SZSLH v Minister for Immigration & Anor [2014] FCCA 19

1. By an application filed on 21 December 2012, the applicant seeks judicial review under s.476 of the Migration Act 1958 (Cth)[1] of a decision of the second respondent, the Refugee Review Tribunal[2] made on 26 November 2012. The Tribunal affirmed a decision of a delegate[3] of the first respondent, the then Minister for Immigration and Citizenship,[4] dated 27 April 2011 to refuse to grant a Protection (Class XA) visa[5] to the applicant.

1. The applicant is a Nepalese citizen.[6] On 23 June 2009, he arrived in Australia as the holder of a Student visa.[7] The applicant returned to Nepal on 14 September 2010[8] and entered Australia again on 19 November 2010.[9] On 6 December 2011, the applicant applied for a Protection Visa.[10]
2. In his Protection Visa application the applicant claimed:

1. to fear persecution from Maoists on the basis of his political opinion, political activities and membership of the Nepali Congress Party; 2. that he was arrested by Maoists in April 2008 because he protested in support of human rights and political freedom;

1. he was told by the Maoists that he would be "seriously harmed" if he continued protesting; and

1. that he feared returning to Nepal because Maoists were "determined to punish" him.[11]

1. By letter dated 3 April 2012, the applicant was invited to attend an interview with the Delegate.[12] The applicant did not respond to the invitation or attend an interview with the Delegate.[13]
2. The Delegate's Decision made on 27 April 2011 refused to grant the applicant a Protection Visa.[14] The Delegate found that the applicant's written statement alone did not establish the genuineness of his claims. Without being able to test the applicant's claims at an interview the Delegate was unable to satisfy himself that the applicant had a well-founded fear of persecution.[15] The Delegate also found, based on his previous factual findings and relying upon country information which was inconsistent with the applicant's claims, that the applicant was not owed complementary protection obligations.[16]

1. The applicant lodged an application with the Tribunal to review the Delegate's Decision on 17 May 2012.[17]
2. The applicant provided a written statement to the Tribunal in support of his claims on 27 August 2012.[18] The applicant attended a hearing before the Tribunal on 28 August 2012.[19] In the Applicant's Tribunal Statement the applicant made further claims and elaborated on his previous statements, stating that:

1. he established a business in his birthplace in Nepal;[20] 2. from about 2005 he was forced to pay Maoists to protect his business. If he did not pay the demanded sums he was threatened with physical violence and damage to his business;[21]

1. he suffered significant trauma and threats from the Maoists due to his political opinion and his refusal to obey the Maoists and his fear was so great that he could not stay in Nepal;[22]

1. he is a member of the Nepali Congress Party and committed to its principles and participated in all activities of that party in his village, as a consequence of which the Maoists threatened to harm him;[23] 2. he was arrested by the Maoists in April 2008 when he protested about human rights and political freedoms, and he was vocal about telling the truth that Maoists are the impediment to political freedom in Nepal, and he protested to rebuild human rights and political freedom in his district;[24] 3. on 21 February 2009 he held a meeting in his village to promote public awareness and seek assistance from authorities in relation to the Maoists' "extortion, intimidation and...criminal activities", and that on the way home from the meeting he was "mercilessly beaten" and told he would be killed if he held further meetings to oppose the Maoists;[25] 4. his mental state was adversely affected by the Maoists' threats towards his life and political freedom as a consequence of his work for the Nepali Congress Party in his village;[26] 5. after he received a death threat from the Maoists he tried to conceal his political views but could not do so because his beliefs were so strong;[27] 6. the attacks of the Maoists, particularly in remote areas such as his village, continue and casualties continue to grow, but they are now described as attacks by unknown groups or unknown persons because the Maoists are in power;[28] 7. he did not go to the police in Nepal because they are corrupt and weak, and the authorities in Nepal cannot protect a person from harm by the Maoists, particularly in remote areas;[29] and 8. he entered Australia on the Student Visa, which was based on a "false marriage document as a student dependent".[30]

1. The Tribunal Decision of 26 November 2012 affirmed the Delegate's Decision to refuse to grant the applicant a Protection Visa.[31]
2. The Tribunal:

1. found that the applicant had given inconsistent evidence about when he was attacked and beaten by Maoists;[32] 2. found that the applicant had omitted from his Applicant's Tribunal Statement any mention of the occasion when the Maoists came to his shop demanding to see him;[33]

1. rejected the applicant's explanation for the omission, which was that he: 1. could not mention many things in the Applicant's Tribunal Statement; 2. was in a "panic" when he "did" the Applicant's Tribunal Statement; and 3. could give more information to the Tribunal but it would take six hours;[34]

1. found that if the applicant was giving a truthful account, he would not have failed to mention the occasion when the Maoists came to his shop demanding to see him, in the Applicant's Tribunal Statement;[35] 2. concluded that the applicant's evidence and responses when confronted with the contents of the Applicant's Tribunal Statement were "confused" and "not credible", and that he "could not recall exactly the beatings";[36] 3. found that the applicant's trip to Nepal in 2010, which the Tribunal accepted was undertaken to see a son who was ill, would not have been undertaken if the applicant truly feared persecution in Nepal, and was evidence that the he did not have a genuine fear of harm, as he said that he came to Australia in 2009 to save his life, and after arrival in Australia was told the Maoists were still looking for him;[37] 4. that his delay (being in excess of two and a half years) in seeking protection in Australia was inconsistent with a genuine fear of harm;[38] 5. concluded that the applicant was not a witness of truth and rejected his account of the events on which his protection claims were based;[39] 6. on the basis of its adverse credibility findings, the Tribunal rejected all of the applicant's claims;[40] 7. did not accept that the applicant coming to Australia on a Student Visa based on a false marriage certificate demonstrated that his claims were true;[41] 8. found the applicant did not have a well-founded fear of persecution for a Convention reason;[42] and

1. also relied on its adverse credibility findings to conclude, for the purposes of the complementary protection provisions of the Migration Act, that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal from Australia to Nepal, there was a real risk he would suffer significant harm if returned to Nepal.[43]

1. The applicant's grounds as set out in his application are as follows:
   • 1. I am not satisfied with the tribunal member's decision because it is not a fair decision.
   • 2. Refugee Review tribunal member ignored to consider my claims favourably and failed to consider all the possible ways in which I made my claims
   • 3. I argue that the Tribunal member's decision has involved lack of natural justice.
2. The applicant filed neither an amended application nor any written submissions, despite the Court's orders of 12 March 2013 allowing him to do so.

1. The Tribunal was not required to accept the applicant's claims. The weight to be given to the applicant's claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function.[44] The Tribunal's conclusion that the applicant was not credible was within the legitimate province of the matters for assessment by the Tribunal. The Tribunal was entitled to make adverse credibility findings, unless they were based on no evidence or were so unreasonable as to be unsafe.[45] The credibility finding was open to the Tribunal on the evidence before it, as explained in the Tribunal Decision and as set out above.[46] The Court cannot review the merits of the Tribunal Decision.[47]
2. The grounds of the application are bare assertions. They are not supported by any particulars. Nothing said at hearing by the applicant particularised the grounds in any way relevant to the establishment of jurisdictional error.

1. Ground 1 alleges a lack of satisfaction by the applicant with the Tribunal Decision "because it is not a fair decision". The applicant must identify a jurisdictional error in the Tribunal Decision.[48] The Court is not concerned with the Tribunal's fact finding, but rather, whether the fact finding function was lawfully conducted.[49]
2. The applicant's lack of satisfaction with the Tribunal Decision is irrelevant, and does not establish jurisdictional error in the Tribunal Decision. A bare unparticularised assertion that the Tribunal Decision "is not a fair decision" likewise does not establish jurisdictional error in the Tribunal Decision. In any event, if this aspect of ground 1 is intended to assert a want of procedural fairness or natural justice, such a claim must fail for the reasons given below in relation to ground 3.
3. Ground 1 is therefore not made out.

1. Ground 2 alleges that the Tribunal failed to consider the applicant's claims "favourably" and in all the "possible ways" they were made.
2. The Tribunal was not required to consider the applicant's claims "favourably". The Tribunal's mode of operation is set out in s.420 of the Migration Act, and particularly relevantly under s.420(2)(b) it "must act according to substantial justice and the merits of the case". Whilst in an appropriate case this might result in an outcome favourable to an applicant, it does not follow, and it certainly does not require, the Tribunal to consider an applicant's claim "favourably". In any event, a failure to adhere to the requirements of s.420 of the Migration Act does not necessarily establish jurisdictional error.[50]
3. A failure to consider claims actually made by an applicant might ground jurisdictional error,[51] but in this case the Tribunal carefully reviewed the applicant's claims made in the applicant's application, the Applicant's Tribunal Statement and by the applicant at hearing.[52] The Tribunal also considered each of the claims said to give rise to a well-founded fear of persecution, and rejected then,[53] and also rejected the applicant's claims that he:

1. or any member of his family was a member or supporter of the Congress Party; 2. undertook activities for the Congress Party;

1. was threatened, beaten, harmed or mistreated by Maoists; 2. suffered trauma or that he had "trouble with his mind, brain or memory" as the applicant claimed at the Tribunal; and 3. was approached by Maoists at any time, that they demanded shelter, food or money from him, that they had gone to his home or had any interest in him,

1. The Tribunal's reasoning process is adequately and properly set out, and reveals no failure to adequately consider the claims put by the applicant, in the various ways that the applicant put them to the Tribunal, and reveals no error in relation to the process by which the reasons for the finding of any fact set out in the Tribunal Decision is arrived at, or the adequacy of the reasoning for arriving at those facts, which were based on the evidence before the Tribunal.[55] The Tribunal applied the correct tests under both the Convention and the complementary protection criteria in assessing the applicant's claims. The Tribunal's findings that the applicant did not meet either criterion were open to the Tribunal for the reasons it gave. There is, therefore, no jurisdictional error in the Tribunal Decision.
2. In the circumstances, ground 2 is not made out.

1. Ground 3 alleges that the Tribunal Decision involves a "lack of natural justice". The Tribunal put to the applicant at the hearing concerns it had with his inconsistent evidence, his failure to seek protection sooner after arriving in Australia and his return to Nepal in 2010.[56] Because s.422B of the Migration Act applied, the Tribunal was not required to afford the applicant common law natural justice or procedural fairness.[57] The applicant was only entitled to the rights afforded to him under Part 7 of the Migration Act.[58] The Tribunal complied with those requirements. The applicant attended a hearing before the Tribunal.[59] In any event, to the extent that the applicant was owed any common law procedural fairness obligations, the Tribunal gave him a reasonable opportunity to deal with the matters adverse to his interest that it proposed to take into account in exercising its power.
2. In the circumstances, ground 3 is not made out.

1. The Court has concluded that none of the grounds of review have been made out, and that no jurisdictional error in the Tribunal Decision has been established. It follows that the application must be dismissed. There will be an order accordingly. There will also be an order changing the name of the Minister to the Minister for Immigration & Border Protection". The Court will hear the parties as to costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

[1] "Migration Act".

[2] "Tribunal" and "Tribunal Decision" respectively. The Tribunal Decision is at Court Book ("CB") 76-89.

[3] "Delegate" and "Delegate's Decision" respectively. The Delegate's Decision is at CB 33-41.

[4] "Minister", now the Minister for Immigration & Border Protection.

[18] CB 53-54 ("Applicant's Tribunal Statement").

[44] Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ ("Wu Shan Liang").

[45] Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J; [2000] HCA 1 at para.67 per McHugh J; Minister for Immigration & Citizenship v SZCOT & Anor (2010) 189 FCR 572 at 594-595 per Buchanan J; [2010] FCAFC 159 at para.63 per Buchanan J; WZAOO v Minister for Immigration & Citizenship & Anor (2012) 134 ALD 332 at 346 per Lucev FM; [2012] FMCA 1026 at para.30 per Lucev FM.

[47] Wu Shan Liang at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

[48] Wu Shang Liang at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

[49] Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36 per Brennan J; SZDFZ v Minister for Immigration & Citizenship & Anor [2008] FCA 390; (2008) 168 FCR 1 at 11 per Flick J; [2008] FCA 390 at para.40 per Flick J; MZZHE v Minister for Immigration & Border Protection [2013] FCA 1403 at paras.27 and 34 per North J ("MZZHE").

[50] Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 87 ALJR 618 at 626-627 per French CJ and 634 per Hayne, Kiefel and Bell JJ; [2013] HCA 18 at paras.12-16 per French CJ and 49 per Hayne, Kiefel and Bell JJ.

[51] Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at 1092 per Gummow and Callinan JJ; [2003] HCA 26 at paras.24-25 per Gummow and Callinan JJ; Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at 259 per Allsop J; [2001] FCA 1802 at para.42 per Allsop J.

[55] MZZHE at paras.27 and 34 per North J.

[56] CB 83-84 at paras.51-52, 54-59 and 60.

[57] Minister for Immigration & Multicultural & Indigenous Affairs v Lat (2006) 151 FCR 214; [2006] FCAFC 61.

[58] Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 72; (2005) 225 CLR 88 at 93 at fn.16 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ; [2005] HCA 72 at para.10 at fn.16 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.