FEDERAL COURT OF AUSTRALIA

SZSKV v Minister for Immigration and Border Protection [2014] FCA 458

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    Within 7 days hereof, the first respondent is to notify the appellant at his address for service of the order dismissing his appeal and the terms of r 36.75(2) of the Federal Court Rules 2011 (Cth).

3.    The appellant is to pay the costs of the first respondent as agreed or assessed.

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

REASONS FOR JUDGMENT

1    This appeal is from a decision of the Federal Circuit Court of Australia (which replaced the Federal Magistrates Court) which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal). The Tribunal had affirmed a decision of the Minister’s delegate to refuse to grant the appellant a protection visa.

2    When the appeal was called at 10:15 am this morning, there was no appearance by the appellant. I adjourned the matter for 30 minutes in case the appellant was running late. When the appeal was called again at 10.45 am there was still no appearance by the appellant.

3    Mr Baird, who appeared for the Minister, applied to have the appeal dismissed under r 36.75 of the Federal Court Rules 2011 (Cth) (the FCRs). I pointed out that the ultimate source of the Court’s discretion to dismiss an appeal for non-appearance is s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). Mr Baird tendered two items of correspondence which had been sent to the appellant at his stated address for service. The first was a letter dated 16 April 2014 from the Court Registry advising the parties of the fact that the appeal would be heard today at 10:15 am before me. The second was a more recent letter dated 29 April 2014 which was sent by the Minister’s solicitors to the appellant at his stated address for service reminding the appellant of the scheduled hearing today and advising that, if he did not appear, the Minister would seek to have the appeal dismissed and apply for costs.

4    In the circumstances I consider that the preferable course is to proceed to hear the appeal in the appellant’s absence, as the Court is entitled to do under r 36.75 of the FCRs (see also Hu v Minister for Immigration and Citizenship [2009] FCA 1288). The Court has the benefit of written submissions filed on behalf of the Minister and notes that the appellant failed to file any outline of written submissions in support of his notice of appeal.

Summary of background facts

5    The appellant is a Nepalese citizen who arrived in Australia on 14 December 2008 on a student visa. On 13 May 2011 and very shortly before his student visa was to expire, the appellant applied for a protection visa. He provided a written statement on or about 28 November 2011 which set out the grounds for his claim to fear persecution if he returned to Nepal. He was also interviewed by the Minister’s delegate on 30 November 2011.

6    The appellant claimed that he fled Nepal in December 2008 because Maoists were extorting money from him and wanted him to support their cause. He claimed that he had paid money to the Maoists many times in order to avoid harm but was ultimately arrested by the police on the basis that they suspected he was supplying goods and money to the Maoists. He claimed that the police took him to the police station and beat him up. In his written statement, he said that the police “made me lie down and they tortured me”. He further claimed that the Maoists extorted money from him because he was a businessman and a member of the Rastriya Prajatantra Party (the RPP). He also claimed that his business had been taken over by the Maoists in July 2008 because he had refused to pay them RS250,000, which they had demanded of him back in April 2008. He said that he reported the matter to the police and although they said they would investigate his complaint “in reality nothing was done”. He also claimed that he was a monarchist and that he would have to conceal his political opinions to avoid harm from the Maoists if he were to return to Nepal.

7    On 8 March 2012, the delegate refused the protection visa application. Although he accepted that the appellant may support the RPP in Nepal, he was not satisfied that the appellant had a profile which would bring him to the adverse attention of the Maoists. Furthermore, although the delegate was prepared to accept that the appellant may have been the victim of Maoist extortion demands at some point and that he may have been detained by the police on one occasion, the delegate was not satisfied of the genuineness of the appellant’s claim to have operated a business in Nepal in the period 2005-2008. The delegate pointed to discrepancies in the appellant’s evidence regarding when the claimed Maoist takeover of his business actually occurred. Although he initially claimed that it occurred in 2008, on three occasions during his interview with the delegate he said that it occurred two or three years before he came to Australia, which would indicate 2005. The delegate also doubted the appellant’s credibility because he said during his interview that he had written his protection visa application under instruction from another person. Finally, the delegate found that the appellant could access effective state protection in Nepal and that, based on his lengthy delay in seeking protection in Australia, the delegate was not satisfied that he had come to Australia for other than economic reasons.

8    The appellant sought a merits review of the delegate’s decision in the Tribunal. An oral hearing was held on 7 August 2012. The appellant claimed that he had fled his village 2 or 4 days after he received the extortion demand for RS250,000 in 2008. When he was asked about his claims to have been beaten by the police, he said that he was standing when the beating occurred.

9    When the appellant’s attention was drawn to the inconsistencies in his claims regarding the timing of the alleged extortion demand and the circumstances of the police beating, he sought to explain them by blaming the person who prepared his written statement.

10    On 13 November 2012, the Tribunal affirmed the delegate’s decision. It found that the appellant was not a truthful witness and it rejected his claims concerning extortion, maltreatment by the police and having left Nepal in fear of harm. The adverse credit finding was based on inconsistencies in the appellant’s evidence relating to the timing of the alleged extortion and mistreatment by the police, as well as his failure to apply for protection until he had been in Australia for almost two and a half years. The Tribunal also rejected the appellant’s claims to have supported any political parties in the past or that he would be politically active if he were to return to Nepal. It also rejected his claim that he operated a rice mill and grocery store business in Nepal.

The proceedings below

11    The appellant sought judicial review of the Tribunal’s decision in the then Federal Magistrates Court. He raised five grounds of review, each of which was rejected by the Court. The first ground of review was that the Tribunal “ignored me for my safety based on his failure to understand my claims of fear on return to Nepal”. The Court found that this claim was unparticularised and that it ought to be rejected because the Tribunal fully understood his claims of fear if he returned to Nepal but it just did not believe him.

12    The second ground was that the Tribunal “did not assess my claims according to good faith”, which was dealt with by the Court in conjunction with the third ground, which was that the Tribunal “found me not to be a witness of truth because the member had no intention to believe me at all and whatever evidence or response I had truthfully given was viewed as no credible evidence” and that the Tribunal “intentionally made grounds for not believing me or my claims”.

13    The Court treated these claims as an allegation of bias on the part of the Tribunal. After briefly outlining relevant principles concerning bias as established in cases such as SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28, the Court found that there were no particulars or evidence to support the appellant’s allegations of bias and they were rejected.

14    The fourth ground of review was that the Tribunal’s “decision is unfair”. After noting that the claim was not particularised and had not been elaborated upon by the appellant at the hearing, the Court rejected it as being unsubstantiated.

15    The fifth and final ground of review was a claim that the Tribunal’s decision was affected by an error of law. Again, after noting that no error of law was identified, the Court also rejected this ground.

The appeal to this Court

16    The appellant, who represented himself, appealed from the decision of the Federal Circuit Court (which had replaced the Federal Magistrates Court) on the following two grounds, which I will set out verbatim:

1.    I believe the Federal Circuit Judge failed to find an error of law which was made by the Refugee Review Tribunal Member in its purported decision.

2.    I argue that the Refugee Review Tribunal Member’s decision in my case has been affected by lack of fairness.

17    As noted above the appellant failed to file a written outline of submissions in support of his appeal.

18    The Minister argued that neither ground of appeal identified any appellable error in the decision below. He highlighted the lack of any particulars identifying any alleged error of law the subject of ground 1. He also drew attention to the fact that there were no particulars identifying the manner in which the Tribunal’s decision is alleged to have been unfair, as raised by ground 2. In those circumstances, the Minister submitted that the appeal should be dismissed.

Consideration

19    In my view, the appellant has had sufficient opportunity to identify any appellable error in the decision below. The two grounds of appeal raised by him in his notice of appeal are patently deficient in that they fail to particularise any appellable error. I can discern no appellable error in the primary judge’s reasoning or the orders which were made.

20    In these circumstances, the appeal must be dismissed and the appellant ordered to pay the costs of the first respondent as agreed or assessed. I will direct the first respondent to notify the appellant at his address for service of the terms of r 36.75(2) of the FCRs. Orders will be made accordingly.

Associate:

Dated:    8 May 2014