SZVUP v Minister for Immigration & Border Protection

[2015] FCCA 1287

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVUP v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 1287

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13

Cases Cited:
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264

Applicant: SZVUP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3422 of 2014

Judgment of: Judge Emmett

Hearing date: 18 May 2015

Date of Last Submission: 18 May 2015

Delivered at: Sydney

Delivered on: 18 May 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Mr Julian Pinder (Minter Ellison)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3422 of 2014

SZVUP

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 10 December 2014, the applicant filed an application seeking judicial review of a decision of the Refugee Review Tribunal dated 6 November 2014 and handed down on the same date (“the RRT”).

2. On 5 March 2015 the applicant attended a directions hearing before a registrar of this Court and was given leave to file and serve an Amended Application, additional evidence and submissions in support of the application.

3. The matter was set down for a show cause hearing today pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

4. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a)  if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b)  if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c)  without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2)  To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

5. Relevantly, r.44.13 provides:

   “(1)  At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

6. The applicant was unrepresented this morning and did not require the assistance of an interpreter.

7. On 7 May 2015 the applicant filed an Amended Application. He confirmed to the Court this morning that he relied on the grounds set out in that Amended Application as follows:

   “1. The Second Respondent failed to assess the credibility cumulatively.

   Particulars

   a) The Tribunal set up its mind by the influence of country information and failed to assess credibility of the Applicant.

   b) The Tribunal failed to acknowledge that the Applicant did not understand the questions and therefore provide an appropriate response.

   i) The Tribunal notes that the Applicant “did not respond to my concern”. When the question was rephrased the Applicant “reiterated her claim”.

   2. The Second Respondent denied procedural fairness.

   Particulars

   a) The Tribunal failed to assess the Australian visa opportunities available to the Applicant before the Applicant applied for the onshore protection visa.

   b) The Tribunal wrongly formed the view that “there was no other way of extending her stay in Australia”. This view was enormously detrimental towards the credibility of the Applicant in her claims.

   c) The Tribunal failed to ask direct questions at the hearing. The Applicant failed to acknowledge that a response was required by the Tribunal or understand the question.

   i) The Tribunal “put to the applicant… I am inclined to find that she is not a member of the faction of the party as claimed” [Tribunal Decision, Item 4 – Assessment of Claim, Paragraph 3]. The Applicant response demonstrated that she did not understand the question in that she reiterated she does not have evidence of her membership.

   ii) The Tribunal “put to the applicant that even if I were to accept her testimony as true… I find it highly improbable that she would be subjected to level of persecution s claimed”. Further, the Tribunal notes “the applicant did not respond to my concern” [Tribunal Decision, Item 4 – Assessment of Claim, Paragraph 4]. The Applicant failed to acknowledge that a response was required.

   iii) The Tribunal notes that when the Applicant failed to respond it rephrased the concern [Tribunal Decision, Item 5- Assessment of Claim, Paragraph 4]. However, the Tribunal failed to ask a direct question. The Applicant did not understand the question and reiterated her claim.

   3. The Second Respondent demonstrated apprehension of bias.

   Particulars

   a) The Tribunal wrongly formed the view that the Applicant made up her claims. The Applicant merely did not provide evidence to substantiate her claims”

8. The applicant was invited to say whatever she wished in support of each of the grounds.

9. The first respondent, in written submissions, accurately summarised the background of the applicants’ claims and the RRT’s decision, as follows:

   “B     FACTUAL BACKGROUND

   3. The applicant is a citizen of Nepal. She arrived in Australia on 20 January 2006 on a student visa. The Department of Immigration and Border Protection (the Department) refused a further student visa application made by the applicant in March 2012. She applied for a protection visa on 22 November 2013 (CB1–32). In that protection visa application, she claimed to fear harm in Nepal on the basis of her past and continuing political opinion.

   4. The applicant was interviewed by a delegate of the Minister for Immigration and Border Protection (the delegate) on 24 March 2014 (CB78). On 25 March 2014 the delegate refused to grant the applicant a protection visa (CB58–83). The applicant sought review of the delegate's decision before the second respondent (the Tribunal) by application dated 24 April 2014 (CB84–89). The applicant attended a hearing before the Tribunal on 5 November 2014 (CB113). On 6 November 2014 the Tribunal affirmed the decision not to grant the applicant a protection visa (CB126–137).

   C  TRIBUNAL DECISION

   5. The Tribunal noted the significant and protracted process in which the applicant engaged to appeal and to attempt to overturn the decision made by the Department in March 2012 to refuse to grant her a further student visa. The Tribunal accepted that this reflected a strong desire to remain in Australia, but did not find this to be inconsistent with a need for protection (at [12]). However, the Tribunal did consider it relevant and detrimental to her claims (albeit not determinative) that she 'did not so much as mention any fear of harm in Nepal until lodging her protection visa application in November 2013' (at [12]).

   6. As to the applicant's protection claims, the Tribunal observed 'multiple anomalies in her evidence' for which the applicant was unable to provide a credible explanation (at [20]). The Tribunal also noted that aspects of her evidence at the Tribunal hearing seemed different in significant respects from the account given in her protection visa application form (at [21]).

   7. The Tribunal therefore did not accept key aspects of the applicant's protection claims (at [22]). The Tribunal found that the applicant had never been involved with the Maoists or any other political party in Nepal, and had demonstrated a lack of interest in Nepali politics (at [23]). The Tribunal did not accept that the applicant had ever been kidnapped, threatened or harmed in the past in Nepal (at [26]). The Tribunal was not satisfied that the applicant has any actual or imputed profile with anyone in Nepal which gives rise to a real chance of harm—whether serious harm as contemplated by the refugee criterion or significant harm as contemplated by the complementary protection criterion.”

10. In relation to Ground 1, the applicant said that the RRT did not have all the evidence that it should have had, because it had failed to ask the applicant questions and had done no more than put various factual matters to the applicant.  There was no evidence in support of those allegations.

11. The first respondent tendered a bundle of documents identified as “Court Book” and filed on 17 March 2015. Those documents were marked Exhibit 1R. Exhibit 1R contains a copy of the RRT’s decision record and the review process generally.

12. The RRT’s decision record refers to questions that would appear to be open-ended that it asked the applicant, and it also referred to matters of concern that it put to the applicant for comment.

13. There would appear to be nothing on the face of the RRT’s decision record to support the complaints made by the applicant. There was no transcript of the RRT hearing provided to this Court, nor did the applicant provide any evidence to this Court to suggest that the RRT’s decision record is not accurate. The Court is entitled to accept the RRT’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (see NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

14. In the absence of any transcript, and in light of the opportunities provided to the applicant to file any evidence, I accept as accurate the RRT’s summary of the various exchanges that took place at the hearing between the tribunal member and the applicant.

15. In the absence of any other evidence, the complaint in Ground 1is not capable of identifying a jurisdictional error on the part of the RRT.

16. The applicant also complained in Ground 1 that the RRT was influenced by the country information and failed to assess the credibility of the applicant. The RRT’s decision record does not support such allegations. The RRT’s decision record makes clear that the reasons that the RRT ultimately affirmed the decision under review was based on its adverse credibility findings in respect of the applicant.

17. The RRT’s decision record does not suggest that the RRT’s decision was based soley on the country information before it.

18. The RRT’s decision record makes clear that the RRT stated that it explored with the applicant the claims made in her protection visa, and it provides reasons that would appear to be open to it for the findings that it ultimately made in respect of the applicant’s claims, including her credibility.

19. The RRT’s findings on credibility would appear to be open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

20. In Ground 1(b), the applicant complains that the RRT failed to acknowledge that the applicant did not understand the questions and, therefore, provide an appropriate response. Again, the RRT’s decision record does not support such allegations. However, I note that the particulars in support of that allegation refer to a quote that is from the decision record of a delegate of the first respondent and not from that of the RRT (“the Delegate”).

21. In referring to matters that took place before the Delegate, the applicant misunderstands the role of this Court. This Court is not reviewing the decision of the Delegate. The only issue before this court is whether the decision of the RRT was made according to law.

22. In Ground 2(b), (c)(i), (c)(ii) and (c)(iii), the applicant again refers to quotes from the Delegate’s decision. Again, these are not findings that can be the subject of any review by this Court and, indeed, the Court does not have power to review that decision.

23. In relation to ground 2(a), the applicant appears to be alleging that the RRT denied her procedural fairness because it failed to assess other visa opportunities that she may have had. Such an allegation is not capable of establishing jurisdictional error on the part of the RRT.

24. In Ground 3 the applicant asserts that the RRT “demonstrated an apprehension of bias”. The particular in support is that the RRT wrongly formed the view that the applicant made up her claims, and that she did not provide evidence to substantiate her claims.

25. A fair reading of the RRT’s decision record suggests that the RRT gave thorough consideration to the applicant’s claims and to the applicant’s oral and documentary evidence presented in support of those claims. To the extent that the applicant’s complaints to this Court amount to a disagreement of the RRT’s findings and conclusions, such complaints invite merits review which this Court cannot undertake(see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

26. A claim of bias is serious and requires evidence, such as a transcript of the RRT hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the RRT makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).

27. A fair reading of the RRT’s decision does not disclose any prejudgment on the part of the RRT in the sense that the RRT was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).

28. A fair reading of the RRT’s decision does not appear to suggest that the RRT approached its task other than with a mind open to persuasion. There does not appear to be any evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the RRT, might reasonably apprehend that the RRT may not have brought an impartial mind in determining the application for review (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).

29. It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

30. The RRT’s affirmation of the decision under review included a comprehensive rejection of the applicant’s claims to have had any actual or imputed involvement with any faction of the Maoists at any time, and rejected her claims of past harm for the reasons claimed. Those findings would appear to be open to the RRT on the evidence and material before it, and for the reasons it gave.

31. To the extent that the RRT referred to country information, is well settled that the country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

32. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12 of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court commenced by way of application on 10 December 2014, should be dismissed with costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:              1 June 2015