FEDERAL COURT OF AUSTRALIA

SZPAB v Minister for Immigration and Citizenship [2011] FCA 1253

THE COURT ORDERS THAT:

1.    The Notice of Appeal as filed on 5 July 2011 is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, awarded in a lump sum of $2,430.00 pursuant to r 40.02(b) of the Federal Court Rules 2011.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1        The Appellant is a citizen of Nepal.

2        She arrived in Australia on 2 July 2009 and applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa. A delegate refused that application. She then sought review by the Refugee Review Tribunal. But that Tribunal by its decision on 28 January 2011 affirmed the delegate’s decision.

3        On 23 February 2011 she filed in the Federal Magistrates Court of Australia an application seeking review of the Tribunal decision. On 15 June 2011 that Court dismissed the application: SZPAB v Minister for Immigration and Citizenship [2011] FMCA 439.

4        On 5 July 2011 she filed a Notice of Appeal in this Court.

5        She attended before this Court on 1 November 2011. She appeared unrepresented. She appeared with an interpreter.

6        The appeal is to be dismissed.

THE GROUNDS OF REVIEW AND THE NOTICE OF APPEAL

7        The grounds upon which the application before the Federal Magistrates Court were expressed (without alteration) were as follows:

1.    I argue that I have a well founded fear of persecution on the basis of being a member of particular social group as a victim of rape by the Maoists due to my imputed political opinion in my country.

2.    It is not fair that the Tribunal rejected my claim on the basis that I could avoid harm by relocation within my country. I contend that the Tribunal failed to satisfy all its statutory requirements in dealing with my case and it did not refer to its duty to confer common law, natural justice in determining my application. The Tribunal member intentionally expressed reluctances in considering my case to be valued for the purpose of Convention reason.

3.    I argue that the Tribunal member’s decision in my case has been vitiated by an error of law as the evidence that the Tribunal member relied upon is so unreasonable or so inadequate the only inference is that the Tribunal member failed to satisfy all its statutory requirements in dealing with my case.

4.    The Tribunal failed to exercise its jurisdiction by failing to consider and make findings in respect of my claims as it did not address the question of whether a person in my position was able to obtain adequate protection.

8        In contrast to these grounds of review stands the Notice of Appeal as filed in this Court. The first Ground of Appeal is expressed as follows:

1.    I believe the learned Federal Magistrate expressed reluctances in discerning the error of law on the part of the Tribunal’s decision in my case.

Thereafter there are a further seven purported Grounds of Appeal, Grounds 2 to 8. None of these further Grounds identify any error said to have been committed by the Federal Magistrate. All are directed to the manner in which the now Appellant sought to advance her claims or the manner in which the Tribunal resolved the factual merits of those claims. Grounds 2 and 3 may be set forth as but examples. Those two Grounds are expressed (without alteration) as follows:

2.    I argue that I have a well founded fear of persecution on the basis of being a member of particular social group as a victim of rape by the Maoists due to my imputed political opinion in my country.

3.    It is unfair that the decision maker did not refer to my ability to articulate my problems consistently due to posttraumatic stress of rape and very low level of education but referred to my credibility based on contradictory information in relation to my claims. I am victim of rape from a poor rural area, with very low level of education so I cannot be expected to articulate or recall the exact detail of my claims. I regard the Tribunal Member’s decision in my case a positive finding of concoction of my claims is not just a failure to accept my oral evidence, but a positive finding of improper conduct.

Other Grounds (6 and 8) refer in part to a “lack of good faith” on the part of the Tribunal; one Ground (5) also contends in part that the “Tribunal’s decision was not detailed, painstaking and careful”. That Ground also makes reference to the Tribunal’s “initial disbelief of my credibility” and “fail[ure] to look at my entire evidence in a new light”. But the thrust of each of these three Grounds of Appeal, as with the other remaining Grounds, is essentially directed to the manner in which the Tribunal resolved the facts.

GROUND ONE – A RELUCTANCE TO DISCERN ERROR

9        It is difficult to understand the full import of that which the Appellant intends to convey by the first Ground of Appeal.

10        To the extent that this Ground challenges the manner in which the Federal Magistrate resolved the grounds of review advanced before that Court, the challenge is without merit.

11        The reasons for decision of the Federal Magistrate address each of the four grounds previously advanced by the now Appellant. In doing so, no error is discernible in any of the reasons given. It is respectfully concluded that the Federal Magistrate’s decision is correct for the reasons he gave and is free of appellable error.

12        To the extent that this Ground seeks to contend, perhaps, that the Federal Magistrate’s decision is open to challenge on the basis that his “reluctances in discerning the error of law” manifest a reasonable apprehension of bias, any such contention would be also without merit. The reasons for decision expose no “reluctance” to engage with any of the grounds of review sought to be advanced. On the contrary, the reasons for decision expose a careful (and correct) analysis of the arguments advanced. That reasoning need not now be repeated.

13        The first Ground of Appeal is dismissed.

GROUNDS TWO TO EIGHT – A REVISITING OF THE CLAIMS AND MERITS

14        Grounds 2 to 8 (inclusive) suffer from a number of insurmountable difficulties.

15        First, none of those Grounds identify any appellable error said to have been committed by the Federal Magistrate. The role entrusted to this Court is relevantly to entertain and resolve an appeal from a decision of the Federal Magistrates Court. No original jurisdiction is entrusted to it to review the decision of the Tribunal.

16        Second, all of the Grounds – in one manner or another – seek to revisit the merits of the decision as made by the Tribunal. The task of resolving the factual merits of a claim, however, is entrusted to the Tribunal – and not to either the Federal Magistrates Court or this Court: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] per Gray, Tamberlin and Lander JJ. Their Honours there also said succinctly: “it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal”. Grounds 2 to 8 each seek to impermissibly propel this Court into a review of the factual merits of the claims advanced by the now Appellant.

17        Third, none of these Grounds have in any event any factual merit. Each of the criticisms made of the manner in which the Tribunal proceeded is without substance. The Tribunal, it is considered, proceeded in a manner which was procedurally fair and in accordance with the Migration Act 1958 (Cth) and provided a reasoned decision based upon the facts as it found them.

18        The procedural course that the Tribunal pursued relevantly commenced when the Appellant appeared before it on 10 January 2011. Subsequently, the Tribunal wrote to the Appellant on 12 January 2011 advising her of the concerns that it had. The letter thus stated in part as follows:

I am writing about the application for review made by you in relation to a decision to refuse to grant a Protection (Class XA) visa.

In conducting its review, the Tribunal is required by the Migration Act to invite you to comment on or respond to certain information which the Tribunal considers would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

Please note, however, that the Tribunal has not made up its mind about the information.

The particulars of the information are:

•    There are discrepancies in your evidence regarding the sequence of events which led to your departure from Nepal.

    …

•    You did not provide a consistent account of your circumstance in Nepal regarding your contact with the Maoists after the attack.

    …

•    You did not provide a consistent account of your circumstance in Nepal regarding your activities after the attack.

    …

•    You claim that you were attacked by Maoists for political reasons but you have provided only vague evidence in support of these claims.

    …

•    You claim that as a woman in Nepal you will be at risk of rape and sexual violence by soldiers, Maoists and the police, but you have not provided evidence to support this claim.

Under each of the “particulars” set forth in the letter, details were provided as to each of the issues raised with the Appellant for her comment.

19        A further interview with the Tribunal thereafter occurred on 27 January 2011 and the Tribunal published its reasons for decision on 28 January 2011. Those reasons record nothing other than a consideration of the claims being advanced and a consideration which proceeded in a balanced way which took account of the difficulties experienced by the Appellant.

20        The Tribunal thus, for instance, recounted the “contradictory information relating to her claims”. It proceeded to set forth the manner in which it resolved questions of credibility which arose as follows:

[54]. The Tribunal does not consider it appropriate to take an overly stringent approach to questions of credibility but neither does it consider it appropriate to accept all claims uncritically. The applicant claims that her lack of education, language difficulties, interpreter errors, and her poor memory, contributed to the discrepancies in her evidence. [f’note omitted]

[55]. The Tribunal has considered the discrepancies in the applicant’s evidence and the reasons she provided for the discrepancies. The Tribunal has formed the view that the applicant may have exaggerated her claims and she was unable to recall and repeat those claims consistently throughout the processing of her application. Nevertheless, despite these considerations, the Tribunal has decided to give the applicant the benefit of the doubt and accept her core claim that she was sexually assaulted in her village in February or March 2009.

Those particular claims were, accordingly, resolved in favour of the now Appellant. The reasons for her lack of success before the Tribunal were to be found in the later findings of fact, including a finding that she could relocate within Nepal and that her fears as to violence at the hands of the Maoists were not well founded. As to her ability to relocate, the Tribunal found as follows:

[60]. The Tribunal has considered the applicant’s individual circumstances and her reasons for not wishing to remain in Nepal. The Tribunal accepts the applicant’s claim that following the attack in February or March 2009 she did not feel safe in Nepal and she did not wish to live there. However, the Tribunal has formed the view that the applicant and her husband were safe from the persons they feared in their village when they relocated to Kathmandu. The applicant claims that she did not feel safe there and she was fearful that Maoists from her village would seek to harm her in Kathmandu. However, after considering the applicant’s evidence regarding her circumstances in Nepal, the Tribunal is satisfied that Maoists from her village did not demonstrate any apparent or ongoing interest in the applicant after she left the village and relocated to Kathmandu. The Tribunal is satisfied that the applicant was able to relocate successfully with her family before she left for Australia and it is satisfied that a similar situation exists for her now and will exist for her in the reasonably foreseeable future. The Tribunal finds that the applicant can avoid the harm she anticipates in her village by living with her family in Kathmandu. The Tribunal finds that it is reasonable for the applicant to relocate in Nepal, as she did before, to avoid the persons she fears in her village.

In regard to the claims that she was vulnerable to violence at the hands of the Maoists, the Tribunal concluded:

[63]. The applicant’s evidence indicates to the Tribunal that she has never been targeted by soldiers or the police in Nepal. She claims that she was harassed by Maoists and that Maoists were involved in the sexual assault she suffered. However, the Tribunal finds, for reasons already provided, that the applicant’s difficulties with the Maoists were confined to her village and that she was not targeted by Maoists after she left the village. Furthermore, information from external sources, including the US Department of State, 2009 Human Rights Report: Nepal, referred to in the letter to the applicant, which examines the treatment of women in Nepal, does not support the applicant’s claim that women in Nepal are commonly vulnerable to rape and sexual violence by Maoists, the police or soldiers. The Tribunal finds that the applicant’s fear that as a woman in Nepal, she is vulnerable to rape and sexual violence by soldiers, Maoists, and the police, is not well-founded.

This is but part of the reasoning of the Tribunal.

21        Such reasoning of the Tribunal as has been extracted serves to demonstrate that each of the factual issues sought to be raised in Grounds 2 to 8 of the Notice of Appeal has been addressed by the Tribunal. The conclusion reached by the Tribunal in respect to each of those issues is a matter for the Tribunal alone to resolve. Each of the findings as made by the Tribunal was open to it upon the evidence and other materials before it.

22        Some residual concern, however, may be expressed as to the potential ability of factual findings to be protected from meaningful judicial scrutiny by being characterised or clothed as findings based upon adverse findings as to credit. Such findings, it is well accepted, are matters “par excellence” for the Tribunal to resolve (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J) and without more are not reviewable by either the Federal Magistrates Court or this Court (Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 at [40]; SZOXP v Minister for Immigration and Citizenship [2011] FCA 923 at [26]; SZOUL v Minister for Immigration and Citizenship [2011] FCA 945 at [28]). See also: SZMPN v Minister for Immigration and Citizenship [2009] FCA 203 at [30].

23        But such findings should only be made when they are truly warranted. The considerable extent of the powers entrusted to administrative decision-makers, including the present Tribunal, and their power to affect the lives and liberties of those persons who entrust their claims to their care, must necessarily be recognised. When addressing the manner in which the Administrative Appeals Tribunal reaches the “correct or preferable decision”, for example, the President of the Tribunal (Downes J) and Senior Member McCabe in Re Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690 have observed:

THE PREFERABLE DECISION

[62] This leads to the question of just how the preferable decision is to be arrived at. Decision-makers are apt to say that they are satisfied about a discretionary matter. They may offer “an opinion” or “view” as to what is appropriate. The test, however, cannot be subjective. It cannot admit of idiosyncratic ideas. Evaluation in accordance with the decision-maker’s own personal standards or philosophy must not guide the determination.

[63] It is important to remember the difference between court adjudication and administrative decision-making. Judges are not often called on to make decisions which require an evaluation of the consequence of a decision in terms of public interest. Their focus is more on questions of lawfulness of conduct. The power of administrative decision-makers, both within government and on review, is often a significant power. In terms it can exceed the powers of courts. The extent of the power implies that it must be exercised with care. Administrative decision-makers at all levels frequently make decisions which affect the operations of government where individuals are affected. Very often the only clearly applicable measure or touchstone is the public interest. So how is the public interest to be determined?

[64] It must be the case that the proper basis of evaluation, of reaching the preferable decision, in these cases, is reference to community standards or community values. It is not the decision-maker’s personal or idiosyncratic view of what will adequately protect the public which is relevant, but what the decision-maker determines will achieve that result in accordance with community standards or values.

[65] Although little has been said about the method to be employed in arriving at the preferable decision, and even less about the relevance of community standards or values, a good deal has been written about community standards or values in the judicial context. Because discretionary decision-making is associated more with administrative decision-making than court adjudication, this discussion is equally applicable to administrative decision-making. Indeed, the width of general discretionary decision-making for administrators makes it even more important than it is to court adjudication where discretions are generally more confined. The constraints on court adjudication generally leave less latitude to judges than administrative decision-makers. Greater latitude calls for increased care.

The recognition of the “significant power” entrusted to administrative decision-makers and the call for “increased care” are equally apposite in the present statutory context.

24        It would be surprising if any detailed factual account of events occurring some considerable time in the past, and associated with the personal trauma of people facing violence and persecution, would ever be free from some lack of consistency. Such inconsistencies if – or when – they occur should not be too readily seen as the hallmark of a lack of credibility. As has been recognised, “the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself”: Abebe v Commonwealth of Australia [1999] HCA 14 at [191], 197 CLR 510 at 577 to 578 per Gummow and Hayne JJ. Equally, however, it must also be recognised that many claims for refugee status that come before the Tribunal are made without any factual or legal merit – or with limited merit. Many other claimants seek to either advance false claims or seek to embellish claims which otherwise have some merit. Whatever the reason, it is the very task of the Tribunal to test the claims being made and to then make findings of fact and, in doing so in an appropriate case, to make findings as to credit.

25        A Tribunal should thus not be deterred from engaging in “vigorous testing” of perceived weaknesses in a claimant’s case – but should be conscious of the need to ensure that a claimant is not “overborne or intimidated”: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [31], 179 ALR 425 at 435 per Gleeson CJ, Gaudron and Gummow JJ. See also: SZOXR v Minister for Immigration and Citizenship [2011] FCA 897 at [48], 122 ALD 346 at 354 to 355 per Katzmann J.

26        A recognition of the difficulties that are invariably presented cannot, of course, deter the Tribunal from making adverse findings of credit in an appropriate case. Such findings may, in part, be based upon inconsistencies in accounts being advanced for resolution as well as the advantages that any primary decision-maker has in seeing a claimant in person.

27        The task of this Court in identifying any jurisdictional error that may have occurred is only assisted if it can proceed with confidence that the findings of fact that have been made by a Tribunal have been made after a genuine and proper consideration of the entirety of the evidence and other materials relied upon by a claimant. That confidence is only enhanced when – as in the present Tribunal reasoning process – the conflicting factual accounts are set forth. The fact of conflict, however, may only be the source of the need to resolve a separate or discrete question of credit. The practical difficulty is often to set forth the basis for accepting one account rather than another. Little assistance would be provided to a Court where a conflict in evidence is exposed and a simple conclusion expressed that a claimant is not to be believed. It may be in a particular case that a failure to do no more than to set forth the “findings” in respect to conflicting accounts and to set forth no more than an adverse “finding” as to credit may not comply with s 430 of the Migration Act. Section 430(1) provides as follows:

Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a)    sets out the decision of the Tribunal on the review; and

(b)    sets out the reasons for the decision; and

(c)    sets out the findings on any material questions of fact; and

(d)    refers to the evidence or any other material on which the findings of fact were based.

A failure to set out “the reasons” for a decision or to refer to “the evidence or any other material on which” adverse “findings” as to credibility are based may lead to a decision of the Tribunal being set aside. Focussing upon “the thought processes of the decision-maker” may expose jurisdictional error: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [33], 240 CLR 611 at 623 per Gummow A-CJ and Kiefel J. But it should constantly be borne in mind that s 430 “does not provide the foundation for a merits review of the fact-finding processes of the Tribunal”: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 at [117], 197 CLR 611 at 646 per Gummow J.

28        But such concerns do not manifest themselves in the present proceeding. Contrary to the contention of the Appellant, the reasons and findings of fact as made by the present Tribunal are both “detailed … and careful”. Moreover, and notwithstanding a lack of consistency in the account given (for example) as to the attack upon the Appellant in early 2009, that claim was accepted. No adverse finding of credit on the issue centrally relevant to her claim was thus made by the Tribunal. The acceptance of some claims does not, however, mean that all claims need be accepted. That was the fate of the present Appellant. No failure to comply with s 430 can be discerned. To the extent that Ground 5 seeks to do more than canvass the merits of the decision reached, it is rejected.

29        To the extent that Grounds 6 and 8 seek to separately contend that there was a “lack of good faith” on the part of the Tribunal, such contentions are without substance. An argument as to a lack of good faith – or bad faith – is a serious allegation (SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397 at [19] per Heerey, Moore and Kiefel JJ) and “must be clearly particularised” (Haritopoulos Pty Ltd v Deputy Commissioner of Taxation [2007] FCA 394 at [32], 66 ATR 225 at 231 per Besanko J). See also: NAKF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 730 at [21], 130 FCR 210 at 218 per Gyles J; SZJHE v Minister for Immigration and Citizenship [2008] FCA 1771 at [11]. There is on the facts of the present proceeding no basis for concluding other than that the Tribunal genuinely considered the claims advanced by the now Appellant in a fair and objective manner. It has fully explained its reasons for the conclusions reached. Indeed, it has exposed a sympathetic – and appropriate – assessment of the claims made.

30        Grounds 2 to 8 are dismissed.

CONCLUSIONS

31        The appeal is to be dismissed.

32        There is no reason why costs should not follow the event such that the Appellant should pay the costs of the First Respondent. The Respondent Minister seeks an order pursuant to r 40.02(b) of the Federal Court Rules 2011 that costs be awarded in a “lump sum” of $2,430.00. An Affidavit verifies the appropriateness of such an amount. Such an order should be made.

ORDERS

The Orders of the Court are:

1.    The Notice of Appeal as filed on 5 July 2011 is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, awarded in a lump sum of $2,430.00 pursuant to r 40.02(b) of the Federal Court Rules 2011.

Associate:

Dated:    4 November 2011