SZGEU v Minister for Immigration & Anor
[2006] FMCA 1731
•10 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGEU v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1731 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of Nepal claiming fear of persecution from the Nepalese authorities and the Maoists – credibility – allegation of bias – no evidence of bias – procedural fairness – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424A – no reviewable error. PRACTICE & PROCEDURE – Amended application – submission – amended application containing material more relevant to submission – accepted as document going to the applicant’s case. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 476 Federal Magistrates Act 1999 (Cth), s.3 |
| Re: Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 SZGEU v Minister for Immigration [2006] FMCA 1352 referred to |
| Applicant: | SZGEU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1124 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 November 2006 |
| Date of Last Submission: | 10 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 10 November 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Ms McNaughton |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $7,300.00 and I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1124 of 2005
| SZGEU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of the decision of the Refugee Review Tribunal handed down on 5th April 2005. The Tribunal affirmed the decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant now seeks orders (a) prohibiting the Minister from implementing or enforcing the decision, and (b) referring the application back to the Tribunal for rehearing.
The applicant is a national of Nepal who arrived in Australia on
16th October 2004 and applied for protection (class XA) visa on
12th November. A delegate of the Minister refused the application for a protection visa on 8th December 2004.
The applicant sough a review of that decision by the Refugee Review Tribunal by means of an application lodged on 5th January 2005.
The Tribunal invited the applicant to attend a hearing, which she did on 11th February 2005. She claimed that she was a school teacher in Nepal and that her husband, also a teacher, was missing. The applicant claimed that she and her husband refused demands by the Maoists to teach Maoism in the school where they worked. This refusal angered them and they invaded her house. They beat her husband and abducted him and she had not seen or heard of him since.
The applicant reported this abduction to the police and the Maoists harassed her and threatened to kill her son. The applicant left the area where she had been living and went to Kathmandu. Although she had reported her husband’s abduction to the authorities, they became convinced that he was actually a Maoist himself. As a result, she was suspected by the authorities to be a Maoist sympathiser. Eventually she obtained a visa for Australia and left. Her son remained in Nepal.
The Tribunal accepted that the applicant was a national of Nepal and that the Maoist insurgency in that country is a serious law and order problem. The Tribunal accepted that the applicant may well fear being caught in the “crossfire of civil war and in the decline in civil order” (see Court Book at 140). The Tribunal, however, was not persuaded that the applicant’s account of her husband’s abduction was credible. Indeed it stated that it was:
confident on the evidence provided in this case that the abduction story is a complete fabrication.
The Tribunal noted that the applicant had not provided any independent evidence of her husband’s kidnapping. It dismissed her account of the police deciding that her husband must have been a Maoist after he had been missing for fewer than 10 or 12 days as a fabrication.
The Tribunal dismissed other parts of the applicant’s claims as having been fabricated and made this finding about the credibility of the applicant’s evidence:
The Tribunal finds on the evidence before it that the applicant went to some lengths to try to mislead it about the steps she took to come to Australia at a time when she was supposedly an unemployed exile from the countryside, her position changing substantially once the Tribunal disclosed to her the documents disputing her oral claims.
The Tribunal was not satisfied that the applicant faced a real chance of Convention-related persecution in Nepal and was not satisfied that the applicant was a person to whom Australia has protection obligations under the Convention.
Accordingly, the Tribunal found that the applicant did not satisfy the criterion set out in s.36(2) of the Migration Act for a protection visa and affirmed the decision not to grant a protection visa.
The applicant commenced proceedings in this Court by filing an application on 2nd May 2005. The application was first mentioned before a Registrar on 18th May 2005 who set the application down for final hearing on 27th March 2006. The Registrar noted that the applicant would not require an interpreter for the hearing as she was to be legally represented. Due to judicial unavailability, the hearing date was vacated and a new hearing date of 4th May 2006 was set. On that day the applicant was represented by Counsel who sought an adjournment of the hearing so that an amended application and an outline of written submissions could be filed. I agreed to this application and adjourned the proceedings to 5th September 2006.
No amended application or any other document was filed on behalf of the applicant over the intervening period and on 5th September 2006 the applicant’s Counsel appeared and sought leave to withdraw, telling the Court that he had no instructions. The applicant did not appear.
I granted leave to withdraw and dismissed the application for
non-attendance by the applicant at the hearing (see SZGEU v Minister for Immigration [2006] FMCA 1352). On 26th September 2006 the applicant filed an application to set aside the orders of
5th September 2006.
On 16th October 2006 I set aside the orders and listed the reinstated application for final hearing at 10 am on 10th November 2006, which is today. The applicant filed an amended application on 3rd November 2006. It is more in the form of a written submission than an application, but in accordance with the objects of the Federal Magistrates Act 1999 s.3(1), I propose to accept it as a document going to the applicant’s case. Counsel for the first respondent Minister, Ms McNaughton, did not object to that course.
The applicant’s amended application covers some 20 paragraphs. These paragraphs are described as grounds, although, in my view, most of them go more towards a submission than legal grounds for review. Nevertheless, I regard paragraphs 2, 11, 14, 18 and 20 as grounds going to the application. I will read those grounds onto the record:
(2) I do not agree with the purported decision of the Tribunal on the ground of denial of procedural fairness and natural justice. The Tribunal member did not refer to the duty to observe common law requirements of fairness as a duty to act judicially.
(11) The Tribunal overlooked a subjectively and objectively based view of persecution on my part for a Convention ground. The Tribunal erred in its application of the relocation principle, failed to consider the availability of state protection and failed to consider a fundamental aspect of my claims.
(14) The Tribunal did not accept my claims as it did not find me to be a credible witness. In doing so, the Tribunal relied on information in my protection visa application as well as material submitted at review and my evidence at the hearing. The real question in my case is whether I have a well-founded fear of persecution for a Convention reason. The Tribunal gave no consideration as it was obliged to do. In the face of the Tribunal’s earlier findings its conclusion based on this key finding is unreasonable in the sense of lacking evidentiary foundation or is based on a finding of fact which is not open to it as a matter of law.
(18) Having purported to proceed on the basis that it accepted I was a teacher, the Tribunal had to consider my claims in that context and make the appropriate inquiries to determine whether I would have a well-founded fear of persecution for a Convention reason. The Tribunal overlooked a subjectively and objectively based fear of persecution on my part for a Convention ground.
(20) Based on the Tribunal’s statement at the hearing, a reasonable observer would gain the impression that the Tribunal had already made up his mind and that anything else would be a waste of time. The tone of the member’s comments from then on made it clear that he wanted to finish the hearing as soon as possible. Even though the Tribunal did ask me if I wanted to add anything more, the damage had already been done as the Tribunal seemed to have already made it clear that his mind was made up.
As I said, those paragraphs appear to me to contain the grounds of review upon which the applicant relies. The other paragraphs, in my view, are either statements of fact going to the applicant’s claim or statements in the way of submission.
The applicant made an oral submission to the Court in which she claimed that she had not been given the opportunity to set out various matters due to difficulties with the interpreter. She complained that there was not a face-to-face interpreter in the Nepalese language at the Tribunal but a telephone interpreter. This made it more difficult for her to express herself clearly. She was also nervous, she told the Court, as she has not attended an interview at that time. As a result of those hindrances, the applicant says that she was not able to express everything that she would have liked to have said. She has some command of English, but not sufficient English to be able to express those terms. If she were given the opportunity attend another Tribunal hearing, then she considers that she would be able to express herself more clearly than she did at the hearing of the application.
For the respondent Minister, Ms McNaughton of Counsel replied to the applicant’s claim that she was not able to express herself at the hearing by pointing out that there is no record of the applicant having made any claim at the time of difficulties with the interpreter, nor has any transcript of the hearing been made available. She submitted that the applicant had had ample time in which to do that and has had access to legal advice notwithstanding the fact that she is not legally represented today.
In addition, the Tribunal had written to the applicant in a letter dated the same day as the Tribunal hearing, being a letter under the provisions of s.424A of the Migration Act. That letter indicated that the Tribunal had information that would, subject to any comments that the applicant might make, be the reason or part of the reason for deciding that she was not entitled a protection visa. The letter referred to the applicant’s application to the Australian High Commission in New Delhi, letters supporting that application, the applicant’s bank balance and reports from the Australian High Commission. The letter pointed out the relevance of the information based on the applicant’s evidence to the Tribunal and invited her to comment in writing by
11th March 2005.
As Ms McNaughton pointed out, the applicant’s migration adviser did reply in detail to that letter and a copy of his letter appears at pp.111 through to 114 of the Court Book. The applicant also filed a statutory declaration relating to those matters which appears at pp.115 and 116 of the Court Book. Ms McNaughton submitted on behalf of the Minister that the reason or the real reason why the Tribunal affirmed the delegate’s decision was that the Tribunal simply did not believe the applicant and the Tribunal in its decision sets out reasons why. Accordingly, she submitted, no jurisdictional error has been made out.
Whilst I am sympathetic with the difficulties experienced by applicants giving evidence and having that evidence translated into another language by means of an interpreter in a situation where that interpreter is not physically present with the applicant, there is no evidence before the Court, other than the applicant’s claims, that that situation hampered the applicant to such an extent that she was not able to give her evidence in such a way that would lead to a failure on the part of the Tribunal to comply with s.425 of the Migration Act.
It is always preferable for an interpreter to be present with the parties and indeed that is something which the Federal Magistrates Court endeavours to arrange, but at times it is not possible. I am not satisfied that that particular matter led to a breach of procedural fairness at the hearing. I am not satisfied that a lack of procedural fairness or a denial of natural justice in some other way has been demonstrated.
The Tribunal invited the applicant to attend a hearing and give evidence. The applicant attended the hearing and indeed gave evidence. An interpreter was provided for that purpose, even though, as the applicant says to the Court today, the interpreting was hampered by the fact that the interpreter was not present on the spot.
The Tribunal had concerns about certain aspects of the applicant’s claim based on documentary evidence. That was clearly information under the provision of s.424A of the Migration Act and the Tribunal wrote to the applicant and gave her the opportunity to reply. It appears to me that the Tribunal did consider the replies by the applicant and her migration agent.
I am not satisfied that any breach of the rules of procedural fairness or any denial of natural justice has been shown.
The applicant claims in paragraphs 11 and 18 of her amended application that the Tribunal overlooked a subjectively and objectively based fear of persecution on her part for a Convention ground.
This has not been particularised and it does not appear on reading the decision record, including the findings and reasons, that the Tribunal overlooked the applicant’s claim.
The ground goes on to claim that the Tribunal erred in its application of the relocation principle and failed to consider the availability of state protection. The fact is that the Tribunal comprehensively rejected the applicant’s account based on the credibility of her evidence.
The Tribunal made very strong findings that the applicant’s evidence was not credible and expressed the view that certain aspects of the applicant’s account and major aspects had been fabricated. It was therefore not necessary for the question of relocation to be canvassed or indeed the availability of state protection if the Tribunal did not consider that because of the Tribunal’s fundamental rejection of the applicant’s claim of a well-founded fear of persecution.
The applicant complains that the Tribunal did not accept her claims on the basis that it did not find her to be a credible witness. The question of credibility is a factual finding. It is a matter for the administrative decision-maker. Provided there is evidence upon which any factual finding can be made, then no jurisdictional error will appear. It is well established on the question of credibility of witnesses in a decision of McHugh J in Re: Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67] that the question of the credibility of a witness is essentially a matter for the Tribunal. The Tribunal must give its reasons but does not need to go into the subset of those reasons.
In this case the Tribunal made major findings about the applicant’s credibility and the reasons why the applicant was not accepted as credible are set out on pp.141 through to 144 of the Court Book.
The Tribunal did not accept the major components of the applicant’s claim as credible, namely that the Maoists had approached and threatened her and her husband, that the applicant had provided no plausible reason for failing to bring those threats to the attention of the authorities, that there was no independent evidence of the kidnapping of her husband, and the applicant’s account of the police deciding that the husband must have been a Maoist because of his unresolved disappearance was regarded as fabrication. The Tribunal did not accept that the applicant and the husband had talked about the Maoist threats with other teachers and describes the applicant’s evidence about the local police as vague, unsupportive and inconsistent.
The very account that the applicant gave about the treatment by the Maoists of her and her husband and son were also dismissed as fabrications, as were her claims about the police turning against her in the days after the abduction. The Tribunal expressed criticism about the applicant’s account of her departure from Nepal and her reasons for entering Australia based on evidence of the applicant’s bank balances and her business operations in Kathmandu. In short, the Tribunal did consider in some detail that the applicant was not a credible witness and gave detailed reasons why.
The applicant submitted that the real question in her case was whether she had a well-founded fear of persecution for a Convention reason. The decision squarely addresses that and on the basis of the Tribunal’s major findings of lack of credibility, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. The applicant in ground 14 criticises the Tribunal’s finding as unreasonable in the sense of lacking evidentiary foundation or is based on a finding of fact which was not open to it as a matter of law.
As I have already pointed out, the Tribunal at pp.141 to 144 has set out in detail the reasons for rejecting the elements of the applicant’s application on credibility grounds. Those findings of fact were open to the Tribunal and cannot in any sense be said to be lacking evidentiary foundation. Ground 18 is largely a repeat of the matters contained in ground 2 and ground 14. There is no need to consider that ground further.
I should also point out in ground 14 that there appears to be a claim of a breach of s.424A of the Migration Act. The applicant says:
In doing so, the Tribunal relied on information in my protection visa application as well as material submitted at review and my evidence at the hearing.
It is not apparent that the Tribunal relied on any information in the applicant’s protection visa application as a reason or part of the reason for affirming the decision under review. The material submitted by the applicant at the review and her evidence at the Tribunal hearing both come within the exception to s.424A(1) set out in s.424A(3)(b). There is no breach of s.424A of the Migration Act.
The final ground in paragraph numbered 20 appears to make an allegation of apprehended or actual bias on the part of the Tribunal member. It is well-established that bias, which is an aspect of bad faith, is a serious matter involving personal fault on the part of the decision-maker. It is an allegation that is not to be lightly made and must be clearly alleged and proved. The circumstances in which the Court will find an administrative decision-maker had not acted in good faith are rare and extreme, and this is especially so where all that the applicant relies upon is the written reasons for the decision under review (see SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43] to [44]).
There is no evidence of bias, either actual of apprehended, in the Tribunal decision. The Tribunal did reject the applicant’s evidence on credibility grounds in strong terms. That is not of itself evidence of bias. The Tribunal did give reasons why it rejected the applicant’s evidence on credibility grounds. The applicant complains of the tone of the member’s comments at the hearing, but there is no evidence of that by way of a transcript or any other matter.
I am mindful of the fact that although the applicant has had legal representation and legal advice in the past, she is not legally represented today. I have examined the material myself independently of the applicant’s claims and I am unable to discern any jurisdictional error to which the applicant has not referred. I am satisfied that no jurisdictional error has been made out.
It follows that the Tribunal decision is a privative clause decision as defined in s.474(2) of the Migration Act. As it is a privative clause decision, it is final and conclusive and it is not subject to orders in the nature of certiorari or mandamus as the applicant seeks.
The application will be dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 21 November 2006
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