SZEQB v Minister for Immigration and Multicultural Affairs

[2006] FCA 1070

FEDERAL COURT OF AUSTRALIA

SZEQB v Minister for Immigration and Multicultural Affairs
[2006] FCA 1070

Migration – no point of principle

Migration Act 1958 (Cth) ss 430, 424A

NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 213 ALR 668

SZEQB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 812 OF 2006

CONTI J
16 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 812 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEQB
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	CONTI J
DATE OF ORDER:	10 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondents’ costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 812 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEQB
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	CONTI J
DATE:	16 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of Federal Magistrate Nicholls handed down on 7 April 2006 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 5 October 2004.  The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Multicultural Affairs, made on 19 February 2004, to refuse a protection visa to the appellant.

2. The appellant is a citizen of Nepal.  Before the Tribunal the appellant claimed to have a well-founded fear of persecution because of his membership with the United Marxist Leninist Communist Party of Nepal.  He claimed to fear persecution by Maoists, who he claimed had detained him, made continuous demands for money and made threats against him and his family.  The appellant stated that he had tried relocating from Parbat to Kathmandu but still could not escape the Maoists, and he claimed that should he migrate to India, the Maoists would pursue him there as well.  The appellant’s evidence in support of his claims included submissions received by the Tribunal on 19 August 2004.

3. The Tribunal accepted that the appellant was a member of the claimed political party and that he was harassed in Parbat, but did not accept that there was continued harassment of the appellant by Maoists after he had moved to Kathmandu.  The Tribunal found the appellant’s claims regarding matters after his relocation to Kathmandu were ‘far-fetched’ and did not accept that the profile of the appellant, which was local to Parbat, was such that would lead Maoists to pursue him to Kathmandu in order to harm him.  In any event, the Tribunal concluded that the appellant would have been able to enlist the assistance of the authorities in Kathmandu in addressing any Maoist threats, if any were to occur.  Furthermore, the Tribunal did not accept that Maoists would pursue the appellant to India, and further that should he feel unsafe in Kathmandu, he could relocate to India, since he had a right to live and work there.

4. On 14 September 2004, that being after the Tribunal’s decision and before the handing down thereof, the Tribunal received a letter from the appellant asserting his dissatisfaction as to the Tribunal’s addressing of the issue of relocation, and moreover that the appellant would be in danger if he returned to live in India, and that a one hour interview with the Tribunal was not sufficient enough time to put his claim.  However the Tribunal did not re-convene a hearing with the appellant.

5. On 27 October 2004 the appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court of Australia. He filed an amended application on 31 January 2005 in which he asserted that the Tribunal failed to consider all aspects of the appellant’s claims, that the Tribunal failed to consider the documents provided by the appellant, that the Tribunal further failed to look at information available to it on the Internet, and that the Tribunal also failed to address reasons put forward by the appellant as to why he could not relocate to India. He further asserted that the Tribunal’s decision was biased, and that the Tribunal breached s 430 of the Migration Act 1958 (Cth) (‘the Migration Act’). He claimed that the Tribunal did not get in touch with the Australia Embassy in Nepal to investigate the credibility of the police document provided by the appellant, despite assurances that it would do so, and moreover that the Tribunal breached the rules of natural justice by not providing the appellant with an opportunity to comment on adverse materials. The appellant attached a bundle of documents to his amended application, including a document purporting to be a transcript of the Tribunal hearing.

6. The Minister submitted that there were two substantial and separate reasons given by the Tribunal for rejecting the appellant’s claims, being first the finding that the harassment to the appellant did not continue after his move to Kathmandu, and secondly that the finding that the appellant had the right to go and live in India.  However he claimed that the Minister relied only on the first finding, since the second line of reasoning was no longer available in light of the decision of the High Court in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 213 ALR 668. The Federal Magistrate found further that there was nothing to show the findings relating only to Nepal were dependent on, or affected by, the findings in relation to India and observed that in order for the appellant to succeed, there must be established some legal error in the first line of the Tribunal’s reasoning. His Honour observed authority where relief was not granted, irrespective of a breach of s 424A of the Migration Act, because of the existence of substantial and separate bases for the decision that were not affected by any such breach.

7. The Federal Magistrate examined the documents which the appellant asserted the Tribunal had failed to consider but found that the ground thereby invoked did not rise above anything more than disagreement with the Tribunal’s finding as to the appellant’s ‘profile’ and thus constituted only impermissible merits review.  The Federal Magistrate observed that the document submitted by the appellant purporting to be the transcript of the Tribunal hearing was not admissible, but even if it was, his Honour further observed that the document did not assist the appellant’s case that the Tribunal failed to address an important aspect of his claims.

8. The Federal Magistrate found that there was no obligation on the Tribunal to set a line by line refutation of evidence which it did not accept, and that the Tribunal did not express a conclusion that any of the documents submitted by the appellant were not genuine.  The appellant’s claims in relation to the situation in Parbat, supported by the documents, were not rejected by the Tribunal.  The documents relating to the violence involving Nepalese Maoists were consistent with the Tribunal’s findings.  The Federal Magistrate accepted the Minister’s submissions that the Tribunal had rejected the appellant’s claims of harassment in Kathmandu as ‘far-fetched’, and that no amount of corroborating evidence by way of the relevant documents would have caused the Tribunal to have come to a different conclusion.  The Federal Magistrate was of the further view that on a fair reading of the Tribunal decision, the Tribunal did more than just list the documents, and then make no reference to them.  Although the documents were not specifically referred to in the Tribunal’s ‘Findings and Reasons’, when read contextually from what was discussed at the hearing, the same showed that the Tribunal did consider the appellant’s claims and documents.

9. In relation to the materials submitted by the appellant to the Federal Magistrate in order to show that the appellant could not safely relocate to India, so much constituted no more than a request for impermissible merits review.  The appellant did not indicate to the Tribunal that he wished to submit additional documentary evidence when he requested a further ‘interview’ post-hearing. 

10. The Federal Magistrate found the Tribunal did not give any undertaking to verify with the Australian Embassy in Nepal regarding the authenticity of the police document submitted by the appellant, and that the Tribunal was not under any duty to pursue its own investigation. 

11. The Federal Magistrate further found no bias could be imputed to the Tribunal and that the appellant’s transcript of the Tribunal proceedings did not support any contention of bias, and further that the Tribunal’s alleged failure to deal with each matter raised by the appellant was not sufficient to support his contention of bias. 

12. The Federal Magistrate additionally found that the grounds for review relating to s 430 of the Migration Act related to the Tribunal’s alleged failure to make findings on the appellant’s documents, and observed that his Honour had dealt with this earlier. Further, his Honour observed that s 430(1)(c) of the Act did not impose a statutory duty to make findings on questions of fact that are not material.

13. The Federal Magistrate considered that the independent information before the Tribunal, on which it relied, clearly fell within the exception contained in s 424A(3)(a) of the Migration Act, nor was the Tribunal’s critical thinking required to be put to the appellant, that not being a matter where the Tribunal relied on inconsistencies between the appellant’s different version of events, and moreover that the documents provided by the appellant were exempted by s 424A(3)(b) of the Act.

14. The Federal Magistrate also further observed that the appellant was unrepresented, and that he had considered all the material placed before his Honour, including the letter from the appellant to the Tribunal after the Tribunal hearing.  His Honour found that the matters raised in that letter were discussed at the hearing and the appellant had not given reasons as to why one hour was not a sufficient time for that hearing.  The Federal Magistrate emphasised moreover that the Tribunal had made a very clear as well as discrete finding that the appellant could live safely in Kathmandu. 

15. In the result, his Honour found no jurisdictional error in the Tribunal decision regarding that line of reasoning, and otherwise, and dismissed the application for review of the Tribunal decision. 

16. On 28 April 2006 the appellant filed a notice of appeal in this Court to the effect that there had been a denial by the Federal Magistrate of natural justice constituting jurisdictional error, and sought certiorari ‘against the decisions’ of the Federal Magistrate and mandamus for in effect a rehearing by the Tribunal.  That ground of appeal related purportedly to his claim that the Federal Magistrate had wrongly applied the law to the facts in relation to the seriousness of harm that constituted persecution, and had disregarded the current political situation in Nepal.  Furthermore, the appellant alleged by the notice of appeal that the Tribunal did not provide the appellant with an opportunity to respond to the material the Tribunal had available to it, including the appellant’s protection visa application.  In both instances, those purported grounds of appeal were essentially unspecific. 

17. At the hearing of the appeal the appellant provided no written submissions pursuant to the Court’s directions made in that regard, either in chief or in response to the Minister’s written submissions. 

18. In my opinion, neither the approach of the Federal Magistrate nor his Honour's conclusions were shown to be vitiated by any denial of natural justice or, more generally, jurisdictional error.  No basis for relief by way of orders in the nature of certiorari or mandamus was made out.  The only course open to the Court was dismissal of the appeal with costs. 

19. The Minister is of course entitled to an order for the costs of the appeal.  Counsel for the respondent nominated a figure of $3,100.00.  Given the relatively straightforward nature of the grounds of appeal, as exemplified by the extent of the Minister’s written and oral submissions, I am uncertain as to the quantification of this amount and in the circumstances I think that I should refrain from quantifying a figure for the Minister’s costs.  That will therefore be a matter for assessment by the appropriate Registry officer. 

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti

Associate:

Dated:             16 August 2006

The Appellant appeared in person.
Counsel for the Respondent:	G R Kennett
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	10 August 2006
Date of Judgment:	16 August 2006