SZGBY v Minister for Immigration
[2008] FMCA 268
•13 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGBY v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 268 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of Nepal claiming fear of persecution for reasons of his religious beliefs – no reviewable error. |
| Migration Act 1958 (Cth) ss.416, 424A |
| Applicant: | SZGBY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3161 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 December 2007 |
| Date of Last Submission: | 20 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ower |
| Counsel for the Respondent: | Mr Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3161 of 2007
| SZGBY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of Nepal. When these proceedings commenced, he was an inmate of the Immigration Detention Centre at Villawood. I was informed on the date of the hearing that the applicant was no longer in detention.
The Applicant seeks judicial review of a decision of the Refugee Review Tribunal, signed on 15th July and handed down on 16th July 2007, affirming the decision of a delegate of the minister not to grant the applicant a Protection (Class XA) visa. The orders sought by the Applicant are these:
i)A writ of certiorari quashing the decision of the Second Respondent, i.e. the Tribunal, dated 15 July 2007.
ii)A writ of mandamus compelling the Second Respondent to decide the applicant's claim according to law.
iii)Costs.
The ground upon which the Applicant claims the Tribunal fell into jurisdictional error is set out in his amended application, prepared by Mr Terry Ower of counsel and filed on 29th November 2007. The application gives this ground:
“By regarding itself as bound by the credibility findings of a previous Tribunal (differently constituted), the Second Respondent misapplied s.416 of the Act and, as a consequence, failed to address the Applicant's claim of religious persecution based upon his conversion to Christianity within the context of his high caste family background.”
Background
In order to understand this submission in context, it is necessary to give a brief consideration of the background to the matter. The Applicant arrived in Australia as a visitor in November 1991 and applied for a protection visa in 1994. He withdrew that application in 1997 and, instead, applied for a skilled migrant visa. That application was ultimately unsuccessful.
The Applicant again applied for a protection visa on 24th February 2005. That application was refused by a delegate of the Minister on 3rd March 2005. The Applicant sought review of that decision by the Refugee Review Tribunal and, in the decision signed on 11th April 2005 and notified to the Applicant on 12th April 2005, the Tribunal, differently constituted, affirmed the delegate's decision.
The Applicant then sought judicial review of that decision from the Federal Magistrates Court but that application was dismissed. What the Applicant then did was to seek the exercise of the Minister's discretion under the provisions of s.417 of the Migration Act.
On 7th February 2007 the Minister exercised his discretion under s.48B of the Act to permit the Applicant to make a further application for a protection visa. That decision was notified to the Applicant on 9th February 2007 and, on 19th February 2007, the Applicant made his current application for a Protection (Class XA) visa. A delegate of the Minister refused the application for a visa and a copy of the delegate's decision appears at pages 42‑47. The decision is undated in the copy in the Court Book, apart from the year 2007.
Application to the Refugee Review Tribunal
On 27th March 2007 the Applicant's representatives, Craddock Murray Neumann, lodged an application with the Refugee Review Tribunal, seeking a review of that decision. According to that application, the letter from the Department notifying the Applicant that his application had been rejected was 22nd March 2007.[1]
[1] See Court Book at pages 42- 47
The Tribunal wrote to the Applicant on 4th April 2007, inviting him to attend a hearing of the Tribunal on 15th May 2007. The Applicant acknowledged that invitation and, in a Response to Hearing Invitation sent by his lawyers, indicated that he did wish to attend the hearing and wanted his lawyer, Ms Downing, to attend the hearing with him. He also asked for an interpreter in the Nepalese language and specified his preference for a female interpreter.
On 10th April 2007 the Applicant's lawyers submitted submissions on behalf of the Applicant and a further statement, in which they set out that the Applicant had a fear of persecution should he be forced to return to Nepal; this arose from his marriage to a Catholic and his conversion to Catholicism.
The Applicant had stated that he came from a high caste Hindu family, with close and longstanding ties to the military and the police force, and, against the wishes of his family, in 1986 the Applicant married a Catholic woman of lower caste; he converted to Catholicism in 1988. He claimed that on several occasions since that time he had been apprehended and beaten or tortured by the police, at the behest of his family and particularly his maternal uncle, who is a very powerful man.
The Applicant attended the hearing and gave evidence. The Tribunal member asked the Applicant a number of questions about his application. The Member told the Applicant at the hearing that the Applicant would receive a letter inviting him to comment on information under the provisions of s.424A of the Migration Act.
The following day, 16th May 2007, the Tribunal sent a letter to the Applicant, care of Craddock Murray Neumann Lawyers, headed, "Invitation to Comment on Information". That letter told the Applicant that the Tribunal had information that would, subject to any comments that he made, be the reason, or part of the reason, for deciding that he was not entitled to a protection visa.
The letter set out information given in the Applicant's previous application for a protection visa, lodged in February 2005, referred to information discussed at the course of the hearing on 15th May 2007 and discussed other matters, such as the Applicant's interview with the primary decision‑maker in relation to his current application, and discussed matters such as the Applicant's Nepalese passport and certain items of Independent Country Information, including the US State Department International Religious Freedom Report 2006 in relation to India.
The letter set out those items of information in some detail and made clear to the Applicant why the Tribunal considered the various items of information to be relevant. In respect of the first piece of information, the Tribunal said:
“The above information is relevant to your current application for a protection visa because it casts doubt on your claim that you converted to Christianity and were baptised in Kathmandu in 1988. The information is also relevant to your overall credibility, that is, whether you can be believed.”[2]
[2] See Court Book at page 90
In respect of some information discussed at the hearing, the Tribunal's letter said:
“The information in this and the preceding paragraph is relevant to your current application for a protection visa because it casts doubt on your claim that your wife and children in Nepal have been harassed while you have been in Australia. This information is once again also relevant to your overall credibility.”[3]
[3] See Court Book at page 91
In respect of certain country information, which the Tribunal notes was discussed at the hearing on 15th May 2007, the letter said:
“This information is relevant to your current application for a protection visa because it casts doubt on your claims that, as a Christian convert from Hinduism, you would not be able to practise your religion openly in Nepal, that you would not be able to tell people about your religion or that, for reasons of your religion, you would be prevented from engaging in charitable work in Nepal. Once again this information is also relevant to your overall credibility.”
This information is relevant to your current application because it casts doubt on your claim that you would not be able to practise your Christian religion openly in India.”
The Applicant's lawyers responded to that letter, by means of a letter, on 23rd May 2007, in which they provided comments at some length. The Tribunal again wrote to the Applicant, on 1st June 2007, a letter headed, "Invitation to Comment on Information". This again was a letter intended to comply with the requirement of s.424A of the Migration Act. That letter drew the Applicant's attention to the provisions of s.416 of the Migration Act and invited comments from the Applicant.
The letter set out the provisions of s.416 and referred to the earlier Tribunal decision and the Applicant's application for judicial review of that decision. The letter told the Applicant:
“Accordingly, the Tribunal as presently constituted may take to be correct the findings of the Tribunal (differently constituted) that your claims based on your fear that powerful or influential members of your family in Nepal and in India will persecute you because you married a Christian girl of a lower caste when you were supposed to marry your maternal uncle's daughter are not credible and are in any event not Convention-related.
It is important to note that section 416 confers a discretion on the Tribunal and that it is open to you to argue that the Tribunal should not take the decision of the Tribunal (differently constituted) to be correct and should consider the information considered in your previous application. It is likewise important to note that s.416 does not prevent the Tribunal from considering new information that was not considered in your previous application. The Tribunal takes the opportunity to advise you that nothing that was said at the hearing on 15 May 2007 was intended to dissuade you from producing such new information if you wished.”[5]
[5] See Court Book at page 142
The Applicant's lawyers replied on 4th June 2007, requesting that the Tribunal should not take the decision of the Tribunal differently constituted to be correct and should consider the information considered in the Applicant's previous application. The lawyers also attached a request for access to documents pursuant to Freedom of Information Act 1982. The Tribunal released certain documents and extended the time to provide comment on the information. The Applicant's lawyers wrote to the Tribunal on 7th June 2007 and made further comments in respect of the matters raised in the Tribunal's letter. A copy of that letter can be found at pages 152-155 of the Court Book.
The Tribunal signed its decision on 15th July 2007 and handed the decision down the following day, 16th July 2007. A copy of the Tribunal decision record can be found at pages 206-243 of the Court Book. The Tribunal decision sets out the claims and evidence considered in some detail under the following headings:
·“The Applicant's previous application.
·The Applicant's evidence at the hearing on 1 April 2005.
·The Applicant's claim to be a Christian.
·The decision made by the Tribunal (differently constituted) on the Applicant's previous application.
·Submissions seeking the exercise of the Minister's discretion under s.417 of the Act.
·The Applicant's current application.
·The Applicant's evidence when interviewed by the primary decision‑maker.
·Submission from the Applicant's representatives to the Tribunal, dated 10 April 2007.
·The Applicant's evidence at the hearing before me.
·The Tribunal's first section 424A letter.
·The Applicant's response to the Tribunal's first section 424A letter.
·The Tribunal's second section 424A letter.
·The Applicant's response to the Tribunal's second section 424A letter.”[6]
[6] See Court Book at pages 210 - 231
The Tribunal’s Findings and Reasons
In the Tribunal's findings and reasons, the Tribunal considered the effect of s.416 and noted that:
The Tribunal may - in accordance with the discretion conferred by that section, in considering the applicant's application for review of the decision made by the delegate on 22 March 2007 refusing the current application for a protection visa - choose not to consider any information considered in the applicant's previous application and may have regard to, and take to be correct, the decision that the Tribunal differently constituted made about, or because of, that information; that is, that the applicant was not, on the basis of that information, a person to whom Australia had protection obligations under the Refugees Convention.
The Tribunal went on to say:
“While the matter is not free from doubt, the better view is that the reference to the ‘decision’ of the Tribunal in paragraph 416(d) encompasses the reasoning process which led to the decision including the Tribunal's relevant findings of fact: see the authorities cited in the Tribunal's second section 424A letter as set out above.
In their submission dated 7 June 2007 the applicant's representatives advanced arguments why they requested that the Tribunal should not take the decision of the Tribunal (differently constituted) to be correct, and should consider the information considered in the applicant's previous application.[7]
[7] See Court Book at page 231
The Tribunal considered those matters and then stated:
I have decided that, in accordance with the discretion afforded by s.416 of the Act, I should have regard to, and take to be correct, the decision made by the Tribunal (differently constituted) on the applicant's previous application. As the Tribunal noted in its second s.424A letter, I consider that the better view is that the reference to the "decision" of the Tribunal in paragraph 416(d) encompasses the reasoning process which led to the decision, including the Tribunal's relevant findings of fact. Accordingly I take to be correct the findings made by the Tribunal (differently constituted) on the basis that the information before it that the applicant's claims based on his fear that powerful or influential members of his family in Nepal and in India would persecute him because he had married a Christian girl of a lower caste when he had been supposed to marry his maternal uncle's daughter were not credible and were in any event, not Convention‑related, that the applicant did not face a real chance of Convention‑related persecution in Nepal and that he was therefore, not a refugee. I take to be correct the decision made by the Tribunal (differently constituted) that it was not satisfied, on the basis of the information before it, that the applicant was a person to whom Australia had protection obligations under the Refugees Convention. I have decided that, in accordance with the discretion afforded by s.416 of the Act, I should not consider any information considered in the applicant's previous application, except where such information is relevant to new information that was not considered by the Tribunal (differently constituted), as discussed below. As referred to above, the new information relates, in essence, to the applicant's baptism in Australia in November 2005 and the opinion of his supporters that he has undergone a genuine conversion to the Catholic faith.”[8]
[8] See Court Book at page 233
The Tribunal then went on to consider the Applicant's credibility. The Tribunal made adverse findings about the Applicant's credibility, as follows:
“In the present case I consider that the applicant has demonstrated that he is prepared to alter his evidence to what he perceives to be his advantage.”[9]
[9] See Court Book at page 234
Also, the Tribunal did not accept that the Applicant converted to Christianity and was baptised in Kathmandu in 1988, saying:
“I consider that the fact that the applicant was prepared to alter his evidence in this way to what he obviously perceived to be his advantage, casts doubt on his overall credibility.
At the hearing before me, the applicant once again sought to alter his evidence in a significant respect, claiming that his wife and children in Nepal were being harassed by his family.”[10]
[10] See Court Book at page 235
The Tribunal concluded its findings and reasons on the subject of credibility by saying:
“I do not accept that the applicant is a witness of truth.”[11]
[11] See Court Book at page 237
The Tribunal went on to consider the Applicant's conversion to Catholicism and found that it would not accept that the Applicant was a special case, having regard to the review that the Tribunal had formed of the Applicant's credibility. The Tribunal considered independent evidence and said:
“Having regard to the view I have formed of the applicant's credibility, I prefer the independent evidence referred to above regarding religious freedom in Nepal to the applicant's own evidence to the extent of any inconsistency.”[12]
[12] See Court Book at page 241
The Tribunal was not satisfied that the Applicant had a well‑founded fear of being persecuted for a Convention reason if he returned to Nepal at the time of the hearing or the reasonably foreseeable future, and was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, and, consequently, did not satisfy the criterion set out in paragraph 36(2)(a) of the Act for the grant of a protection visa; nor was he the spouse or a dependant of a person who holds a protection visa, as required by paragraph 36(2)(b).
Application for Judicial Review
The Applicant submits that the Tribunal has fallen into error by misapplying s.416 of the Act because it regarded itself as bound by the credibility findings of the previous Tribunal and, therefore, failed to address the Applicant's claim of religious persecution, based upon his conversion to Christianity within the context of his high caste family background.
The Applicant’s Submissions
Counsel for the Applicant, Mr Ower, submits that the Tribunal had the discretionary power under s.416 of the Act to have regard to and take to be correct the previous decision made by the Tribunal. Mr Ower submitted that the Tribunal chose to exercise that power in a way that extended the “correctness” to the findings of fact previously made, and he submitted that the problem with that approach was that it caused the Tribunal to, effectively, fail to address the Applicant's new claims, by adopting and applying the previous credibility finding.
Mr Ower submitted that the Applicant's new claims centred upon his conversion to Christianity within the context of his family circumstances in Nepal. The Tribunal identified the question of religious persecution in a general way but did not address the question in the specific way requested by the Applicant and his advisers because the Tribunal perceived the previous decision as already having found the Applicant's alleged special family circumstances as not credible.
Mr Ower went on to submit that it was clear that the Tribunal was not willing to revisit the question of whether the Applicant's family circumstances placed him in a more vulnerable situation for religious persecution. However, it should have done so, because the previous claim was decided on different evidence and on a different basis. Because it relied upon the previous finding of credibility, as distinct from merely the correctness of the previous decision, the Tribunal was disposed to disbelieve the Applicant on any matter critical to his second application. This had a pervasive effect, which led the Tribunal into jurisdictional error.
The Respondent’s Submissions
Counsel for the Minister, Mr Smith, submitted that the Applicant's ground was based on the understanding that the Tribunal “was not willing to revisit the question of whether the Applicant's family circumstances placed him in a more vulnerable situation for religious persecution” and adopted previous findings of credit to “discount any real appreciation of the Applicant's particular circumstances”, which are claimed to have led the Tribunal away from properly considering new information. However, he submitted that the understanding is flawed and that the essential point is that the Tribunal relied on its own consideration of the Applicant's credit to reject the Applicant's claim.
Mr Smith submitted that those conclusions were not made on the basis of information that had been before the first Tribunal. The Tribunal did not rely upon, or purport to act under, s.416 in making that credit finding. Therefore, s.416 had no impact on the Tribunal's consideration of the new information.
Conclusions
The issue to be decided is whether or not the Tribunal misapplied the provisions of s.416 of the Migration Act, insofar as it made the findings that it did. In my view, the Tribunal rejected the Applicant's claims on the basis of the adverse findings that the Tribunal made about the Applicant's credit. On the Applicant's submissions, the Tribunal fell into error in making these credit findings in applying s.416 in this way. What s.416 says is:
Section 416 - Only new information to be considered in later applications for review
If a non‑citizen who has made:
(a) an application for review of an RRT‑reviewable decision that has been determined by the Tribunal or the Administrative Appeals Tribunal; or
(b) applications for reviews of RRT‑reviewable decisions that have been determined by the Tribunal or the Administrative Appeals Tribunal;
makes a further application for review of an RRT‑reviewable decision, the Tribunal, in considering the further application:
(c) is not required to consider any information considered in the earlier application or an earlier application; and
(d) may have regard to, and take to be correct, any decision that the Tribunal or the Administrative Appeals Tribunal made about or because of that information.
The Tribunal, in its decision, states that the Tribunal made its own findings about the Applicant's credit. The Tribunal said:
“However, having regard to the view I have formed of the applicant's credibility, I do not accept that he is a special case or that his family's attitude if they find out about his conversion will be different from the attitude of society in general, as reflected in the information referred to in the course of the hearing and in the Tribunal's first section 424A letter.”[13]
Again the Tribunal had said, in overall terms:
“I do not accept that the applicant is a witness of truth.”[14]
[13] See Court Book at page 238
[14] See Court Book at page 237
I have had regard to the provisions of the Tribunal's first s.424A letter, of 16th May 2007. A copy of that letter can be found at pages 90‑93 of the Court Book. The paragraphs which I previously quoted all drew the Applicant's attention to the fact that his overall credibility was in issue. The letter drew the Applicant's attention to the credibility of particular circumstances - was also in issue, and invited the Applicant to comment on that.
The letter referred not only to information provided to the previous Tribunal but also to matters discussed between the Tribunal Member and the Applicant at the hearing on the day before 15th May 2007. It was quite clear that credibility was a live issue and, in my view, the s.424A letter supports the Tribunals finding that it dealt with the question of credibility on a fresh basis and did not rely on the previous Tribunal's credibility finding in order to make its decision.
I am satisfied that the evidence shows that the Tribunal was making its own considerations about the Applicant's credibility and that it regarded that issue as a live issue at the hearing on 15th May 2007, and that it sought the Applicant's comments on certain items of information, in order to make its own decision on the Applicant's credibility. Eventually, the Tribunal rejected the Applicant's claims because it was not satisfied about the Applicant's overall credibility.
This was the Tribunal's own finding based on the evidence before it and it was not reached by a reliance on, and a misapplication of s.416 of the Migration Act. It follows that no jurisdictional error has been shown and the Tribunal decision is therefore a privative clause decision. As it is a privative clause decision, it is final and conclusive and it is not open to relief, either in the way of certiorari or mandamus.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 6 March 2008
[4] See Court Book at page 92
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