SZVYJ v Minister for Immigration
[2017] FCCA 1087
•29 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVYJ v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1087 |
| Catchwords: MIGRATION – Application for review of former Refugee Review Tribunal decision – show cause hearing – no arguable case raised by the application – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 425, 476 Federal Circuit Court Rules 2001 (Cth), rr.1.06, 44.12, 44.13 |
| Cases cited: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZVYJ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 9 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 29 March 2017 |
| Date of Last Submission: | 29 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2017 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Ms S He of Mills Oakley Lawyers |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 5 January 2015 and amended on 26 March 2015 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $3606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 9 of 2015
| SZVYJ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 5 January 2015, and amended on 26 March 2015, seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 3 December 2014, which affirmed the decision of the Minister’s delegate to refuse a protection (Class XA) visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
Background
The applicant is a citizen of Nepal who arrived in Australia on 29 June 2013 as the holder of a business visitor visa. He applied for a protection visa on 26 July 2013 (CB 1 to CB 33). The delegate refused the application on 27 February 2014 (CB 55 to CB 68). The applicant applied to the Tribunal for review on 21 March 2014 (CB 69 to CB 74). The applicant attended a hearing before the Tribunal on 26 November 2014 (CB 83 to CB 85).
The applicant’s claims to protection were that he feared harm from Maoists and others whom he described as “criminals” in Nepal. The reasons for this were said to be his past involvement with the Royal Nepalese Army, his support for the monarchy, his membership and support of a particular Nepalese political party, the Rastriya Prajatantra Party - Nepal (RPP – N), and his encouragement of his brother to join the Royal Nepalese Army which angered his pro-Maoist relatives.
The applicant claimed to have been involved in a number of incidents, including that he had informed on the Maoists and was targeted by them as a soldier who had fought against them in the war.
He also claimed that in December 2012 he was held captive by the Maoists and was accused of spying and taking money from the palace authorities. He said he was threatened with death if he did not pay. He claimed to have been freed after he made a part payment, with a promise to repay the remainder within three months. He claimed that he reported that incident but the police did not help him.
The Tribunal accepted that the applicant had been involved with the Royal Nepalese Army between 1987 and 2005. However, it had “significant doubts” about the truth of his claim that he was known to Maoists or anyone else as an informer for the Royal Nepalese Army ([15] at CB 95 to [19] at CB 96).
The Tribunal also accepted that he had convinced his brother to join the Royal Nepalese Army as a supporter of the King and the monarchy. However, the Tribunal found that the applicant’s evidence that neither his brother nor other family members had suffered any harm from Maoists, to undermine his claims to protection. This was particularly so in circumstances where he had claimed his family participated in the army, rejected the Maoists and that their support for the monarchy was well known ([14] at CB 95).
In relation to claimed incidents of past harm, the Tribunal found his evidence that he had avoided threats by hiding in various locations, was inconsistent with his work history which indicated he had worked at the same place between 2010 and 2013 ([22] at CB 96 to CB 97).
The Tribunal also found these claims were undermined by his evidence that he had lived at the same location for six years, and his wife had worked at the same place for 12 to 13 years without suffering harm, despite the applicant’s claim that she was also of adverse interest to the Maoists.
The applicant claimed that he had been threatened with harm by the Maoists and was consequentially fearful for his life since 2001. The Tribunal found that in this context, he had failed to provide “any convincing explanation” as to why he did not renew his “lost” 2008 passport until 2013 ([24] at CB 97).
The Tribunal also found that the applicant’s evidence about the Maoists’ threats was “confused, vague, changing and unconvincing” ([25] at CB 98).
The applicant had claimed to have been detained in December 2012. He gave evidence that he had documents at home in Nepal to support this claim but did not produce them to the Tribunal ([26] at CB 98).
The Tribunal found that the applicant, in all the circumstances, was not known to the Maoists, nor had he been targeted, threatened or harmed in the past ([36] at CB 101).
The Tribunal also did not accept, having regard to the applicant’s evidence and available country information, that he had a profile with the RPP – N, of which he claimed membership, such that he would be of adverse interest to the Maoists ([28] at CB 98 to [31] at CB 99).
The Application Before the Court
The grounds of the amended application are in the following terms:
“1. I am not satisfied with the purported decision of the Tribunal Member because it relied on wrong information regarding the independent country information as to Maoists’ activities, extortion, the power and influence of the Maoists in Nepal in which the Member applied her arbitrary view and wrong information on this issue rather than the facts.
2. It is argued that the Tribunal Member is troubled by its own arbitrary views but not by the fact and my evidence. The Tribunal Member made its mind not to accept my claims and simply ignored the fact that I am a victim of the Maoists. I believe that as a result, the procedure had not been satisfactory.
3. I argue that the Tribunal’s decision in relation to my case was taken in breach of the rules of natural justice.
4. I argue that the Tribunal’s decision in my case was affected by apprehended bias. I am a victim of the Tribunal Member’s arbitrary view and impulsive decision.”
[Errors in original.]
On 4 November 2015, this matter was set down by a Registrar of the Court for a show cause hearing pursuant to Rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”).
The issue before the Court is whether the grounds of the application raise an arguable case for the relief sought. I note in this regard that the applicant seeks orders that the Tribunal’s decision be quashed and returned to it for reconsideration.
If the Court cannot be satisfied that an arguable case is raised against the Minister, the application will be dismissed. It is the case that the Court’s power should be exercised with great caution. Given the summary nature of any such dismissal the application should only be struck out where there is no real question to be tried, where the claims are clearly untenable and cannot succeed (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3] – [6] and Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; (2001) 201 CLR 552; (2001) 173 ALR 665; (2001) 74 ALJR 1219) or it is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).
The applicant appeared in person at the hearing before the Court. He was assisted by an interpreter in the Nepali language.
The applicant confirmed that he ultimately wished to proceed with the grounds of the amended application. However, it subsequently became clear that, as the applicant submitted, a “friend”, who was not a lawyer, had drafted the grounds of the amended application. It was apparent that the applicant either did not understand the grounds, or could not remember what explanation his friend had given to him about them.
The applicant’s oral submissions sought to raise matters not immediately recognisable as having been articulated in the grounds of the amended application.
First, the applicant said that he “did not accept the decision” of the Tribunal. As I sought to explain to the applicant, his non-acceptance of the Tribunal’s decision, as understandable as that may be, was not a basis upon which to assert legal error on the part of the Tribunal. The Tribunal does not have to make a decision that is “acceptable” to the applicant.
Second, the applicant also submitted that the decision was not made “according to the law”. The applicant’s complaint appeared to be that the Tribunal did not go into “detail” and he was not given the opportunity to properly explain his claims. When asked to explain further why he thought the decision was not made according to the law, the applicant submitted that the Tribunal “just asked the question and when I tried to explain it in detail, they said that everything is in the paper”, and that “[t]hey didn’t try to go in detail and I wasn’t able to explain to what (sic) actually the things had happened to me.”
In this light, the applicant appeared to be making a complaint about the conduct of the Tribunal hearing. I explained to the applicant that if, during the course of the Tribunal hearing, he was prevented from giving his evidence, or explanations, then in some circumstances this could lead to legal error on the part of the Tribunal.
However, I further explained to the applicant that he would have needed to provide the Court with evidence to support his claim that he was denied a fair hearing before the Tribunal. For example, a transcript of the Tribunal hearing. I noted that he was previously given the opportunity to file evidence in this regard, but that he had not done so. The only account of what occurred at the hearing, are the Tribunal’s references in its decision record. There is no indication in the decision record of any such difficulty (see also [8] at CB 93 to CB 94).
Ground one contains a number of elements. First, the applicant says he is not satisfied by the Tribunal’s decision. As set out above, the applicant’s lack of satisfaction is not, of itself, a basis on which to assert jurisdictional error. No arguable case for the relief sought is raised by this element of ground one.
Second, the ground asserts that the Tribunal relied on “wrong information”, being country information concerning the Maoists’ activities in Nepal. The applicant’s ground does not identify what specific country information was “wrong” or what was “wrong” about the country information relied on by the Tribunal (see further below).
Third, the applicant’s ground complains that the Tribunal applied an “arbitrary view” of this “wrong” country information, and proceeded on this view, rather than the facts.
In its decision record, the Tribunal set out, at appendix two, various country information about the situation of the Maoists in Nepal after the November 2013 elections, extortion in Nepal, the RPP – N to which the applicant claimed to belong, and attacks on monarchists in Nepal (see CB 106 to CB 110).
Although it was not, by any means, made clear by the applicant to the Court, it appears that the complaint is the choice of country information by the Tribunal, and the use to which it put the country information in the disposition of the review.
In the current case, on the evidence available to the Court, the Tribunal put various pieces of country information to the applicant during the hearing. I again note that, despite opportunity provided by the orders made by a Registrar of the Court, the applicant has not filed any transcript of the Tribunal hearing.
The first piece of information put to the applicant by the Tribunal, was that since he had made his application for the protection visa in July 2013, the “political landscape in Nepal ha[d] shifted significantly”. The Tribunal put to the applicant that the power of the Maoists had diminished, and that the Maoists had been “significantly more active, influential and powerful before the November 2013 elections” ([33] at CB 100).
The second piece of information put to the applicant was that low level supporters of the Royal Nepalese Army, the monarchy and the
RPP – N, or opponents of the Maoists, were not now targeted for harm by the Maoists ([34] at CB 100).
The Tribunal assessed the applicant’s claims as against the available country information, and found that he would not face a real chance of serious or significant harm from the Maoists. Given his circumstances and profile, the Tribunal’s findings and conclusion were reasonably open to it on what was before it.
The reference to the “facts” asserted in the ground can only be understood, in the circumstances, as being a reference to what the applicant claimed before the Tribunal. In this light, the complaint is that the Tribunal fell into error because it chose, and preferred, certain country information over his own claims.
The choice of, and weight to be accorded to country information is for the Tribunal to determine having regard to the circumstances presented (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 and SZUFQ v Minister for Immigration and Border Protection [2017] FCA 15). When seen in this light, I agree with the Minister that the ground is no more than an expression of dissatisfaction with the Tribunal’s analysis and factual conclusions. The ground seeks impermissible merits review and therefore does not raise an arguable case for the relief the applicant seeks.
Ground two appears to have two elements. One, that the Tribunal “ignored” the applicant’s claims that he was a victim of the Maoists. A failure to deal with a claim expressly made or clearly arising may indeed reveal jurisdictional error (WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1). The Tribunal is also required to consider substantial, clearly articulated arguments relying upon established facts (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389).
However, in the current case, the complaint cannot be made out on the evidence that is before the Court. The Tribunal expressly and comprehensively addressed the applicant’s claims as to past harm from the Maoists. In essence, the complaint is that the Tribunal did not accept the evidence of his claims in this regard.
In this light, the applicant, again, appears to take issue with the Tribunal’s findings of fact which were reasonably open to it on what was before it. Again this seeks impermissible merits review. No arguable case is raised by this complaint.
The second element in ground two with its reference to the Tribunal’s “arbitrary views” about the applicant’s evidence, and the reference to “made [up] its mind not to accept my claims”, is possibly an attempt to assert bias, or the apprehension of bias, on the part of the Tribunal member. A similar reference appears in ground one. Ground four also makes an assertion of apprehended bias.
Bias is of course a serious charge to make against an administrative decision-maker. For this reason it must be distinctly made and clearly proven (Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507). It is rare that bias can be made out with reference only to the decision record (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668, SBBF v Minister for Multicultural & Indigenous Affairs [2002] FCAFC 358 and Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51).
Further, in relation to the apprehension of bias, it is for the applicant to demonstrate that a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an open mind to the proceeding (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425, Minister for Immigration v SZQHH [2012] FCAFC 45; (2012) 200 FCR 200 and SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80).
The applicant has put no transcript of the Tribunal hearing, or any other evidence, before the Court to support these allegations. In essence, he is aggrieved by the Tribunal’s decision and merely argues that the Tribunal’s failure to accept that he would be harmed reveals a closed mind or the appearance of a closed mind.
As the Minister submits, an inference of bias or pre-judgement should not be drawn merely from the Tribunal’s adverse findings. No arguable case is raised by ground two.
Ground three asserts a breach of the rules of natural justice. No particulars have been provided. Before the Court, no explanation was given by the applicant for this ground. The applicant also does not make any complaint in the ground about the Tribunal hearing. However, as set out above, the applicant did make a general complaint that the Tribunal did not give him the opportunity to answer any detailed questions about his circumstances in Nepal.
The applicant was invited to a hearing pursuant to s.425 of the Act. On the evidence before the Court, there is nothing to indicate that the applicant was not given a meaningful opportunity to give his evidence and make his arguments. On the evidence that is available to the Court, and with reference to the Tribunal’s account of what occurred at the hearing, the issues dispositive of the review were raised by the Tribunal (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 and AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2016) 189 FCR 494). The applicant was put squarely on notice of the Tribunal’s concerns about his evidence. Nor is there any indication in the evidence before the Court, that the Tribunal breached any obligation pursuant to s.424A of the Act.
Rule 44.13 of the FCC Rules provides that, at a show cause hearing, an applicant is confined to the grounds of the application. I did consider whether there was any reason to dispense with compliance with r.44.13 pursuant to r.1.06 of the FCC Rules. No such reason was apparent in the circumstances of this case.
The grounds of the application as amended do not raise an arguable case for the relief that the applicant seeks. It is appropriate therefore that the application be dismissed. I will make the appropriate order.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 29 May 2017
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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