SZVAE v Minster for Immigration - [2015] FCCA 213

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVAE v MINSTER FOR IMMIGRATION & ANOR

[2015] FCCA 213

Catchwords:
MIGRATION – Application seeking review of decision of Refugee Review Tribunal refusing to grant applicant a Protection (Class XA) visa – application set down for show cause hearing – whether arguable case for the relief claimed raised – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 422B, 424A, 425, 430, 430A

Federal Circuit Court Rules 2001 (Cth), rr.44.11(b), 44.12(1)(a)

Dranichnikov v Minister for Immigration and Multicultural Affairs(2003) 197 ALR 389
Htun v Minister for Immigration and Multicultural Affairs(2001) 194 ALR 244
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152
SZSOB v Minister for Immigration and Border Protection [2014] FCA 685

Applicant:

SZVAE

First Respondent:

MINSTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2481 of 2014

Judgment of:

Judge Lloyd-Jones

Hearing date:

15 December 2014

Delivered at:

Sydney

Delivered on:

4 February 2015

REPRESENTATION

The Applicant:

The Applicant appeared in person with a Nepali interpreter

Solicitor for the First Respondent:

Ms B Rayment of Mills Oakley

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 2481 of 2014

SZVAE

Applicant

And

MINSTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application filed in the Federal Circuit Court on 4 September 2014 under the Migration Act 1958 (Cth) (the “Migration Act”), seeking judicial review of a decision of the second respondent, the Refugee Review Tribunal (the “Tribunal”), 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 Minister’s delegate refused to grant the applicant a Protection visa on the basis that he was not a person to whom Australia had protection obligations under s.36 of the Migration Act.
The solicitors for the Minister filed a folder on 27 October 2014 which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided is 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 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 citizen of Nepal (CB 13) who arrived in Australia as the holder of a Visitor visa on 29 June 2013 (CB 14). On 22 July 2013 he applied for a Protection visa (CB 1-26).
The applicant provided two documents to the Minister’s delegate dated 22 October 2013 (CB 39-42), appearing to be a statement prepared in Nepali (CB 41-42) and an English translation thereof (CB 39-40).
The applicant claimed to fear harm from Maoists in Nepal because he was a monarchist and a member of the Rastriya Prajatantra Party – Nepal (“RPP-N”). His parents were also RPP-N members. The applicant claimed he angered local Maoists in his village because of his political activities with the RPP-N. He also claimed that Maoists had arrested and beaten him, as well as taken and killed one of his cows.
The applicant was invited by letter dated 20 November 2013 to attend a hearing before a delegate of the Minister on 9 December 2013 (CB 43-45), which he attended. On 13 December 2013, the Minster’s delegate refused the applicant’s Protection visa application on the basis the applicant had a right to enter and reside in India and had not taken all possible steps to avail himself of that right. Written reasons were provided for the refusal (CB 46-57).
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 8 January 2014 (CB 58-63). The Tribunal wrote to the applicant by letter dated 13 May 2014 inviting him to appear before it at a hearing scheduled on 13 June 2014 (CB 66-67). The hearing was rescheduled to 29 July 2014, and the applicant appeared before the Tribunal on that date (CB 71-72, 75-77).
By decision dated 12 August 2014 the Tribunal affirmed the Minister’s delegate’s decision to refuse to grant the applicant a Protection visa (CB 85-95).

Tribunal’s Decision

The Tribunal, in its Decision Record, accepted the applicant and his father were party members of the RPP-N and were a minority in their village, which was dominated by supporters of the Unified Communist Party of Nepal (“UCPN”) (Maoists). However, the Tribunal did not accept as credible the applicant’s claims to have been targeted by Maoists for the reasons he had claimed (CB 93 at [18]).
In making adverse credibility findings against the applicant, the Tribunal cited a number of factors:
a)First, it found the applicant’s political activity for the RPP-N was minimal and could not plausibly have been of concern to the Maoists or led them to wish to harm him (CB 93 at [19]);
b)Second, it had difficulty accepting the Maoists would wait five or six years after the applicant had joined the RPP-N and assisted in the 2008 election before taking any action against him if their aim was to eliminate the RPP-N from their area as he had claimed (CB 93 at [20]);
c)Third, it found the applicant’s evidence about his claimed involvement in planning a birthday celebration for Prince Paras was “vague, inconsistent and generally implausible”. The applicant’s responses to the Tribunal’s questions were “notable uninformative”, his oral and written accounts of the significance of the occasion were inconsistent and other aspects of his evidence were considered “implausible”. As such, the Tribunal was unable to be satisfied that he was ever involved in arranging such an event and also rejected his associated claim to have been beaten by Maoists in December 2012 (CB 93 at [21]);
d)Fourth, it identified inconsistencies in the applicant’s evidence that he reported the cow killing incident to the RPP-N and the police. The Tribunal also regarded as “implausible” his claim that Maoists would kill a cow as a political statement when his own evidence and the country information indicated that this would outrage Hindu villagers and be a significant offence against religion and Nepalese law. It also found the applicant’s evidence about the alleged incident “was notably brief and lacking in circumstantial detail” and that it was implausible that if he had reported the incident, the RPP-N did not get the report publicised by a sympathetic media outlet. On this basis the Tribunal did not accept as credible the applicant’s claim Maoists killed one of his cows or his associated claims that he urged villagers to oppose Maoists, there was a further altercation, and he and his family were expelled and their land seized (CB 94 at [22]); and
e)Fifth, it found the applicant’s oral evidence that he and his family were forced to leave their village and relocate to Pokhara to be “confused and vague” and inconsistent with information the applicant had provided in his Protection visa application.
For those reasons, the Tribunal was not satisfied in respect of any of the applicant’s key claims for protection and found there was no reason to believe he faced any risk of harm from Maoists in his village, which was the only basis upon which he claimed to fear harm in Nepal (CB 94 at [24]).
The Tribunal ultimately was not satisfied the applicant faced harm of any kind in Nepal because of his political opinion (CB 95 at [26]) and affirmed the delegate’s decision not to grant the application a Protection visa (CB 95 at [29]).

Current Proceedings

The application pleads the following three grounds:
1. The Refugee Review Tribunal Member failed to give me natural justice.
2. The Tribunal Member has committed an error of law by ignoring to give me fairness in my claims of persecution from the Maoists.
3. The Refugee Review Tribunal Member’s decision is not lawful.
At the first court date directions hearing on 25 November 2014, the application was set down for a show cause hearing pursuant to r.44.11(b) of the Federal Circuit Court Rules 2001 (Cth) on 15 December 2014. Leave was granted to both parties to file written submissions.

Applicant’s Submissions

At the show cause hearing the applicant indicated he had prepared written submissions that he wished to file in court. The Minister did not oppose this course and the applicant was granted such leave. He also indicated he did not wish to make any oral submissions in support of his application and solely wished to rely on his written submissions.
The applicant’s written submissions state (verbatim):
1. The Tribunal Member overlooked my claims that I was beaten by the Maoists and I was subject to adverse interest to the Maoists because of my opposition to them. Tribunal made a jurisdictional error in concluding that I could not or did not attract the adverse attention of the Maoists having regard to the material upon which it relied, that reliance being unreasonable.
2. Leaving home was difficult, especially as I had to leave my children and wife behind. I didn’t have any choice to avoid harm from my enemies. So I was forced to leave my country to get peace and survive. If I had a choice my own country is always the best place to be. I am truthful about my fear of harm from the Maoists as I am Monarchist and I received a lot of threats from the Maoists.
3. I argue that the Tribunal Member failed to accord me natural justice and fairness.

Minister’s Submissions

The Minister contends the application contains three purported grounds of review without any particulars to make them meaningful. The applicant has not taken up the opportunity afforded to him to amend his application.
The Minister argues the grounds of the application blandly assert that the Tribunal “failed to give me natural justice”, committed an error of law by “ignoring to give me fairness in my claims of persecution from the Maoists” and the Tribunal’s decision was “not lawful”.
Despite the unparicularised allegations in the applicant’s grounds of review, there is nothing to suggest that the Tribunal failed to comply with any mandatory procedures. No information enlivened the Tribunal’s obligations under s.424A and the applicant plainly attended the re-scheduled hearing conducted on 29 July 2013 (CB 88-92 at [12]). The Decision Record also indicated that at several junctures during the hearing the Tribunal put to the applicant for comment various concerns or doubts that it had with his evidence (CB 88-92 at [12]). It is submitted the Tribunal therefore complied with its obligations under s.425 of the Migration Act by ensuring that the applicant at the hearing was on notice of the determinative issues on the review (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 at [37]).
In respect of the applicant’s written submissions filed at the show cause hearing, Ms Rayment, appearing for the Minister, submitted:
a)In respect of the first paragraph, that the applicant claims the Tribunal overlooked his claim he had been beaten by Maoists. However, the Tribunal did address this claim at CB 90 in the first dot point where it recorded the applicant’s claim about being beaten by Maoists. The Tribunal rejected this claim on the basis of inconsistencies in it, and the implausibility and vagueness of it. The Tribunal gave a comprehensive account of why the applicant’s story was not believed at [19]-[23] of the Decision Record. The remainder of the first paragraph of the applicant’s written submissions asserts the Tribunal acted in an unreasonable manner, but is not particularised. It is submitted this assertion is not made out;
b)In respect of the second paragraph, this is just an assertion as to the merits of the applicant’s claims; and
c)In respect of the third paragraph of the applicant’s written submissions, this is just a restatement of the first two grounds of the application and is devoid of all particulars. Ms Rayment relies on the Minister’s written submissions in this respect.
It is submitted the applicant has failed to demonstrate an arguable case for the relief claimed and the application should be dismissed with costs.

Consideration

It is convenient to address Grounds 1 and 2 of the application together with paragraph 3 of the applicant’s submissions. Essentially, the applicant claims he was denied natural justice and/or procedural fairness by the Tribunal, but has not particularised this in any further detail.
Sections 422B-429A of the Migration Act are an exhaustive statement of the requirements of the natural justice hearing rule the Tribunal is required to comply with in respect of matters it deals with.
Having regard to the Court Book, the applicant was validly invited to a hearing before the Tribunal (which was rescheduled). He attended that hearing and gave evidence. Further, issues dispositive of the applicant’s Protection visa application were discussed at the hearing.
To the extent that the applicant complains he should have been given another hearing, on a fair reading of the Tribunal’s Decision Record it is clear there was nothing relied on by it in its decision-making process that enlivened any obligation under s.424A of the Migration Act. Rather, the Tribunal discussed with the applicant his own oral and documentary evidence at the hearing. The Minister correctly submits that it was clear the applicant knew the Tribunal’s relevant concerns, being the implausibility and vague nature of his evidence, in respect of which he was given an opportunity to respond.
On a fair reading of the relevant legislation together with the Court Book, there has been no denial of procedural fairness or natural justice to the applicant. Accordingly, there has been no arguable case raised for the relief claimed in these grounds and submissions.
Ground 3 of the application contends that the Tribunal’s decision was not “lawful”, however, is not in any way particularised. The Tribunal’s decision was not given orally and, accordingly, fell under the requirements of ss.430 and 430A of the Migration Act. On a fair reading of the Decision Record and letter sent by the Tribunal attaching the Decision Record (CB 84-95), I am satisfied the Tribunal’s Decision Record has complied with the relevant law. Without any particularisation by the applicant, which he was given an opportunity to do, I am not satisfied an arguable case for the relief claimed has been raised.
Paragraph 1 of the applicant’s written submissions raises two claims therein.
The first claim is that the Tribunal “overlooked” or failed to consider the applicant’s claims that he was beaten by Maoists and subject to adverse interest by them.
It is well established that a decision-maker, in this case the Tribunal, is required to correctly construe and consider claims (and integers thereof) that have been made by an applicant or that are apparent on the face of the material before him or her (see Htun v Minister for Immigration and Multicultural Affairs(2001) 194 ALR 244 per Allsop J (as he then was) (with whom Spender and Merkel JJ agreed) at [42]; Dranichnikov v Minister for Immigration and Multicultural Affairs(2003) 197 ALR 389). This consideration to be given also includes claims that were expressly or squarely raised on the material (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1 at [58]–[61] per Black CJ, French and Selway JJ).
In the application before this Court the Tribunal construed the applicant’s claims in relation to being beaten by Maoists at CB 90 at the first two dot points. The applicant’s claim in respect of being subject to adverse interest from the Maoists is also contained at the first two dot points of [12] of the Decision Record (CB 88). The Tribunal then went on to squarely address these claims at [19]-[21] of the Decision Record (CB 93-94) (see [20]-[21], particularly). On a fair reading of the Decision Record, having regard to the applicant’s claims contained in his statement at [39]-[40] and his evidence recorded in the Decision Record, I am satisfied the Tribunal has not failed to consider any of the applicant’s claims or integers thereof. The Tribunal made findings in respect of these claims that were open to it on the material before it. Accordingly, this aspect of the submission raises no arguable case for the relief claimed.
The second claim raised in the first paragraph of the submissions is that the Tribunal’s finding that the applicant did not attract the adverse attentions of Maoists was “unreasonable”. This claim has not been particularised in any manner.
His Honour Flick J, in SZSOB v Minister for Immigration and Border Protection [2014] FCA 685, outlined the principles for a court to consider when a claim of “unreasonableness” has been made. He stated at [19]-[21] therein:
19. Any argument founded upon “unreasonableness“ in administrative decision-making, including “unreasonableness“ within the context of migration decision-making, faces a considerable hurdle to success.
20. In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 ; (2010) 240 CLR 611 Crennan and Bell JJ summarised the principles to be applied as follows:
123. Judicial review has commonly been relied on to set aside a discretionary decision which “is so unreasonable that no reasonable authority could ever have come to it“ or decisions “which are unjust or otherwise inappropriate, but only when the purported exercise of power is excessive or otherwise unlawful“. As remarked by Gaudron J in Abebe v Commonwealth:
[I]t is difficult to see why, if a statute which confers a decision-making power is silent on the topic of reasonableness, that statute should not be construed so that it is an essential condition of the exercise of that power that it be exercised reasonably, at least in the sense that it not be exercised in a way that no reasonable person could exercise it.
This court has observed with reference to s 75(v) of the Constitution and jurisdictional error that where a statutory power is conferred the legislature is taken to intend that the discretion is to be exercised reasonably and justly.
With reference to the decision of the Refugee Review Tribunal there in question, their Honours continued:
130. In the context of the Tribunal’s decision here, “illogicality“ or “irrationality“ sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust“ or “arbitrary“ or “capricious“ or “unreasonable“ in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131. What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
21. More recently, in Minister for Immigration and Citizenship v Li [2013] HCA 18 ; (2013) 249 CLR 332 French CJ has similarly observed:
30. The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker …
See also: Lo v Chief Commissioner of State Revenue [2013] NSWCA 180 at [16], (2013) 85 NSWLR 86 at 91 per Basten JA. The fact that a court “may emphatically disagree with a decision reached by a decision-maker does not lead to the conclusion that it is unreasonable, irrational or illogical“: A v Corruption and Crime Commissioner [2013] WASCA 288 at [123], (2013) 306 ALR 491 at 521 per Martin CJ and Murphy JA.

Despite being granted the opportunity, the applicant has failed to particularise this claim. On a fair reading, the Tribunal’s findings in respect of the applicant’s claims were open to it on the material before it and for the reasons it gave. No unreasonableness is exposed in its findings in respect of the applicant’s evidence or any or all of the claims the applicant made. Accordingly, this aspect of the submission raises no arguable case for the relief claimed.
Paragraph 2 of the applicant’s written submissions is a statement in support of his substantive protection claim. This statement does not purport to raise any error on the part of the Tribunal and, instead, invites the Court to engage in impermissible merits review (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259). No arguable case for the relief claimed has been raised by this paragraph of the written submissions.

Conclusion

No arguable case for the relief claimed by the applicant has been raised, either in the application itself or the applicant’s written (and limited oral) submissions. Further, on a fair reading of the Court Book and, particularly, the Decision Record, no error on the part of the Tribunal is apparent.
It follows that the application should be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 with costs awarded to the Minister.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate:

Date: 4 February 2015