SZDFB v Minister for Immigration
[2006] FMCA 458
•11 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDFB v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 458 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – relocation – common law procedural fairness. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), 5(1); 36(2); 65(1); 91R; 91S; 422B; 424A; 474; 483 |
| Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 SKFB v Minister for Immigration & Multicultural Affairs [2004] FCAFC 142 ApplicantVEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 Kioa v West (1985) 159 CLR 550 |
| Applicant: | SZDFB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG979 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 21 March 2006 |
| Date of Last Submission: | 4 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 11 April 2006 |
REPRESENTATION
| The Applicant appearing on his own behalf |
| Counsel for the Respondent: | Mr J. D. Smith |
| Solicitors for the Respondent: | Mr P. Reynolds, Clayton Utz |
ORDERS
That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
The application before this Court is dismissed.
That the applicant pay the First Respondent’s costs in an amount of $6000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG979 of 2004
| SZDFB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 10 September 1997, to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the applicant.
The applicant is a 36 year old man who claims to be a citizen of Nepal and is of Buddhist faith (“the Applicant”).
The Applicant arrived in Australia on 16 November 1995.
On 14 December 1995, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
The Applicant claimed that he feared persecution in Nepal by the Nepali Congress Party (“NCP”) by reason of his political affiliation with the Communist Party of Nepal – United Marxist Leninist (“CPN”).
On 9 April 1997, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 6 May 1997, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. On 29 August 1997, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 5 April 2004, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia owes protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“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 nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
Tribunal proceedings
The Applicant gave oral evidence to the Tribunal in addition to written evidence. The Tribunal had before it the Department’s file and other independent country information that it identified with specificity in its decision.
The Tribunal noted that the Applicant claimed that he was a citizen of Nepal and a long standing member of the CPN. The Tribunal noted that the Applicant claimed he had received threats from the opponents of the communist party, namely the NCP. The Tribunal noted that the only claim of the Applicant in respect of such threats was a visit to his house some 3 or 4 months before he left for Australia and 20 years after he commenced his political activities. The Tribunal noted that in the months prior to his departure, nothing else happened to the Applicant, although the Applicant claims that since that time further threats had been made.
The Tribunal had particular regard to the recent political history of Nepal after 1990. The Tribunal noted that since 1990 Nepal had become a constitutional monarchy with a parliamentary form of government and an independent judiciary. The Tribunal noted that in May 1991 Nepal had its first general election in 32 years and that whilst the NCP won the majority of seats, four variants of communist parties won around one third of the seats. The Tribunal noted that in September 1995 the NCP formed a right centred coalition government. The Tribunal also noted that the transfer of power to the new coalition was peaceful.
The Tribunal noted that, whilst the Applicant made claims of threats of violence, none were ever implemented. Nor, did the Applicant report any such incidents to authorities. The Tribunal noted that information provided to it by the Applicant, regarding official responses to violence, indicated that the authorities would act if the Applicant was to report threats of a serious nature. The Tribunal also noted that the Applicant’s chances of protection were greatly increased where the party with which he was aligned was in power in a coalition.
The Tribunal noted that the CPN had not resorted to violence to achieve their aims or avenge their parliamentary defeat in 1997. The Tribunal also considered independent information that revealed that there had been no reports of politically motivated disappearances or of political prisoners. The Tribunal also noted that Amnesty reports provided by the Applicant to the Tribunal revealed a crack down on terrorists by the then current government.
Further, whilst the Applicant claimed that he may be imputed with a political opinion in respect of support for the Maoists because of his history of leadership with the CPN-UML as a student, that he himself did not support violence and is not a member of that faction of the communist party with which violence may be associated.
It is in this political background and context that the Tribunal found that the Applicant’s fear of persecution was not well founded. The Tribunal noted that fear of persecution is well founded if there is a “real chance” of being persecuted on return to the country of nationality (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389). The Tribunal concluded that there is not a real chance that the Applicant’s fears of persecution would be realised, were he to return to Nepal. In making this finding, the Tribunal had particular regard, to its finding, that protection would be available to the Applicant by the government were he to report any threats of a serious nature.
The Tribunal had regard to the following matters in considering the issue of relocation. The Tribunal found that (i) the Applicant’s political opponents in the NCP had not used violence to achieve their aims, (ii) the NCP are no longer in power, the CPN party, of which the Applicant claims to be a member, is now in power, and (iii) that the government would therefore protect him in respect of any criminal conduct. In addition it had regard to the Applicant’s history of living and working in Kathmandu and the fact that he has been a regular visitor there over the years. It noted that the Applicant did not claim to ever have been harassed in Kathmandu and that, given his familiarity with that city, it was not unreasonable that, in the event he did not wish to return to Nepal, he could relocate there.
Accordingly, the Tribunal concluded that, in considering the totality of the Applicants claims and the evidence before it, there is not a real chance that the Applicant would face persecution for reasons of his political opinion or for any other Convention reason were he to return to Nepal. The Tribunal noted its conclusion remained the same whether the Applicant’s claims were considered separately and cumulatively. The Tribunal ultimately found that the Applicant did not have a well founded fear of persecution for a Convention reason and is therefore not a person to whom Australia has protection obligations under the Convention.
The hearing before this court
The Applicant was unrepresented at the hearing before this Court, although had the assistance of an interpreter.
The Applicant submitted that it was not possible for him to go back to Nepal because it was not safe and very dangerous and he would be arrested and punished. The Applicant submitted that the Tribunal was not aware of what was happening in Nepal or in Kathmandu. The Applicant submitted that it was not possible for him to go from “one place to another”. The Applicant stated there was no security for him because of the political situation that exists in Nepal. He stated that his safety could not be guaranteed were he to return. He stated that he “did not come here just for nothing”. The Applicant relied on the grounds identified by him in his application filed on 5 April 2004. The grounds in that document are set out as follows:
“A. The Refugee Review Tribunal made a jurisdictional error by failing to apply the Refugee Convention as amended by the Refugees Protocol to the application in question.
Particulars
(a). The Tribunal failed to discharge its obligations to make a finding as to whether or not the Applicant would be persecuted if returned to his country of nationality. Instead, the Tribunal assessed whether or not it would be possible for the Applicant to avoid problems.
B. The Refugee Review Tribunal made a jurisdictional error in that the Tribunal made an error of law in its construction of Australia’s protection obligations under the Convention and Sections 36(2) and 65(1) of the Migration Act 1958.
Particulars
(a). The Tribunal incorrectly examined the issue of the Applicant’s ability or lack thereof to relocate to another part of Nepal. Relocation does not arise when the persecutor is the government which has as much presence in the proposed area of relocation as in the Applicant’s original location.”
The Applicant’s grounds appear to relate to the Tribunal’s finding that it was reasonable for the Applicant to relocate in Kathmandu if he did not wish to return to his village in Nepal.
Ground A
Ground A appears to be a claim that the Tribunal erred in considering only whether or not the Applicant could avoid persecution if he was to relocate.
However, the Tribunal found that the Applicant’s fear of persecution was not well founded for the reasons referred to above (see paragraphs [15]-[22]). The finding by the Tribunal that the Applicant did not have a well founded fear of persecution was a finding that was open to the Tribunal on the evidence and material before it and for which it provided reasons. In other words, the Tribunal considered whether persecutory conduct was likely to occur at all and did not confine itself to the question of whether or not the Applicant could avoid persecutory conduct. The Tribunal concluded that there was not a real chance that the Applicant’s fear of persecution would be realised were he to return to Nepal.
In the circumstances, it was not necessary for the Tribunal to consider whether or not the Applicant could relocate. To the extent that the Tribunal did consider relocation, it applied the correct test in considering whether it was reasonable for the Applicant to relocate within Nepal. (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 and SKFB v Minister for Immigration & Multicultural Affairs [2004] FCAFC 142 at [7]).
Accordingly, this ground is rejected.
Ground B
This ground appears to relate to a claim by the Applicant that the Tribunal erred in considering relocation in the context where the Applicant claimed to fear harm from authorities.
For the reasons referred to above, the Tribunal did not accept that the Applicant faced harm from the Nepalese authorities. It found that the faction with which the Applicant was associated was in coalition government and that he would have ready access to protection. The Tribunal found that the government would protect the Applicant from persecution. For those reasons this ground appears to be based on a misapprehension of the Tribunal’s finding.
Accordingly, this ground is rejected.
Other claims
Following the hearing of the matter, the Applicant left with the court officer a document entitled “Applicant’s Outline of Submissions”.
At the hearing it was apparent that counsel for the First Respondent was aware that the applicant may have a document to hand up. Despite being invited during the hearing to provide to the Court any other document the Applicant wished to have the Court consider, the Applicant did not identify the existence of, nor hand up, such a document. A copy of the document was sent by my Associate, at my direction, to the solicitors for the First Respondent for an opportunity to respond. The First Respondent opposed the granting of leave for the Court to consider the document. Nevertheless, as there is no prejudice identified by the First Respondent, in the interests of justice, I have considered the matters raised in the document and have attempted to distil the claims as follows:
Ground 1- The Tribunal did not act in good faith
This ground is identified in general terms, other than the assertion that the Tribunal used evidence in an illogical fashion and did not carefully address claims and failed to perform an imperative duty. None of these complaints are particularised further. There is nothing on the face of the Tribunal decision to indicate that the Tribunal did not arrive at its decision in good faith, nor that it used evidence illogically, nor that it failed to carefully address the Applicant’s claims, nor that it failed to perform an imperative duty.
Accordingly, this ground is rejected.
Ground 2 – The Tribunal did not have evidence or other material to justify its position and did not consider various claims and evidence of the Applicant.
The only identifiable particular in respect of this ground, to the extent it is a ground, appears to be a complaint that the Tribunal “did not take into account the corruption factor and political factor” which enabled the Applicant to “easily leave the country even though the applicant was wanted for questioning by the internal security forces.”
Plainly, it is the Tribunal’s duty to consider the evidence and material before it and to make findings on the basis of that information. This ground is otherwise not particularised in respect of the “corruption factor” or “political factor” which the Applicant complains the Tribunal failed to consider. The Tribunal clearly identified the facts upon which it relied that led it to conclude that the Applicant’s fear of persecution was not well founded. Those were findings open to the Tribunal on the material and evidence before it.
Accordingly, this ground is rejected.
Ground 4 – The Tribunal was biased
This ground appears to relate to a claim that the Tribunal intentionally did not read evidence favourable to the Applicant because it regarded the Applicant as “an implicit economic refugee other than a refugee of persecution.” The Applicant claims “my evidence before the Tribunal was inferentially adversely construed against my claims.”
If this is a claim of bias, there are no particulars and there is nothing on the face of the decision to indicate bias or apprehended bias on the part of the Tribunal in the manner in which the Tribunal came to its decision. If it is intended to cavil with factual findings of the Tribunal, that is merits review which is not open to this Court.
Accordingly, this ground is rejected.
Ground 5 – that the Tribunal “can not be confident that I can avoid in any meaningful or long term sense problems resulting from my political activities”.
This appears to be a complaint by the Applicant that the Tribunal member had no evidence to find that it was confident that the Applicant could avoid being harmed by Nepalese authorities if he was forced to return to Nepal. To the extent that this ground seeks to cavil with the Tribunal’s findings on relocation, those complaints have been deal with in grounds 1 and 2 above.
There are no other particulars in respect of such a claim.
Accordingly, this ground is rejected.
Ground 6 – The Tribunal “failed its duty to confer common law natural justice” in determining the application.
Whilst, the Tribunal hearing was prior to the insertion into the Act of s.422B of the Act, there are no particulars in respect of this ground. There is no breach of any common law duty of natural justice apparent on the face of the decision.
Accordingly, this ground is rejected.
Ground 7- The Tribunal failed to provide country information to Applicant prior to hearing.
This ground appears to be a claim that the Tribunal failed to indicate to the Applicant the importance of the independent country information and failed to give the Applicant an opportunity to rebut the relevance of that material and to “dispute the conclusion that the evidence given by me was fabricated.”
The Tribunal’s decision was made prior to the introduction of s.422B and s.424A into the Act. In those circumstances, the common law principles of natural justice and procedural fairness apply.
The obligation on a body such as the Tribunal is to bring to the attention of an applicant adverse material to him or material that may cause the determining body to make an adverse finding in circumstances where an applicant can properly deal with such information (ApplicantVEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 (“VEAL”) at [27]). In order to discharge its obligations of procedural fairness at common law it is not necessarily incumbent upon the Tribunal to provide such material to the Applicant prior to the hearing. What procedural fairness would demand is that evidence that is adverse, credible, relevant and of significance to the decision to be made should be drawn to the attention of the relevant party in such a manner as to enable that party to properly deal with the adverse information (Kioa v West (1985) 159 CLR 550 at 628-629; VEAL at [15] to [17]).
The Applicant has not identified what information was adverse, credible and relevant that was not drawn to his attention in a manner that would enable him to properly deal with it. No transcript was provided, nor any evidence provided by the Applicant in respect of this claim. Certainly, the Tribunal had regard to country information in making its findings and conclusions. Moreover, it was in the context of the political climate that the Tribunal found to exist that such findings were made. The Tribunal does note that “politics in Nepal is a vigorous pursuit and that in recent times at least one faction has resorted to serious levels of violence.” However, the Tribunal noted that the Applicant was “never a victim of anything other than a threat that was never implemented”. The Tribunal also noted that the Applicant himself had not reported any threats to the authorities.
The Tribunal went on to find, in accordance with information that was provided by the Applicant, that official responses to violence suggested that the authorities would act if the Applicant was to report threats of a serious nature.
Such findings were at the heart of the Tribunal’s conclusion that the Applicant’s fear was not well founded. Without the transcript or any other evidence, I am not able to find that the Tribunal failed to put adverse material to the Applicant such that he was not able to properly deal with it.
Otherwise, I am unable to identify any failure by the Tribunal to accord the Applicant natural justice or procedural fairness.
Further, to the extent that the Applicant appears to claim that the Tribunal’s “conclusions are based on insufficient information even though the relevant information is found in the country information ” the Applicant, did not identify what he claims was the relevant information that was ignored by the Tribunal.
In the circumstances, this ground is rejected.
Ground 8 – The Tribunal failed to “observe common law requirements of fairness as a duty to act judicially.”
Again, there are no particulars provided in respect of this ground.
There is nothing to indicate that the Tribunal did not comply with its statutory duties.
Accordingly, this ground is rejected.
Conclusion
It is clear that the Tribunal properly addressed the claims and issues raised by the Applicant and, having made its findings, applied the correct law and did not fall into any procedural or other legal error.
There being no jurisdictional error, The Tribunal’s decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
Accordingly, the application before this Court is dismissed with costs.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 11 April 2006
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