SZRSG v Minister for Immigration, Multicultural Affairs and Citizenship

The statutory criteria for a protection visa 5 The power to grant or refuse an application for a protection visa vests in the Minister, although it may be delegated as it was in this case: Migration Act 1958 (Cth), s 496. The Minister (or the Minister's delegate) is obliged to grant the application if satisfied that certain criteria have been met. Otherwise he or she is bound to reject it. These criteria are contained in the Migration Act and the Regulations made under it: see Migration Act, s 65. The principal criteria for the grant of a protection visa are set out in s 36(2) of the Migration Act. 6 Section 36(2)(a) relevantly provides that a criterion for a protection visa is that the applicant for the visa be a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, as amended by the Protocol relating to the Status of Refugees 1967 ("Convention"). Australia has protection obligations under the Convention to persons who satisfy the definition of "refugee" in art 1A(2) of the Convention. A refugee is relevantly defined in art 1A(2) as a person who, "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country". 7 An alternative criterion (contained in s 36(2)(aa)) is that the applicant is a non-citizen to 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 being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm. The circumstances amounting to significant harm are set out in subs (2A).

The tribunal decision 8 As I indicated at the outset, the appellant's application was first dealt with by a delegate of the Minister. The delegate dismissed it and the appellant applied to the tribunal for a review. Unable to make a favourable decision on the papers, the tribunal invited the appellant to attend a hearing to give evidence and present arguments. 9 The tribunal was unpersuaded by the appellant's account because of concerns about his credibility. Those concerns as well as independent country information caused the tribunal to place "very little weight" on documentary evidence which, on its face, supported the appellant's claims. The tribunal found that the appellant had not been seriously harmed for a Convention reason or for any other reason, had not been pursued by Maoists or paid them any money. It therefore reasoned that he would not be at risk of harm from Maoists in the future if he returned to Nepal. 10 The tribunal also considered the appellant's claims that if he were to return he would be targeted by Maoists because he would demonstrate his support for the RPP-Nepal and would seek to avenge his father's death. The tribunal rejected the latter claim on the basis that the appellant had done nothing to avenge his father's death in the five years since when he had lived in Nepal before coming to Australia. It rejected the former claim on the basis that the appellant's political history did not indicate that he had a profile as an activist on behalf of the RPP-Nepal before or since leaving Nepal. It accepted the prospect of ongoing clashes between the RPP-Nepal and the Maoists but it did not accept that there was anything more than a remote possibility that the appellant would be seriously harmed in violence of this kind. 11 Consequently, the tribunal was not satisfied that there was a real chance that the appellant would be persecuted for a Convention reason if he returned to Nepal in the foreseeable future. Neither was it satisfied that for any other reason he was at real risk of harm, let alone significant harm, or that there are substantial grounds for believing that he was at such risk as a necessary and foreseeable consequence of his removal from Australia to Nepal. Thus, the tribunal was not satisfied that the appellant met the criteria for a protection visa laid down in s 36(2) of the Migration Act. 12 For these reasons it affirmed the delegate's decision.

The proceeding in the court below 13 The appellant then applied to the Federal Magistrates Court (now the Federal Circuit Court of Australia) for a writ of mandamus directed to the tribunal or the Minister requiring them to determine his application according to law. To succeed he had to demonstrate that the tribunal's decision was infected by jurisdictional error. This is the effect of s 474 of the Migration Act and the High Court's judgment in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476. The federal magistrate found no such error and accordingly dismissed the application. 14 The grounds of the application were as follows: 1. It is argued that the Refugee Review Tribunal Member failed to determine my conduct on return to Nepal because the Member assumed that I would not do anything to avenge my father's death upon my return to Nepal. Thus the Tribunal Member has ignored not only my willingness to avenge my father's death but also my political opinion as an anti-Maoist. 2. I argue that the Refugee Review Tribunal Member failed to conform to standards of procedural fairness. 3. I argue that the Refugee Review Tribunal Member made an error of law in my case because the Refugee Review Tribunal Member failed to consider all the possible ways in which I made my claims. 4. I argue that the RRT's decision in my case also involved lack of natural justice. 15 The appellant's arguments in support of the grounds are summarised in the federal magistrate's reasons for judgment at paras 39 (ground 1), 53 (ground 2), 61 (ground 3) and 69 (ground 4). The appellant did not submit that there was any error in these summaries. 16 In a careful and considered judgment the federal magistrate rejected each of these grounds. What follows is a brief summary of her Honour's reasons. 17 Her Honour held that the tribunal's findings were open to it on the evidence. She considered that on a fair reading of the tribunal's decision record there was no support for ground 1 and that in substance it invited impermissible merits review. In support of ground 2 the appellant had submitted that the tribunal should have told him on the spot if it was not satisfied about his claims and that his case was weak. Her Honour said that ground 2 misconceived the tribunal's legal obligations and that the review had been conducted in accordance with the tribunal's obligations under the Act. In the case of ground 3 the appellant submitted that the tribunal did not look in detail at or investigate his claims. Her Honour concluded once again that the tribunal's decision record did not support the submission. She noted that the appellant had not identified any particular aspect of his claims that the tribunal did not consider and that none was apparent on the face of the record. She also observed that there was in law no general duty to investigate an applicant's claims, whilst acknowledging that in some circumstances further investigation might be called for, referring to some of the leading authorities. But she considered that the circumstances in this case did not impose such an obligation. Finally, her Honour noted that the submissions in relation to ground 4 simply repeated the appellant's earlier complaints, which she had addressed.

The appeal 18 The right to appeal is conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). The appeal is in the nature of a rehearing. But a rehearing is not a new hearing. To succeed the appellant must be able to demonstrate that the federal magistrate has made an error. See, for example, SZLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11]. 19 There are three grounds of appeal: 1. I disagree with the judgment of her honour FM based on the fact that the Tribunal Member has made a jurisdictional error in dealing with my case and her honour did not fully exercise her knowledge to discern a legal error in the Tribunal member's in my case. 2. I contend that the Refugee Review Tribunal Member has failed to give me natural justice. 3. I conclude that the Tribunal Member's decision is not a lawful decision as it has been affected by a legal error to the extent that my claims were not fairly considered on good faith". 20 The appellant did not file submissions but, through a Nepali interpreter, made a number of oral submissions. At the conclusion of his oral submissions he handed to the Court an outline of submissions, which appeared to extend beyond the parameters of the oral argument and in certain respects the notice of appeal. At my invitation he expanded on aspects of them.

Ground 1 21 The appellant submitted that the tribunal had not "evaluated anything" he had said or considered anything properly. He insisted that his description of what had occurred in Nepal was true. He said that he felt that the tribunal had simply rejected his claim without any basis for doing so. He contended that if the tribunal had considered his case properly it would have come to a different conclusion. 22 These submissions reflect the arguments put to the federal magistrate. Her Honour was right to dismiss them. They are unsupported by the tribunal's decision record. In substance the appellant's submissions invite a review of the merits of his application, a task which was not open in law to the federal magistrate and is not open to this Court.

Ground 2 23 In ground 2 the appellant contends that the tribunal failed to afford him natural justice. I asked him what he understood by the expression "natural justice". This was his reply: I think that means that they should actually go and see the basis of my fear and see if actually I have that fear or not, instead of just saying, well, that can happen, that could have or could not have happened. That's not how they should have seen my case. 24 The appellant submitted that the tribunal did not decide whether or not he feared being killed or suffering other serious harm. He again submitted that his case was not taken seriously and pressed upon the Court the truth of his account. 25 These submissions largely reflect a misunderstanding of the legal concept of natural justice, which is concerned with process, not outcome. Natural justice has two features: the right to a hearing before an adverse decision is made (the hearing rule) and the right to have the hearing conducted by an impartial adjudicator. For relevant purposes Div 4 of Part 7 of the Migration Act provides an exhaustive statement of the requirements of the hearing rule (s 422B). As her Honour observed, the tribunal's review was conducted in accordance with Div 4. 26 According to the tribunal's decision record the appellant had a fair opportunity to present his case and no transcript or other recording was filed in this Court or in the court below to suggest otherwise. 27 Contrary to the submission made in the court below, the tribunal was not obliged to tell the appellant "on the spot" if it was dissatisfied with his claims or that he had a weak case. Her Honour correctly summarised the law in this respect at [56]-[58] of her reasons. In any event, the tribunal apparently did put to the appellant its various concerns about his account, giving him an opportunity to answer them. The decision record shows that the tribunal raised the various features of his account that troubled it, giving him an opportunity to explain the apparent inconsistencies to which it referred, for example at [42], [45], [46], [48], [49] and [50]. 28 Ultimately, the tribunal was unpersuaded by the appellant's account and rejected his explanations for the inconsistencies in it. It dismissed his claims largely, if not entirely, for the reasons it had foreshadowed with him. 29 The appellant did not contend in terms that the tribunal was biased against him although he inferred at times that the tribunal might have approached his application with a closed mind. At one point in his submissions in reply he said that he felt the tribunal was unfair because from the beginning it thought he was telling lies "and that's the way they judge my case". Prejudgment denotes bias. But an allegation of actual bias must be clearly made and distinctly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J, at [127] per Kirby J. Apprehended bias will arise where a hypothetical fair-minded lay person properly informed as to the inquisitorial nature of the proceedings, the relevant conduct and the matters in issue might reasonably apprehend that the tribunal might not bring an impartial mind to the resolution of the issues: Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425; [2001] HCA 28 ("ex parte H"). 30 The High Court said in ex parte H at [30]: Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings. 31 Nothing in the material before the Court suggests that the tribunal overstepped the mark. There is no reason to conclude that the tribunal was actually biased or to impute bias to it. 32 The federal magistrate was right to dismiss the appellant's contention that he had been denied natural justice.

Ground 3 33 There is no foundation for the contention that the tribunal did not consider the appellant's claims in good faith.

Additional matters raised by the appellant's submissions 34 In large part the appellant's written submissions, like his oral argument, took issue with the tribunal's conclusions on the merits. As I have already said, the merits were not reviewable in the court below, nor are they here. 35 The appellant submitted that, having accepted that his father was killed, the tribunal failed to consider whether the culprits had been punished. He submitted, in effect, that in these circumstances his claim that he would avenge his father's death and therefore risk serious harm ought to have been accepted. The appellant submitted that the tribunal's analysis was too simplistic. 36 I do not think that this is a fair criticism of the tribunal's approach. Even if it were, however, that would not of itself give rise to jurisdictional error. The tribunal's conclusions, as the federal magistrate held, were open on the evidence. They were not irrational or illogical. 37 In his written outline the appellant also submitted that the tribunal failed to consider the possible ways in which he made his claims and so fell into error. In oral submissions the appellant explained: I was trying to tell them that if I go back, they didn't see if I will be protected or not because I know I won't be. Unless I keep quiet and do not express my opinion, which I will be expressing. Maoists have killed 13,000 people and [I] could be one of them or I can still be one of them when I go back. 38 It is true that the tribunal is required to deal not only with claims that are expressly articulated but also with claims that clearly arise from the material before it: NABE v Minister of Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]-[60]. In my view there were no claims that clearly arose from the material before the tribunal with which it did not deal. 39 The written outline also raised a new ground: that the tribunal erred in its consideration of State protection. The appellant's submission, in essence, was that the State was not doing enough to protect its citizens. The submission must be rejected. As the appellant recognised, the tribunal did not in fact consider this question. But that was not a jurisdictional error. The tribunal did not need to consider the issue of State protection because it was not satisfied that the appellant had a well-founded fear of persecution. The appellant failed at the first hurdle. 40 The appellant's final submission was that the tribunal made an irrelevant finding. When I asked him what that was he replied: Whatever I have said, they have just said, "Everything is a lie". So all the things I said were lies for them. 41 In fact, that is a mischaracterisation of the tribunal's reasons. The tribunal accepted many things the appellant said, including his claim to have been a supporter of the RPP-Nepal, his claim to have joined Amnesty International and the National Human Rights Foundation, his claim to have started a business in 2005 and other parts of his evidence relating to the business. It did reject his claims to have been the victim of extortion and a good deal else. But none of these findings was irrelevant. Most of what the appellant had to say depended on whether he was believed. His credibility was not only relevant, it was critical to the success of his application.

Conclusion 42 The appellant has been unable to demonstrate any error by the court below. Nor has he been able to point to any other basis for concluding that the tribunal's decision was affected by jurisdictional error. Accordingly, the appeal must be dismissed. The appellant should pay the Minister's costs. There will be orders to that effect. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.