SZFTK v Minister for Immigration & Anor
[2006] FMCA 1024
•29 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFTK v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1024 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – cessation of protection – applicant previously granted temporary protection as a refugee from Afghanistan – whether the RRT correctly applied Article 1C(5) of the Refugees Convention and s.36(3) of the Migration Act 1958 (Cth) considered – whether the RRT breached s.424A of the Migration Act considered. |
| Migration Act 1958 (Cth), ss.422B, 424A |
| Minister for Immigration v Lay Lat [2006] FCAFC 61 Minister for Immigration v NAMW [2004] FCAFC 264 Minister for Immigration v Yusuf (2001) 206 CLR 323 NBGM v Minister for Immigration [2006] FCAFC 60 SZCIJ v Minister for Immigration [2006] FCAFC 62 SZFTP v Minister for Immigration & Anor [2006] FMCA 1026 |
| Applicant: | SZFTK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG465 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: | 19 July 2006 |
| Date of Last Submission: | 4 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 29 September 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms D Watson Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG465 of 2005
| SZFTK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 28 January 2005. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. I adopt as background with minor amendments paragraphs 2 to 12 of the Minister’s written submissions filed on 14 July 2006.
The applicant is a citizen of Afghanistan who arrived in Australia in October 2000. He applied for a protection visa on 10 October 2000 (court book, page 1). He was granted a temporary protection visa on 1 February 2001 (court book, page 128) and made a further application for a protection visa (subclass 866) on 16 February 2001 (court book, page 130). His application was refused by a delegate of the Minister on 25 June 2004 (court book, page 192) and he sought to review the decision in the RRT on 12 July 2004 (court book, page 210).
The RRT handed down a decision affirming the decision to refuse the application for a protection visa on 28 January 2005 (court book, page 226). The applicant commenced these proceedings on 22 February 2005.
RRT decision
The RRT noted that the applicant had previously been found by a delegate of the Minister to be a person to whom Australia owed protection obligations. It considered that it needed to then determine whether Article 1C(5) of the Refugees Convention applied in that the circumstances in which the applicant had been recognised as a refugee had ceased to exist. (court book, page 254).
In relation to that issue, the RRT noted that the basis of the earlier recognition had been that the applicant faced a real chance that he would be detained by the Taliban because of his race (Tajik) and his imputed political opinion (opposed to the Taliban). It found, however, that the Taliban have been removed from power and did not accept that there was a real chance that the applicant would be targeted by the Taliban remnants still in Afghanistan (court book, page 255).
It therefore found that Article 1C(5) applied to the applicant.
The RRT then went on to consider that even if a different view of the operation of the cessation clause was taken, it would need to consider whether the applicant now has a well founded fear of persecution if he returned to Afghanistan due to the operation of s. 36(3) and (4) of the Migration Act 1958 (Cth) (“the Migration Act”) (court book, page 255). This was on the basis that Australia would not have protection obligations if the applicant, as a citizen of Afghanistan, had not taken all possible steps to avail himself of the right to enter and reside in Afghanistan and he did not currently have a well-founded fear of persecution in that country. Due to the earlier findings made, the RRT found that, in relation to the circumstances in which the applicant had previously been recognised as a refugee, he now no longer had a well founded fear of persecution and therefore s.36(3) applied to him (court book, page 256).
The RRT then turned to consider whether there was any other basis upon which the applicant now had a well founded fear of persecution.
The RRT noted that the applicant made the following claims in addition to those upon which he had been previously recognised as a refugee. Certain people, including his uncle, who were involved in fundraising and working for a local military/political leader (Massoud) had been arrested by the authorities and their families and his aunt had blamed him as the reason why they were arrested (court book, pages 166 and 239). Some of these people now had very high positions in the government and they now wanted to kill him (court book, page 241). The applicant also claimed that he had been arrested by the Mujahideen and his father had arranged for his release through Massoud. His father had assured him that he would not be harmed by the authorities as long as Massoud was there to protect him, but as he was no longer there he was in fear of his life (court book, pages 166 and 240). He further claimed at the hearing that he disagreed with the Jamiat-e-Islami ideology (court book, page 244) and that people had a better life under the Najibullah Government.
In light of various inconsistencies in the applicant’s claims, the RRT issued a notice under s.424A (court book, page 220). The applicant’s responded to that notice (court book, page 222) and the response was considered by the RRT (court book, pages 250-1). The RRT noted that the applicant also claimed that he would be persecuted in Afghanistan because he had lived for more than three years in a western country (court book, page 251).
The RRT found, in relation to the new claims advanced by the applicant, that it did not accept the truth of the claims regarding the arrest of his uncle and the applicant’s claimed ideological sympathy with the Najibullah regime. Nor did it accept that the applicant was blamed for the arrest of several supporters of Massoud, nor that his uncle was a leader of the Jamiat-e-Islami in Kabul. It did not believe that he had been arrested by the Mujahideen and released due to his father’s relationship with Massoud, nor that persons in positions of power would take revenge on him because of the alleged arrest of the Massoud supporters. In summary, all of the applicant’s new claims regarding matters which had occurred in the past in Afghanistan were rejected on credibility grounds (court book, page 253). The reason for so rejecting these claims was essentially the inconsistencies between the applicant’s claims and responses at the Departmental interview regarding these matters and his subsequent claims before the RRT as detailed in the notice issued under s.424A.
The RRT also noted other claims made by the applicant in which he claimed that he would continue to face persecution in Afghanistan due to the fact that he was a Tajik. The RRT discussed country information with the applicant at the hearing regarding this issue and found that it preferred the country information over the applicant’s evidence to the effect that there was no real chance that he would be persecuted for reasons of his ethnicity if he returns to his home in Kabul (court book, page 257). In relation to the applicant’s claim that he would be persecuted due to the fact that he had lived in a western country, the RRT again preferred country information, which was discussed with the applicant at the hearing, that Afghans returning from western countries are not targeted merely because that have resided in the west (court book, page 257), nor did it accept that he would be imputed with a political opinion for having resided in the west (court book, page 258).
Therefore the RRT found that the applicant did not now have a well founded fear of persecution for a Convention reason if he returned to Afghanistan and therefore did not satisfy the criterion set out in s.36(2) of the Migration Act.
The judicial review application
The applicant relies upon an amended application filed on 11 November 2005. The first ground asserts that the RRT misconceived and therefore misapplied the law relating to the proper construction of Article 1C(5) of the Refugees Convention.
The applicant relies upon the decision of the Full Federal Court in QAAH of 2004 v Minister for Immigration [2005] FCAFC 136. Secondly, the applicant asserts a breach of s.424A of the Migration Act by reference to the RRT’s reliance upon country information which was allegedly not disclosed. The applicant relies upon SZAGF v Minister for Immigration [2004] 82 ALD 364 and Re Minister for Immigration & Anor; ex parte Miah (2001) 206 CLR 57.
The evidence
I received as evidence the book of relevant documents filed on 23 May 2005.
Submissions
The Minister relies upon the written submissions filed on 14 July 2006. Those submissions are:
The applicant alleges that the RRT has misapplied the relevant law and relies on the Full Court decision in QAAH of 2004 v MIMIA 145 FCR 363. However, since that decision a five member bench of the Full Court has delivered judgment in NBGM v MIMA [2006] FCAFC 60. In that case, Black CJ and Mansfield J resolved the appeal on the basis that s. 36(3) of the Migration Act governed the question to be determined in a case such as the present. That is, if the applicant no longer has a well-founded fear of persecution in Afghanistan, and has not sought to avail himself of the protection of that country, s. 36(3) dictates a conclusion that the applicant does not meet the criterion in s. 36(2). The other member of the majority, Stone J, did not rely on s. 36(3), but reached the conclusion that the critical issue under Article 1C(5) was whether the applicant continued to have a well founded fear of persecution in his or her home country.
Black CJ noted the difference in reasoning in the majority, however, he made the following statement, which was also expressly agreed to by Mansfield and Stone JJ (at paras 59 and 149 respectively) that there was:-
a common conclusion about the task to be performed by the decision-maker on an application for permanent protection visa where the relevant circumstances are said to have changed since the appellant was granted a temporary protection visa. The majority would agree that s.36 mandates that the decision-maker must be satisfied that, at the time the decision is made, the applicant for a permanent protection visa has a well-founded fear of persecution for a Convention reason. The circumstances that a previous decision-maker was satisfied that the applicant had such a fear when a temporary protection visa was granted is not sufficient to establish what s. 36 requires. (at para 25)
It is submitted that this conclusion by the majority is binding on this Court. In the present case, it is submitted that the RRT conducted itself in conformity with this statement. It directed its attention to the question as to whether the applicant now had a well-founded fear of persecution upon his return to Afghanistan. The RRT considered this issue both in relation to its reliance on s. 36(3) and whether the additional claims of the applicant would cause him to satisfy the criterion in s. 36(2).
In the alternative, the respondent submits that the RRT’s findings in relation to Article 1C(5) do not contain any error, having correctly categorised the applicant’s claims upon which previous recognition was based, and making a finding that the circumstances in connection with which the applicant was recognised as a refugee have ceased to exist (RD 255).
The applicant also alleges that there has been a breach of s. 424A and a breach of the rules of procedural fairness and/or natural justice by failing to put to the applicant for comment independent country information relied upon by the RRT. The applicant concedes that the country information particularised in the amended application was referred to by the RRT at the hearing, however, the complaint centres on the alleged failure to provide the applicant with either copies of the country information or full particulars of that information which was critical to the RRT’s determination.
As a preliminary issue, the application for review in this matter was lodged on 12 July 2004. Section 422B of the Migration Act took effect from 4 July 2002 and applied to any application for review lodged after that date (see Act 60 of 2002). It is submitted that this provision has the effect of precluding the operation of common law natural justice rules – see VXDC v MIMIA [2005] FCA 1388, cited with approval in MIMA v Lay Lat [2006] FCAFC 61. The information referred to is information of a kind which is caught by s. 424A(3)(c) and there is no obligation on the RRT to issue a notice under s. 424A to the applicant in relation to it.
Even if the common law rules of natural justice apply, if the applicant is alleging that natural justice is only satisfied by providing the actual document relied upon, as opposed to providing the substance of the material which is relevant to the RRT’s consideration, this is against authorities in relation to this issue, and most recently the High Court in VEAL of 2002 v MIMIA 222 ALR 411. While there are no issues of confidentiality in relation to the document in question, the relevant question for determination is what the rules of natural justice require. In the context of country information where no confidentiality issue arises see VCAT v MIMIA [2003] FCAFC 141 at para 27.
Furthermore, it is clear from the terms of the RRT decision that the country information relied upon by the RRT was discussed with the applicant and its relevance made known to the applicant and that he was able to respond to the RRT at the hearing – see RD 242, 243, 254, 255, 256, 257, 258. It is submitted that the applicant’s claim that he has been denied procedural fairness is without foundation.
The applicant had not received the Minister’s submissions at the time of the trial of this matter on 19 July 2006. I gave him the opportunity to make written submissions in response to those of the Minister and also gave the Minister a right of reply. On 17 August 2006 Legal Aid Victoria wrote to the Court on behalf of the applicant[1], stating that, based on information he has “the Taliban is worse than when he left the country” and that he will be at risk if he returns there. He considers that he will be an obvious and easy target as a Tajik.
Those submissions address the merits of the RRT decision but do not assist me in resolving the legal issues in this case.
[1] Although Legal Aid Victoria does not act for him
On 4 September 2006 the Minister submitted in reply that the submissions transmitted by Legal Aid Victoria were not relevant.
I agree.
Reasoning
The first ground in this case raises the same issue as the first ground I considered in SZFTP v Minister for Immigration & Anor [2006] FMCA 1026. In that case I said, in relation to that issue:
In the present case, in relation to the first ground of review, the applicant proceeds upon the basis that I am bound by the decision of the Full Federal Court in NBGM, at least pending the outcome of further consideration by the High Court of the issues relating to the application of Article 1C(5) of the Convention and s.36(3) of the Migration Act in cases such as the present. The applicant contends that NBGM was wrongly decided but that contention is a mere formality, given that I am bound by that decision. The first ground of review would succeed upon the basis of the reasoning of the majority in QAAH, but the parties appear to have proceeded upon the basis that the opposite result would necessarily follow on the basis of the reasoning of the majority in NBGM.
I do not accept that assumption. While it is hypothetically possible that different outcomes might result from the application of either Article 1C(5) or s.36(3) to a particular case, it is equally possible that the same result might be achieved. The outcome depends upon the facts of the particular case. There are several difficulties in applying the decision of the Full Federal Court in NBGM. The first is that there is limited discussion in the judgments about the facts of that case, especially the basis upon which the applicant in that case claimed and was granted a protection visa. The most detailed discussion about the facts is to be found in the judgment of Stone J at [73]-[76]. Her Honour appears to have proceeded on the basis that the applicant’s protection visa claims had been accepted. As will become apparent, that is a point of distinction from this case.
The second problem is that the majority did not agree on their reasoning. They only agreed on the outcome. To the extent that any ratio decidendi can be drawn from the majority judgments in NBGM it is to be found in the judgment of the Chief Justice at [25] quoted above. It is important to read carefully what the Chief Justice says in that paragraph. It is important in particular to consider the final sentence:
The circumstance that a previous decision-maker was satisfied that the applicant had such a fear when a temporary protection visa was granted is not sufficient to establish what s.36 requires.
In my view, it follows from the reasoning of the Chief Justice that it is not sufficient to deny a protection visa because of the circumstance that a previous decision maker was satisfied that the applicant had a certain fear when a temporary protection visa was granted and that circumstances had changed, if the basis upon which the protection visa was granted was a more limited basis than the basis upon which the visa was claimed and continues to be claimed. Decision makers must deal with protection visa claims on the basis that they are put, whether the consideration relates to an extension of a temporary protection visa or an initial application. Decision makers are not entitled to limit their consideration to a narrow basis for protection when the protection visa claims are put on a wider basis[2].
[2] Minister for Immigration v Yusuf (2001) 206 CLR 323 at [75] per McHugh, Gummow and Hayne JJ
I accept, as I did in SZFTP, that in relation to this ground of the application I am bound by the decision of the Full Federal Court in NBGM v Minister for Immigration [2006] FCAFC 60. This case is distinguishable from SZFTP. In this case the applicant claimed to fear persecution by the Taliban government[3]. The first RRT accepted that claim, particularly by reference to his place of residence in Kabul[4]. That was the basis upon which the applicant was granted temporary protection. In considering the applicant’s claim for further protection, the second RRT carefully considered all of the applicant’s claims and rejected them. The presiding member took into account the removal of the Taliban from power. He was entitled to do so. Although the presiding member started by considering whether the circumstances in connection with which the applicant was originally recognised as a refugee had ceased to exist,[5] that did not involve any jurisdictional error because there was no material difference between the basis on which the applicant claimed temporary protection and the basis on which it was granted. The change in circumstances was particularly stark because the applicant came from Kabul, the seat of government. On the information available to the RRT, it was entitled to conclude either that Article 1C(5) of the Convention or ss.36(3) and (4) of the Migration Act applied. Accordingly, I reject the first ground in the application.
[3] court book, pages 32-33
[4] court book, pages 122-127
[5] court book, pages 254-256
I also reject the second ground. That ground faces insuperable difficulties. First, there is no obligation to disclose country information pursuant to s.424A of the Migration Act: Minister for Immigration v NAMW [2004] FCAFC 264. Secondly, to the extent that the applicant relies upon procedural unfairness under the general law, the operation of the fair hearing rule under the general law is excluded by s.422B of the Migration Act: Minister for Immigration v Lay Lat [2006] FCAFC 61; SZCIJ v Minister for Immigration [2006] FCAFC 62 at [8]. Thirdly, even if the general law fair hearing rule applied, the disclosure apparent on the face of the record establishes to my satisfaction that the general obligation would have been met. I accept the Minister’s submissions in that regard.
No other jurisdictional error is apparent to me. The decision of the RRT is therefore a privative clause decision and the application must be dismissed. I will so order.
As to costs, this was a case of moderate complexity, although the Minister was not represented by counsel at trial. In my view, a costs order fixed in the amount of $5,000 is called for on a party and party basis. I will so order.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 29 September 2006
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