SZVYL v Minister for Immigration

[2016] FCCA 3207

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVYL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3207

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal exercised its discretion unreasonably.

Legislation:

Migration Act 1958 (Cth), s.422B

Cases cited:

Minister for Immigration and Border Protection v Pandey (2014) 143 ALD

640; [2014] FCA 640

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013]

HCA 18

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28

Singh v Minister for Immigration and Border Protection (2014) 231 FCR 437;

[2014] FCAFC 1

Applicant: SZVYL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 13 of 2015

Judgment of: Judge Barnes

Hearing date: 30 November 2016

Delivered at: Sydney

Delivered on: 30 November 2016

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.

2. The application be dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 13 of 2015

SZVYL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal, dated 8 December 2014.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.

2. The Applicant, a citizen of Nepal, arrived in Australia in August 2010, travelling on a fraudulent Nepalese passport.  On 18 July 2013 he applied for a protection visa.  The application was refused and he sought review by the Tribunal. 

3. On 24 October 2014 the Tribunal invited the Applicant to attend a Tribunal hearing on 28 November 2014.  The Applicant provided a statutory declaration to the Tribunal dated 21 November 2014, which addressed his claimed fear of harm in Nepal.  He referred to his earlier claims (in a statement provided to the Department) that he feared harm on the basis of political opinions of supporting the Rastriya Prajatantra Party – Nepal (RPP-N) in Nepal.  He also claimed that he feared he would be particularly targeted if he took steps to seek justice in relation to the murder of his brother by Maoists. He claimed that if he returned to Nepal he would pressure the authorities to apprehend the murderers.  The Applicant claimed that he could not relocate to India. 

4. The Applicant attended a Tribunal hearing on 28 November 2014 with his representative.  The only evidence before the Court as to what occurred in that hearing is the Tribunal’s account in its reasons for decision.

5. In its decision of 8 December 2014 the Tribunal summarised the Applicant’s claims and those the Tribunal saw as arising on the evidence as being claims that he feared being tortured and murdered by Maoists, including members of the Young Communist League and criminal groups linked to the Maoists for a number of reasons, including his wealth/perceived wealth; his political opinion in support of the Nepalese monarchy and the RPP-N political party and in opposition to the Maoists; and his pursuit for justice for the death of his brother at the hands of the Maoists.

6. It recorded that the Applicant also claimed to fear that because he travelled to Australia on a fake passport he would be detained at the airport on return to Nepal and subjected to a jail term.

7. The Tribunal observed that while the Applicant had made reference to having experienced discrimination by “conservative people”, as he described them, in Nepal in connection with his Burmese ethnicity he did not claim that his Burmese ethnicity contributed in any way to his fears or prospects of serious or significant harm in the reasonably foreseeable future.  The Tribunal also found that no such claim arose on the evidence before it. 

8. The Applicant claimed that the authorities in Nepal would not protect him as they were corrupt and accepted bribes, that the Maoists were in power at the time he made his claims and that as he was an anti-Maoist, they would not protect him.

9. The Tribunal stated that the significant issue for it was the credibility of the Applicant’s claims about experiencing past harm in Nepal.  It set out, in considerable detail, what it regarded as significant cumulative concerns which it found cast doubt on the overall truth of the Applicant’s claims that he had any profile in Nepal which singularly or cumulatively gave rise to a real chance of serious harm or real risk of significant harm in the reasonably foreseeable future within the provisions of the Migration Act 1958 (Cth).

10. The Tribunal expressed concern about the Applicant’s claim that he prepared his initial typed statement with no assistance, given the good English in which it was expressed and the fact that the Applicant did not know what a departmental file number was or whether he had one, notwithstanding that his statement commenced with a reference to such a file number.  The Tribunal expressed concern that the Applicant had not been forthcoming or entirely honest regarding the level and/or nature of any assistance he received in preparing his written material.

11. The Tribunal had regard to inconsistencies in the Applicant’s evidence and his inability to recall significant dates in his life, including the date he claimed he moved to Kathmandu, the dates (or even the years) of the birth of his children, his wife’s date of birth, and his daughter’s age.  The Tribunal recorded that it had expressed concern to the Applicant that this did not seem consistent with his evidence that he recalled the exact date of his move to Kathmandu because he recalled significant events in his life.  It found that the Applicant did not address this concern.

12. The Tribunal found the Applicant’s evidence that his wife and children continued to live without problem at his parents’ family home after he left Nepal until around September 2013 cast some doubt on his claims that his family’s wealth and known political persuasions contributed to his claimed risk profile.

13. The Tribunal also found that, contrary to the Applicant’s written claims that he was a business owner (in particular of a named guesthouse) and that he had two houses and property, his oral evidence at the hearing revealed he was not and had not been a business owner or property owner in Nepal.  His oral evidence was that all the family properties and the business were in fact his father’s (although he claimed his father had given him some land without documentation).

14. The Tribunal was of the view that these discrepancies and changes in the Applicant’s evidence raised concerns regarding the overall reliability of his claims and evidence and cast doubt on the truth of his claims that he was ever targeted for money by Maoists or anyone else, or that he would be in the reasonably foreseeable future.

15. The Tribunal found that the Applicant’s evidence (which it detailed) was vague, evasive and unconvincing about the use to which the family farming land and particular property was being put.  The Tribunal found that his changing and unconvincing evidence cast doubt on the truth of his claims that this property was ever occupied by Maoists.

16. The Tribunal had regard to inconsistencies and changes in the Applicant’s evidence in relation to whether he operated a guesthouse and events that had occurred since his departure from Nepal.  While it accepted that the Applicant worked in a guesthouse from time to time, the Tribunal found it was and remained his father who was the actual and perceived owner and operator of the guesthouse.

17. It also found that the Applicant’s evidence about whether his father had had any problems in Nepal was vague and unconvincing.  The Tribunal raised concerns with the Applicant as to why his father was not targeted more by the Maoists, as a known successful businessman and the owner of multiple properties.  The Tribunal found that the demonstrated willingness and ability of the Applicant’s parents, wife and children to reside in homes and conduct businesses which the Applicant claimed were known to Maoists and to people who wished to harm him for reason of his family wealth, politics and business connections compounded its concerns regarding the truth of the Applicant’s overall claims and evidence.

18. For reasons which it gave, having regard to the Applicant’s evidence, the Tribunal was not satisfied that he or his father had tried to sell any of the father’s properties in Nepal as claimed in the hope of avoiding further threats from the Maoists or that family members had made any attempt to relocate away from Maoist activities.

19. Relevant to the ground relied on in the application to this Court the Tribunal continued at paragraph 24:

    The Tribunal also discussed the applicant’s written references to having lodged multiple complaints to the Nepalese authorities and police in respect of his past adverse experiences and asked whether he has any documentation evidencing these complaints.  He responded that: he does not have any such documents in Australia; they are in Nepal; and he can get them sent here if needed.  He said he hasn’t submitted them to date as he did not realize they would be necessary or useful.  While his representative asked for additional time to provide such documents the Tribunal declined that request noting that the applicant has had adequate time to provide any documentation in support of the claims made, which question 49 of Part C of the Protection visa application form prompts him to provide.  Further, the Tribunal explained that, in coming to Australia using a false passport and identity the applicant has demonstrated an ability and willingness to use fake documentation to achieve a migration outcome which also suggests he may be able to access other fake documents.  This would cast doubt on the veracity of any documentation he submits.  While the Tribunal acknowledged that it would consider any documentation submitted if it is received before the Tribunal decision is finalized, it would not delay finalization of the matter in anticipation of such documentation.  No further documentation has, however, been provided, and the Tribunal is not satisfied that the applicant does in fact have reliable documentation evidencing his complaints to the Nepalese authorities in respect of claimed past incidents.  The Tribunal considers the applicant’s evidence of having lodged complaints to the Nepalese authorities, in the context of the cumulative considerations and concerns detailed in the balance of the Tribunal’s decision, to be unconvincing.

20. The Tribunal went on to consider the specific incidents of past harm claimed by the Applicant, including his claim that the family was repeatedly asked for and paid donations to the Maoists; that his brother was abducted by Maoists in January 2003, but escaped around a month later; that the Applicant was abducted in around March 2003 but escaped; that his brother was killed by Maoists in mid-2005; and that the Applicant was threatened by Maoists with dismemberment and death if he did not pay an extortion sum demanded in July 2010.

21. The Tribunal accepted that the Applicant’s parents were asked for donations by Maoists in Nepal, but had regard to the Applicant’s own evidence about the extent to which this occurred and the family’s ongoing involvement in property and a guesthouse in Nepal and the fact that they had not been harmed in any way, other than by bothersome requests for payment of small donations.  It was not satisfied that such requests for donations amounted to serious or significant harm; that the family members had been asked for any such donations since 2010; or that the previous requests gave rise to a real chance of serious or significant harm for the Applicant in the reasonably foreseeable future.

22. Based on its finding that the Applicant was not and was not perceived to be a business owner in Nepal, the Tribunal did not accept that he was ever asked to pay protection fees to run his claimed business or that any extortion attempt took place in the manner that he claimed.  The Tribunal found that this cast doubt on his claims to fear that he would be a specific target for extortion or other future harm on that basis. 

23. The Tribunal explained at some length why it considered that the absence of any demonstrated interest in the Applicant after 2003 and before 2008 and then 2010, cast doubt on his claims that he and his family were of adverse interest to the Maoists and also on the truth of his claims of abduction, extortion or that his brother was killed.  The Tribunal had regard to the Applicant’s inconsistent evidence as to the date of the claimed death of his brother (whether that was in 2002 as he told the Tribunal initially or 2005 as he had said in his written statement).  It continued at paragraph 31:

    When asked if there is a death certificate evidencing his brother’s death he said that there is and he can get it sent to him from Nepal.  However, for the reasons given above in respect of the applicant’s request for additional time to provide documentation from Nepal, the Tribunal did not allow additional time for such documentation to be provided. 

24. The Tribunal found that the credibility concerns about the Applicant’s claims that he was targeted for political reasons were compounded by the fact that while his written claim was that because of these factors Maoists had captured his house, the Tribunal was not satisfied that the house was or was perceived to be the Applicant’s house.  The Tribunal was not satisfied the Applicant’s father’s property was captured or occupied by the Maoists in 2008 or at any other time as the Applicant had claimed or that the Applicant was directly targeted, threatened or harmed by Maoists, the YCL or anyone else in or around 2007 to 2008 in connection with his claimed use or ownership of the guesthouse.  Given that the Applicant’s oral evidence was that he never was a business owner, the Tribunal was not satisfied that he was asked to pay donations or protection fees to run a claimed business in Nepal and, based on all the evidence and its cumulative concerns, the Tribunal was not satisfied that the claimed 2010 extortion attempt took place. 

25. Nor was the Tribunal satisfied on the evidence before it of the truth of the claims that the Applicant or his brother was ever abducted, that his brother was killed by Maoists or that the Applicant was extorted, threatened or personally harmed by Maoists at any time in Nepal. 

26. The Tribunal considered the Applicant’s claim that he would face harm from Maoists, the YCL and/or criminal affiliates in the future because he wanted to pressure the authorities to punish his brother’s murderers.  It referred to its lack of satisfaction that the Applicant’s brother was killed in Nepal as claimed.  This was supported by further concerns about the lack of action taken by the Applicant’s family.  The Tribunal considered the Applicant’s claim that his father had been to the police, made a complaint, but that the police did not do much about it.  However it found that the evidence was that the family had not pursued the matter and while the Applicant had repeatedly made claims about how much wealth the family had, they had not used that wealth to seek legal advice about how best to pursue the matter.  Further, the Applicant had not made any inquiries in Australia, but had simply told his father to “keep searching and finding out if the police “worked” and if any arrest has been made”, although he claimed that his father had not done much as the Maoists were still acting in the same way as previously.  The Tribunal considered that the totality of the Applicant’s evidence regarding his brother’s claimed death was unconvincing.  On the evidence it was not satisfied his brother was killed as claimed or that he or his family had any interest or desire to pursue anyone in respect of such claimed incident. 

27. The Tribunal addressed the Applicant’s claims of involvement with the RPP and RPP-N and claimed fears because of his political opinion.  It had regard to inconsistencies in his evidence as to the extent of his parents’ interest in politics, his very general evidence about the distinction between the RPP and the RPP-N and his oral evidence that he did not do much in terms of involvement in RPP-N activities (which was in contrast to his written statement about being “on the front-line, supporting and promoting the RPP”).  It accepted that the Applicant was and remained a supporter of the RPP-N, but was not satisfied that he was or is a formal member.  It considered his involvement to be infrequent and of a nature which did not and would not in the reasonably foreseeable future give him any profile as an active supporter or member of the RPP-N or an active opponent of the Maoists.

28. Based on the evidence before it, including the Applicant’s concession that he had not done “anything” or “much” in Australia by way of expressing his political opinions, it was not satisfied he had any intention or desire to express any political opinion or to participate in any political activities now or in the reasonably foreseeable future, either in support of the monarchy, the RPP-N or in opposition to the Maoists.  It was not satisfied this was because of any fear of harm, but rather that it was because the Applicant did not have any particular interest in expressing any particular political opinions. 

29. The Tribunal had regard to country information in relation to the recent situation in Nepal which it found did not suggest that low-level supporters of the RPP-N or the monarchy or opponents of the Maoists faced a real chance of serious or significant harm.  On all the evidence before it, the Tribunal was not satisfied that the Applicant had or would have in the reasonably foreseeable future an adverse profile in Nepal with the Maoists, YCL or their affiliates such as to give rise to a real chance or real risk of serious or significant harm.

30. The Tribunal also considered the Applicant’s claimed fear of punishment in Nepal for leaving the country on a fake passport.  It accepted that he did so.  It set out the prevailing law in respect of the use of fake passports in Nepal.  The Tribunal recorded that it put to the Applicant that the penalty appeared to be either a fine of up to 50,000 rupees or five years jail, that it could not locate any report suggesting that a person in breach of such laws faced a real chance of serious or significant harm and that, on his own evidence, his family had significant wealth and would appear to be able to pay a fine of up to 50,000 rupees.  It also put to him that if he did face jail for the offence, it was not satisfied on the evidence that this would be imposed on him for any reason other than his violation of the Nepalese laws regarding the use of a fake passport. 

31. The Tribunal concluded that it was not satisfied that this law would be imposed or administered in respect of the Applicant in any way which had a Convention reason as the essential or significant reason or that, without more, the imposition of such fine or period of imprisonment for the offence in question gave rise to serious or significant harm within the Act. 

32. It was not satisfied that the Applicant faced a real chance of serious harm or real risk of significant harm in Nepal for any of the reasons claimed singularly or cumulatively and affirmed the decision.

33. The Applicant sought review by application filed in this Court on 5 January 2015.  There is one ground in the application.  It is that: “The Tribunal acted unreasonably in the manner in which it conducted the review”.  The particulars to this ground are that: “The Applicant at the hearing requested further time to obtain documentary evidence of his complaints to the police and the death of his brother.  The Tribunal refused without reasonable justification to allow more time.” 

1. The Applicant did not file a transcript of the Tribunal hearing or written submissions.  He was given the opportunity today to make oral submissions, to which I will return.

2. Dealing first with this ground as pleaded, it is clear that it is a contention that the Tribunal exercised its discretion unreasonably.  The Tribunal has (and this was not disputed by the Minister) a discretionary power to adjourn a hearing or a review, but such discretion must be exercised reasonably, as considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (and also see the discussion of the applicable principles in Singh v Minister for Immigration and Border Protection (2014) 231 FCR 437; [2014] FCAFC 1 and the summary in Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640; [2014] FCA 640 at [41]).

3. The Tribunal gave reasons for its decision not to allow the Applicant’s representative to provide further time to provide documentation about complaints to the authorities and police and a death certificate for his brother.  Hence it is for the Court to consider whether there is an evident and intelligible justification within the decision-making process evident in such reasons (see Li at [105] and Singh at [44]-[47]). Regard can also be had to the outcome of the decision and whether it falls within a range of possible acceptable outcomes, defensible in respect of fact and law (see Li at [45] and Singh at [44]-[45]).

4. It was suggested in Li at [67] and Singh at [48] that the legal standard of “unreasonableness” and the indicia of “unreasonableness” are to be found in the scope, subject and purpose of the particular statutory provisions in issue in a particular case.  In the case of a discretionary power exercised by the Tribunal (as in this case), the place of such power in the statutory scheme as an aid to the performance of the Tribunal’s review function is a relevant and important consideration (see Singh at [45]).

5. The Tribunal has power to adjourn a review under s.427(1)(b) (the equivalent of s.363(1)(b) of the Migration Act considered in Li).  More generally, its obligation to review a decision may require it when acting reasonably to consider to exercise its discretion to adjourn in a particular case, although (as pointed out in Li at [82]), the Tribunal is not under an obligation to afford every opportunity to a review applicant to present his best possible case or to improve upon the evidence.

6. I have borne in mind that a consideration of whether the Tribunal’s exercise of its discretion met the standard of legal reasonableness does not involve substitution of the Court’s view as to how a discretion should be exercised for that of the decision-maker.  The test of legal unreasonableness is stringent (see Li at [113]).

7. The Tribunal’s reasons indicate that in circumstances where the Applicant had not submitted any documentation, despite having made written reference to having lodged multiple complaints with the authorities and police in respect of his past adverse experiences, at the hearing the Tribunal asked him whether he had any such documentation.  His response was that he did, but that the documents were in Nepal and he could get them sent here if needed.  He claimed he had not submitted them as he did not realise they would be necessary or useful.  His representative asked for additional time.  The Tribunal declined that request. 

8. It is apparent from its reasons for decision that the Tribunal gave independent and active consideration to the representative’s request.  However it found first that the Applicant had had adequate time to provide any documentation in support of the claims he made.  It also had regard to the fact that question 49 in Part C of the protection visa application form that the Applicant had completed prompted him to provide such documentation.  In making this statement, the Tribunal clearly bore in mind the fact that the Applicant made his protection visa application on 18 July 2013 and it was considering the request for additional time at the time of the hearing on 28 November 2014. 

9. Question 49 asked protection visa applicants:

   Do you have any documentary evidence to support your claim for protection, including but not limited to membership cards, court documents, photographs, press articles?

10. There is a box for “no” and a box for “yes”.  The box for “yes” is also marked:

    Give details of documents to be provided.  If already provided, give date provided.

11. I note that, contrary to his evidence to the Tribunal about having documents in Nepal, the Applicant ticked “no” in response to that question. 

12. The Tribunal did not base the exercise of its discretion solely on these factors.  It also had regard to the fact that in coming to Australia using a false passport and identity, the Applicant had demonstrated an ability and willingness to use fake documentation to achieve a migration outcome.  The Tribunal was of the view that this suggested that the Applicant may also be able to access other fake documents and that this would cast doubt on the veracity of any documentation he submitted.  

13. Further, while the Tribunal refused to delay finalisation, it indicated that it would consider any documentation submitted and received before it made its decision.  It did so in circumstances where the Applicant had claimed he had the documents in Nepal. 

14. The Tribunal gave the same reasons for refusing an adjournment for provision of a death certificate in relation to the Applicant’s brother (which the Applicant also said was in Nepal and could be sent to him). 

15. No further documents were provided to the Tribunal in the period between the hearing on 28 November 2014 and the decision of 8 December 2014. 

16. The Tribunal’s reasoning was consistent with the scope, subject and purpose of the provisions governing the Tribunal’s review, including its power to adjourn the review and the requirements that it act according to substantial justice and the merits of the case and carry out its functions in a fair, just, economical, informal and quick manner (see s.422B of the Act and compare the different circumstances considered in Li and Singh).  The Tribunal’s decision to refuse the adjournment was open to it.  It did not lack an evident and intelligible justification (see Li at [76]). It has not been established that the Tribunal’s exercise of power was unreasonable in a legal sense. The ground in the application is not made out.

17. In oral submissions the Applicant also submitted that his matter had not been “seen properly” by the Tribunal, that the Tribunal did not listen to him and that it did not do the hearing properly.  Insofar as the Applicant makes a complaint about the Tribunal hearing, there is no transcript in evidence or evidentiary basis for such a complaint.  On the contrary, the Tribunal reasons for decision suggest that the Tribunal raised dispositive issues with the Applicant insofar as necessary to do so.  If the Applicant’s concerns amount to a disagreement with the Tribunal’s conclusions (which he agreed that he felt), he seeks impermissible merits review. 

18. In very general terms such allegation may be seen as raising a complaint of actual bias.  Such an allegation must be distinctly made and clearly proved (as discussed in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17). The material before the Court is not such as to establish the state of mind consisting of prejudgment in the sense of a Tribunal so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented (see Jia Legeng at [72]).

19. For completeness, I note that there is nothing in the material before the Court to establish apprehended bias in the sense considered in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 seen from the appropriate objective perspective.

20. The Applicant said that he was not able to provide the document he was asked for and because of this the Tribunal rejected his case, that misunderstands the basis for the Tribunal decision.  The Tribunal did not make its adverse credibility finding or its adverse decision solely on the basis of the absence of documentary evidence supporting the Applicant’s contentions.  The Tribunal considered that the Applicant’s evidence that he lodged complaints to the authorities was unconvincing in the context of its cumulative considerations.  For reasons which it gave, which related to inconsistencies and other concerns about aspects of the evidence, it did not accept his claim that his brother was murdered by the Maoists in the manner in which he claimed.

21. The Applicant’s oral submissions do not establish jurisdictional error.  As no jurisdictional error has been established on any of the bases contended for by the Applicant, the application must be dismissed.

22. The Applicant has been unsuccessful. The Minister seeks costs in the sum of $5,800. That is considerably less than the amount provided for in the Federal Circuit Court Rules as an indicative amount. It is appropriate that the Applicant, having been unsuccessful, should pay the costs of the First Respondent. The Applicant told the Court from the bar table that he was not able to work properly and wanted to know if it was possible to reduce the amount of costs. However, the amount of costs is appropriate and reasonable having regard to the nature of this and other similar matters. The Applicant’s lack of funds is not a reason for reducing the amount of costs, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 13 December 2016