SZDVO v Minister for Immigration
[2005] FMCA 1703
•22 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDVO v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1703 |
| MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in Nepal on the basis of race – applicant claims three pieces of information should have been the subject of notification pursuant to s.424A Migration Act 1958 (Cth). |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(1); 424A(1)(a); 424A(1)(b); 424A(2); 424A(2)(a); 424A(3); 424A(3)(b); 474; 483A |
| SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 SZFKL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 931 SZEIE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 987 SZERV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1221 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 SZDQL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 769 |
| Applicant: | SZDVO |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1838 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 25 October 2005 |
| Date of Last Submission: | 25 October 2005 |
| Delivered at: | Sydney |
| Delivered on: | 22 November 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp |
| Solicitors for the Applicant: | Mr M. Tarrant, Wright Steel Lawyers |
| Counsel for the Respondent: | Mr C. Mantziaris |
| Solicitors for the Respondent: | Ms B. Mendelsohn, Blake Dawson Waldron |
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.
That the applications filed in this Court are dismissed.
That the Applicant pay the costs of the First Respondent in the amount of $5500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1838 of 2004
| SZDVO |
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.483A of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) 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 claims to be a citizen of Nepal.
The Applicant departed Nepal on 23 September 2003, on a passport issued in his own name and arrived in Australia on 24 September 2003.
On 16 October 2003, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”).
On 3 November 2003, the Delegate refused the Applicant’s application for a protection visa on the basis that the Delegate was not satisfied that there is a real chance that the Applicant will face persecution by reason of his imputed political opinion if he were to return to Nepal and therefore the Applicant is not a person to whom Australia owes protection obligations under the Refugee Convention.
On 26 November 2003, the Applicant filed an application for review before the Tribunal. On 22 April 2004, the Tribunal affirmed the decision of the delegate not to grant a protection visa.
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.
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.
The proceedings before this Court
On 16 June 2004, the Applicant filed an Application in this Court seeking judicial review of the Tribunal’s decision.
Pursuant to Short Minutes of Consent Orders made on 22 September 2004, the Applicant filed an Amended Application on 1 December 2004.
The Applicant was represented by Counsel at the hearing before this Court and was granted leave by consent to file in Court at the hearing a Further Amended Application in the following terms:
“1. The second respondent breached the requirements of s 424A(1)(b) Migration Act, thereby committing jurisdictional error.
Particulars
(a) Failure to ensure that the applicant understood the relevance of the information that he had claimed to live at one address in Nepal up to the time he left that country to the decision under review.
(b)Failure to ensure that the applicant understood the relevance of the information that he had claimed to be an actor in his protection visa application to the decision under review.
2. The second respondent breached the requirements of s.424A(2)(a) Migration Act, thereby committing jurisdictional error.
Particulars
(a)Failure to provide notification of the information in particular 1(a), and the invitation to comment thereon, to the applicant in writing.
(b)Failure to provide notification of the information in particular 1(b), and the invitation to comment thereon, to the applicant in writing.
(c)Failure to provide written notification of information in the Tribunal’s possession, that being that
(i)members of the group which travelled with the applicant to Australia were suspected of people smuggling and
(ii)were found to have in their homes implements used for forging documents”
The Applicant’s submissions centred around 3 pieces of information that the Applicant contends was information that should have been the subject of notification pursuant to s.424A of the Act and accordingly, notice should have been provided to the Applicant in writing identifying the information and inviting the Applicant to comment because it was the reason or part of the reason for the Tribunal’s decision to affirm the Delegate’s decision.
The information is identified as follows:
a)Information about the Applicant’s address in Nepal and the duration he lived in Nepal. This information was contained in the Applicant’s application for a protection visa. The Applicant contends it was not information given by the Applicant for the purpose of the review application before the Tribunal.
b)Information in the Applicant’s application for a protection visa that he was an actor, that not otherwise being information given by the Applicant for the purposes of the review application before the Tribunal.
c)Information that was in the possession of the Department, not being independent country information, but related to information about members of the group of people with whom the Applicant travelled who were suspected of being smugglers and who had used devices for making forgeries and some of whom may have submitted false documents with applications for protection visas.
I intend to deal with each of those 3 pieces of material separately.
a) Information about the Applicant’s address in Nepal and the duration he lived in Nepal
It is common ground that the information provided by the Applicant in his application for a protection visa relating to his address in Nepal and the fact that he had lived at that address to September 2003, when he arrived in Australia, is not information that was given by the Applicant for the purpose of the review application before the Tribunal. The Applicant submits that this information, and the Applicant’s resiling at the hearing from its veracity, formed part of the reason of adverse findings in respect of the Applicant’s credibility. For those reasons, the Applicant contends that he ought to have been provided with written notice, pursuant to ss.424A(1)(a) and (b) and 424A(2)(a) of the Act, inviting the Applicant to comment upon it.
It is common ground that any information required by s.424A to be given by the Tribunal to the Applicant must be in writing. (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 at [77]) (“SAAP”).
Certainly, the Tribunal noted in its findings and reasons that the Applicant had provided that information in his application for a protection visa, yet claimed at the hearing that he was living in various other places during the last 3 to 4 years he was in Nepal. The Tribunal noted that his oral evidence as to where he was in those years was “vague”. Further, the Tribunal found “unconvincing” the Applicant’s explanation as to the inconsistency of this evidence with his claim in his application for a protection visa that he had lived with his family at the same address from birth until he came to Australia.
The Tribunal was not satisfied that the Applicant was residing anywhere other than his home village in Palpa throughout his whole life, thereby making an adverse credibility finding in respect of the Applicant’s oral evidence that he had lived elsewhere in the 3 to 4 years before he left Nepal. Accordingly, the information provided by the Applicant in his application for a protection visa would appear to be information which the Tribunal considered as part of its reason for making an adverse finding in respect of the Applicant.
However, the transcript of the hearing makes it clear that the Tribunal asked the Applicant whether it was correct that he lived at the address identified by him on his application for a protection visa from birth until he came to Australia. The Applicant answered “that’s right”.
The authorities have made it clear that where an Applicant expressly “republishes” or adopts the original claims made in his application for a protection visa to the Tribunal, then such information is given by the Applicant to the Tribunal for the purposes of his application for review, and is therefore, pursuant to s.424A(3), not information requiring the Tribunal to notify the Applicant in writing pursuant to ss.424A(1) and 424A(2). (SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 (“SZDMJ”) at [5] - [6]; M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 (“M55”) at [25]).
In the case before this Court, the Applicant clearly adopts as correct that information provided by him in his application for a protection visa. Prompted by questions by the Tribunal, he goes on to resile from the veracity of that information. However, the Applicant in his exchange with the Tribunal Member made it clear that he was adopting the information, claimed in the application for a protection visa, that he was living at a particular address from birth until he came to Australia.
In this case, the Applicant confirmed the accuracy of the information in his application for a protection visa before the Tribunal as true and correct. In the circumstances, I am satisfied that such information was given by the Applicant, to the Tribunal, for the purposes of his review application. See SZFKL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 931 at [7]-[8], SZEIE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 987 at [40] and SZERV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1221at [10]-[11].
Accordingly, it was open to the Tribunal, as it did, to have regard to inconsistencies in the information provided to the Delegate, with other information provided to the Tribunal. It was also open to the Tribunal to make such findings of inconsistency, including adverse findings, without enlivening the requirements of s.424A to give to the Applicant in writing, in accordance with SAAP, particulars of any information that the Tribunal considers would be the reason or part of reason for affirming the decision under review. The fact that he later resiled from that information is what led the Tribunal to make adverse findings in respect of his credibility, where the Tribunal did not accept his explanation for resiling. Unless the information is information to which s.424A applies, there is no obligation on the Tribunal to invite an applicant to comment upon the information.
In the circumstances, the Applicant gave that information to the Tribunal for the purposes of his application for review before it. Section 424A(3)(b) excludes such information from the requirements of s.424A(1).
Accordingly, this ground is rejected.
b) The information in the Applicant’s application for a protection visa that he was an actor
Again, the Applicant in his application for a protection visa claimed that he was an actor. That is information that was not otherwise given by the Applicant for the purposes of his application for review. It is common ground that, if that information was part of the reason for affirming the decision under review, that information should have been the subject of a s.424A notice inviting the Applicant, in writing, to comment upon it (SAAP).
However, this information is not mentioned by the Tribunal in its findings and reasons. The information is referred to by the Tribunal in the claims and evidence, which simply records the fact that the Tribunal explored with the Applicant why he described himself as an actor on the protection visa form. The Tribunal otherwise makes no adverse comment anywhere in its decision arising out of that information. There is nothing in the decision to suggest that the Tribunal considered this information would be the reason or part of the reason for affirming the decision under review before it. Nor was the Applicant otherwise able to point to any. Accordingly, it is not information required by s.424A(1) to be given to the Applicant inviting comment prior to attending a hearing.
Accordingly, this ground is rejected.
c) Information that was in the possession of the Department, not being independent country information, but related to information about members of the group of people with whom the Applicant travelled who were suspected of being smugglers and who had used devices for making forgeries and some of whom may have submitted false documents with applications for protection visas
Again, it is common ground that the information provided by the Department to the Tribunal, that it believed some members of the group with whom the Applicant travelled may have been people smugglers who had used devices for making forgeries and some of whom may have submitted false documents with their protection visa applications, was not independent country information. Accordingly, if it was to be the reason or part of the reason for affirming the decision under review, the Tribunal would be obliged, pursuant to s.424A of the Act, to give that information to the Applicant in writing and invite his comment.
The relevant information is identified by the Tribunal in its section under claims and evidence:
“I told him that the Department now believes some members of the group may be people smugglers, who had used devices for making forgeries, and some may have submitted false documents with protection visa applications. He responded that all his documents were genuine. His parents posted them all to him at one time. I told him that I would have to decide whether they were genuine, and he indicated that he understood this.”
The documents to which the Applicant was referring were documents provided to the Tribunal but without translation. The documents, however, were translated by the interpreter at the hearing with the agreement of the Applicant, who confirmed at the end of the hearing he had provided all of the relevant information.
In its section headed findings and reasons, the Tribunal dealt with the documents as follows:
“I note that [APPLICANT SZDVO] has submitted an envelope in which he claims to have received documents, but the mere fact that he may have received them from Nepal (and there is no way of confirming they were in the envelope he submitted) does not mean that they are what they purport to be. I have noted evidence that it is very easy to obtain fraudulent documents in Nepal and, given the concerns I have set out above, I do not think that the four documents he submitted are sufficient to enable me to be satisfied that he was a member of the CPN(M) and being sought by the authorities because he was suspected of being one.
For these reasons I consider highly implausible (the Applicant’s) claims to have been a CPN(M) activist or to have been suspected of being one by the Nepalese authorities. I find that these claims are untrue, and that he left Nepal legally and openly in his own identity.”
The Tribunal had before it independent country information that stated that “forged documents were very easy to obtain in Nepal, that local officials would possibly participate in producing such forgeries, and also that it was possible to exit through the airport using bribery.” That was information that was before the Tribunal and to which the Tribunal was entitled to have regard and make findings as to the way in which it used that material. (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 at [11]).
The Applicant contends that the words “given the concerns I have set out above”, relate to the Tribunal’s comments in the section headed “Claims and Evidence” in its decision in which the Tribunal recounts that it told the Applicant that the Department now believed some members of the group with which he travelled were people smugglers who had used devices to make forgeries and some of whom may have submitted false documents in support of their protection visa application. However, the Tribunal at that point in its decision, makes no adverse comment in respect of the Applicant’s application and, otherwise, does not refer specifically to that information anywhere in the “Findings and Reasons” section of its decision.
A fair reading, in context of the words “given the concerns I have set out above”, would to my mind relate to the Tribunal’s consideration of the untranslated documents provided to it by the Applicant at the hearing and not the Department’s information about its concerns relating to the group with which the Applicant travelled.
In any event, the Tribunal does not reject the documents. Rather, the Tribunal concludes that they are not sufficient to enable it to be satisfied of the Applicant’s claim that he was a member of the Communist Party of Nepal (Maoist) (“the CPN(M)”) and being sought by the authorities because he was suspected of being a member.
The finding by the Tribunal in respect of the Applicant’s credit is drawn from other facts and anomalies found by the Tribunal in the Applicant’s evidence. For example, the Tribunal did not accept that the Applicant would choose to re-enter Nepal, having stated that he left to go to India after having received a warrant for his arrest. Further, the Tribunal noted that the date of the warrants issue led it to conclude that the warrant had been issued after the Applicant returned to India and therefore was not part of his reason for leaving for India. The Tribunal noted that the Applicant’s evidence on the point indicated “a lack of familiarity with the document and casts doubt on his claim to have been notified about the existence of a warrant at all.”
The Tribunal also noted that the Applicant’s evidence on his organisation of political meetings relating to the CPN(M) were vague and contradictory.
Accordingly, a fair reading of the decision makes it clear that the Tribunal did not consider that the information provided by the Department, in relation to members of the group with which the Applicant was travelling being people smugglers and producing fraudulent documents, was the reason or part of the reason for affirming the decision under review.
The Applicant further contends that the use by the Tribunal of the words, “for these reasons referred to above”, in finding untrue the Applicant’s claim to have been persecuted by the Nepalese authorities for his political activism in CPN(M), included, as part of those reasons, the Tribunal’s consideration of the Department’s material. However, as stated earlier in these reasons, there is no mention of the Department’s material in the “Findings and Reasons” section of its decision. The information is simply noted in the “Claims and Evidence” section of the decision.
In SZDQL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 769 Sackville J considered the authorities and principles relating to whether information was considered by the Tribunal as the reason or part of the reason for affirming the decision under review, in the following terms at [55]:
“The following propositions relevant to this issue appear to be established by the authorities:
1.
In assessing whether information is the reason, or a part of the reason, for the RRT’s decision, the question is to be judged retrospectively, in the light of the RRT’s reasons. This is so notwithstanding that s424A(1) addresses the matter prospectively: Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 (‘Paul’), at [94] per Allsop J (with whom Heerey J agreed); VAF, at [29].
2.
Section 424A(1) requires identification of the reason for affirming the decision under review. In one sense, the reason is usually the RRT’s lack of satisfaction that the applicant has a well-founded fear of persecution for a Convention reason. However, some ‘unbundling’ of the immediate reason for the decision is required for the purposes of s 424A(1): Paul, at [99]; VAF, AT [31].
3.
The fact that the RRT acknowledges in its reasons that the information has some relevance to its determination does not necessarily mean that the information forms ‘a part pf the reason’ for the decision: VAF, AT [30]. Nor is it ordinarily enough that the information has some ‘general adverse relevance’: Paul, at [94].
4.
The approach that should be taken is that set out in VAF, at [33]:
It commonly is the case that the detail and complexity of the case advanced by a visa applicant, and the information that is given and garnered for the purposes of considering it, results in the tribunal being confronted with issues that may be of varying importance, relevance and centrality both to the decision to be taken and to the reasoning that in the event sustains that decision. While the reasoning process may advert to, and express views on, such issues, all will not necessarily constitute part of the reason for the tribunal’s decision. Tribunals, no less than courts, engage in their own species of dicta often enough for reasons related to haste and pressure in composition. When a tribunal’s reasons are to be evaluated for s 424A(1) purposes, the court as a matter of judgment is required to isolate what were the integral parts of the reasons for the tribunal’s decision. That task, necessarily, is an interpretative one. In some instances the differentiation of the integral and the inessential may be by no means easy – and made the more so by less than explicit indications in the reasons themselves as to what the tribunal itself considered to be integral.
The above passage was approved by the Full Court in VAUX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158, at [51]-[54].
5.
If the information, considered in the context of the RRT’s reasoning process and the aggregate of its findings, is ‘relatively minor and unimportant in the scheme of things’ (VAF, at [41]), it is not likely to be a part of the reason for the decision. A useful test is whether the information was:
so integral to the reasoning process rejecting the [applicant’s] claim as to require as a matter of fairness that the [applicant] be told that information (cf s 424A(1)(a)) and why it was relevant to the review (cf s 424A(1)(b)): VAF, at [41]; VUAX, at [53]-[54].”
The information was not so integral to the reasoning process revealed by the Tribunal in rejecting the Applicant’s claim as to require, as a matter of fairness, that the Applicant be told the information and why it was relevant to the review.
Accordingly, any reference by the Tribunal to the Department’s information was not integral to its decision. Moreover, there are sufficient alternative bases for the Tribunal making the credit findings in respect of the Applicant that it made, which are referred to above.
In the circumstances, I am satisfied that the information was not considered by the Tribunal to be the reason or part of the reason for its decision to affirm the Delegate’s decision to refuse a protection visa. Accordingly, the Tribunal was not obliged to give the Applicant the information pursuant to s.424A(1) of the Act.
This ground is dismissed.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error. Accordingly, the Tribunal’s decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The applications before this Court are dismissed with costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 10 November 2005
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