SZSTK v Minister for Immigration and Border Protection

Federal Court of Australia|2013-11-28|Before: McKerracher J, Kerracher J

INTRODUCTION 1 The appellant is a Nepalese citizen who arrived in Australia as a student in April 2007. On 16 July 2010 he applied for a protection visa. On 29 April 2011 a delegate of the first respondent (the Minister) refused the application. On 26 November 2012 the appellant sought review of the delegate's decision in the Refugee Review Tribunal (the Tribunal). The Tribunal affirmed the delegate's decision not to grant the protection visa on 18 March 2013. 2 This is an appeal from a decision of the Federal Circuit Court of Australia delivered on 25 July 2013. By that decision the primary judge dismissed the appellant's application for judicial review of the Tribunal's decision.

CLAIMS TO PROTECTION 3 The appellant claims to face persecution in Nepal from Communists due to imputed political opinion and membership of a particular social group. In his application for a protection visa, the appellant claimed to fear being kidnapped or killed by Communists because he belonged to 'a wealthy social group' which made him and his family 'an easy target'. The appellant claimed to be from a political family that was the subject of harassment and persecution. He claimed that in 1972 his grandfather (a prominent supporter of Nepal's Royal Family and political advisor to the King) was assassinated along with his uncle, that his father was frequently threatened, and that his family were often targets of extortion attempts. The appellant also claimed an entitlement to complementary protection.

HEARING IN THE TRIBUNAL 4 On 3 December 2012, the Tribunal invited the appellant to attend a hearing on 21 December 2012. At the appellant's request, that hearing date was postponed. It was rescheduled for 14 January 2013. 5 On 2 January 2013, the appellant's migration agent provided the Tribunal with documents in support of the appellant's claims. The appellant and his migration agent attended the hearing before the Tribunal on 14 January 2013. Following that hearing, the appellant was given until 29 January 2013 to produce further documents in support of his claims. On 25 January 2013, the Tribunal agreed to the migration agent's request for an extension of time to provide those documents. The Tribunal allowed an extension until 12 February 2013. 6 On 30 January 2013, the appellant's representative provided the Tribunal with a letter from a doctor together with two police reports and their translations relating to the claims by the appellant. The letter from the doctor stated that the doctor had treated the appellant for anxiety and panic disorder and chronic depression since 28 October 2008. 7 On 1 February 2013, the migration agent wrote to the Tribunal requesting a further extension of time to provide supplementary documents. On 4 February 2013, the Tribunal granted a further extension until 14 March 2013 to provide additional documentation. The day after that extension, the migration agent provided the Tribunal with 10 documents purportedly issued by Maoists Rebels and English translations. Although the appellant claimed to suffer from anxiety and panic disorder, the Tribunal member was satisfied (at [97]) that he could participate effectively in the Tribunal hearing. 8 On 18 March 2013, after considering all this material, the Tribunal affirmed the delegate's decision to refuse the appellant a protection visa. 9 The Tribunal accepted that the appellant's family were of the Brahmin caste. It also accepted that the appellant's father was a prominent business man and active member of the Nepali Congress Party. It accepted that the appellant's grandfather was a prominent political identity who was killed by extremists in 1972, along with the appellant's uncle. 10 The Tribunal did not accept (at [101]) that the deaths of his grandfather and uncle in 1972 were of relevance to any threat faced by the appellant or his family today. It considered that the event in which the appellant's grandfather was killed was 'a short-lived uprising which was crushed by the Government of Nepal'. The Tribunal rejected the suggestion there was any real chance that such an event could be repeated if the appellant returned to his home in the Jhapa District now or in the reasonably foreseeable future. It also rejected the contention that the appellant's father received demands for money that amounted to extortion. The Tribunal also disbelieved the claims that the appellant's family had received threatening telephone calls. It found that the appellant's father would not have continued living in the family home and running the family business in the Jhapa District of Nepal if he had felt in imminent danger of attack at any time. 11 The appellant faced credit difficulties. The Tribunal concluded that he had exaggerated problems facing his family in Nepal to enhance his application for a protection visa. The objective evidence suggested that the appellant was living a normal life in Nepal before coming to Australia. Weight was given to the fact that the appellant lived in the family home in the Jhapa District for 25 years without incident and that he had stayed in the region when the Maoist Rebels were waging their 'People's War' against the government. The Tribunal also gave weight to the fact that with the exception of the isolated incident in 1972, none of the appellant, the appellant's father or any other family member had come to harm while living in the region. The Tribunal considered that the objective evidence before it was inconsistent with the claim that the appellant was living in constant fear. 12 The Tribunal affirmed the delegate's decision on the basis that it was not convinced that the appellant now, or in the foreseeable future, faced a real chance of persecution on the grounds of his imputed political opinion, caste, or the status of his family. 13 The Tribunal accepted that although the appellant's grandfather had been murdered in 1972, this event was some time ago and could no longer represent an immediate threat. The Tribunal also queried why the appellant and his family continued to reside in the same house despite the alleged ongoing persecution. Finally, no independent evidence was put before the Tribunal that the appellant's father had been the subject of extortion attempts.

THE FEDERAL CIRCUIT COURT 14 At the hearing before the primary judge on 16 July 2013, the appellant pressed only one of the grounds set out in the application for review filed 12 April 2013, namely, that the Tribunal did not assess the appellant's claim for complementary protection according to law. 15 His Honour considered that a ground asserting that a decision of the Tribunal was made 'not according to law' must identify the legal rule or rules with which the Tribunal is alleged not to have complied. Accordingly, as the appellant's ground lacked particularisation by itself it disclosed no reviewable error. 16 The primary judge also concluded that both the appellant's written and oral submissions expanding upon his ground only suggested disagreement with the conclusions reached by the Tribunal and the weight it chose to accord certain evidence. His Honour held that it was within the Tribunal's jurisdiction to draw these conclusions and make these assessments.

THE CURRENT APPEAL GROUNDS 17 The appellant filed a Notice of Appeal from the decision of the Federal Circuit Court on 8 August 2013. He advances the following grounds: 1. I have more evidence and enough information for a fair Complementary Protection Review. 2. Trying to send me back home will result in jeopardising my life, pushing me into life threatening situations being physically harmed, mentally tortured and emotionally unstabled for the rest of my life. 3. His Honour made an error of Law since the Decision His Honour made regarding my case is wrong. 4. His Honour made an error of Law for not considering my second submissions. 5. In Nepal Maoists' dictionary extortion means donation. 6. I have been a debate amongst the Maoists that I may be coming back to inherit the property under Nepali Inheritance Law. 7. Lots of threats have been sent as to my significant harm to my vulnerability and extortions which are never to be settled for the rest of my life. 8. The situation had I had to go back home would be very critical and life threatening to myself; also I will be tortured for the rest of my life. 9. The Decision made by His Honour, in my case, at the Federal Circuit Court is wrong. 10. These are escalating crimes including violence, extortion and intimidation throughout the country of Nepal. 11. The Secondary Respondent made an error of Law by not considering evidences which were significant and critical to the decision under review. 12. The Secondary Respondent and His Honour made an error of Law by not considering me to live with my elder brother who is in Australia and loves me a lot.

CONSIDERATION 18 At the hearing of the appeal before me, the appellant articulately pressed arguments based on these grounds. In addition, he contended that the Federal Circuit Court Judge had not accepted certain documents he sought to rely on to prove his claims. He produced a bundle of such documents and took me to a number of them. The documents are unhelpful for a number of reasons and do not assist him. First, they do not go to any issue of jurisdictional error. Secondly, earlier reference had been made in the Tribunal and the Federal Circuit Court to some of the documents. Decisions made as to whether the documents were probative have already been made in the merits review. Thirdly, it is not correct to say that his Honour declined to accept the documents. As his reasons indicate (at [4]), he informed the appellant, correctly, that if the appellant proposed to rely only on the additional documents attached to his submissions (which were not before the Tribunal), his application would be dismissed. Finally, at least one of the documents post-dated the Federal Circuit Court proceeding so could not have been rejected at that time. There was no basis to review the documents as evidence on the appeal and I decline to do so. 19 I turn then to other arguments advanced. 20 The primary judge dealt with the meaning of 'complementary protection' in the context of the appellant's application, the nature of the Tribunal's jurisdiction and the meaning of the appellant's contention that the Tribunal did not assess the appellant's claims for protection according to law. His Honour found that there were three bases on which the appellant's claims were advanced, namely: (a) that trying to send him back to Nepal would jeopardise his life and expose him to threatening situations involving physical harm, mental torture and emotional instability. His Honour observed that this complaint merely expressed disagreement with the Tribunal's conclusions and, therefore, disclosed no reviewable error. (b) by reference to an article from the Hindustan Times published on 30 June 2013 (three months after the Tribunal had delivered its reasons), the Tribunal should have upheld his claims. His Honour held that the Tribunal's conclusions related to a finding of fact which he could not disturb; and (c) thirdly that the Tribunal had failed to sufficiently regard documents being a translated letter from the Nepali Congress Central Office and a translated letter from the Home Ministry Police Station in Sanishchara Jhapa which recorded certain factual events. His Honour concluded that the reference to these documents was no more than an expression of disagreement with the weight the Tribunal gave to those documents which was a matter expressly within the exclusive jurisdiction of the Tribunal. 21 The current grounds of appeal also misconceive the role of this Court and fail even on their face to demonstrate any appealable error affecting the decision of the Federal Circuit Court. 22 I accept the submission for the Minister that grounds 1, 2, 5, 6, 7, 8 and 10 only raise factual matters concerning the appellant's substantive claims for protection. They are incapable of demonstrating error on the part of the Federal Circuit Court. 23 Of the remaining grounds, ground 3 and ground 9 identify no error or particulars of error and are without merit. 24 Ground 4 asserts that the Court was wrong in not considering the appellant's second submissions which are not further identified. Assuming that they were the written submissions filed on 2 July 2013, those submissions address the grounds of the application before the Court and stipulate that the appellant was going to 'simultaneously withdraw his remarks on a one by one basis' and make numerous concessions as to the Tribunal's decision. Again, the submissions refer to the Hindustan Times article that the appellant attempted to put before the Federal Circuit Court with various other articles. Those submissions were considered by the primary judge. His Honour noted that if the appellant had only wished to rely on the annexed material, the application would have been dismissed in any event. The Court had no jurisdiction to consider that material which had not been put before the Tribunal. Neither does this Court. 25 Ground 11 was that the Tribunal erred by not considering the evidence which was 'significant and critical'. Again, there is a notable lack of particulars of evidence. Similarly, in relation to ground 12, which submits that the Court erred by not considering that the appellant should live with his elder brother located in Australia, there is no appellable error affecting the decision of the primary judge.

AFTER THE HEARING 26 On 18 November 2013, the appellant (without leave) forwarded a three page facsimile addressed to the Court, addressed to me. It annexed two online news articles from an unidentified source. They were dated 13 September 2013 and 12 November 2013. The appellant submitted these were evidence of 'current violent activities in Nepal'. There was no sign that this communication was copied to the Minister. On the same day, the Court forwarded the facsimile to the Minister's solicitors who were directed to file and serve brief responsive submissions within three days. 27 Responsive submissions were duly filed. As the Minister contends, it is not appropriate for me to have regard to (and nor do I have jurisdiction to consider) evidence relating to complementary protection that was not placed before Tribunal or the Federal Circuit Court. In any event, the materials are incapable of establishing jurisdictional error on the part of the Tribunal or the primary judge.

COSTS AND ANCILLARY ORDERS 28 The Minister's solicitor swore an affidavit on 7 November 2013 in support of a fixed costs order in the sum of $4,200. I am satisfied that such an order is appropriate. The appellant's notice of appeal also identified the Minister as 'Minister for Immigration, Multicultural Affairs and Citizenship'. It is also appropriate to make an order amending the name of the first respondent to 'Minister for Immigration and Border Protection'.

CONCLUSION 29 There being no appellable error on the part of the Federal Circuit Court of Australia, the appeal must be dismissed with costs. The following orders are made: 1. The name of the first respondent be changed to 'Minister for Immigration and Border Protection'. 2. The appeal is dismissed. 3. The appellant pay the costs of the first respondent fixed in the amount of $4,200. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

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