SZTPM v Minister for Immigration and Border Protection

JUDGE: PERRY J DATE: 11 AUGUST 2015 PLACE: SYDNEY

1. INTRODUCTION 1 This is an appeal from the Federal Circuit Court of Australia (the Court below) dismissing an application for judicial review of a decision by the Refugee Review Tribunal (the Tribunal). By its decision, the Tribunal affirmed the decision of the Minister's delegate (the Delegate) refusing the grant of a Protection (Class XA) visa (a protection visa). The notice of appeal raises two alleged grounds of error on the part of the Court below: first, that the Court below ought to have held that the Tribunal failed properly to apply the "real chance" test in determining whether the appellant had a well-founded fear of persecution; and secondly, whether the Court below erred in failing to hold that, in rejecting her claims, the Tribunal's decision was unreasonable or irrational. For the reasons set out below, I can find no error in the decision below and the appeal should be dismissed.

2. PROCEDURAL MATTERS 2 While written submissions were filed by the first respondent, no submissions were filed by the appellant in advance of the hearing despite the timetabling orders made by the Registrar on 2 April 2015 for the filing of submissions by both parties. Nor did the appellant appear at the hearing. In this regard, when the appeal was first called on for hearing, I asked the Court Officer to call the matter three times outside the courtroom. I then stood the matter down for 15 minutes and asked the Court Officer to again call the matter outside the courtroom before proceeding with the hearing. There was no correspondence with the Court advising that the appellant would not be attending, nor any application for an adjournment. 3 In the circumstances, while no formal application was made, the respondent pressed for the appeal to be dismissed (see r 36.75, Federal Court Rules 2011 (Cth) (FCR)). I considered in the circumstances which I have outlined, that it was appropriate for the appeal to proceed in the appellant's absence. In this regard, I have taken into account that under r 36.75, FCR, where a hearing proceeds in a party's absence and an order is made, the party who was absent may apply to the Court for an order setting aside or varying the order, and for the further conduct of the hearing. I note that, in considering any such application, the Court will consider whether an acceptable explanation has been given for the party's absence when the matter was called on and the strength of that party's case on the appeal if the order dismissing the appeal were set aside: see by analogy Prashar v Minister for Immigration and Multicultural Affairs [2001] FCA 1573; (2001) 115 FCR 197 at 199 [11] (Katz J (with whose reasons Branson and Mansfield JJ agreed)).

3.1 The appellant's application for a protection visa 4 The appellant left the country of her nationality, Nepal, on 15 September 2010. The appellant alleges that she was abducted by the Maoists at 13 years of age and was forced to become a member of the Maoist Party. She claimed that she remained forcibly involved with the Maoists for seven years until her departure for Australia in 2010. 5 The appellant applied for a protection visa on 3 May 2012 on the basis of her alleged fear of physical and mental harm from the Maoists if she returned to Nepal by reason of her disassociation from the Maoist Party, and by society and the other side for her prior association with the Maoists. 6 Her application for a protection visa was refused by the Delegate on 23 August 2012 on the basis that the Delegate had serious concerns as to the appellant's credibility and the truth of her claims.

3.2 The decision of the Tribunal 7 The appellant applied to the Tribunal for review of the Delegate's decision on 27 September 2012. The Tribunal listened to the tape of an interview conducted by the Department of Immigration and Citizenship (the Department) with the appellant on 20 August 2012. The appellant also appeared before the Tribunal on 14 October 2012 to give evidence and present arguments. Her claims can be summarised as follows. (1) The appellant was abducted by the Maoists in 2003 and forced to become a Maoist when she was 13 years old. She was unable to leave the Maoists until she secretly left for Australia in September 2010. (2) The appellant will be physically and mentally harmed by society, the government, the administration and the Maoists if returned to Nepal and may be subject to the death penalty because she disassociated from the Maoists without their permission. (3) As the appellant no longer wants to be part of the Maoist Party or involved with them, they will harm her. (4) The appellant has been listed as an enemy by the Maoists and if returned to Nepal will have no freedom and live in constant fear. (5) The appellant will be harmed by the other side or society because of her former Maoist association. 8 On 29 October 2013 the Tribunal affirmed the Delegate's decision to refuse the grant of the protection visa. While, as mentioned, the appellant raised a fear of being subjected to the death penalty, she did not rely on any basis for that fear other than her involvement with and subsequent disassociation from the Maoist Party. 9 The Tribunal accepted that the appellant was abducted by the Maoists while she was a child in 2003, the claim being supported by independent country information (at [25]). Nonetheless, the Tribunal did not accept that the appellant was truthful in claiming that she was held and monitored by the Maoists until her departure from Nepal in September 2010 or in her claim that she escaped Nepal to Australia to flee from the Maoists. The Tribunal's finding in this regard was based upon country information indicating that all former child soldiers were released by March 2010 (at [27]-[28]). The appellant also agreed that she was of a low profile (at [28]). It followed, the Tribunal found, that it did not accept that the appellant is listed as an enemy of the Maoists because she left without their permission or will face any difficulty on return for leaving them without their permission (at [28]). 10 The Tribunal considered that this finding was further supported by the appellant's evidence that since her departure in 2010, the Maoists have not visited her family home searching for her. The Tribunal also found that the appellant's inconsistent evidence before the Department and the Tribunal as to the time she spent at home in recent years until her departure added to the finding that she was not forcibly held until her departure (at [30]), as did her delay of approximately 18 months in applying for a protection visa after arriving in Australia (at [32]-[34]). The Tribunal also placed little weight on her Maoist Membership Certificate given that independent information indicated that document fraud in Nepal is widespread, and the existence of a discrepancy between the date on which the certificate stated that it was issued and the details completed, namely, 2008, and the appellant's evidence that it was issued in 2004 (at [36]). Similarly, the Tribunal placed little weight on photographs and CDs provided by the appellant, finding nothing probative in that evidence to support her assertion that she was forced to stay with the Maoists against her will until September 2010. Given that the Tribunal did not accept that the appellant was credible on these claims, it did not accept that the appellant would be seriously harmed by the Maoists or seen as an enemy of the Maoists for these reasons. 11 Nor did the Tribunal consider that the appellant's claims that she will be harmed if she declines Maoist membership given her former association, was supported by country information (at [40]-[43]). 12 Finally, the Tribunal found that there was no real chance that the appellant will suffer serious harm from society or the other side because of her former association with the Maoists and as a child soldier. In reaching this view, the Tribunal took into account country information that political violence is decreasing in Nepal and, while clashes are reported, they are infrequent, the fact that the appellant no longer wishes to be involved with the Maoists, the fact that she was previously only involved because she was forced as a child, and the appellant's failure to raise this as a claim at the Department interview (at [40]-[44]). As to the latter, the Tribunal did not accept the appellant's explanation for failing to raise this claim earlier with the Department because it was difficult to express and she was very nervous. 13 The Tribunal concluded that it was satisfied that the appellant does not now, or in the reasonably foreseeable future, have a well-founded fear of persecution for a Convention reason if she returns to Nepal and therefore does not satisfy the criteria for a protection visa under s 36(2)(a) of the Migration Act 1958 (Cth) (the Act). Nor, given its findings as to the credibility of the appellant's claims, did the Tribunal accept her alternative claim for complementary protection under s 36(2)(aa) of the Act (at [46]). 14 Finally, I note, as the Minister accepted at the hearing, that none of these findings deny that the appellant may subjectively fear persecution by reason of her history and in particular her abduction by the Maoists at such an early age. However, neither that past history nor its impact on her today alone suffice to satisfy the criteria for a protection visa and suggest any jurisdictional error in the Tribunal's reasons.

3.3 The decision of the Federal Circuit Court 15 The grounds pleaded in the amended application for review in the Court below were that: 1. The Tribunal Member accepted that I was abducted by the Maoists while I was a child but the Tribunal Member gave no consideration as to my fear of harm at all and simply ignored me for my safety. There is a lack of natural justice in my case. 2. The Tribunal Member did not want to believe me and did not believe me for my fear of harm on return to Nepal and the problems I faced in Nepal from the Maoists because I delayed in applying for a protection visa after arrival in Australia. I told the truth but whatever I said was ignored and given no consideration in my favour. 3. The Tribunal Member failed to address and deal with my case in respect of the failure to consider my political opinion. I am very aggrieved by the Tribunal member's purported finding that my Maoists Membership Certificate is not genuine and no consideration was given to my evidence at all. 4. The Tribunal Member believed that I was not forcibly held or monitored by the Maoists until my departure from Nepal and the Maoists would not view me as an enemy of the Maoists on its' arbitrary view rather than facts. 5. This is completely unfair and injustice. My case should be treated with fairness and good faith. I am a true victim of the impulsive decision made by the Refugee Review Tribunal Member in my case. 16 A further ground was advanced at the hearing in the Court below that, although the Tribunal had found that the documents submitted by the appellant were fraudulent, they had not been, and the Tribunal had erroneously rejected her case on that basis: SZTPM v Minister for Immigration & Anor [2015] FCCA 754 at [14] (Cameron J). 17 The primary judge rejected each of these grounds, including the additional ground advanced at the hearing, and dismissed the appeal: at [15]-[28].

4.1 Ground 1: the "real chance" test 18 By the first ground of appeal, the appellant alleges that: The Federal Circuit Court erred by failing to find that the Tribunal Member made a legal mistake in making the finding that the Tribunal has addressed and made appropriate findings on my involvement with the Maoists. It is contended that the Tribunal Member failed to properly apply the real chance test in my circumstances. 19 In this regard, the Tribunal was required in conducting its review to consider whether the appellant is "… a non-citizen in Australia in respect of whom the [Tribunal] is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol" (ss 36(2)(a) and 415 of the Act). This requires, subject to various qualifications in the Act, that the Tribunal be satisfied that an applicant is a refugee as defined in Article 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (the Refugee Convention), namely, a person who (relevantly): 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 [or her] nationality and is unable or, owing to such fear, is unwilling to avail himself [or herself] of the protection of that country… (Emphasis added.) 20 If so satisfied, the Tribunal must grant the visa under s 65 of the Act. 21 The question raised by ground 1 of the appeal is whether the Tribunal was required, but failed, to assess whether there was a "well-founded fear" of persecution by reason of her imputed and actual political opinions. A determination of whether a (subjective) fear is (objectively) "well-founded" requires the Tribunal to assess what will occur in the future. A fear is "well-founded" when there is "a real substantial basis for it", even where the chance of the object of the fear eventuating is less than 50 per cent, but is not well founded if it is merely assumed or speculative: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) at 572 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). While the description should not be used in substitution for the terms of the Refugee Convention, this is commonly described as the "real chance" test. If the Tribunal failed properly to apply this test, the error would be jurisdictional in nature as it would constitute a failure to determine the appellant's claims in accordance with the statutory criteria. 22 However, the ground of appeal does not identify the respect in which it is alleged that the Tribunal misapplied the "real chance" test. Nor was this a ground raised below or developed by any submissions in this Court. I am unable in any event to discern any error in the Tribunal's explanation of the "real chance" test at [14] of its reasons, nor in its application of the test to the appellant's claims. 23 As to the latter I note that in determining whether there is a real chance of persecution in the future, the Tribunal may have to take into account the probability of error in its findings. Thus in Guo at 576, the joint judgment contrasted: (1) a scenario where the Tribunal finds that it is only slightly more probable than not that an applicant has not been persecuted in the past for a Convention reason in determining whether there is a well-founded fear of future persecution; and (2) a scenario where the Tribunal had no real doubt that its findings as to the past and the future were correct. 24 In the former case, the joint judgment considered that the Tribunal must take into account the chance that the applicant was so persecuted when determining whether there is a well-founded fear of future persecution, while in the latter case the Tribunal is not so bound given its apparent confidence in its conclusions: see also Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 (Sackville J at 240 [62] (North J agreeing)). 25 Here, subject to one caveat, I accept the Minister's submission that the Tribunal expressed its findings with such confidence that there was no need for the Tribunal to go further and consider whether there is a well-founded fear of future persecution in the alternative on the assumption that those findings may be wrong. The caveat arises from the Tribunal's reasons at [43] where the Tribunal was considering the appellant's claim that she would be harmed if she declines Maoist membership if returned. With respect to that claim, the Tribunal found that: On the basis of this information [being country information referred to at [40]-[41] of the Tribunal's reasons] the Tribunal finds that there is no real chance the applicant will face serious harm were she to return to Nepal in the reasonable [sic] foreseeable future at the hands of the Maoists as she was formerly associated and will refuse their membership or to be associated with them in the future. In making this finding the Tribunal has considered her response but finds the information outlined above to be more persuasive. As the Maoists are in government and in charge of the authorities it follows that the Tribunal finds that there is no real chance she will face serious harm from the government or the authorities for the same reasons were she [sic] return to Nepal in the reasonably foreseeable future. (Emphasis added.) 26 I raised with the Minister's counsel at the hearing the question of whether the finding that the information referred to was "more persuasive" was a finding expressed with sufficient confidence so as to relieve the Tribunal of the requirement to consider the position on the alternative assumption that it was wrong. However, I accept the Minister's submission that, read in context, the finding was a part only of the Tribunal's reasons for finding that there is no real chance she will suffer serious harm if returned - a finding about which the Tribunal ultimately had no apparent doubt. Importantly, in this regard, the appellant's response to the country information in question which the Tribunal found was "more persuasive" had been to repeat her claims that she was never released by the Maoists and would be harmed on her return for not joining them. However, the Tribunal had for reasons given earlier in its decision rejected her claim to fear persecution from Maoists because she was forcibly held by them and monitored until September 2010 and had escaped without permission, finding that her evidence to this effect was not credible (at [38]-[39]).

4.2 The second and third grounds of appeal 27 The second and third grounds of appeal allege that: 2. The Federal Circuit Court erred by failing to find that the Tribunal made a jurisdictional error in making a conclusion that I have no problems with the Maoists and the authorities and that I could live safely in Nepal having regard to the material upon which it relied, that reliance being unreasonable. 3. The Federal Circuit Court erred by failing to find that the Tribunal made a jurisdictional error in concluding that I did not have a well- founded fear of persecution from the Maoists or the authorities that conclusion being irrational and/ or unreasonable. 28 Unreasonable or irrational findings may sound in jurisdictional error: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at 647-648 [130] (Crennan and Bell JJ). Unreasonableness "is a conclusion which may be applied to a decision which lacks an evident and intelligible justification": Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) at 367 [76] (Hayne, Kiefel and Bell JJ). Similarly, accepting the overlap between the concepts, irrationality or illogicality sufficient to give rise to jurisdictional error is not merely an emphatic way of expressing disagreement with the decision, but rather means, as Crennan and Bell JJ explained in SZMDS at 648 [130], that: …the decision which the Tribunal reached, in relation to the state of satisfaction required under s 65 [of the Act], is one at which no rational or logical decision maker could arrive on the same evidence… it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. 29 As their Honours then cautioned, "[n]ot every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case" (SZMDS at 648 [130]). 30 Here the grounds of appeal do not disclose the basis for the generic allegation that the ultimate conclusions reached by the Tribunal in rejecting her claims are unreasonable or irrational. Nor, irrespective of whether or not another decision-maker would have made the same findings, does a reading of the Tribunal's reasons suggest unreasonableness or irrationality. As Hayne, Kiefel and Bell JJ explained in Li at 363 [66], after accepting that the discretion of a decision-maker must be exercised according to the rules of reason and justice: This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. (Emphasis added.) See also Crennan and Bell JJ in SZMDS at 648 [131]. 31 It may be that by grounds 2 and 3, the appellant intended to challenge the primary judge's conclusion at [20]. His Honour there dismissed the fourth ground of the appellant's application in which she contended that the Tribunal's rejection of her allegation concerning the Nepalese Maoists was arbitrary, and reached without regard to the evidence. However, the summary of the Tribunal's reasons set out earlier at [9]-[13] above demonstrates, as the primary judge held, that the Tribunal's reasons disclose a considered analysis of the appellant's claims informed by information from other sources. They were not arbitrary. 32 In short, it was open to the Tribunal to engage in the process of reasoning in which it engaged in considering whether the appellant's claims were credible by reference to such matters as their plausibility in the circumstances and independent country information, and to make the findings which it made on the material before it. There is nothing in the decision reached by the Tribunal suggesting, in my view, that the standard of reasonableness or rationality understood in the context of the scope and purpose of the Act has not been met.

4.3 Other matters 33 Finally, I note two further matters. 34 First, while not raised by the notice of appeal, I note that it is possible that the evidence of the appellant regarding the issue of her Maoist Membership Certificate was misunderstood. Specifically, the Tribunal does not refer in its reasons to the fact that the certificate states that party membership was obtained by her in 2004, even though, as the Tribunal found, the certificate relied upon in evidence bears a verification date of 2008 and states that the details were completed in 2008. It will be recalled that the Tribunal found that the certificate was not genuine because of a perceived discrepancy between the appellant's evidence that she was asked to fill out the form in 2004 and the verification and completion dates recorded on the certificate, together with country information regarding the extent of document fraud in Nepal: see above at [10]. However, I do not consider that any misunderstanding of the appellant's evidence on this point could constitute more than an error of fact within jurisdiction, if in fact there was a misunderstanding, and therefore any such error would lie outside the proper limits of judicial review: SZRPT v Minister for Immigration and Border Protection [2014] FCA 24 at [35]-[36] (Katzmann J). 35 Secondly, in a departure from its usual practice, the Tribunal did not summarise the hearing before it in its reasons for decision before making findings on the appellant's claims and determining whether the criteria for the grant of a protection visa were met. I do not consider that in itself this suggests error on the part of the Tribunal. The requirements under s 430(1) of the Act are relevantly to set out the decision and reasons for the decision, to set out the findings on any material questions of fact and to refer to the evidence or any other material on which the findings of fact were based. In my view, the Tribunal's reasons reveal that it has complied with those requirements. Nonetheless, in my view the Tribunal's usual practice is to be encouraged among other things in the interests of transparency and accountability given that no transcript of the Tribunal hearing is generally available and its production is likely to be beyond the means of many unsuccessful protection visa applicants.

5. CONCLUSION 36 The appeal should be dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.