SZVDH v Minister for Immigration

[2015] FCCA 911

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVDH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 911

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – whether the Tribunal applied the correct ‘real chance’ test – complementary protection – no jurisdictional error.

Legislation: 
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958, ss.65, 476

Chan v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF (2005) FCAFC 73
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405

Applicant: SZVDH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2636 of 2014

Judgment of: Judge Street

Hearing date: 10 April 2015

Date of Last Submission: 10 April 2015

Delivered at: Sydney

Delivered on: 10 April 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Mr S. Speirs
Clayton Utz

ORDERS

1. The application be dismissed.

2. The Applicant to pay the First Respondent’s costs fixed in the sum of $6646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 2636 of 2014

SZVDH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 25 August 2014 in affirming a decision of the delegate not to grant the applicant a Protection (Class XA) Visa.

2. The grounds of the application are as follows:

   1. The Second Respondent made jurisdictional error at [29] in that it confirmed its consideration to the Applicant’s claims as to the past and did not consider whether there was a real chance that he would suffer persecution from Maoists in Nepal.

   2. The Second Respondent made jurisdictional error by dismissing a claim of a fear of persecution as “speculation” which is in fact a requirement of the real chance test.

   3. The Second Respondent made jurisdictional error by adopting an onus of proof inconsistent with the real chance test.

3. The applicant was found to be a citizen of Nepal, and his claims were assessed against that country.  The applicant arrived in Australia on a student visa on 11 November 2008 and applied for a protection visa on 17 July 2013.  The delegate refused to grant the visa on 24 December 2013, and on 15 January 2013 the applicant applied for a review by the Tribunal.  The applicant appeared before the Tribunal on 30 July 2014 to give evidence and present arguments.

4. At the commencement of the hearing, the applicant identified that he had earlier had a lawyer engaged to appear for him in the proceedings and that the lawyer had declined to attend to day on the basis the applicant could not pay him, and that the applicant sought an adjournment so that a lawyer could attend to present the argument.  This matter was fixed for final hearing.  The proceedings were clearly doomed to failure.  An adjournment would only add unnecessarily to the costs of the parties and utilise further limited Court time in circumstances where the proceedings are patently doomed to failure.  For the reasons given, the proceedings are clearly doomed to failure and there is no utility in granting any adjournment.   

5. The Tribunal carefully summarised the applicant’s claims and the applicant’s evidence.  The Tribunal, for reasons it carefully identified in para.28, found there were reasons to doubt the credibility of the applicant’s claims.  It was in those circumstances that the Tribunal found it was unable to be satisfied as to the credibility of the applicant’s claims regarding his experiences in Nepal, and the Tribunal relevantly found:

   29. Taking these considerations together I am unable to be satisfied as to the credibility of the Applicant's claims regarding his experiences in Nepal. I am not satisfied that he or his family did, in fact, come under pressure for him to join the Maoists or that it was for this reason that he moved to [B] and studied there. I am not satisfied that he ever came to the adverse attention of the JTMM-J, either in [B] or elsewhere in Nepal. Nor, even if it is the case that armed forces active in the [T] region are becoming more violent, as contended by the advisor, am I satisfied there is any reason to believe the Applicant would suffer harm from these sources if he were to return to Nepal. While I note his claim that Maoists would demand money from him if he returned to his village, as someone who had been living in a foreign country, I consider this is no more than simple speculation on his part and I am not satisfied there is a real chance that he would suffer harm in this way. I also note his suggestion at the hearing that he had been involved in some form of low-level political activity when he was at school (or college) in [B], in coru1ection with a group or party which he termed the 'UML., Whatever this activity may have been, however, he does not suggest that it would expose him to any risk of harm if he were to return to Nepal. Nor does he suggest that the alleged suppo11 his parents gave to the Maoists would translate into a risk of hmm for him. He does not claim to fear harm in Nepal for any other reason and no other reason is apparent on the face of the information before the Tribunal.

6. The findings made by the Tribunal were open.  The adverse findings in relation to the credibility were open to the Tribunal.  It was in those circumstances the Tribunal made the finding in para.30, as follows:

   30. I am not satisfied that the Applicant has a well-founded fear of persecution for a Convention reason should he return to Nepal, now or in the reasonably foreseeable future, and I am not satisfied that he is a refugee.

7. The finding in para.30 was open to the Tribunal, and the Tribunal then proceeded to address the issue of complementary protection, and, relevantly, the Tribunal found:

   31. As noted, I am not satisfied that the Applicant faces harm of any kind in Nepal because of his political opinion or his race, or through demands from Maoists for money. He has not identified any additional matters might put him ·at risk of harm or which could be relevant to an assessment of Australia's complementary protection obligations in his case.

   32. In the light of the information before the Tribunal I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Nepal, there is a real risk that he would suffer significant harm as defined in subsection 36(2A) of the Act.

8. It is in those circumstances that the Tribunal concluded that the applicant was not a person to whom Australia owed a protection obligation under the criteria under s.36(2)(a) and s.36(2)(aa) of the Migration Act was not satisfied. Those findings by the Tribunal were all open on the material before the Tribunal.

9. In relation to ground 1, it is clear that the Tribunal did address the applicant’s claim in relation to Maoists in Nepal from content of para.29 in the Tribunal’s reasons, and it was open to the Tribunal to make the adverse finding on material before it.  Ground 1 is, accordingly, an impermissible challenge to the finding of fact made by the Tribunal, and does not identify any jurisdictional error. 

10. In relation to ground 2, it is clear from the terms of the reasons of the Tribunal that the Tribunal applied the correct test of a “real chance”, as identified in Chan v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at [389] [398], [407] and [429], and that there is no substance in the proposition that the Tribunal made any jurisdictional error of the kind alleged in ground 2. It is a matter for the Tribunal to make a finding of fact in relation to that real chance test.

11. I should note that to the extent that ground 2 suggests that speculation by the applicant in relation to his fears is sufficient to meet the relevant criteria of whether there is a well-founded fear, that is not correct.  As was said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at [572]:

    572. Conjecture or surmise has no part to play in determining whether a fear is well-founded.  A fear is “well-founded” when there is a real substantial basis for it ... no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.  A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.

12. Accordingly, ground 2 is without substance. 

13. Ground 3 is misconceived. Section 65 of the Migration Act 1958:

    ...requires a visa to be rejected in the absence of a positive finding of satisfaction.

14. This is an administrative decision in respect of which the stature requires a positive finding, see Minister for Immigration & Multicultural & Indigenous Affairs v VSAF (2005) FCAFC 73 at [17]. In this regard, it is for the applicant to make out the case before the Tribunal and that the Tribunal is not required to accept or obliged to accept any and all allegations made by the applicant, and is entitled to make findings in respect of the credibility concerning the evidence and claims of an applicant. In relation to assessments of credibility, these have been described as being “the function of primary decision-maker par excellence” see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405 at [67].

15. The adverse findings of credit were clearly open on the material before the Tribunal.  Findings cannot be said to lack an evident and intelligible justification. There is no jurisdictional error as alleged in ground 3. In these circumstances, there’s no substance in any of their grounds.  I am clearly satisfied that there was no jurisdictional error in the conduct of the review by the Tribunal.  The application is dismissed. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  14 April 2015