FEDERAL COURT OF AUSTRALIA

SZRBT v Minister for Immigration and Citizenship [2013] FCA 539

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

1    The Appellant arrived in Australia on 12 December 2008. On 8 April 2011 she applied to the Department of Immigration and Citizenship for a Protection (Class XA) Visa. A delegate of the Minister refused that application.

2    On 14 July 2011 she then applied to the Refugee Review Tribunal for review of the delegate’s decision. On 15 December 2011 that Tribunal affirmed the delegate’s decision.

3    An application for review of the Tribunal’s decision was then filed with the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia). That Court dismissed the application on 26 November 2012: SZRBT v Minister for Immigration & Citizenship [2012] FMCA 1154.

4    The Appellant now appeals to this Court. The Notice of Appeal as filed on 31 December 2012 sets forth the Grounds of Appeal (without alteration) as follows:

1.    I am not satisfied with the judgement of Federal Magistrate Cameron as Cameron FM failed to discern a legal error on the part of the second respondent in my case.

2.    I argue that my fear of harm on return to Nepal is not remote because the authourity of my country is incapable to protect me from the harm I fear. I argue that

3.    It is contended that the Tribunal member did not consider the capability or willingness of the authourity of my country to protect me.

4.    I conclude that the second respondent’s decision in my case involved a jurisdictional error.

Only the first Ground of Appeal, it would appear, seeks to identify any appellable error committed by the Federal Magistrate. The second and third Grounds of Appeal appear to be more a challenge to factual conclusions reached by the Tribunal than an attempt to identify appellable error. The second Ground of Appeal also appears to be incomplete. The “jurisdictional error” in Ground 4 remains unspecified.

5    The Appellant maintained that she had drafted the Grounds of Appeal. She explained that the “legal error” in Ground 1 was a failure to consider the “situation in Nepal carefully”. But she was unable to explain what was intended to be conveyed by Ground 2. And she was also unable to explain what was missing from the end of that Ground.

6    Notwithstanding the manifest deficiencies in the manner in which the Grounds of Appeal have been expressed, it is considered that those Grounds should be construed in the context of the arguments advanced before the Federal Magistrate. They should also be construed as contending that the Federal Magistrate committed appellable error in rejecting those arguments and in dismissing the application.

7    The Appellant appeared unrepresented before this Court on 3 May 2013. On that occasion the interpreter failed to appear. The matter was adjourned to 9 May 2013. She again appeared unrepresented – but an interpreter was then available.

8    It is concluded that the appeal should be dismissed.

A FAILURE TO CONSIDER CLAIMS

9    Grounds 1 and 4 as presently set forth in the Notice of Appeal to this Court relate to a failure by the Federal Magistrate to discern an error in the decision of the Tribunal, and should be construed by reference to the Grounds advanced before the Federal Magistrates Court.

10    Before the Federal Magistrate, three Grounds were relied upon in support of the application then made. One Ground alleged that there had been a failure to “consider and make findings in respect of my claims…”. It was also alleged that the Tribunal member had “failed to use all the means to make the substantial evidence in terms of my fear on return to Nepal”.

11    The Federal Magistrate rejected these contentions. His Honour found the Tribunal did adequately address this issue: SZRBT v Minister for Immigration & Citizenship [2012] FMCA 1154 at [15].

12    Another Ground was construed as an argument that the Tribunal had failed to adequately assess the claims put forward such as to amount to a failure to undertake a review in accordance with law. It was alleged that there had been a failure “to make a proper genuine and realistic assessment of the real risk of serious physical or psychological harm” faced by the Appellant in Nepal. This argument was also rejected, again on the basis that the Tribunal had in fact appropriately undertaken an assessment of the risks: at [21] and [23].

13    The final Ground alleged that the Tribunal had failed to afford the now-Appellant procedural fairness and had “heavily relied upon cross examination of myself to highlight seeming inconsistencies and then to discount my evidence…”. This Ground was also rejected by the Federal Magistrate. In the absence of any transcript of the hearing before the Tribunal being available to either the Federal Magistrate or this Court, it is not possible to form any view as to either the “cross-examination” that did in fact take place or whether it was anything other than a testing of the now-Appellant of the factual account she was advancing for consideration. Nor is it possible to discern from the reasons for decision of the Tribunal the extent to which the Tribunal reached its conclusions based simply upon inconsistencies in the account being given or a simple lack of satisfaction as to the plausibility of her own account of the facts. Within the confines of procedural fairness and a need to ensure that an unrepresented party has been given a reasonable opportunity to advance a claim, an administrative decision-maker cannot be denied the benefit of a “successful” questioning and probing of evidence.

14    In none of these respects can it be seen that the Federal Magistrate has committed any appellable error.

15    It should further be noted that the grounds upon which the now-Appellant sought to challenge the decision of the Refugee Review Tribunal faced a number of fundamental difficulties. Two of these were:

    that a reading of the reasons for decision of the Tribunal exposes the fact that it set forth the claims made and recorded its findings in some considerable detail; and

    the fact that the Tribunal expressed considerable reservation as to the credibility of the claims being made.

In recording its findings, the Tribunal thus stated in part:

65.    The applicant has claimed to fear persecution if she returns to Nepal from a number of sources and for a number of reason. She has claimed to fear that she will be raped by Maoists in the future, because she has been raped by them in the past. She claims that she will be harmed by the Maoist who raped her because he told her not to tell anyone what he had done, but she did. The applicant claimed that because she is a widow and a single woman, she will be discriminated against by Nepalese society…

66.    The Tribunal had serious concerns about the applicant’s credibility. She admitted to having submitted a false marriage document in order to secure a Student Dependant visa on which she travelled to Australia. She claims to have been a Maoist and to have been involved with her Maoist husband’s political activism, but was not only vague about Maoist aims and her own activities, but claimed to know very little about the elections in 2008 in which the Maoist had a substantial victory, becoming the largest single party in government ... The applicant’s account of her actions after she allegedly refused to enter into an arranged marriage was, in the Tribunal’s view, implausible, in that she claimed that she, a 16 year old school student at the time, ran away from her parents’ home having refused the marriage, and they made no attempt to pursue her. The applicant was frequently confused about key dates…

…

68.     The Tribunal has given no weight to the supporting documents, a purported marriage certificate and a purported death certificate for her husband, submitted by the applicant. On her own admission she was responsible for producing fraudulent documents in order to secure a Student Dependant visa. Country information, discussed with the applicant … indicates that document fraud is widespread in Nepal. The applicant in her oral and written evidence gave information conflicting with that in the supporting documents, or evidence which was vague and unconvincing regarding events about which she had submitted documentation.

Later in its “Findings and reasons” the Tribunal stated:

72.    The Tribunal does not accept that the applicant was raped by a Maoist leader as she claimed after the death of her husband. Her account was unconvincing. In particular, she said at her Tribunal hearing that she did nothing about the alleged rape, but remained in a house on her own for some two weeks before she even contacted her sister to arrange to stay with her.

73.    The Tribunal accepts that after her husband’s death she moved to her sister’s place in Beni where she lived without incident from January to December 2008 when she departed for Australia.

74.    On the evidence before it, the Tribunal is not satisfied that the applicant had ever been persecuted in a Convention sense in the past in Nepal.

75.    It has considered whether there is a real chance that the applicant will be persecuted if she returns to Nepal in the foreseeable future.

76.    The Tribunal has not accepted that the applicant was ever raped, by a Maoist leader or by anyone else. While the situation in Nepal may be volatile, and Nepalese citizens may be vulnerable to various types of criminal activity, including rape, the Tribunal does not accept that there is other than a remote possibility that the applicant will be raped by a Maoist or anyone else in Nepal.

It thereafter ultimately concluded:

82.    On the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant will be persecuted for reason of her political opinion, either as a former Maoist supporter or a current critic of the Maoists, if she returns to Nepal.

83.    On the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant will face Convention-based persecution for any reason if she returns to Nepal within the foreseeable future. It is not satisfied that the applicant has a well-founded fear of persecution in Nepal within the meaning of the Refugees Convention.

16    Given these findings of fact, the difficulties confronting the now-Appellant when she appeared before the Federal Magistrate seem considerable. Certainly no appellable error is discernible in the reasons of the Federal Magistrate in dismissing the application.

17    Construing Grounds 1 and 4 of the Notice of Appeal as an allegation that the Federal Magistrate erred in rejecting the arguments previously advanced before that Court, those Grounds are rejected.

STATE PROTECTION

18    Although the second Ground of Appeal appears to be incomplete, it is nevertheless apparent that Grounds 2 and 3 seek to contend that the there was a failure on the part of the Tribunal – and thereafter the Federal Magistrate – to consider the ability of the state of Nepal to protect the Appellant from persecution.

19    These Grounds confront at least two difficulties.

20    First, neither of these Grounds was advanced before the Federal Magistrate. But an available ground of review which has not previously been relied upon should not too readily be discounted. Where a new ground of review is sought to be raised by an unrepresented party, however, consideration may legitimately be directed to the circumstances in which the new ground came to be formulated and its application to the facts in issue. Concern has previously been directed to unrepresented parties being advised by “friends” and grounds of review being raised which have no self-evident application to the facts: SZRCD v Minister for Immigration and Citizenship [2013] FCA 290. An available and viable ground of review should not be too readily ignored; but new grounds of challenge which seemingly have no immediate relevance to the facts as found by the Tribunal and drafted with the “assistance” of an ill-informed “friend” require a far more circumspect approach. Such seems to be the case in the present proceeding. Although considerable reservation is expressed as to whether the Grounds of Appeal were in fact drafted by the Appellant, contrary to her assertion during the hearing, or by some undisclosed “friend”, such musings can be left to one side.

21    Second, there is a need to express considerable reservation as to whether the present Appellant should be given leave to raise an argument that the Tribunal failed to consider the ability of the State of Nepal to protect her from persecution. Such an argument only arises where a claimant has established a well-founded fear of persecution for a Convention reason: Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1; Siaw v Minister for Immigration and Multicultural Affairs [2001] FCA 953 at [9] per Sundberg J; SZQZG v Minister for Immigration and Citizenship [2013] FCA 249. Even if such reservation be placed to one side, the argument in the present proceeding has no merit. The Appellant was found to be a person who does not face a well-founded fear of persecution.

22    However the present Grounds in the Notice of Appeal came to be drafted and what was intended to be embraced by Grounds 2 and 3 was not satisfactorily explained.

23    Even if leave were to be granted to now raise these arguments, Grounds 2 and 3 would be rejected. Neither has any factual substance.

CONCLUSIONS

24    The appeal is without merit. It should be dismissed. The Notice of Appeal is, with respect, nothing more than an attempt to impermissibly re-litigate the factual merits of the Appellant’s claims to refugee status as opposed to an attempt to raise any argument giving rise to jurisdictional error on the part of the Tribunal or appellable error on the part of the Federal Magistrate. Even when the Grounds are construed as contending that the Federal Magistrate erred in dismissing the application, it is clear that they should be rejected.

25    There is no reason why the Appellant should not pay the costs of the First Respondent.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent.

Associate:

Dated:    5 June 2013