SZRRM v Minister for Immigration, Multicultural Affairs and Citizenship

JUDGE: KATZMANN J DATE: 13 august 2013 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is a Nepalese citizen who claims to fear persecution in Nepal because of his political opinions. In particular, he claims to have been a member of the RastriyaPrajatantra Party ("RPP"), a pro-monarchy party, and for that reason to have been harassed, intimidated, and assaulted by Maoists. He also claims that when he reported the assaults to the police they failed to investigate. He claims to have fled from his village with his family to Kathmandu and then by himself from Nepal, in fear for his life. He arrived in Australia in June 2010 on a false passport. Some three months later he applied for a protection visa. 2 The application was considered by the Minister's delegate. The delegate did not believe him and so refused to grant the visa. The appellant then applied to the Refugee Review Tribunal for a review of that decision. That application was supported bya number of documents, including two purportedly issued by the RPP on 11 November 2011, confirming that both he and his father had been active members of the RPP, in the appellant's case from 9 June 2008. But the tribunal affirmed the delegate's decision. 3 The appellant then filed an application in the Federal Circuit Court of Australia for an order that the Minister show cause as to why a writ of mandamus should not issue to require either the delegate or the tribunal to re-determine the appellant's application for review according to law. But the appellant failed to demonstrate that the tribunal had committed any jurisdictional error, without which the Court had no power to grant him any relief: s 474 Migration Act 1958 ("Act"); Plaintiff S157/2002 v The Commonwealth of Australia(2003) 211 CLR 476. This is an appeal from that decision. 4 The criteria for the grant of a protection visa are contained in the Act, principally ss 36 and 91R. Section s 36(2) provides: A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm. 5 The Refugees Convention (United Nations Convention relating to the Status of Refugees 1951) as amended by the Protocol (Protocol relating to the Status of Refugees 1967) (together "Convention") relevantly defines "refugee" in art 1A(2) as a person who, owing to a well-founded fear of being persecuted for reasons, inter alia, of political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. Section 91R limits the application of art 1A(2), amongst other things, to circumstances in which the persecution involves serious harm to the person. 6 The tribunal found that the appellant was not a credible witness and rejected all his claims. It said that it was not satisfied that if the appellant were to return to Nepal he would face a real risk of persecution for a Convention reason, or a risk of significant harm as defined by the complementary protection criterion (s 36(2)(aa)). It found a number of inconsistencies in his evidence. They related to the timing of certain important events (when he joined the RPP, the attacks, his flight to Kathmandu and his departure from Nepal); different accounts about the identity of his assailants (at one point the Maoists and later anti-monarchist followers (not Maoists)) and the place where his wife and children were living (telling the delegate Kathmandu and the tribunal that they had returned to their village some time ago). When the tribunal raised these inconsistencies with him, the appellant variously attributed his earlier statements to stress, nervousness, problems with translation from Nepali into English, difficulties with English, and confusion caused by the conversion of Nepali dates into the Gregorian calendar. But the tribunal was not satisfied with any of these explanations. Considered cumulatively, the tribunal said that the inconsistencies caused it to conclude that the appellant was not a witness of truth and that the account of events on which the appellant's protection claims were based was false. 7 The tribunal said that it had considered the purported RPP membership documents, but they did not overcome its concerns as to the appellant's credibility and, having regard to its credibility findings, it gave no weight to the documents. It noted that the appellant offered to have the person who brought the documents from Nepal to Australia appear at the hearing to confirm that he had done so. But the tribunal said that was unnecessary because it was not concerned with how the documents arrived here and the evidence would not overcome its concerns about the appellant's credibility. 8 The grounds of the appellant's application in the court below were that: 1. The tribunal proceeded on an erroneous factual conclusion, as it inferred that the appellant's claims about his involvement with the RPP and his support for the monarchy were not true, when they were; 2. The tribunal erred in failing to make findings on several material questions of fact which went to the substance of his claims as to whether the appellant faced persecution in Nepal; 3. The appellant was denied procedural fairness because he was not aware of the tribunal's concerns about his credibility and the authenticity of his documentary evidence; and 4. The appellant was not given an opportunity to respond to "the all-embracing credibility concerns" held by the tribunal. 9 Each of these grounds was rejected. In relation to grounds one and two, the primary judge found that the tribunal's findings were open to it on the evidence and that ground one invited impermissible merits review. In relation to grounds three and four his Honour found that the tribunal told the appellant that because of various inconsistencies in his evidence it may not find him to be a credible witness and therefore discharged its obligation to alert him to the issues determinative of the review. 10 At the hearing the appellant also apparently submitted that the tribunal reached the wrong conclusion about his supporting documents (finding that they were not genuine) because it was unaware that the person who brought them to Australia might have travelled under a name unknown to the Minister's department. He argued that the fact that the department could not identify this person in its movement records was not a basis to reject the authenticity of the documents. 11 His Honour dealt with this submission as a new ground of review (ground 5). In truth, it was probably a submission in support of the third ground. Even so, his Honour considered the appellant's position to be misconceived: First, the Tribunal did not make a finding that the documents were not genuine, rather it gave them no weight. Secondly, and in any event, the Tribunal did not find them persuasive because of its concerns with the applicant's credibility generally, not because of the way they were alleged to have come to Australia. 12 The appeal to this court is in the nature of a rehearing. To succeed the appellant must show that the primary judge fell into error. See, for example, SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11]. I am not satisfied that he did. 13 The grounds of appeal are as follows (without alteration): 1. I disagree with the judgement of Federal Magistrate because Federal Magistrate simply accepted the respondent's arguments and failed to find the legal error which was made by the Tribunal Member in its purported decision. 2. I contend that the Refugee Review Tribunal Member ignored my safety and failed to give me fairness. 3. I conclude that the Refugee Review Tribunal Member's decision is not fair and it was not based on well-balanced evidence in my case to the effect that my claims and evidence were not fairly considered whatsoever. 14 Grounds 2 and 3 raise no error on the part of the court below. The Minister fairly characterised them as particulars of the first ground. Necessarily, the reference to "legal error" should be read as "jurisdictional error". 15 The appellant filed no submissions in support of the appeal, despite an order of the Deputy District Registrar that he do so no later than 10 business days before the hearing unless otherwise directed. At the hearing I invited him to make oral submissions. 16 The appellant submitted that the court had simply accepted the tribunal's decision and did not give him the benefit of the doubt. He said that the tribunal should have investigated his story of how the party membership documents were brought to Australia. He explained that there was some confusion over the real name of the courier and that further investigations would have revealed that this person did in fact enter Australia. He submitted that the tribunal should have phoned the person and checked his travel movements. Alternatively, he should have been allowed to bring this person to the tribunal. 17 The first ground of review was doomed to fail because it amounted to an attack on the merits of the decision and the court had no power to review the merits. Credibility findings are quintessentially for the primary decision maker and not open to judicial review: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67]. The primary judge was correct to observe that ground 1 did not identify jurisdictional error on the tribunal's part. In Attorney-General for the State of NSW v Quin (1990) 170 CLR 1 at 35-6 Brennan J explained: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. 18 As the Minister submitted, the appellant did not point to any basis for impugning the factual findings which might demonstrate jurisdictional error (such as irrationality, illogicality or no evidence - see, for example, Minister for Immigration & Citizenship v SZMDS(2010) 240 CLR 611). 19 In substance ground 2 of the grounds of review below was also an attack on the merits. The tribunal certainly made all the material findings of fact to support its conclusion. 20 In the case of grounds 3 and 4 (the failure to inform the applicant of its credibility concerns and give him an opportunity to respond to them), as his Honour pointed out, the tribunal squarely put to the appellant during the hearing its concerns about the inconsistencies in his evidence. (See [55] and following of the tribunal's decision record.) It was not obliged to do more. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 ("SZBEL")at [47] the High Court explained that where there are specific aspects of an applicant's account that the tribunal considers are important to the decision and may be open to doubt, the tribunal must at least ask the applicant to expand on those aspects of the account and ask the applicant to explain why the account should be accepted. On the other hand, at [48] the Court said : Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment. 21 In WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 ("WACO") the Full Court distinguished between a case where the reliability of documentary evidence depends on the credibility of the appellant (such as a medical report the conclusions of which depend on an acceptance of the appellant's history or symptoms) and a case in which it does not. The Court said (at [53]) that where the question whether the documents are genuine does not directly depend on the evidence of the applicant but a finding that they are forgeries could turn on the applicant's credit ("insofar as the finding is that [they] have been concocted by the [applicant] to advance his case") fairness requires that before such a finding is made the person accused of it be given the opportunity to answer the accusation. Forgery is a criminal offence and a finding of that nature should not lightly be made. Furthermore, the Court observed at [54]: Where the finding of fact made does not turn upon the credibility of the appellant and where there is nothing on the face of the documents themselves to alert the decision-maker that they are forgeries it is likewise inherently unfair that the decision-maker conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it. 22 Here, the statements in the documents did not apparently turn on the appellant's credibility and there was nothing on the face of them to alert the tribunal that they were forgeries. Contrary to the appellant's submissions, however, the tribunal did not find that his documents were "fake". It found that its concerns about his credibility were not overcome by the documents. 23 Be that as it may, as the primary judge pointed out, here the tribunal did in fact alert the appellant to its concerns. Paragraph 54 of the tribunal's reasons reads as follows: The Tribunal put to the applicant that if the Tribunal was to find he was not a credible witness (in the light of the issues discussed below) then it might not give weight to the documents he submitted to the department in support of his claim. In response, the applicant said whatever was mentioned in his submissions was all true. 24 Similarly, at [74], in the context of the inconsistencies about the whereabouts of his wife and children at the time of his interview by the delegate, the tribunal said that it invited the appellant to comment on or respond to this inconsistency. It said that it explained why this information was relevant and the consequences of the tribunal relying on it. It recorded the appellant as saying that he understood what the tribunal was saying. The appellant said he may have made mistakes because he was under stress and mentally unprepared. He also responded by letter dated 19 June 2012. No transcript of the tribunal proceedings was filed. In these circumstances there is no basis to doubt the reliability of the decision record. 25 There is no jurisdictional error in the tribunal's approach to the assessment of the appellant's credibility. 26 In NADH v Minister for Immigration and Multicultural and Indigenous Affairs(2004) 214 ALR 264; [2004] FCAFC 328 Allsop J (as his Honour then was), Tamberlinand Moore JJ agreeing, said at [115] that if the tribunal did not appreciate the need to weigh all the material, that of itself would support a conclusion that it had made a jurisdictional error. 27 But I cannot say that the tribunal did not appreciate the need to weigh all the material. After all, it concluded that the documents were entitled to no weight and, on the authorities, it was open to the tribunal to accord no weight to the documents in the light of its assessment of the appellant's credibility: Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 at [33]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; 73 ALD 1; [2003] HCA 30 ("Applicant S20/2002"). 28 In WAGU v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCA 912 French J (as his Honour then was) observed at [34]: It may well be the case that where a Tribunal has made findings adverse to the credibility of an applicant before it, those findings may form a basis for rejecting the authenticity of documentary evidence tendered to the Tribunal by the applicant. There is a danger in so proceeding because it may be that documentary material itself should be taken into account in assessing credibility. To proceed otherwise risks putting the cart before the horse. 29 It might be thought that that is what the tribunal did here. The obvious question for the tribunal was whether the appellant's accounts could be reconciled with the apparently independent evidence. If the documents were indeed independent and had not been fabricated or falsified, why would they not overcome the tribunal's concerns about the appellant's credibility - at least its concerns about his party membership? Why would that not increase the likelihood that there was another explanation for the inconsistencies? And since the tribunal's decision was made on the cumulative effect of the inconsistencies, that might have made a real difference to its conclusions. There is arguably a want of logic in the tribunal's approach. Still, illogicality is not raised as a ground of appeal. Moreover, the approach taken by the tribunal is not unorthodox. Indeed, it has been sanctioned by the highest court. In Applicant S20/2002,for example, McHugh and GummowJJ, with whom Gleeson CJ agreed, said (at [49]): In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the tribunal be read as indicated above, the tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this court then has to be that it was irrational for the tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant. Cf. WAJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1580 per French J at [20]-[21]. 30 I am not, therefore, persuaded that the federal magistrate erred in his treatment of grounds 1-4 of the show cause application. 31 Equally, in relation to the so-called ground 5, I can find no error in the primary judge's conclusions. The appellant's submissions on the question of the authenticity of the documents in this appeal were equally ill-founded. It was the delegate, not the tribunal, who rejected the documents on the basis of concerns about the person who was said to have delivered them. The primary judge was reviewing the decision of the tribunal, not the decision of the delegate. The tribunal's concerns were altogether different. As I have already observed, the tribunal did not reject the authenticity of the documents on the basis that it could not locate any travel by the courier into Australia from the Department of Immigration's movement records. Consequently, there was no need to bring the courier to the tribunal. If he had confirmed that he had brought the documents, it would have made no difference to the outcome of the review. In any case, the delegate's reasons for decision put the appellant on notice that this was a potential issue (Cf.SZBEL). The tribunal hearing gave the appellant an opportunity to be heard on it. He,himself, could have arranged for the courier to attend the hearing. Itwas not the tribunal's duty to make out his case for him:Commissioner of Taxation v Glennan (1990) 90 FCR 538 per Hill, Sackville and Hely JJat 558. 32 In all the circumstances, and notwithstanding that the tribunal had the power to do so (see Migration Act,s 424), the tribunal had no duty to make further inquiries or, as the appellant put it, to carry out a further investigation: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 per Gummow and Hayne JJat [43], Gleeson CJ agreeing at [1]; Minister for Immigration and Citizenship v SZIAI(2009) 83 ALJR 1123; [2009] HCA 39. 33 To the extent that the appellant might be taken to have raised grounds on the appeal which were not raised in the court below, he requires the leave of the Court: VUAX v Minister for Immigration & Multicultural Affairs [2004] FCAFC 158 ("VUAX") at [47]. Leave will not be granted unless it is expedient and in the interests of justice to do so. This situation will arise where the point clearly has merit and there is no prejudice to the respondent: VUAX at [48]. Here, however, while there is no prejudice to the Minister, there is no clear merit. Thus if leave were required, I would not grant it. The tribunal's decision was not affected by procedural unfairness, though the appellant is understandably aggrieved by its conclusions. The various accounts the appellant gave were replete with inconsistencies. It was open to the tribunal to disbelieve him. The tribunal committed no jurisdictional error in doing so. 34 For these reasons the appeal must be dismissed. The appellant should pay the Minister's costs. There will be orders accordingly. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.