SZDWI v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1331

FEDERAL COURT OF AUSTRALIA

SZDWI v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1331

SZDWI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1238 of 2005

BRANSON J
8 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1238 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDWI
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

BRANSON J

DATE OF ORDER:

8 SEPTEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondents’ costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1238 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDWI
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	BRANSON J
DATE:	8 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of Nepal who arrived in Australia on 24 September 2003.  He applied for a protection visa on 16 October 2003.  The application was refused by a delegate of the Minister on 3 November 2003.  On 25 November 2003 the appellant applied for review of that decision by the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal in May 2004 affirmed the decision not to grant the appellant a protection visa. 

2. The claims that the appellant had made were based on his having been a member of the Maoist political party in Nepal from 1998.  He said that he had left the party in 2003 as a result of dissatisfaction with its violent activities.  He claimed that he had been threatened with death by both the Maoists, as a result of leaving them, and the authorities, as a result of being a former Maoist.  He claimed to fear harm or death if he returned to Nepal.

3. The Tribunal did not believe the story told by the appellant.  It concluded that he had fabricated his claims.  The Tribunal found that the story told by the appellant was inconsistent with facts known about Nepal or alternatively simply implausible.  It found that the Maoist membership card that he gave to the Tribunal was not a genuine card.  The Tribunal concluded that the appellant was not a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (‘the Refugee Convention’). 

4. The appellant applied for judicial review of the decision of the Tribunal by the Federal Magistrates Court.  The learned Federal Magistrate gave careful consideration to the reasons for decision of the Tribunal.  In doing so he considered the possibility that the Tribunal has been, as the appellant had suggested, either biased against the appellant or had conducted itself so as to give rise to an apprehension of bias.  The learned Federal Magistrate did not accept that there was a basis on which an informed lay observer might reasonably apprehend that the Tribunal might not have brought an open mind to the review of the delegate's decision.  Although the appellant claimed before the Federal Magistrate that he had felt rushed and prevented from saying everything that he wanted to say, the Magistrate was satisfied that the Tribunal had provided him with adequate opportunities to put his case.

5. The Federal Magistrate found that insufficient material had been placed before him to support complaints made by the appellant about the adequacy of the interpreter service that he received at the Tribunal hearing. 

6. The Federal Magistrate dismissed the application for judicial review of the decision of the Tribunal.

7. The appellant’s notice of appeal to this Court reflects the difficulties that he faces in seeking to challenge the judgment of the Federal Magistrates Court and thereby the decision of the Tribunal without the benefit of legal representation.  Nonetheless, the notice of appeal can be understood to allege that the Tribunal failed to consider all of the claims that the appellant wished to make, that it engaged in illogical reasoning, and that it failed to act in good faith.  The notice of appeal makes no complaint directly about the judgment of the Federal Magistrates Court. 

8. Written submissions filed by the appellant appear to raise the following issues:

   (i)whether the Tribunal acted in bad faith;

   (ii)whether the appellant had a sufficient opportunity to address potential adverse findings about documents;

   (iii)whether the Tribunal misapplied the Refugee Convention test by counselling the appellant not to participate in political activities;

   (iv)whether the Tribunal had an obligation to put to the appellant country information that it might take into account;

   (v)whether the hearing before the Tribunal was vitiated by reasons of problems with interpretation; and

   (vi)whether the Tribunal wrongly failed to make a decision in accordance with the merits of the case.

9. Although the section of the reasons for decision of the Tribunal headed ‘FINDINGS AND REASONS’ is short, it contains consideration of the claims made by the appellant and demonstrates a process of reasoning that is not illogical.  Nothing before the learned Federal Magistrate, or this Court, provides a proper basis for the suggestion that the Tribunal failed to act in good faith.

10. The only document of the appellant concerning which the Tribunal made an adverse finding was his purported membership card of the Maoist party.  The Tribunal considered that the fact that the card was filled out in English with a Western (rather than Nepalese) date provided prima facie evidence that it was not genuine.  The Tribunal member drew the appellant’s attention to his concerns about the membership card and gave him an opportunity to respond to those concerns.  The appellant responded by asserting that the card was genuine.  He did not seek time to place additional material or submissions before the Tribunal concerning either the card or his membership of the Maoist party.  There is no substance to the complaint that the Tribunal did not give the appellant sufficient opportunity to address potential adverse findings about documents.

11. Even if it be assumed that the Tribunal member counselled the appellant not to participate in political activities, he did not thereby demonstrate a failure to understand or apply the test derived from the Refugee Convention for the grant of a protection visa.  The Tribunal rejected the claims made by the appellant as it did not believe that he had the history of political involvement that he claimed to have.  No issue concerning the content of the test derived from the Refugee Convention therefore arose.

12. The obligation on the Tribunal to give the appellant particulars of information upon which it relied for determining the decision not to grant him a protection visa derived from s 424A of the Migration Act 1958 (Cth). The obligation created by that section does not reach to information that is not specifically about an applicant or another person (s 424A(3)(a)). For this reason the obligation did not reach to the country information to which the Tribunal member referred in the Tribunal’s reasons for judgment.

13. Nothing in the material before the Federal Magistrate or before this Court, provides support for the suggestion that the appellant’s hearing before the Tribunal was vitiated by problems of interpretation.  The appellant filed a copy of the transcript of his hearing before the Tribunal.  An affidavit was thereafter filed by the solicitors for the first respondent in which a solicitor deposed to having checked the accuracy of the transcript filed by the appellant by listening to the tapes of the hearing.  She marked some minor corrections on a copy of the transcript and annexed the amended transcript to her affidavit.  No challenge was made to the accuracy of the amended transcript.  The corrections marked on it mainly clarify matters shown in the original transcript as “unclear/inaudible” or as unrecorded.  Some entirely trivial corrections are additionally made.  The amended transcript is, of course, of no assistance in determining whether the interview accurately interpreted what was said at the hearing from English to Nepalese and from Nepalese to English.  However, the appellant has at no stage provided any particulars of complaints in this regard.  This ground of appeal must also fail.

14. The final complaint identified above concerns the merit of the decision of the Tribunal.  The Federal Magistrate had no jurisdiction to review the merit of the decision of the Tribunal.

15. The oral submissions of the appellant made today confirm that what he is seeking from this Court is a merits review of the decision of the Tribunal.  Like the Federal Magistrates Court, this Court has jurisdiction to review the merits of the decision of the Tribunal that the appellant is not entitled to the granting of a protection visa.

16. The appeal is therefore dismissed.  The appellant is to pay the respondents’ costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:            20 September 2005

The Appellant appeared in person.
Counsel for the Respondent:	G Kennett
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	8 September 2005
Date of Judgment:	8 September 2005