SZGDA v Minister for Immigration & Anor
[2007] FMCA 1152
•31 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGDA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1152 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political and particular social group persecution in Nepal – whether the Tribunal breached s.91R(3) of the Migration Act 1958 (Cth) considered – where s.91R(3) is enlivened, the relevant conduct must be entirely disregarded by the Tribunal in determining whether an applicant has a well-founded fear of being persecuted – where, as here, the Tribunal relies upon such conduct in order to find that an applicant does not have such a fear, the Tribunal falls into jurisdictional error. |
| Migration Act 1958 (Cth), ss.91R(3), 424 |
| Chan v Minister for Immigration (1989) 169 CLR 379 SZHAY v Minister for Immigration & Anor [2006] FMCA 261 SZHFE v Minister for Immigration (No 2) [2006] FCA 648 SZIBK v Minister for Immigration & Anor [2006] FMCA 1167 SZJSD v Minister for Immigration & Anor [2007] FMCA 604 SZJRW v Minister for Immigration & Anor [2007] FMCA 1099 Thusaisamy v Minister for Immigration [1999] FCA 1632 |
| Applicant: | SZGDA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 6 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 18 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr J R Young |
| Solicitors for the Applicant: | Simon Diab & Associates |
| Counsel for the Respondents: | Mr J Smith |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
A writ of certiorari shall issue quashing the decision of the Refugee Review Tribunal signed on 17 November 2006 and handed down on 7 December 2006.
A writ of mandamus shall issue requiring the Refugee Review Tribunal to redetermine the review application before it according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 6 of 2007
| SZGDA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
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 Tribunal”). The decision was signed on 17 November 2006 and was handed down on 7 December 2006. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Nepal and had made claims of political persecution. The background to the applicant’s protection visa claims, his review application and the Tribunal decision on it are set out in the parties’ written submissions. The following statement of background facts is derived from paragraphs 1 through to 9 of the applicant’s written submissions filed on 17 July 2007 and paragraphs 2 through to 7 of the Minister’s written submissions filed on 10 July 2007.
The applicant is a citizen of Nepal who arrived in Australia on 18 April 2004 and applied for a protection visa on 17 May 2004. He claimed to fear persecution for reasons of his political opinion arising out of his involvement and subsequent disenchantment with the Maoists in Nepal.
On 22 June 2004, a delegate of the first respondent refused to grant the applicant a protection visa and on 22 July 2004 the applicant applied to the Tribunal for review of that decision.
On 28 February 2005, the Tribunal made a decision to affirm the delegate’s decision. However, that decision was set aside by consent orders made in this Court on 26 July 2006. Upon remittal to the Tribunal, the Tribunal was constituted by a different member.
The applicant attended a hearing on 16 October 2006 to give evidence and present arguments relating to the issues arising on the review. In support of this claims on 19 October 2004, the applicant submitted a certified translated copy of a newspaper article from the Kantipur national daily newspaper in Nepal (court book, “CB” 85). The Tribunal included an extract at CB 199.6. The full translated document is at CB 136. The Tribunal also referred to another newspaper article of the same date (21 July 2004) in the Nepali Daily Leader (CB 207.3, 214.6). The actual article does not appear to have been reproduced in the court book, nor is it clear at what point it was submitted.
The Tribunal handed down its decision on 7 December 2006 again affirming the decision of the delegate.
Tribunal’s decision
The Tribunal found that the applicant no longer feared the Nepalese authorities because the applicant had given oral evidence to this effect to the Tribunal. Although the Tribunal had considerable doubt that the applicant was a member of the CPN(M)[1] at all, it found that if he was a member, he had considerably exaggerated his role both because of his level of knowledge of it as well as a number of internal inconsistencies in the evidence given to the Tribunal. It concluded that the applicant was not at risk of any harm from the members of that Party at the time he left Nepal because of a political opinion they imputed to him or because he was a member of a particular social group such as deserters from the CPN(M).
[1] Communist Party of Nepal (Maoists)
The Tribunal also considered that the applicant had no genuine fear of persecution and that he had deliberately given information to a newspaper about himself solely in order to boost his claims to be a refugee. For these reasons, in addition to the improving situation in Nepal, the Tribunal found that the applicant had no well-founded fear of persecution in Nepal for reasons of political opinion or membership of a particular social group or for any other reason set out in the Refugee Convention.
The Tribunal dealt with s.91R(3) of the Migration Act 1958 (Cth) (“the Migration Act”) at CB 215. The Tribunal stated that the section provided that any conduct engaged in by the applicant in Australia must be disregarded in determining whether he or she has a well-founded fear of persecution for a Convention reason unless the applicant satisfies the decision-maker that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claims to be a refugee within the meaning of the Convention.
The application and evidence
These proceedings began with a show cause application filed on 2 January 2007. The applicant asserted actual notification of the Tribunal decision on 14 December 2006. On that basis I find that the application was filed within time. All of the grounds in that application have now been abandoned. The applicant now relies solely upon an additional ground in an amended application filed in court by leave on 18 July 2007. That ground is:
The Second Respondent made [a] jurisdictional error in that it acted in contravention of section 91R(3) of the Migration Act 1958.
Particulars
(a)The Second Respondent at CB215.3 found that the conduct of the applicant (namely conduct leading to the publication of newspaper articles about him in Nepal) was conduct to which section 91R(3)(b) applied.
(b)Once that finding had been made, the Second Respondent was required by section 91R(3)(a) to disregard the conduct for the purpose of determining whether the applicant had a well-founded fear of being persecuted for a Convention reason.
(c)The Second Respondent did not disregard the conduct but had regard to the conduct at CB215.4 in order to conclude that the applicant did not have a well-founded fear of being persecuted for a Convention reason.
(d)In requiring certain conduct to be disregarded, section 91R(3) requires the Second Respondent to disregard it whether it supports the applicant’s claim to have a well‑founded fear of persecution for a Convention reason or is considered by the Second Respondent to be evidence tending to negative such claim.
The evidence is limited to the court book filed on 23 March 2007.
Submissions
The applicant relevantly submits through his counsel as follows:
The actual text of s.91R(3) is as follows:
(3)For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
The RRT at CB 215.4 stated that s.91R(3) applied with regard to the newspaper articles as it was the Applicant’s “conduct which led to their publication”.
Once the RRT had made this finding, the mandate of s.91R(3) was clear: the RRT must disregard the conduct in determining whether the Applicant had a well-founded fear of persecution for a Convention reason.
Once a finding is made that the conduct is within s.91R(3), the RRT is not entitled to disregard the conduct only as being evidence tending to support the Applicant’s claim to have well-founded fear of persecution while having regard to it as conduct tending to show that the Applicant does not have a well-founded fear of persecution.
The RRT cannot simultaneously disregard the conduct as is required by the section while relying on it as tending to negative that the Applicant had a well-founded fear of persecution for a Convention reason.
The section requires that the conduct must be disregarded altogether. It cannot be given regard or taken into account as negativing a well-founded fear of persecution. Rather, the section mandates that it is to be disregarded which means that it must not be taken into account.
The RRT plainly had regard to the conduct which its own finding precluded it from taking into account on the critical matter under s.91R(3). [That] was [a] jurisdictional error.
The Applicant is entitled to the relief sought. The First Respondent should pay the Applicant’s costs.
The first respondent’s submissions were directed to the grounds in the original application. Counsel for the Minister made the following submissions in relation to the sole ground now relied on at the trial of the matter on 18 July 2007:
a)section 91R(3)(b) of the Migration Act applies only to conduct relied upon by an applicant in order to enhance a claim for a protection visa;
b)if the conduct does not enhance the applicant’s claim, the Tribunal is not prevented from taking it into account;
c)the conduct must necessarily be considered by the Tribunal in order for it to make a finding for the purposes of s.91R(3);
d)in making a finding for the purposes of the application of that section, the Tribunal must consider the purpose of the conduct engaged in, which directs attention to the state of mind of the applicant;
e)having reached a view about the state of mind of the applicant, the Tribunal is not prevented from paying further regard to that state of mind after having made a finding for the purposes of s.91R(3);
f)properly understood, the Tribunal’s consideration in issue was directed not at the conduct but at the state of mind of the applicant; and
g)in any event, the paragraph of the Tribunal’s reasons in issue was not determinative as the Tribunal had separately and independently found on other bases that the applicant was of no interest to the Maoists in Nepal.
Reasoning
It is common ground that s.91R(3) is a difficult provision to construe.
I dealt with the construction of the sub section in SZHAY v Minister for Immigration & Anor [2006] FMCA 261 at [32]-[38]. In particular, at [37]-[38] I said:
Another question is whether, if an applicant introduces information about his or her conduct in Australia, and the RRT is not satisfied that the conduct was engaged in otherwise than for the purposes of enhancing an applicant’s refugee claims, decision makers are entitled to use that information to reject an application. In my view, the answer to that question is no. If information is required to be disregarded pursuant to s.91R(3) it must be disregarded for all purposes. It would be unjust and inconsistent with the language of the section to permit information introduced by an applicant relating to his or her conduct in Australia that was engaged in to strengthen refugee claims to be used by a decision maker to dismiss an application but not to grant it. This is not a purely academic question. Information about conduct in Australia may be intended to support a protection visa application by enhancing claims to be a refugee and may have precisely the intended effect. The information may also have the opposite effect by damaging the applicant’s credibility. In either case the information must be disregarded unless the applicant discharges the onus imposed by s.91R(3).
I see nothing in the terms of s.91R(3) or the extrinsic aids to interpretation to support the applicant’s contention that the section precludes a decision maker from taking into account actions or inaction that did not support a claim to be a refugee. It is implicit in the terms of s.91R(3) that a decision maker may take into account such information if satisfied that the applicant’s conduct was not engaged in for the purpose of enhancing his or her claims. The information relating to the conduct may nevertheless be irrelevant or otherwise unavailable to a decision maker but that would depend upon the circumstances of each case.
I considered the issues further in SZIBK v Minister for Immigration & Anor [2006] FMCA 1167 at [7]-[8] where I said:
… The question of whether s.91R(3) was breached is a difficult one to answer. The section is, in its terms, difficult to construe. I expressed views in SZHAY v Minister for Immigration [2006] FMCA 261 about the operation of section 91R(3). I have not changed those views but this case requires some expansion of them. This is a case, not of a sur place claim, but of an applicant seeking to corroborate claims of persecution in China for reasons of religion by pointing to like activities in Australia. Relevantly, the applicant sought to corroborate his claim that he was a practising Christian in China by attending church in Australia. The applicant also sought to corroborate his claim that he studied the Bible in China by claiming he also studied the Bible in Australia.
The applicant’s claim was that he had a well-founded fear of persecution in China by reason of his religious practice there, not that he would be persecuted in China by reason of his religious practice in Australia. Consistently, with the views I expressed in SZHAY, s.91R(3) nevertheless has a potential operation. In my view, the section operates in relation to conduct in Australia, whether it relates to a sur place claim or whether the conduct merely is intended to have a corroborative effect in relation to claims of conduct in the country from which the applicant has fled.
In that case, I also considered whether a distinction could be drawn between conduct and information about conduct. At [11]-[12] I said:
Having reached that conclusion[2] then, prima facie, the RRT was required to disregard the applicant’s conduct in attending church in Australia. However, Mr Lloyd, for the Minister submits that there is a distinction to be drawn between disregarding conduct and disregarding information about conduct. He used, as an example, the hypothetical situation of a tribunal receiving anonymous information that an applicant had attended church in Australia for the purpose of attempting to bolster a weak claim of persecution. My Lloyd submits that, while in that hypothetical example, a decision maker may be required to disregard the conduct, the decision-maker is not required to disregard the reason for the conduct.
The difficulties with that proposition are first, that the more closely related the information is to the fact of the conduct, the harder it would be for decision makers to draw a meaningful distinction. The other objection is similar to that that I raised in SZHAY, that it ought not to be possible for decision makers to use information about conduct in Australia to reject an application when it is not available to grant it. [T]hat would be inconsistent with the language of s.91R(3) as well as being unjust. Mr Lloyd deals with the second objection by agreeing with a proposition from me, that surrounding information may work in favour of an applicant as well as against him. For example, an applicant may seek to bolster a protection visa claim by engaging in conduct in Australia, not because the claim is weak but because the applicant is driven to do so by reason of his fear. That fear may be well-founded. If, to use another hypothetical example, an applicant attends church in Australia because of a well-founded fear of persecution in his country of origin and seeks to bolster that claim, then a decision maker, on the basis of Mr Lloyd’s submission, would only be required to disregard the conduct, not the reason for it. In that hypothetical example, information relating to the intensity of the applicant’s fear would be available to support the protection visa claim. Although the distinction is conceptually difficult and would, in many cases, give rise to practical difficulties, I accept the proposition that the distinction is there to be made.
[2] That the applicant had engaged in conduct to enhance his protection visa claims
Further, in SZJSD v Minister for Immigration & Anor [2007] FMCA 604 at [9]-[11] I found that the Tribunal was obliged to take into account information obtained from someone other than the applicant about the applicant’s conduct in Australia because of s.424(1) of the Migration Act, notwithstanding the terms of s.91R(3). At [13]-[14] in that judgment I considered the possibility that a distinction might be drawn between conduct and the Tribunal’s reasoning about that conduct but did not resolve that question.
In SZJRW v Minister for Immigration & Anor [2007] FMCA 1099 at [17]-[20] I further considered the operation of s.91R(3) and found that, if the Tribunal was uncertain about the consequences of conduct engaged in in Australia, it was open to the Tribunal to take into account that conduct for the purposes of considering what the position would be if the Tribunal were wrong in a finding of the risk of harm faced by an applicant in their country of origin, notwithstanding the Tribunal having made a finding that the applicant had failed to satisfy it that the conduct was engaged in for a purpose other than to enhance the applicant’s protection visa claims.
In SZHFE v Minister for Immigration (No 2) [2006] FCA 648 Jacobson J considered the operation of s.91R(3) at [28]-[30]:
The appellant's argument as to the proper construction of section 91R(3) may be summarised as follows. It is said that the section is designed to exclude evidence of conduct supporting a person's claim for persecution if that conduct was merely motivated by a desire to strengthen the claim[,] the onus being on the appellant to satisfy the Minister that the conduct was not so motivated and it makes no sense to require the appellant to discharge the onus only to have the evidence then used against him. Thus the appellant submits that evidence of the appellant's conduct in Australia, if unhelpful to the claim, should be disregarded.
The effect of the respondent's written submissions is that I should reject the approach of the appellant because the clear purpose of section 91R(3) is to provide a disincentive to applicants for refugee status from taking steps while in Australia to make them more likely to be persecuted on return to their country of origin.
The effect of the submission is that section 91R(3) is only enlivened where an applicant seeks to rely on conduct in Australia to support a claim to have a well-founded fear of persecution. In my opinion this is plainly the effect of section 91R(3) and the subsection is not enlivened in the present case.
That decision was made on appeal from a decision of this Court and I am bound by it. The result is that s.91R(3) will not apply unless an applicant introduces his or her conduct in Australia to support a claim of having a well-founded fear of persecution. The question remains, what is the effect of the sub section where it is so enlivened?
In this case, there is no doubt that the operation of the section was enlivened. The applicant admits that the Tribunal found correctly that the conduct had to be disregarded pursuant to s.91R(3). The applicant had provided a copy of two newspaper articles about him to the Tribunal in support of his review application. The articles were discussed at the hearing conducted by the Tribunal[3]. It is apparent from the discussion of what occurred at the hearing that the presiding member had credibility concerns about the applicant’s claim that the Maoists in Nepal were interested in him. Those credibility concerns were not allayed by the newspaper articles. If anything, they were increased. The applicant conceded at the hearing that although he had originally claimed a fear of harm also at the hands of the Nepalese Government, his claim was now limited to his fear of the Maoists. Based upon the information provided by the applicant to the Tribunal and country information the Tribunal found that the applicant was of no adverse interest to the Maoists. In relation to past events, the Tribunal said[4]:
For the above reasons, I do not consider plausible and am not satisfied that, at the time of his departure from Nepal in April 2001, [the applicant] was of any adverse interest to the CPN(M) because of a political opinion imputed to him or because he was a member of a particular social group such as deserters from the CPN(M).
[3] CB 206-207
[4] CB 214
The Tribunal then went on to consider subsequent events. The Tribunal said[5]:
It is over2 ½ years since [the applicant] left Nepal.
I have considered the implications of the two newspaper articles [the applicant] has submitted (from Kantipur and the Nepali National Daily, both dated 21 July 2004), each of which I accept name him and refer to him as a Maoist leader, and a person who had angered the Maoists by leaving the country. They also refer to the “Australian government’s insistence that he produce evidence to support his claim”, information which can only have come from him. Indeed he told the present tribunal that he had rung his family and told them that he had been unable to produce documentary evidence. I have noted that the articles were published shortly after the Department rejected his application for a protection visa. I consider it implausible that his relatives, knowing that he was facing return to Nepal, would have told the Nepalese press that he was a Maoist leader, or that he had angered the Maoists by leaving Nepal, information which, if true, would have added to the risk to him on return. In my view, the information was given to the newspapers, and the articles published, solely in order to provide him with evidence to submit to this Tribunal. I do not believe that he found them by chance on the internet. I have no doubt that he requested them, or arranged for them to be published. It is generally accepted that a person can acquire refugee status sur place where he or she has a well-founded fear of persecution as a consequence of events that have happened since he or she left his or country in the present case that would include the newspaper articles referred to above. However, this is subject to s.91R(3) of the Act which provides that any conduct engaged in by the applicant in Australia must be disregarded in determining whether he or she has a well-founded fear of being persecuted for one or more of the Convention reasons unless the applicant satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee within the meaning of the convention. For the reasons I have given I consider that s.91R(3) applies with regard to the newspaper articles, as I am of the view that it was [the applicant’s] conduct which led to their publication.
Further, the conduct referred to above reflects a particular state of mind in the applicant which is not consistent with a fear of harm. If [the applicant] had been regarded as a Maoist leader, or had angered the Maoists, I am satisfied that he would not have taken such a step. His willingness to have such articles published in Nepal illustrates his confidence that in truth no one has these perceptions of him in that country, and indicates that there is no substance to these claims. [emphasis added]
Of developments generally, I am satisfied that Maoist rebels did not kill or injure anyone in Kathmandu during 2005 (U.S. State Department 2006), that since then negotiators have announced a “landmark peace deal” allowing for an interim government, including the Maoists, to be formed by early December 2006, and that the rebel army and weapons are to be contained in camps by the end of November 2006 under UN supervision (Singh D. M. 2006, “Rebel Maoists to join Nepal government in historic peace deal”, AFT, 7 November). While it remains to be seen whether this peace deal will hold, I am satisfied that, in general, this is a more stable security environment than that which existed when [the applicant] left Nepal in 2005.
For these reasons I am satisfied, and find, that [the applicant] does not have a well-founded fear of persecution in Nepal for the reasons of political opinion or membership of a particular social group, or the other reasons set out in the Refugee Convention.
[5] CB 214-215
Counsel for the Minister submitted that in considering the applicant’s state of mind in relation to the publication of the articles, which he was found to have arranged, the presiding member was not making a forward looking assessment of the risk of harm the applicant faced in Nepal but rather was referring back to an earlier finding that the applicant was of no interest to the Maoists in Nepal by reason of events before he left Nepal. I cannot accept that submission. The Tribunal’s reasoning quoted above is all directed at a forward looking assessment of the risk of harm the applicant faced in Nepal based upon events since he left Nepal.
I also reject the Minister’s submission that the Tribunal was not required to disregard the applicant’s conduct in Australia in deciding to affirm the decision of the delegate. It is true that the mischief to which s.91R(3) is directed is conduct engaged in by applicants in Australia intended to force the hand of decision makers. It does not follow, however, that Parliament intended that the Tribunal should be required to disregard such conduct in considering whether to make a different decision from that of the delegate but would be permitted to have regard to the conduct in deciding to affirm the decision of the delegate. The language of the section does not permit such an interpretation. Paragraph (b) in sub- s.(3) must be read with paragraph (a). The obligation on decision makers is to disregard any conduct engaged in by applicants in Australia in determining whether the applicant has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention unless the applicant satisfies the decision maker that the person engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee. The use of the word “whether” satisfies me that the section requires the conduct to be disregarded whether the conduct is considered by the decision maker to enhance or detract from the applicant’s claims. For the purposes of paragraph (b) the issue is the applicant’s purpose of engaging in the conduct, not whether the purpose was successfully achieved or not.
It would, in my view, have been open to the Tribunal to have regard to the information provided to the Tribunal about the applicant’s conduct in finding that the applicant did not have a genuine fear of harm. That information related not just to the conduct, but the reason for it. However, in my view, having found for the purposes of s.91R(3) that the conduct itself must be disregarded, the Tribunal was not then entitled to have regard to that conduct in deciding whether the applicant had a well-founded fear of being persecuted. It was a part of that consideration to decide whether the applicant had a subjective fear of harm[6]. It is true that the Tribunal referred to the applicant’s “state of mind” but that was a finding of a lack of subjective fear which was, in terms of the words used by the Tribunal, squarely based upon the “conduct referred to above” which the Tribunal had already found it must disregard.
[6] Chan v Minister for Immigration (1989) 169 CLR 379; Thusaisamy v Minister for Immigration [1999] FCA 1632 at [8]
Section 91R(3) is couched in terms which lead me to the view that it is an imperative requirement. It goes to the heart of the consideration of applications before all decision makers dealing with protection visa claims. It is couched in terms which brook no equivocation. The Tribunal recognised, correctly, that the applicant’s conduct in Australia in arranging for newspaper articles to be published in order to support his claims to be a refugee had to be disregarded. It was not then open to the Tribunal to consider the same conduct in order to decide that the applicant had no subjective fear of persecution and that there was no substance to his claims. In using the conduct to reach those findings, the Tribunal fell into jurisdictional error and the applicant is entitled to the relief he seeks.
I will order that the applicant receive relief in the form of the constitutional writs of certiorari and mandamus.
As to costs, I have already ordered that the applicant pay the Minister’s costs thrown away by reason of the leave granted for the applicant to abandon all of his previous grounds of review and introduce a new ground of review on the day of the trial of this matter. The applicant has, however, been successful on the sole ground that was pursued and in that regard costs should follow the event.
I will hear the parties as to the quantification of the costs in those circumstances.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 31 July 2007
6
8
1