SZEUU v Minister for Immigration
[2005] FMCA 947
•17 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEUU v MINISTER FOR IMMIGRATION | [2005] FMCA 947 |
| MIGRATION – Review of decision of Refugee Review Tribunal – Nepal – fraudulent documents – what was integral to the decision – no duty to investigate – no duty to translate documents – member of a particular social group – country information – application dismissed. |
| Migration Act 1958 (Cth) |
| Luu v Renevier (1989) 91 ALR 39 NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No 2) [2004] FCAFC 263 NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 QAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 9 SZECH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 246 VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 |
| Applicant: | SZEUU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG1972 of 2004 |
| Judgment of: | Mowbray FM |
| Hearing date: | 17 June 2005 |
| Date of Last Submission: | 17 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 17 June 2005 |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Counsel for the Respondent: | Mr Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the Minister’s costs and disbursements of and incidental to the application fixed in the sum of $4,350.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1972 of 2004
| SZEUU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from a transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 14 May 2004 and handed down on
3 June 2004.
The applicant is a citizen of Nepal who arrived in Australia on 24 September 2003. On 20 October 2003 he applied for a protection visa, which application was refused by a delegate of the Minister on 30 October 2003. On 26 November 2003 the applicant lodged an application for review in the Tribunal and attended a hearing on
8 April 2004. The Tribunal affirmed the decision of the Minister’s delegate in its decision on 14 May 2004 which was handed down on
3 June 2004.
Claims before the Department and the Tribunal
The applicant claims to be an active district member of the Nepal Congress Party (NCP). This party opposes the Government and the Maoists. The Maoists blame him for the death of one of their members, and he fears that he will be killed by them. He believes the authorities cannot protect him because the Government is not safe in the current situation. For example, he refers to the killing of King Birendra’s family.
The applicant submitted to the Department of Immigration and Multicultural and Indigenous Affairs (the Department) a number of documents purporting to support his claims, including claims of threats, torture and extortion against the applicant and damage to the applicant’s home. The applicant also submitted a statement in Nepalese. This statement does not appear to have been translated by the Department or by the Tribunal.
Tribunal decision
The critical elements of the Tribunal’s decision are set out in the respondent’s submissions:
10.The Tribunal reviewed the applicant’s claims and evidence. It reviewed country information.
11.The Tribunal was not prepared to regard the applicant’s documents as genuine. The Tribunal did accept that there had been Maoist activity in the area of the applicant’s village, and accepted that he might fear being harmed by Maoist’s there, either for the reasons he had given or because of the general fear that a villager might have as a result of Maoist activity in Eastern Nepal. The Tribunal therefore considered the issue of relocation. The Tribunal was satisfied that the risk to him from Maoists, if it existed at all, was confined to the vicinity of his village.
12.The Tribunal, although having doubts, gave the applicant the benefit of the doubt and accepted that he was a member of the Nepal Congress Party (“NCP”). The Tribunal accepted that some leading Congress Party figures had had recent problems with the government, after it joined a broad coalition of groups calling for the reinstatement of the democratically elected parliament. However the applicant did not claim to have been involved in activities related to this coalition, and did not claim to have been harassed in Kathmandu by government agents because he was a member of the NCP. He had given no reason why the authorities might wish to harm him because of his membership. There was no evidence before the Tribunal that an ordinary member of the NCP faced a real chance of being persecuted in Nepal for the reason of his or her political opinion.
13.The Tribunal was satisfied and it found that the applicant did not have a well-founded fear of being persecuted if he resided in Kathmandu or some other part of the country. The Tribunal looked at the relevant circumstances and found that it would be reasonable for the applicant to relocate.
Consideration
The amended application filed on 1 December 2004 sets out four grounds of review. These have been conveniently and sensibly renumbered into six grounds by the respondent. I will deal with those in turn, after which I will deal with a couple of matters raised by the applicant at the hearing before me.
Ground one is as follows:
The Tribunal fail to consider the genuineness of my documents …
At the hearing the applicant again raised this issue, but he focussed more on the Tribunal failing to agree that the documents were genuine.
Firstly it is clear the applicant’s claim that the Tribunal did not consider the issue is misconceived. A substantial portion of that part of the Tribunal’s decision at page 170 of the Court Book is taken up with consideration of the genuineness of the documents. The Tribunal ultimately was not satisfied that they were genuine.
Secondly in expressing concern that the Tribunal failed to agree with him that the documents were genuine, the applicant is inviting me to engage in merits review, which I am not empowered to do.
The other important point is that the fraudulent document issue was not critical to the decision of the Tribunal. The Tribunal accepted the substantive claims of the applicant to which the documents related. The information in the documents was not part of the reason for affirming the decision of the delegate. The Tribunal’s decision ultimately turned on whether the applicant could relocate from his village to Kathmandu.
Ground two states:
If it had any doubt about my documents it should contact the issuing office before it reach its conclusion.
I note again that the genuineness of these documents was not central to the Tribunal decision. Nevertheless the applicant asserted that before rejecting the genuineness of his documents the Tribunal should have investigated the documents.
There is abundant authority for the view that the Tribunal was under no duty to investigate the applicant’s claims by conducting further inquiries. In NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528 Jacobson J said:
18. There was no obligation on the RRT to make any further investigation of the claim over and above the material submitted by the applicant. The High Court has made it clear on a number of occasions that proceedings before the RRT are inquisitorial and that it is for an applicant to advance whatever evidence he or she wishes to put forward in support of the application; see eg Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187] (per Gummow and Hayne JJ).
19. The authorities make it clear that the RRT is not obliged to embark upon its own inquiries except in limited circumstances.
Justice Jacobson then refers to the decision of Wilcox J in Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155. In Luu v Renevier (1989) 91 ALR 39 a Full Court of the Federal Court followed the decision in Prasad and said:
A decision is unreasonably made where, to the knowledge of the decision maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained.
As the respondent submitted:
there is nothing before the Court to show that any such information existed, let alone that the Tribunal knew that it existed, nor that it was readily available. The exceptional circumstances required to enliven the principle in Prasad simply do not arise in the present case.
I will deal with the third and fifth grounds together. The third ground says:
The Tribunal fail to consider the evidence that Maoist are active around Nepal and Killing hundreds of innocent civilians, Security forces & members of opposition parties.
Ground five states:
RRT fail to consider Kathmandu is NOT SAFE from Maoist and government can’t give any protection for any one.
The Tribunal clearly did consider this matter as it says at page 171 of the Court Book:
Kathmandu and other cities are held to be safe from Maoist violence generally, and from Maoist reprisals in particular (U.K. Home Office 2003). I consider that information reliable. That is consistent with [the applicant’s] own experience in Kathmandu – he gave evidence that he was not subjected to any threats there and had no contact with any Maoists who may have wished to harm him. All his claims related to threats made to him by Maoists operating in or near his village. I am therefore satisfied, and find, that the risk to him from Maoists, if it exists at all, is confined to the vicinity of his village.
Ground four states:
Young man & women are subject to persecution by both Maoist group & Security forces in Nepal regardless of their political belief. They are constituted as a particular social group.
In relation to this ground I agree with the respondent that the applicant never advanced a claim before the Tribunal to be a member of a particular social group. As is clear from the Full Court decision in NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No 2) [2004] FCAFC 263 the Tribunal is:
not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.
No claim of membership of a particular social group consisting of young men and women was articulated by the applicant, and neither does it clearly arise from materials before the Tribunal. There must also be real doubts whether such a group would constitute a particular social group for the purposes of the Convention.
Ground 6 states:
The Tribunal accessed independent information after the hearing with out giving me a chance to comment on that material. The materials were downloaded after the hearing which proved that the failure of the RRT inform that the RRT intended to rely on those materials, amount jurisdictional error.
This was a central part of the applicant’s submissions at the hearing before me. The independent country information to which he objected was the UK Home Office Report 2003 and the 2004 US Department of State Country Report on Human Right Practices for 2003 Nepal.
The Tribunal relied on the UK Report at page 171 of the Court Book to support its conclusion that relocation to Kathmandu was a viable option for the applicant.
The Tribunal referred to the US State Department Report at page 168 of the Court Book, firstly in relation to Maoists breaking the ceasefire on 27 August 2003 and secondly in relation to the kidnapping of a teacher and local political activist in the applicant’s home village.
Two issues arise concerning the Tribunal’s use of independent country information. The first that concerned the applicant was that the Tribunal was not entitled to make use of and rely upon this independent country information. This statement is clearly contrary to authority. In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 the Full Court said at [11]:
The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. … By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. … It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
In the matter before me the applicant questioned the accuracy of the country information. For the reasons given by the Full Court I have no power to review that information.
The second issue is whether there were any breaches of Division 4 of Part 7 of the Migration Act (1958) (Cth) (the Act), for instance s.424A, or at common law.
The current application is subject to the provisions of s.422B of the Act. As Sackville J said in SZECH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 246 at [34]:
No further issue concerning procedural fairness arises. As the Magistrate pointed out, s 422B states that s 424A:
‘is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.’
See also the Full Court decision in QAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 9.
No question of procedural unfairness of common law can arise in this case. In any event, it is clear that the substance of the UK Home Office Report was put to the applicant as indicated by the Tribunal at page 166 of the Court Book. Furthermore, the references to the US State Department Country Reports are not unfavourable to the applicant, rather the opposite.
Of course there is no transcript of the Tribunal hearing before the Court which may provide evidence of what was put to the applicant at that hearing. The applicant has merely asserted from the bar table that some of this material was not put to him at the hearing and that the Tribunal only downloaded it after the hearing.
The question then arises whether there was any breach of s.424A of the Act.
Pursuant to s.424A(3)(a) the obligation under s.424A does not apply if the information,:
is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member
In my view the information contained in the UK Report, and much of that contained in the US State Department Report, clearly falls within this exception.
However, the reference at page 168 of the Court Book, which was taken from the US State Department Report, about the teacher and local political activist, tortured before being killed in the applicant’s home village, does not fall within this exception because it is about another person.
The question then is whether that information was the reason, or part of the reason, for affirming the decision that is under review. The Tribunal accepted that the applicant may have been at risk in his home village. This specific piece of information from the US State Department report is not integral to the decision made by the Tribunal in affirming the delegate’s decision. As I have already indicated the critical issue for the Tribunal was whether the applicant could relocate to Kathmandu. This information in the country report was not the reason, or part of the reason, for so affirming the Tribunal’s decision (see VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123).
At the hearing before me the applicant raised a number of other issues. Firstly he referred to the statement he provided attached to his protection visa application at pages 26 to 32 of the Court Book. This was in Nepalese and it is clear it was not translated by the Department or by the Tribunal. Was there some obligation on the Tribunal to have this translated, or was there some associated procedural fairness requirement?
For the reasons that I have already given on the second ground, I do not believe that there was any obligation on the Tribunal to have the document translated. This would involve further investigations by the Tribunal. This is particularly so in light of the Tribunal having made it clear to the applicant at the hearing that the document should have been translated (see page 162 of the Court Book):
I asked him why his migration agent had not made any written claims to this Tribunal, given that [the applicant’s] statement in Nepali was never translated. [The applicant] responded that he had thought his agent would provide the written claims.
I am not persuaded that translation of this document falls within any exception to the general rule referred to in Prasad and in Luu v Renvier, that the Tribunal is under no duty generally to undertake such investigations.
I note that at page 8 of the Court Book at question 14 in his primary application the applicant said:
I have written all the statement in Nepalese language which is my Native language and will sent you ASAP once I translate in English.
This suggests that the applicant was planning to have it translated. On the other hand at page 18 of the Court Book the applicant said:
NOTE: Could you please get organised to translate this documents from translator?
In the circumstances I am not satisfied that an expectation could have been raised with the applicant that the Tribunal would have had this document translated. I do not believe there was any jurisdictional error in the Tribunal failing to do so.
Much of the applicant’s oral submissions amounted to an invitation to the Court to engage in merits review. The applicant disagreed with the findings of fact made by the Tribunal. In NAHI the Full Court said at [10]:
In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.
This passage from the Full Court is particularly apposite to the submissions made by the applicant to me. As I made clear to him on a number of occasions this Court has no power to engage in a review of the Tribunal’s findings of fact.
Conclusions
Counsel for the Minister submitted to me that the application must be dismissed as no reviewable legal error has been disclosed. I agree.
It is apparent that the Tribunal, while accepting that the applicant had a genuine fear of persecution in his home village, was of the view that he could reasonably relocate to Kathmandu or some other part of the country and be protected there. These findings were reasonably open to the Tribunal on the material before it. I am not satisfied that the Tribunal made any legal error going to jurisdiction in coming to its decision.
I find that the decision of the Tribunal is a privative clause decision having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
In addition the decision of the Tribunal was a bona fide attempt to exercise its powers. It clearly related to the subject matter of the Act and related to the powers conferred on the Tribunal.
In the circumstances I dismiss the application.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: K Thynne
Date: 22 July 2005
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