SZVYK v Minister for Immigration & Border Protection
[2015] FCCA 764
•20 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVYK v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2015] FCCA 764 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – whether application has raised an arguable case for the relief claimed – whether the Refugee Review Tribunal was biased – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13 |
| Cases cited: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 |
| Applicant: | SZVYK |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 10 of 2015 |
| Judgment of: | Judge Emmett |
| Hearing date: | 20 March 2015 |
| Date of Last Submission: | 20 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 20 March 2015 |
REPRESENTATION
The applicant appeared in person with the assistance of a Nepali interpreter
| Solicitor for the Respondents: | Mr Matthew Alderton (Mills Oakley) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 10 of 2015
| SZVYK |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 5 January 2015, the applicant filed an application seeking judicial review of a decision of the Refugee Review Tribunal (“the RRT”), dated 11 December 2014 and handed down on 12 December 2014.
On 26 February 2015, the applicant attended a directions hearing before a Registrar of this Court.
At the directions hearing, the applicant confirmed that he wished to continue with the application for judicial review of the RRT’s decision.
The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, by 16 March 2015. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 16 March 2015.
The matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), a copy of which was given to the applicant.
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.”
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.”
In accordance with the directions, the applicant filed a document headed Applicant’s Amended Application on 16 March 2015, but no other documents.
I accept as accurate the first respondent’s summary of the background of the applicant’s claims and the RRT’s decision, contained within written submissions filed 12 March 2015, as follows:
“The applicant is a citizen of Nepal who applied for a Protection (Class XA) visa on 26 July 2013: CB 1-26. The applicant feared harm from Maoists and criminal groups in Nepal and claimed he had experienced threats, harassment and extortion in connection with his political opinion in support of the monarchy and the Rastriya Prajantra Party (RPP). His written claims were outlined in a statement filed with his visa application: CB 27-30.
On 31 December 2013, the applicant was invited to attend an interview with a delegate of the first respondent (CB 37-39), which he attended on 20 January 2014: CB 45.2. On 31 January 2014, the delegate refused to grant the applicant a Protection visa: CB 44-54. The delegate found that the applicant had not taken all possible steps to avail himself of a right to enter and reside in India and was not owed protection obligations in accordance with ss 36(3), 36(4), 36(5) and 36(5A) of the Act: CB 53.
On 11 March 2014, the applicant lodged an application for review of the delegate’s decision (CB 55-60) but did not appoint an authorised recipient to assist him before the Tribunal: CB 57.3. On 28 October 2014, he was validly invited to attend a hearing before the Tribunal (CB 63-64), which he attended on 2 December 2014: CB 68-70. He provided copies of pages from his passport at the hearing (CB 71-87) but provided no further supporting documentation to the Tribunal: CB 92, par 8.
On 11 December 2014, the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection (Class XA) visa: CB 90-108. The Tribunal comprehensively considered all of the applicant’s claims to fear harm in Nepal (CB 92-100, pars 9-39) but did not accept that his evidence regarding significant matters was “reliable or truthful” and it rejected his claims to fear harm: CB 98, par 32.
The Tribunal identified several concerns with aspects of the applicant’s claimed circumstances: CB 92, par 10. For example, in relation to his sister’s disappearance, the applicant gave evidence that after she disappeared, he and his mother reported her disappearance to the police, Kathmandu Municipality and to a human rights organisation. However, his evidence was that he did not follow up with these organisations and he suspected that his sister may have been overseas. The Tribunal found it doubtful that if the applicant’s sister disappeared in the circumstances claimed, he and his mother would have done more to follow up: CB 93, par 16. The Tribunal also found the applicant’s evidence that his family business was taken over by Maoists to be “vague and unconvincing”. For example, he had claimed to have worked in the family business for almost 20 years, but he did not know whether the business was registered in his father’s or sister’s name: CB 94, par 17. Further, the applicant’s failure to “demonstrate any particular efforts or enquiries on his part in respect of the property” cast doubt on the truth of the claim that the premises were ever occupied as claimed: CB 94, par 17.
In relation to his claimed involvement with the RPP, the Tribunal found that the applicant was unaware of significant recent events affecting the party. The applicant was also unable to recall in oral evidence the timeframes for events of past harm that had been specified in his written statement: CB 95, par 19. The Tribunal was not satisfied that the applicant is, was or intended to be in the reasonably foreseeable future, a member of the RPP or any political party or movement in Nepal: CB 96, par 22. It rejected his claims of past harm and was not satisfied that the applicant or his family had been targeted for extortion or harmed by Maoists as claimed: CB 97, pars 23-32.
On the basis of information from DFAT and other independent reports about threats and abductions in Nepal (CB 99, pars 36-38), the Tribunal was not satisfied that the applicant faced a real chance of being extorted or harmed in any way in Nepal in the reasonably foreseeable future by Maoists, criminals or anyone else for reason of his actual or perceived business interests or his actual or perceived political involvement or for any other reason: CB 100, par 39.
In light of its “significant cumulative concerns” the Tribunal found that the applicant did not face a real chance of serious or significant harm: CB 100, par 40. The applicant was essentially unsuccessful before the Tribunal because of the adverse view that it formed about key aspects of his claims for protection and the lack of support for other claims in the independent country information. The Tribunal’s findings of fact were open to it on the available materials and for the reasons that it gave. It is a matter solely for the Tribunal to identify such material as it finds relevant to its reasoning and to give that material appropriate weight.[1] The Court cannot review the merits of the Tribunal’s decision.[2]”
[1] Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]
[2] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272
The applicant was unrepresented before the Court this morning, although had the assistance of an interpreter in the Nepali language.
The applicant’s amended application for judicial review, filed on 16 March 2015, states the grounds of review as follows:
“1. I am not satisfied with the purported decision of the Tribunal Member on the ground of denial of procedural fairness and natural justice. The Tribunal Member relied on wrong information or unreliable sources of information regarding the independent country information as to the RPP-N split in February 2014, extortion, the power and influence of the Maoists in Nepal. RPP-N did not split but there was a tension between RPP-N leader Kamal Thapa and central working committee member Tanka Dhakal in which the Member has 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 views but not by the fact and my evidence. The Tribunal Member made its mind not to accept my claims and simply ignored me for my safety.
3. It is totally unfair that the Tribunal Member ignored my reasons, explanations and problems and held severe doubt about the genuineness of my claims. The Tribunal Member failed to look at my entire evidence and consider them appropriately. I argue that credibility must not be an issue over my claims.
4. It is argued that the Tribunal Member has declined to treat my case with fairness and good faith. I am the victim of the Tribunal Member’s arbitrary view and impulsive decision.”
The grounds of the amended application were interpreted for the applicant and the applicant was invited to make submissions in support of the grounds.
The applicant informed the Court that he relied on both the grounds in his initiating application and the grounds in his amended application. The grounds of the initiating applications are as follows:
“1. I am not happy with the Refugee Review Tribunal Member’s purported decision as the Tribunal Member’s conduct at the hearing and from the terms of the reasons, the decision in my case was affected by apprehended bias.
2. The Tribunal Member relied too much heavily upon cross examination of myself to highlight seeming inconsistencies and then to discount my evidence on that basis and took an irrelevant consideration into account to cast a shadow on my credibility.
3. The Tribunal’s decision failed to give me procedural fairness as apprehended bias was established. I believe the Tribunal Member failed to give me natural justice.”
The grounds, largely, make the complaint that the RRT was biased. I asked the applicant in what way the RRT was biased against him. The applicant said that he was told to answer questions, keep his answers to the point and short, and that he was told many times that the RRT did not understand what he said, although the applicant stated that he did not know if that problem was with the interpreter or with himself.
The applicant also complained that he was not provided with a copy of a recording of the RRT hearing, and made an application for an adjournment of today’s hearing on that basis. That application was opposed by the first respondent and was refused, having regard to the time and opportunity that the applicant has had to obtain a recording.
I asked the applicant if he wished to give evidence about the matters that concerned him and he replied that they were contained in the recording.
In circumstances where the applicant has had an opportunity to file evidence, including a transcript of the RRT hearing or a recording of the hearing and has failed to do so, I accept as accurate the RRT’s decision record insofar as it summarises various exchanges that it had with the applicant.
The RRT’s decision record does not suggest that there was any difficulty on the part of the RRT in understanding the applicant or that the applicant made any complaint about his inability to understand the RRT member.
The RRT refers to exchanges with the applicant which do not support the applicant’s complaint this morning that he was asked to answer questions to the point and nothing else. The RRT asked open-ended questions suggesting an opportunity for the applicant to go beyond a short answer.
A claim of bias is serious and requires evidence, such as a transcript of the RRT hearing. 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]).
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]).
The complaints made by the applicant this morning are unsupported by evidence, and there is no suggestion of the nature of problems to which the applicant alluded this morning in the RRT’s written reasons.
Moreover, 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 per 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).
The applicant’s grounds also complain that the RRT made incorrect findings of fact in relation to matters relating to his political party.
It 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).
A fair reading of the RRT’s decision record makes clear that it gave consideration to the applicant’s claims and to the applicant’s oral and documentary evidence presented in support of those claims.
There is nothing on the face of the RRT’s decision record to suggest that its adverse findings were not open to it on the evidence and material before it and for the reasons it gave. Credibility findings are a matter par excellence for the RRT (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).
The applicant’s submissions in support of his grounds of review, both written and oral, remain unparticularised and appear to be more in the nature of a disagreement with the findings and conclusions of the RRT. Such complaints invite merits review which this Court cannot undertake (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).
Whilst I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the RRT that is capable of establishing jurisdictional error, and none is apparent on the face of the decision record. The RRT referred to the relevant law in affirming the decision under review.
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(1) 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 5 January 2015, should be dismissed with costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 2 April 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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Standing
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