SZGBY v Minister for Immigration
[2005] FMCA 1303
•22 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGBY v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1303 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in Nepal – whether the RRT breached s.424A of the Migration Act 1958 (Cth) considered – whether the RRT misapplied s.36(3) of the Migration Act considered – whether the RRT proceeding was unfair considered – no reviewable error found – application dismissed. |
| Migration Act 1958, ss.36, 91N, 424A |
| NAGV and NAGW of 2002 v Minister for Immigration [2005] HCA 6 SAAP v Minister for Immigration [2005] HCA 24 WAGH v Minister for Immigration [2003] FCAFC 194 |
| Applicant: | SZGBY |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 934 of 2005 |
| Judgment of: | Driver FM |
| Hearing date: Date last submissions received: | 7 September 2005 16 September 2005 |
| Delivered at: | Sydney |
| Delivered on: | 22 September 2005 |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Clayton Utz |
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 |
SYG 934 of 2005
| SZGBY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 11 April 2005. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Nepal and made claims of religious persecution. He first came to Australia on or about 23 October 1990 and his most recent entry into Australia is recorded as 29 November 1991. He held a visitor visa valid for six weeks. According to the RRT decision[1] he overstayed that visa and became an illegal immigrant. The applicant obtained employment in several jobs and apparently worked continuously over a period of about 14 years until he was detected by the Minister’s Department on or about 8 February 2005. He was then detained under the Migration Act 1958 (Cth) (“the Migration Act”).
[1] court book, page 140
The applicant lodged two protection visa applications in February 2005. The first was apparently treated as invalid because of non payment of the required fee. The second application made on 25 February 2005 was treated as valid. The application was refused by a delegate of the Minister on 3 March 2005 and on 7 March 2005 the applicant applied for review of that decision to the RRT. The RRT conducted a hearing on 1 April 2005 and the decision followed on 11 April 2005.
The RRT decision
The applicant’s protection visa claims changed over time. Essentially, he claimed to be a Nepali citizen who feared harm from members of his immediate and extended family because he married someone his family did not approve of.
The RRT rejected the review application for the following reasons:
a)The applicant’s claim to fear harm from his family was not credible.[2]
b)The combination of his lack of credibility and the manner in which the applicant came to make protection claims (after working illegally for 14 years in Australia and having been caught by authorities) revealed that he lacked a subjective fear of persecution.[3]
c)Even if his claims were to be believed, the RRT was not satisfied that the harm the applicant feared from his family was for a Convention reason.[4]
d)Finally, the RRT made findings to the effect that s.36(3) operated in the present case because the applicant was entitled to enter and reside in India, had not taken reasonable steps to do so and did not have any Convention fears in India.[5]
[2] court book, page 152.5
[3] court book, page 152.5
[4] court book, page 152.6
[5] court book, page 152.7
The judicial review application
These proceedings began with the judicial review application filed on 14 April 2005. On 29 April 2005 the applicant consented to a number of orders before Registrar Segal, including an order that he file and serve an amended application giving complete particulars of each ground of review relied upon by 4 July 2005. An amended application was filed on 15 August 2005. The applicant asserts that he served that application on the Minister’s lawyers but there is no record of their receipt of it. A further amended application (which was unfiled) in different terms was served on the Minister’s lawyers. Mr Lloyd prepared written submissions on behalf of the Minister which responded to that application. I gave leave for the further amended application to be filed in court on 7 September 2005. The applicant told me that he intended his further amended application to augment rather than replace his amended application filed on 15 August 2005.
I agreed to accept both applications.
The amended application raises the following grounds:
a)The RRT failed to exercise its jurisdiction by not observing procedures which it was required by the Act to observe.
Particulars
The RRT considered that the applicant’s delay in claiming refugee status after arriving in Australia was a part of the reason for affirming the decision under review, to the extent that it led to the RRT’s conclusion that he had no subjective fear of persecution at all.
In coming to that conclusion the RRT took into account information that there was no record of an earlier protection visa application which the applicant claimed to have lodged. This was information that was specifically about the applicant, had not been given to the RRT by the applicant, and was not non-discloseable information. Therefore the RRT was required by s.424A of the Act to give the applicant notice, in writing, of the particulars of the information and the reason why the RRT considered it relevant to the case, with an opportunity to comment. The RRT failed to do so. Such a failure constituted jurisdictional error of law (see SAAP v Minister for Immigration [2005] HCA 24).
b)The RRT erred in law in finding that the terms of the “Treaty of Peace and Friendship” between India and Nepal gave rise to a right to enter and reside in India within the meaning of s.36(3) of the Act.
Particulars
The words of the Treaty are not on their face capable of evidencing a right to enter and reside, as understood by the Full Court in WAGH v Minister for Immigration [2003] FCAFC 194. Article 6 of the Treaty refers only to a right of participation in certain economic activities, while Article 7 is on its face incomprehensible. In WAGH the Full Court found that the amendments which introduced s.36(3) to the Act implied that any right to enter and reside must imply a guarantee of protection from persecution or refoulement. In this regard the RRT should be taken to be on notice of the fact that the Republic of India is not a State Party to the Convention.
The further amended application adds an additional ground of procedural unfairness, although it is not expressed in those terms.
It appears that the amended application was prepared with legal assistance while the further amended application was not. In the further amended application the applicant asserts that he was not given sufficient time “during the time of my hearing before the RRT” to prove that he was a Christian (rather than a Hindu as he had previously claimed). The further amended application also contests the RRT finding that the applicant did not have a well-founded fear of persecution from Maoists in Nepal.
Submissions
Both the applicant and the Minister prepared written submissions. Both also made oral submissions. The applicant relevantly submits as follows:
·he applied for protection visas in 1994 and 1997. He was granted a visa in 1999. The RRT was wrong in finding that he had not applied for a protection visa before 2005[6];
·the RRT made a further factual error in stating that he only had one son[7]. The Minister concedes that factual error;
·he is a Christian but was not given enough time to prove it;
·he made a post hearing submission on 8 April 2005 detailing his claims to be a Christian but needed more time to provide evidence in support[8]. The RRT decision was made only three days later;
·in a pre hearing submission[9] the applicant’s migration adviser had made a request for more time for submissions;
·the RRT misapplied and misunderstood the Treaty of Peace and Friendship between India and Nepal. The RRT also misunderstood the applicant’s claims of nationality. The RRT should have understood the correct position from the claims made in writing[10];
·the applicant never claimed he was born in India. He was born in Nepal. He never claimed his father was an Indian citizen and does not know. The applicant’s wife was born an Indian citizen but renounced it in order to obtain Nepalese citizenship. The RRT made factual errors in relation to these issues[11];
·the RRT had material before it detailing problems between the Maoists and the Christians[12]. Nevertheless, the RRT rejected any connection between the applicant and Maoists[13];
·the RRT made other factual errors, namely in relation to whether it was the applicant’s or his uncle’s son who was second in charge of Nepal’s police[14]. The RRT also misunderstood the applicant’s claim concerning when he left Nepal[15]. The applicant conceded that he inadvertently misled the RRT on this point due to inadequate translation of his claims into English;
·the applicant otherwise relies upon his amended application and further amended application.
[6] I accepted as an exhibit documents tendered by the applicant relating to his dealings with DIMIA between 1994 and 1999
[7] court book, page 144
[8] court book, page 117
[9] court book, page 95
[10] court book, page 123
[11] court book, page 149
[12] court book, page 167
[13] court book, page 152
[14] court book, page 147
[15] court book, page 148
Mr Lloyd relevantly submits as follows:
·there was no breach of s.424A(1) of the Migration Act. The RRT relied upon information provided by the applicant for the purposes of his application to the RRT and also general country information, neither of which required disclosure to the applicant. The RRT’s finding that the applicant had not made a formal protection visa application prior to 24 February 2005 was not based on any other information. In particular, there is no evidence of the RRT having searched departmental databases in order to satisfy itself that there had not been any earlier applications[16];
[16] court book, page 147
·likewise, the further discussion of whether there had been any earlier protection visa application, at the bottom of page 147 of the court book and extending on to page 148 of the court book, does not point to any finding being based on any information that required disclosure to the applicant;
·neither is there anything in the discussion in the last paragraph on page 150 of the court book to point to reliance upon any additional information;
·the question of whether or not the applicant had made any prior protection visa applications went to an issue of credibility. This was only one of a number of matters that led to an adverse finding on credibility. However, even if there was an error in relation to the credibility finding, the decision of the RRT is independently supported by the RRT finding that the applicant would not in any event face persecution either in Nepal or India[17];
[17] court book, page 152
·the admitted error made by the RRT in relation to whether the applicant had one or more sons was not determinative of anything and is therefore immaterial;
·there is no substance to the claim that the applicant had insufficient time to deal with his claim to be a Christian. This claim was made after the hearing and was inconsistent with earlier claims made by the applicant to be a Hindu. The RRT considered the claim and its conclusion was open to it on the material before it;
·there was no unfairness or breach of statutory duty in the manner in which the RRT dealt with that claim;
·in relation to the Treaty of Peace and Friendship between India and Nepal, this case can be distinguished from the decision of the High Court in NAGV and NAGW of 2002 v Minister for Immigration [2005] HCA 6. In that case s.36(3) of the Migration Act was not in issue whereas in this case that sub section is relevant. The RRT in this decision makes no reference to common law principles of effecting state protection. The RRT found that the applicant had a right to live in India because his father lives there and the applicant himself had previously lived there. On page 53 of the court book, in his protection visa application, the applicant had asserted a right to live in India[18];
·the first purported protection visa application made by the applicant in February 2005 was invalid, not simply because no fee was paid but because of s.91N of the Migration Act. In his second and valid protection visa application the applicant made no mention of a fear of harm from Maoists. The issue was only raised in a very general way in the applicant’s pre hearing submission[19]. Because the applicant made no claim to fear Maoists for any Convention reason there could be no error in the RRT decision in relation to this aspect of the applicant’s claims;
·the issue of whether it was the applicant’s uncle or the applicant’s uncle’s son who was second in charge of the Nepali police was a peripheral one and not determinative of anything. If there was an error it was an error flowing from the incorrect expression of the claim by the applicant[20];
·as to the applicant’s wife’s citizenship, the applicant originally claimed that his wife was a dual citizen[21];
·the applicant concedes that he inadvertently misled the RRT on the issue of when he left Nepal and no jurisdictional error can result from the RRT’s consideration of that issue;
·the applicant failed before the RRT because he was not believed. The RRT nevertheless considered his claims (with the exception of his claim to be a Christian) and found no Convention nexus in any event;
·the effect of s.36(3) of the Migration Act is that Australia has no protection obligations to the applicant because he can live in India. Section 36(4) of the Migration Act does not apply because the RRT found no Convention related harm would come to the applicant in either India or Nepal.
[18] see also court book, page 25 where the applicant claimed to be an Indian national
[19] court book, page 100
[20] see court book, page 48 at about point 7
[21] court book, page 43
Mr Lloyd took up the opportunity I offered him to make post hearing written submissions concerning the decision of the Full Federal Court in WAGH v Minister for Immigration [2003] FCAFC 194. Mr Lloyd submits as follows:
·the decision of the Full Federal Court in WAGH is not relevant to this case;
·that decision dealt with the limits of inferences that can be drawn from the existence of a visa permitting the applicant in that case to enter the USA as a tourist – no such issue arises here;
·there is no clear ratio decidendi in the decision in WAGH anyway because the three judges who decided that case (French, Hill and Carr JJ) agreed on the outcome but little else.
I gave the applicant the opportunity to make written submissions in reply on that issue. Apart from taking issue with a matter of factual detail on page 147 of the court book concerning whether he had made a previous protection visa application, the applicant provided two press clippings concerning the decision of the High Court in NAGV v Minister for Immigration [2005] HCA 6.
Reasoning
The issue of procedural unfairness raised in the further amended application can be dealt with shortly. I agree with and adopt the Minister’s submissions on this point:
In the [further] amended application, the applicant contends that he was not given sufficient time at the hearing to prepare himself to prove the document that he provided of his baptism in 1988 was true. This claim is baseless. The applicant did not claim to be a Christian during the hearing and did not proffer his “evidence” until a week after the hearing. At the hearing it was apparently put to him that the difference in his (Hindu) and his wife’s (Christian) religion was not an essential and significant reason for the harm claimed.[22] It is not suggested that he indicated at this time that he was in fact a Christian. Rather, the RRT indicates that this claim was made for the first time in a submission after the hearing.[23] The RRT’s rejection of the applicant’s new claim in this regard was not only open, given that he had previously consistently claimed to have been Hindu, at times when the certificate indicates that he was Christian, and it was compelling. The ground, which does not in any event constitute a jurisdictional error, must fail.
[22] court book, page 150.6
[23] court book, page 151.6
The applicant now claims to have additional evidence not available to him before the RRT decision supporting his claim to be a Christian. As that evidence was not available to the RRT it could not have affected the outcome. It is open to the applicant to present that evidence to the Minister should he wish to seek a more favourable decision.
I also see no substance in the asserted factual errors referred to by the applicant in his oral and written submissions. These are either peripheral matters not in any way determinative of the outcome or they were errors caused by the applicant himself. They were not jurisdictional errors.
The asserted jurisdictional errors in the amended application have more substance. The first of those is an asserted breach of s.424A of the Migration Act. The fact that the applicant had been in Australia for about 14 years before making a protection visa claim was a matter that weighed heavily on the presiding member in considering the applicant’s credibility. Exhibit A1 (which was not before the RRT) supports the applicant’s contention that he made, or attempted to make, two protection visa applications in 1994 and 1997. Those documents also support his contention that he was granted some form of visa in 1999. On this issue, the presiding member said[24]:
In his 24 February 2005 protection visa application, the Applicant claimed he resided in Nepal for up to ten months in 1990 and then came to Australia where he was soon employed. He claimed that he sought advice about his migration status from a solicitor soon after coming to Australia. He claimed that the solicitor helped him lodge a protection visa application. He claimed he lodged a protection visa application. He claimed he withdrew that application on the advice of his solicitor, who suggested lodging an application for migration under skills criteria instead. He claimed that he believed that the solicitor lodged that application. Elsewhere in his 24 February 2005 protection visa application, the Applicant claimed he lodged an application residence under skills criteria in 1996. The Tribunal has before it no evidence of that application or of any protection visa application that could have preceded it. The earlier-cited protection visa application is dated 17 February 2005. As there is no evidence of a fee having been paid in connection with that application, it appears it was not formally lodged, meaning that the 24 February 2005 application for which a fee was paid became the Applicant’s only formal protection visa application to date, as far as the Tribunal can discern from the material before it.
[24] court book, pages 146-147
Later[25], the presiding member described the applicant’s claim that he lodged a protection visa application in around 1994 as an “unsupported” claim. The presiding member also described the applicant’s claim to have lodged a skills visa as an unsupported claim. On page 150 of the court book the presiding member expressed his concern at the applicant’s delay in bringing his protection claims to light, particularly after years of seeking and changing jobs. On page 152 of the court book the presiding member concluded:
The Tribunal accepts that the Applicant is a national of Nepal. The Tribunal finds that the Applicant is entitled to enter and reside in India. The Tribunal finds that the Applicant’s claims in respect of his family in Nepal are not consistent or credible, and that the manner in which he brought his claims to light reveal that he has had no genuine, subjective fear of persecution in Nepal, Convention-related or otherwise. The Tribunal concludes, for the record, that the applicant has not taken reasonable steps to avail himself of the protection of either of the countries in which he has a right to reside.
[25] court book, pages 147-148
The finding that the applicant has no genuine fear of persecution was influenced by the RRT’s finding that the applicant had made no formal protection visa application before February 2005. Although, in making that finding, the presiding member referred to the two protection visa applications made by the applicant in February 2005, that was not information that bore on the question of whether there had been any earlier application. On that question, the presiding member had nothing to go on except what he was told by the applicant. The presiding member was not satisfied with the applicant’s unsupported assertions made at the hearing. There was no information before the presiding member bearing on the question of whether any protection visa claims had been made before February 2005 which required disclosure to the applicant pursuant to s.424A(1) of the Migration Act.
Even if I am wrong in that finding, the decision of the RRT is supported by the alternative finding that the applicant does not, in any event, have a Convention related fear of persecution. The presiding member said:
However, the Applicant’s substantive claims, which are unreliable, are not Convention-related in any event. His recent attempt to portray himself as a Christian is dismissed as a fraud, concocted to address the potentially adverse position put to him about his claims not being Convention-related. This late fabrication of claims is further evidence of the Applicant’s bad faith in the present matter.[26]
[26] court book, page 152
The RRT was entitled to reject the applicant’s late and inconsistent claim to be a Christian. Having rejected that claim, it was clearly open to the RRT to conclude that there was no Convention nexus with the asserted fear of harm expressed by the applicant. That fear was a personal matter between him and his extended family. This finding is, in my view, a complete answer to the asserted jurisdictional error in respect of the finding that the applicant had no subjective fear of persecution.
I agree with Mr Lloyd that the Full Federal Court decision in WAGH is not relevant. Although s.36(3) of the Migration Act was discussed by the RRT in its reasons at length (and the applicant was invited to comment on it) the decision of the RRT ultimately turned on the lack of a Convention nexus with the harm he feared, not a right to live in another country.
There is no jurisdictional error in the RRT’s treatment of the applicant’s claims to fear harm at the hands of the Maoists. There was nothing before the RRT to point to the applicant having any well-founded fear beyond that felt by any other resident of Nepal.
The decision of the RRT is, I find, free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed.
Costs in this matter should follow the event. I will fix costs in the sum of $5,000.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 22 September 2005
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