WZATH v Minister for Immigration and Border Protection

Federal Court of Australia|2014-09-09|Before: Siopis J

REASONS FOR JUDGMENT 1 The appellant is a citizen of Nepal who arrived in Australia on 28 July 2009 on a Student (Class TU 572) visa. The appellant never undertook a course of study, but on 9 April 2011 applied for a Skilled Graduate (Temporary) (class VC, subclass 485) visa. That application was refused on 10 April 2012. On 23 May 2012, some two years and 10 months after arriving in Australia, the appellant lodged an application with the Department of Immigration and Citizenship (now the Department of Immigration and Border Protection) for a protection visa. 2 The appellant claimed that she feared returning to Nepal as she was pressured into marrying a man 15 years older than her who subjected her to years of family violence, before her sister and brother-in-law assisted her to flee Nepal for Australia in July 2009. The appellant said that her husband was violent towards her and assaulted her verbally and physically. He gambled and drank heavily and also had an affair with another woman. The appellant said her husband would kill her if she reported the abuse to the authorities and, in any event, her husband's family were wealthy and had good connections with the police. 3 The appellant also said that she could not report the abuse to others because she had no witnesses to the violence as her husband acted like a good husband in the presence of others. 4 On 21 November 2012, a delegate of the first respondent rejected the appellant's protection visa application on credibility grounds. The delegate found that the appellant had submitted false documentation, and that she was not married to the person to whom she claimed to be married and that the domestic violence which she claimed had been inflicted on her by that person, had not happened. The delegate found that her fear that she would be harmed on her return to Nepal, was not well-founded. The delegate went on to say that he did not need to address whether the appellant's fear if well-founded would amount to a fear of persecution for a Convention reason.

the tribunal 5 The appellant sought review of the delegate's decision before the Tribunal. Before the Tribunal, the appellant gave oral evidence and relied upon a number of documents to support her claims, including documentation from her village committee in Nepal. 6 The Tribunal rejected the appellant's claim of a well-founded fear of persecution on credibility grounds. The Tribunal found that there were omissions and inconsistencies in the appellant's evidence, including inconsistencies about her family structure. The Tribunal found that the appellant had provided fraudulent documentation to obtain her student visa. The Tribunal found that the appellant's delay in applying for a protection visa cast doubt on the genuineness of her alleged fear of persecution in Nepal, as the appellant took nearly three years to lodge her claim for protection after her arrival in Australia in July 2009. 7 In short, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason nor that there was a real risk that she would suffer significant harm if she was to return to Nepal.

the federal circuit court 8 The appellant brought an application for judicial review of the decision of the Tribunal to the Federal Circuit Court. The appellant's grounds of review were: 1. It is argued that the Tribunal member displays a lack of good faith on me because the Member has alleged me that I am a credible witness despite I told the truth regarding my delay in making a protection visa application, my marriage, my family members, my suffering as a result of domestic violence and pathway of coming to Australia as the Tribunal Member failed to examine my evidence from the point of view the circumstances in which it occurred rather than from the point of her own worldview. According to the Tribunal's comments at the hearing, a reasonable observer would gain the impression that the Tribunal had already made up her mind and that anything else would be a waste of time. 2. I argue that the Tribunal member's decision in relation to my case was taken in breach of natural justice as the Member established that an initial disbelief of my credibility on one matter and failed to look at my entire claim with fairness. In the context of the Tribunal's reasoning for rejecting my claims as fabrications hat its failure genuinely to assess the evidence favourable to me and a propensity to adopt illogical or unbalanced reasons. 3. I believe the Tribunal Member took an irrelevant consideration into account to cast a shadow on my credibility. I believe that as a result the procedure had not been satisfactory because it had not been wholly fair to me. 4. The Tribunal gave no consideration at all as to whether I have a well-founded fear of persecution for a Convention reason, as it was obliged to do so. My evidence before the Tribunal was adversely construed against my claims. 5. I contend that, based on the Tribunal's conduct at the hearing and from the terms of the reasons, the decision in my case was affected by apprehended bias. The Tribunal's decision failed to give me procedural fairness as apprehended bias was established. The Tribunal mixed up many facts with this decision which also affected the decision. These included my knowledge of documentation, all of which caused doubts as to the fairness of what took place at the hearing. I believe the Tribunal member has deprived me of natural justice. 6. The Tribunal member's decision in my case has involved an error of law. 9 I note in passing that the grounds of review in the application before the Federal Circuit Court did not bear the sequential numbering referred to above, but were, in fact, misnumbered. 10 On 28 May 2014, the primary judge gave a generous construction to the appellant's grounds of review, and after a thorough consideration of the grounds of review, dismissed the appellant's application.

the appeal 11 The appellant has set out the following two grounds of appeal in her notice of appeal: 1. I believe the learned [primary judge] failed to identify an error of law which was committed by the Refugee Review Tribunal Member in my case. 2. I contend that the Refugee Review Tribunal Member's decision in my case has been affected by lack of fairness and injustice.

The first ground of appeal 12 The appellant did not during her oral submissions to the Court elucidate on the primary judge's error referred to in the first ground of appeal relied on. However, in the course of her submissions the appellant did complain that the Tribunal had been wrong to reject her evidence without having investigated her claims for itself. The appellant said that the Tribunal failed to inquire from persons in her village committee in Nepal, before rejecting her claims. 13 In essence, the appellant's complaint appears to be that the primary judge erred in failing to uphold her complaint that the Tribunal had fallen into jurisdictional error by rejecting her evidence on the grounds of credibility. This complaint was considered by the primary judge under ground one of the grounds of review. 14 The primary judge found that the assessment of the appellant's credibility was a matter "par excellence" for the administrative decision-maker. The primary judge went on to identify the matters on which the Tribunal had relied for its adverse credibility findings. These matters included the fact that the appellant had used false documentation to apply for her student visa, and that there were inconsistencies in her applications for the skilled graduate visa and the protection visa. The primary judge concluded that there was "no error, let alone jurisdictional error" in the manner in which the Tribunal dealt with the appellant's credibility. 15 Further, the primary judge found that in light of the Tribunal's adverse credibility findings in respect of the appellant's oral evidence, and the country information of the existence of document fraud in Nepal, it was open to the Tribunal to give the appellant's documentary evidence no weight. 16 Insofar as the appellant complained before this Court, of a failure by the Tribunal to inquire as to the authenticity of the documents from her village committee in Nepal, there was no jurisdictional error, in that failure. There is no general duty upon a Tribunal to make its own inquiries in relation to document authenticity. This was not an instance when the observations of the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 would have any application. Accordingly, there is no substance in that submission. 17 I would observe that, insofar as the appellant sought by this ground to allege error in respect of any other of the appellant's grounds of review considered by the primary judge, I have read the primary judge's reasons and am satisfied that the primary judge did not err in rejecting the grounds of review which were raised by the appellant before his Honour. 18 It follows that the first ground of appeal is dismissed.

The second ground of appeal 19 The second ground of appeal can perhaps be construed as a complaint that the primary judge erred in failing to find a breach of procedural fairness by the Tribunal. 20 The primary judge dealt with the procedural fairness issue which had been raised before him under the rubric of three of the grounds of review. The primary judge observed that the issues in relation to the appellant's credibility were raised with her at the hearing and she was offered time within which to respond, but she chose to respond immediately. The primary judge found that there had been no denial of procedural fairness as the Tribunal had complied with its obligations under s 424AA of the Migration Act 1958 (Cth). In my view, the primary judge did not err in coming to that view. 21 The second ground of appeal is dismissed. 22 The appeal is dismissed with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

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