SZGIC v Minister for Immigration
[2008] FMCA 784
•20 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGIC v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 784 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZGIC”. |
| Migration Act 1958 (Cth), ss.91X, 414, 420, 421, 422, 422A, 424A |
| Minister for Immigration & Multicultural & Indigenous Affairs v NOAS of 2002 [2003] FCAFC 142 Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 SZFTD v Minister for Immigration & Anor [2007] FMCA 1930 |
| Applicant: | SZGIC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3322 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing dates: | 26 October 2007 & 6 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 20 June 2008 |
REPRESENTATION
| Solicitor for the Applicant: | Mr R Turner of Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Ms K Morgan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration & Citizenship”.
The application filed on 14 November 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3322 of 2006
| SZGIC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The female applicant was born in 1970 in Nepal. She claims she is a Hindu of the Brahmin caste. The applicant claims she was married in 1987 and gave birth to two children in the mid-1990s. She also claims that she lived in a house on a small property in the Parbat area which her husband owned.
The applicant asserts that she was an “active member” of the “Nepal Communist Party (Marxist-Leninist) Maoist group”. The applicant claims that her strong faith in Communist principles and Marxist ideology stemmed from her opposition to violence. She claims to have travelled with her husband to educate people against fundamentalist Hinduism. The applicant alleges that her husband was killed by the Nepalese army, she was arrested and abused on many occasions and her parents were forced into hiding. Consequently, she became a more active Maoist.
The applicant left Nepal legally in August 2002 to work as a “domestic” in Hong Kong, leaving her sons with relatives. However, the applicant also claims that her father (also an active Maoist) arranged for her travel to Hong Kong in November 1999. The applicant claims to have worked in Hong Kong from 2002 to 2003 before travelling to Australia with her employers (a family). The family retained her passport while in Australia and she did not have it with her when she fled and applied for protection in Australia. The passport shown to the Department of Immigration was her earlier Nepalese passport issued in September 1998 and identifies her occupation as “farmer” and her husband as her next of kin.
The applicant arrived in Australia on 19 December 2003 and applied for a Protection (Class XA) visa on 7 January 2004. A delegate of the first respondent refused to grant a visa on 23 March 2004 and the applicant sought review of the delegate’s decision by the Refugee Review Tribunal (“the Tribunal”) which affirmed the delegate’s decision on 30 March 2005. On 29 March 2006, the Federal Magistrates Court set aside the Tribunal decision and remitted the matter to the Tribunal to be determined according to law. The Tribunal, differently constituted, affirmed the decision not to grant the applicant a protection visa and it is the second Tribunal decision (reference number 060393631) which is the subject of these proceedings.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”. The following affidavits were read:
a)affidavit of [SZGIC] affirmed on 25 October 2007;
b)affidavit of Melvin Newman, solicitor, sworn 25 October 2007; and
c)affidavit of Raymond Charles Turner, solicitor, affirmed 1 February 2008.
Adjournment of final hearing
At the first Court date the applicant appeared as a self-represented litigant assisted by a Nepali interpreter. The applicant indicated that she wished to participate in the scheme that gives unrepresented applicants in refugee matters an opportunity to receive independent legal advice on the prospects of success of their appeals. The applicant was allocated a panel advisor and the Court file indicates that advice was received. Various other orders concerning the conduct of the matter were made, including listing it for further directions on 15 March 2007.
On 15 March 2007 the applicant was represented by Mr Newman of Newman & Associates. On that day orders were made including setting the matter down for final hearing on 26 October 2007. The Court file contains an amended application filed in the Registry on 2 February 2007 prepared by Newman & Associates. That amended application was defective in that it referred to the first Tribunal decision (reference number N04/48916) signed on 30 March 2005, handed down on 19 April 2005 and quashed by consent on 29 March 2006. Mr Newman undertook to file a further amended application addressing the second Tribunal decision (reference number 060393631).
On 26 October 2007, Mr Turner of Parish Patience Immigration Lawyers appeared for the applicant and sought an adjournment of the final hearing. Mr Turner said that he had only received his instructions several days prior. An affidavit affirmed by the applicant indicated that her former solicitor, Mr Newman, did not progress the matter in any meaningful way nor prepared any submissions and was in fact overseas at the time. Mr Turner also sought to file a further amended application which he had prepared since receiving instructions. This document was in fact the second further amended application. Mr Turner acknowledged that the applicant understood that if the adjournment was granted there would likely be an order for costs against her but that she accepted that responsibility.
In the circumstances I believe that the applicant deserves the opportunity to be given the strongest possible chance to present her case. The applicant had retained a member of the profession to represent her and competently argue her case. At the time of the scheduled hearing, the Court only had the original application prepared by the applicant which does not identify or particularise appropriate grounds of review. The amended application filed by Mr Newman addressed the wrong decision and despite an undertaking to correct this error nothing has been filed. When the applicant telephoned Mr Newman approximately a fortnight before the scheduled hearing, she discovered that he was in fact overseas and did not appear to have made any arrangements for representation at the hearing. I make no further comment about the contents of the applicant’s affidavit in respect of the advice provided to her over the telephone by Mr Newman about the approach she should adopt for the hearing.
Consequently, the only appropriate course to adopt was to reschedule the final hearing to a time convenient to the parties and give the applicant an opportunity to have her case properly prepared and the first respondent the opportunity to prepare its response. The hearing was rescheduled to 6 February 2008.
Tribunal’s findings
On 19 April 2004, the applicant applied to the first Tribunal for a review of the delegate’s decision. On 9 June 2004 the applicant submitted a statutory declaration together with statutory declarations from witnesses which supported her claims (CB 90). The first Tribunal conducted a hearing on 26 October 2004 where the applicant gave oral evidence with assistance from a Nepalese interpreter. The Tribunal held a second hearing on 2 November 2004. On 10 January 2005, the applicant submitted a further statutory declaration to the Tribunal. On 22 February 2005, the Tribunal wrote to the applicant requesting her to comment on certain information pursuant to s.424A of the Migration Act 1958 (Cth) (“the Act”). The applicant responded by providing a further statutory declaration dated 17 March 2005 and a translation of a letter from the Human Rights Educational Radio Audience Club (Nepal) which confirmed the death of her husband (CB 79-83).
The first Tribunal handed down its decision on 19 April 2005 affirming the delegate’s decision. The applicant sought review of the decision in the Federal Magistrates Court and I remitted the matter by consent to the Tribunal on 29 March 2006.
On 2 June 2006, the applicant’s then solicitor provided the Tribunal with a further statutory declaration of the applicant together with medical certificates from her treating doctor of two and a half years (CB 163-164). On 21 June 2006, the applicant’s then solicitor sent the Tribunal written submissions, another statutory declaration from the applicant (CB 167-168) and a statutory declaration from a counsellor (CB 169-170).
On 19 June 2006, the second Tribunal conducted a hearing where the applicant gave evidence (CB 293-297). She also forwarded further information to the Tribunal after the hearing. On 19 October 2006 the second Tribunal affirmed the decision not to grant the applicant a protection visa. (CB 276-307). The Tribunal decision outlines various claims made to the Department and the Tribunal. The Tribunal accepted that the applicant was a national of Nepal and that she was a Brahmin who had been brought up in Nepal’s predominantly Hindu culture. The Tribunal accepted that the applicant married in 1987 and that she had two children in the early to mid 1990s. It also accepted that the applicant departed Nepal in November 1999.
The applicant made various claims to fear persecution because of her belief in Communist principles and Maoist ideology. The Tribunal identified the concerns it had with her claims:
a)It did not accept that after living and working in Hong Kong and then in Australia for the last three years, the applicant was unable to use the Gregorian calendar competently to recall important dates relevant to her protection visa application (CB 302.2). The Tribunal found on the evidence before it that the inconsistency as to dates arose from key events not having occurred (CB 302.3).
b)The Tribunal was unable to accept that the applicant was a Maoist supporter as she was not familiar with the Maoists in Nepal and gave inconsistent evidence about the level of communication between her and her husband about their Maoist activities (CB 302.4-302.8).
c)The Tribunal did not accept that the applicant was raped by Nepalese officials (CB 303.6) based in part on the inconsistent evidence about when she was held in custody and when the abuse began (which the Tribunal did not accept because she did not raise the matter earlier).
d)The Tribunal accepted the applicant had scars on her body which may be burn scars. However because of the highly inconsistent evidence, it did not accept that they were scars sustained in the circumstances as claimed by her (CB 303.7).
e)The Tribunal was unable to accept that the applicant’s husband was not alive when she obtained her passport in September 1998 because of the inconsistent evidence in respect of:
i)the date of her husband’s alleged death;
ii)her departure to Hong Kong;
iii)the role of her father-in-law; and
iv)her and her husband’s links to the Maoist party.
f)The Tribunal rejected the applicant’s explanation for her deceased husband appearing as her next of kin in her passport issued in 1998.
The applicant’s claim that her involvement with the Maoists was a source of her fear of persecution was accepted by the Tribunal to the extent that the applicant would be supported by socialist or social justice policies. However, the Tribunal was not satisfied that she had ever had taken an interest in articulating or pursuing Maoist principles, let alone that she was involved in promoting the reforms she claims to have supported. The Tribunal was not satisfied that the applicant’s claim that her and her husband were Maoist supporters was reliable. The Tribunal concluded that there was no basis on which it could be satisfied that the applicant faced a real chance of persecution in Nepal for reason of political opinion (CB 305.3).
The Tribunal did not accept that the applicant was a genuine Christian and found that she associated with Christians in Australia only to advance her claim for refugee status. It did not accept that the applicant would be ostracized by her family because of claims of widowhood or her political involvement. The Tribunal also rejected the claim that a Christian who has lived outside of Nepal for a number of years and who was also a Brahmin would face serious harm. First, because the Tribunal found that it could not consider her claim of being a genuine Christian and, secondly, it found the balance to be “unsupported speculation, somewhat dependent on the applicant’s unreliable claims about being cut off from her family” (CB 306.8)
Consideration
Ground one
The second respondent (Tribunal) lacked the authority to make the decision.
Particulars
a) The presiding member failed to re-constitute the Tribunal in accordance with the Migration Act 1958 (the Act) s.422 & 422A.
Mr Turner states in written submissions that the second Tribunal was constituted under s.421 of the Act whereas a reconstituted Tribunal is done so under s.422A.
The relevant sections of Part 7, Division 3 of the Act are as follows.
Section 420(1):
Refugee Review Tribunal's way of operating
(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
Section 421(1) and (2):
Constitution of Refugee Review Tribunal for exercise of powers
(1) For the purpose of a particular review, the Tribunal is to be constituted, in accordance with a direction under subsection (2), by a single member.
(2) The Principal Member may give a written direction about who is to constitute the Tribunal for the purpose of a particular review.
Section 422A:
Reconstitution of Tribunal for efficient conduct of review
(1) The Principal Member may direct that:
(a) the member constituting the Tribunal for a particular review be removed; and
(b) another member constitute the Tribunal for the purposes of that review;
if the Principal Member thinks the reconstitution is in the interests of achieving the efficient conduct of the review in accordance with the objective set out in subsection 420(1).
(2) However, the Principal Member must not give such a direction unless:
(a) the Tribunal's decision on the review has not been recorded in writing or given orally; and
(b) the Principal Member has consulted:
(i) the member constituting the Tribunal; and
(ii) a Senior Member who is not the member constituting the Tribunal; and
(c) either:
(i) the Principal Member is satisfied that there is insufficient material before the Tribunal for the Tribunal to reach a decision on the review; or
(ii) a period equal to or longer than the period prescribed for the purposes of this subparagraph has elapsed since the Tribunal was constituted.
(3) If a direction under this section is given, the member constituting the Tribunal in accordance with the direction is to continue and finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the member who previously constituted the Tribunal.
In support, Mr Turner relies on his affidavit which annexes a report from the Tribunal entitled “Constitution of the Refugee Review Tribunal for particular reviews” (Annexure “B”). The list shows that this applicant’s matter was allocated to member Luke Hardy and the governing section of the Act was s.421.
Ms Morgan, for the first respondent, submits that ss.421(1)(b) and 422A(1) empower the Tribunal to reconstitute in circumstances where an earlier constituted Tribunal has rejected the applicant’s claims because of “the degree of credibility problems with the applicant’s evidence” (CB 109.8). If the earlier Tribunal member were to hear the matter after it had been remitted by the Federal Magistrates Court, the new decision would be open to be set aside for apprehended bias. Therefore, either the member who first constituted the Tribunal “is not available for the purposes of review” (s.422(1)(b)) or “the principle member thinks the reconstitution is in the interest of achieving the efficient control of the review” (s.422A(1)).
Ms Morgan submits that s.422A of the Act requires certain additional procedures to be followed by the Tribunal and it is the applicant’s argument that these procedures were not followed. Ms Morgan submits that s.422 gives power to reconstitute the Tribunal and there is no submission that the Tribunal failed to comply with the procedures required under that section. Nor has Mr Turner proven that s.422A(2) was not complied with. No documents were produced in answer to the Notice to Produce. Ms Morgan submits that it is not sufficient to infer that those procedures were not followed and the presumption of regularity would require concluding that the procedures were complied with.
This issue was argued and considered in considerable detail in SZFTD v Minister for Immigration & Anor [2007] FMCA 1930 at [11]-[21] per Turner FM. At the present time this decision has not been disturbed. I note in particular His Honour’s comments at [14]:
[14] Also, although the heading of s.422A refers to “Reconstitution of Tribunal...”, its terms provide that “the Principle Member may direct that...another member constitute the Tribunal for the purposes of that review”. It is not determinative of the question of the validity of the direction in Exhibit A1 that the form refers to the general power in s.421, and not the specific powers in ss.422 and 422A. The position is that the Principle Member had the power to give the direction as to who would constitute the Tribunal for the purpose of the particular review. That power was exercised. Even if an error was made by referring to s.421 in the form, that does not mean that the power to issue a direction as to who is to constitute the Tribunal has not been validly exercised. At most, it means that the form (Exhibit A1) has not been filled in accurately. The direction of who was to constitute the Tribunal was made: for that direction to be valid, it is not necessary that a particular section be specified on the form. The Principle Member had the power to constitute and reconstitute – that power was exercised. It is not crucial which section the form refers to. The fact is, the Principle Member was exercising his power to direct who was to constitute the Tribunal for the purpose of the review. Nothing was done that was beyond power. The direction to constitute the Tribunal is valid. (emphasis added)
I am strongly persuaded by the reasoning of Turner FM in SZFTD and believe that I should follow His Honour’s approach. I agree with the submission of Ms Morgan that it is clear that the Tribunal has power to reconstitute and it did in fact do that. It also follows that there is a presumption of due performance of the steps required for reconstitution. In the circumstances I am satisfied that ground one cannot be sustained and should be rejected.
Ground two
The Tribunal failed to carry out its statutory duty.
Particulars
a) The Tribunal failed to conduct its review to finality in that it found that the applicant gave priority to social and economic factors without considering whether the residual motive for seeking protection was a well-founded fear of persecution.
Mr Turner submits that the Tribunal has a statutory duty to review an application in accordance with s.414 of the Act. Section 414 states:
Refugee Review Tribunal must review decisions
(1) Subject to subsection (2), if a valid application is made under section 412 for review of an RRT‑reviewable decision, the Tribunal must review the decision.
(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).
Mr Turner contends that to comply with the section, the Tribunal must continue its review until all issues which arise are dealt with to finality. Mr Turner referred to the following from the Tribunal decision:
The Tribunal accepts that the applicant broadly supports the relatively “socialist” or “social justice” policies she claims to support, but the Tribunal does not accept that the Applicant understands what the Maoists in Nepal support. Whilst the Tribunal accepts that the applicant broadly supports the relatively “socialist” or “social justice” policies she claims to support, the Tribunal is not satisfied that she has ever taken an interest in articulating or pursing these principles, let alone that she has ever been involved in promoting the reforms she claims to have supported. The Tribunal is not satisfied that the Applicant’s lack of involvement in such activities is based on a fear of persecution. The Tribunal finds that she has simply given priority to more immediate personal and economic needs. The Tribunal is not satisfied on the evidence before it that the Applicant’s support for such reforms as fairer distribution of land and the eradication of discrimination according to race, caste, religion or gender would give rise to her suffering serious harassment, let alone harm, in Nepal. (emphasis added)
Mr Turner identified the highlighted sentence above as a key issue in the complaint that the Tribunal failed to consider whether the applicant’s residual motives for seeking protection constituted a well-founded fear for persecution.
Mr Turner argues that “personal and economic needs” do not preclude issues which are capable of constituting well-founded fear of persecution. By failing to complete this review the Tribunal failed to carry out its statutory duty.
Ms Morgan submits that the Tribunal had already rejected the applicant’s claim that she and her husband were Maoist activists (CB 302.4) and her specific claim of abuse for her political opinion (CB 303.1). The sentence relied upon by Mr Turner was the Tribunal finding that the applicant was motivated by her own “immediate personal and economic needs” rather than fear of persecution. Ms Morgan submits that it is unclear what the “residual motive for seeking protection” in the particulars may be. There were numerous bases upon which the Tribunal rejected the applicant’s claims. However, each claim was set out in detail and the reason for rejecting each claim was given.
On a fair reading of the Tribunal decision I am satisfied that each claim identified has been considered and rejected with reasons. In the circumstances I am satisfied that ground two cannot be sustained and should be rejected.
Ground three
The Tribunals decision was affected by apprehended bias.
Particulars
a) The Tribunal preferred its own lae opinion as to the applicant’s medical and psychological conditions rather than those of a medical practitioner and its own lae opinion of the motives of the applicant’s conversion to Christianity to those of senior clergymen.
Mr Turner submits that the Tribunal preferred its own lay views over the expert opinion of doctors, psychologists and senior members of the clergy. In so doing, a properly advised lay person aware of all the relevant facts would conclude that the Tribunal did not bring an open mind to its task.
Ms Morgan submits that the particulars provided in ground three are not particulars of apprehended bias. They identify findings made by the Tribunal and rely on contrary positions put through third parties to infer apprehended bias on the part of the Tribunal member. Ms Morgan argues that the Tribunal’s findings on fact are not expressions of “lay opinion”. Hence the Tribunal did not prefer its own “lay opinion” to that of a medical practitioner or a senior member of the clergy. Rather, because of the nature and degree of the credibility problem the Tribunal had with the applicant’s evidence, it rejected her claims of abuse on which the medical practitioner’s note (CB 163-164) and the social worker’s statutory declaration (CB 197-198) were based. Further, the Tribunal did not accept that the applicant’s conversion to Christianity was genuine.
There are a number of authorities in relation to whether a Tribunal decision constitutes a bona fide attempt to exercise the power of review. The proposition in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 has been followed and in some sense extended by Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 and Minister for Immigration & Multicultural & Indigenous Affairs v NOAS of 2002 [2003] FCAFC 142. It is clear that the authorities are in agreement that an allegation of apprehended bias is a serious matter involving personal fault on the part of the Tribunal member and should not be made lightly. There are many ways in which apprehended bias can be shown to have occurred. In the matter before this Court the claim is that the Tribunal member preferred his own lay opinion to those provided by the applicant’s witnesses.
The Tribunal hearing clearly involves significant life-affecting issues and can often involve argument and misunderstanding. It is understandable that the apparent rejection of a claim can be seen as an indication of bias. This is particularly exacerbated when different cultural practices and expectations are involved. However, a Tribunal member who raises views adverse to an applicant at a hearing fulfils the required objective of giving the applicant an opportunity to comment. In the absence of a transcript, it is not possible to determine from the face of the decision whether this approach was adopted. I am also conscious of the fact that bias is seldom made out by reference solely to the reasons for decision alone and no inference of pre-judgment can be drawn from the mere fact of adverse findings in the Tribunal’s reasons. I am not satisfied that the Tribunal decision reveals an apprehension of bias and that the ground can be sustained. The third ground should be rejected.
Conclusion
I am satisfied that none of the grounds in the second amended application can be sustained and that the application should be dismissed with costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 20 June 2008
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