he said he had hoped to obtain permanent residency through his studies. He denied that his protection claims were invented.
...
The applicant also submitted a number of documents in support of these claims. They included an article from a newspaper together with a translation of it, photographs of a male person with substantial injuries, and a letter with an English translation appearing to have been written by the chairman of the branch of the NCP. It will be necessary in due course to consider these documents in further detail.
The delegate did not consider the substance of any of those claims but made his decision on the basis of the availability to the applicant of a right to enter and reside in India. For present purposes it is only important to note that the delegate’s decision did not put in issue the applicant’s credibility or the authenticity of the documents relied upon by him to corroborate his claims.
The applicant applied to the Tribunal for review of the delegate’s decision. On 8 May 2014 he appeared before the Tribunal and gave evidence with the assistance of an interpreter. A detailed summary of his evidence at the hearing is set out in the Tribunal’s reasons for decision at [14]. At the hearing before me the applicant applied for an adjournment in order to obtain a transcript of that hearing to support one of the grounds of review. I did not grant that adjournment, but gave the applicant leave to file an affidavit annexing a transcript of the Tribunal hearing by 14 July 2015. I also gave the parties leave to file further written submissions addressing any issues that arose from the transcript. The applicant ultimately filed a transcript and both parties have filed written submissions in relation to it.
Both the transcript and the summary of the hearing that appears in the Tribunal’s reasons for decision reveal that the Tribunal made it plain to the applicant that it had difficulties accepting significant aspects of his claims. They also reveal that the Tribunal questioned the applicant closely about the newspaper article provided by him in support of his claims. The Tribunal suggested in no uncertain terms that its preliminary view of the newspaper article was that it might be a forgery or that it might have been inserted in a genuine newspaper on payment of a fee.
The Tribunal also questioned the applicant about the delay in his application for a protection visa after his arrival in Australia. I will return to this issue when dealing with the first ground of review.
The Tribunal made its decision on 30 June 2014 affirming the decision of the delegate.
The Tribunal’s decision
The Tribunal expressed strong doubts about the credibility of the applicant’s claims. The first reason for those doubts was that the applicant’s responses to questions at the Tribunal hearing were generally vague and confusing and at a number of points appeared evasive and improvised. It gave six examples of those responses, none of which is relevant to the grounds of review.
The second reason was the delay in applying for the visa. In this respect, the Tribunal said:
[26]I note, finally, that the delay of more than three years between the Applicant’s arrival in Australia and his application for a protection visa casts further doubt on the truth his claim to fear harm in Nepal. I have considered his explanations for the delay - to the effect that he did not understand the rules for seeking protection, was not aware it was possible to do so and was, generally, unfamiliar with Australian society and culture - but I do not find them persuasive.
I note at this point that the applicant contends that this was not an accurate summary of the reasons given by the applicant for his delay in that it omitted reference to his desire to obtain permanent residency through his studies.
For those reasons the Tribunal rejected all of the applicant’s claims. It noted that in reaching those conclusions it had considered the documents submitted by the applicant and that it gave no weight to any of them. The applicant contends that, with the exception of its conclusions in relation to the newspaper article, the Tribunal was not entitled to make adverse findings about the documents without first having given him an opportunity to address its concerns.
Consideration
Although there are four grounds in the application, they were refined in argument so that two issues or grounds remain for consideration: first, whether the Tribunal failed to consider all of the applicant’s explanations for the delay in his application for a protection visa; and secondly, whether the Tribunal erred by failing to raise with the applicant its doubts concerning a number of the documents relied upon by him to corroborate his claims.
First issue
In respect of the first issue, the applicant argues that the Tribunal’s summary of the applicant’s evidence in respect of the delay ignored the plausible explanation given by the applicant to both the delegate and the Tribunal. The explanation given to the delegate was that the applicant had hoped to obtain permanent residency through his studies. At the Tribunal hearing, the applicant was asked about his reasons for coming to Australia and the delay in applying for a protection visa:
Tribunal:So just one more thing, you came to Australia in July 2009.
Applicant:Yes.
Tribunal:You feared harm in Nepal.
Interpreter: Yes, that was the reason. First I found Australia to be a safer place and I came here to build my career.
Tribunal:But it took you over two years before you applied for protection in Australia.
Applicant:… so like I didn’t know that time like I need to get a protection visa straightaway.
Interpreter: So at that time I was unaware of the rules here and when you go to a new place it takes time for you to understand the culture … etcetera, so I didn’t know at that time.
There followed a discussion about whether the availability of protection visas was well-known in the Nepalese community in Australia before the following exchange:
Tribunal:… It’s very difficult to believe, in a way, that if you did feel you were going to be killed, you would have taken two years before suddenly you found it was possible to get protection in Australia. Can you comment on that?
Interpreter: Honestly speaking, I came here to build my career, for my studies and at that time I was completely unaware of such provisions … and also – and I did want to go to Nepal but the situation was like – was not in my favour and because my life would be in danger if I did so and for me there was no other option than apply for protection visa …
The Tribunal summarised this exchange at [14] of its statement of reasons as follows:
“… He said he came to Australia to build his career through studies and was completely unaware that he could claim protection. Having found he could not return to Nepal there was no alternative.”
The Tribunal returned to this evidence under the heading “Consideration of Claims and Evidence.” There, it stated that the applicant’s explanations for the delay in claiming protection were that he “did not understand the rules for seeking protection, was not aware it was possible to do so and was, generally, unfamiliar with Australian society and culture”.
The applicant says that this reveals that the Tribunal did not consider the applicant’s explanation, namely that he believed that his studies were a pathway to permanent residency. He agreed that the fact that the Tribunal had set out the applicant’s explanations earlier in its reasons was relevant to whether the Tribunal had considered those explanations, but argued that it was not decisive of that question. He argued that, once the Court was satisfied that the explanation was not considered, the question was whether that explanation was important to the exercise of the Tribunal’s functions: Minister for Immigration & Border Protection v SZSRS (2014) 309 ALR 67 at [54].
In reply, the Minister argued that the Tribunal was merely recapping the effect of the applicant’s evidence in summary form. He argued that the summary was accurate given the change between the explanations given to the delegate at interview and the Tribunal at the hearing. He further argued that, if it were established that an explanation or evidence had been overlooked or misunderstood the question of whether that amounted to jurisdictional error depended upon the importance of that material to the Tribunal’s decision.
The question of whether an administrative decision-maker has considered a matter or taken that matter into account (whether that be a relevant consideration, explanation, argument or material that has a logical bearing upon the question to be determined) is essentially one of fact. That said, there is much authority on the meaning of “consider” and “take into account”. For example, in Tickner v Chapman (1995) 57 FCR 451 Black CJ found that the meaning of the verb “consider” required the decision-maker to undertake an active intellectual process directed at the representation or submission: see also Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage & the Arts (2011) 180 LGERA 99 at [44]; Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140 at [49] and Mentink v Minister for Home Affairs [2013] FCAFC 113 at [144]. However, care must be taken in applying principles such as these that have been developed in particular statutory contexts: see for example Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 at 128 [99].
The duty of the Tribunal was to “review” the decision of the delegate: s.415 of the Migration Act 1958. In undertaking the review, the Tribunal is obliged, in most circumstances, to invite an applicant to attend a hearing in order to give evidence and present arguments about the issues that arise on the review: s.425. It may be accepted, in light of the obligation under s.425, that the duty to review generally entails an obligation to consider the evidence and arguments given by the applicant in support of his claims to be owed protection obligations by Australia. Another way of saying the same thing is that there must generally be both a consciousness and consideration of the submissions, evidence and material advanced by the applicant: see Minister for Immigration & Border Protection v MZYTS (2013) 136 ALD 547 at 559 [38]; SZSZW v Minister for Immigration & Border Protection [2015] FCA 562 at [17]. That said, whether there is such an obligation will depend upon the circumstances of the case and the nature of the evidence and other material: SZRKT at 130 – 131 [112].
In this case the Tribunal did have regard to the applicant’s explanations for the delay in applying for a protection visa. First, the Tribunal set out in its reasons both the explanation given by the applicant to the delegate as well as to his evidence in that respect given at the hearing before it. While I accept the submission by the applicant that that fact is not necessarily decisive of the issue of whether the Tribunal actively considered those matters, in my view it is strong support for such a conclusion. Although it was made in a slightly different context, the following statement by the Full Court of the Federal Court in WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 is pertinent:
[47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.
…
Secondly, it is clear that the applicant gave inconsistent explanations for his delay in applying for a protection visa. Before the delegate he claimed that he had hoped to obtain permanent residency through his studies. However, before the Tribunal he said that he came to Australia to “build my career, for my studies” and was completely unaware that he could claim protection. To come to Australia for studies is not the same as hoping to obtain permanent residency as a consequence of studies. Thus, the Tribunal accurately summarised the applicant’s ultimate claims in this respect by saying that they were “to the effect that” the applicant did not understand the rules for seeking protection and was not aware it was possible to do so. The applicant had the opportunity at the hearing before the Tribunal to explain why he had not applied for a visa expeditiously upon arrival in Australia. He did so and cannot complain that the Tribunal made its decision on the basis of the explanation given by him at that hearing.
Thirdly, it is trite that the reasons of an administrative decision-maker such as the Tribunal must not be read in a nit-picking way or too closely with a view to detecting error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, Nzolameso v City of Westminster [2015] UKSC 22 at [32]. With that approach in mind, and the fact that the Tribunal qualified its summary with the phrase “to the effect that” and had previously set out each of the applicant’s explanations for the delay, I consider that the Tribunal’s reasons sufficiently disclose that it considered those explanations in the sense that it engaged in an active intellectual process directed to them.
For those reasons this ground is rejected.
Second issue
The second issue, as already noted, concerns the way in which the Tribunal dealt with a number of the documents relied upon by the applicant. Having dealt with the newspaper article, the Tribunal turned to the other documents and said:
[29]I have similar concerns about the weight which can be placed on the photographs the Applicant submitted. Even if the bandaged person in the photographs is, in fact, his father there is nothing in the supporting medical or police documents to indicate that the injuries he is said to have suffered were in fact inflicted by the YCL or Maoists.
[30] Finally, the supporting letter said to have been written by the Chairman of a branch of the NCP appears to confuse the alleged incident in 2008-in which the Applicant is said to have fought with a YCL member-and his return visit to Nepal in 2010. Its suggestion that he was involved in ‘verbal disputes and physical brawls’ in which the YCL threatened his life during the visit is not mentioned anywhere by the Applicant himself. Given this inconsistency I do not consider that any weight can be placed on this letter.
The applicant argues that he was not on notice that his documents might be considered fraudulent on the basis of independent country information. This argument raises two issues: first, whether the Tribunal was obliged to inform the applicant that it might find that these documents (that is, the documents other than the newspaper article) were fraudulent; and secondly, whether it did in fact inform him of that.
The first problem for the applicant is that the Tribunal did not in fact find that the relevant documents were fraudulent. More particularly, it did not find that they were fraudulent on the basis of some country information. Rather, it assessed the weight that it would give to those documents by reference to the content of the documents. In the case of the photographs it noted accurately that nothing in them or any other document indicated that the relevant injuries were inflicted by the YCL or Maoists. In relation to the letter from the chairman of a branch of the NCP, the Tribunal’s assessment was based upon differences between that letter and the applicant’s own evidence. Thus, an essential factual premise of the applicant’s argument is absent.
Further, and alternatively, even if the applicant’s argument was not based upon a finding that the documents were fraudulent, there was no error. As a general proposition, an administrative decision-maker is not obliged to expressly advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592; see also WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511 at 524 [54].
In Minister for Immigration & Citizenship v SZQHH (2012) 200 FCR 223 Rares and Jagot JJ explained at [30]:
… the reviewer’s obligation of procedural fairness did not require the reviewer to put to the applicant every piece of country or other information that the reviewer was considering. Rather, procedural fairness required that the applicant be given the substance of the credible, relevant and significant information available to the reviewer on an issue in the review, of which the applicant was not already on notice.
…
In the statutory context relevant to the Tribunal, the question is whether the Tribunal failed to comply with its obligations under s.425 of the Act. As noted above, that provision requires the Tribunal to invite the applicant to appear before it to give evidence and make submissions in relation to the issues arising in relation to the decision under review. While the content of that obligation is informed by the common law rules concerning procedural fairness, it is, once again, important not to lose sight of the words of the statute. Thus, as explained in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at 163 [35]:
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
This was not a case where the delegate had accepted the credibility of these documents and so the applicant might have been taken by surprise by finding that the by the Tribunal that he gave no weight to them. As mentioned above, the delegate did not consider the applicant’s substantive claims in relation to Nepal at all. The applicant relied upon this fact to suggest that, apart from the ability of the applicant to obtain protection in India, the Tribunal was required to expressly raise with the applicant every other factual matter that ultimately formed the basis of its decision. I do not accept that argument. It was clear from the Tribunal’s course of questioning at the hearing that the Tribunal was considering the applicant’s substantive claims. It asked about those claims in detail and on a number of occasions put to him propositions that indicated clearly that it might not accept those claims. For instance, it put to him at one stage that it “seemed difficult to believe someone would go to the trouble of trying to track him down simply because he had punched him six years ago”. In light of that questioning, it was obvious that everything concerning the applicant’s substantive claims were issues “arising in relation to the decision under review”.
For those reasons, there was no obligation on the Tribunal to indicate to the applicant at the hearing that it might give no weight to the documents relied upon by him on the basis of its assessment of those documents. This ground is rejected.
Conclusion
There is no jurisdictional error in the Tribunal’s decision. The application will be dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 4 September 2015
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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