SZGLP v Minister for Immigration
[2008] FMCA 282
•19 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGLP v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 282 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – Applicant citizen of Nepal – claiming fear of persecution for reason of political opinion – whether Tribunal made a decision for which there was no evidence – no reviewable error. |
| Migration Act 1958 (Cth), ss.36, 476 |
| NACZ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 457 SZCKE v Minister for Immigration & Multicultural Affairs (2005) FMCA 1633 |
| Applicant: | SZGLP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1657 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 26 February 2008 |
| Date of Last Submission: | 26 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 19 March 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Newman & Associates |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1657 of 2007
| SZGLP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Nepal. He asks the Court to review a decision of the Refugee Review Tribunal signed on 4 April and handed down on 19 April 2007 affirming the decision of a delegate of the Minister not to grant the applicant a protection (Class XA) visa. The applicant claims that the Tribunal decision is affected by jurisdictional error. In particular he complains that the Tribunal made a finding for which there was no evidence.
The background to this matter is that the applicant arrived in Australia on 13 December 2004 and applied for a protection (Class XA) visa on 13 January 2005. The Minister's delegate refused his application for a visa on 21 January 2005 and the applicant then applied to the Refugee Review Tribunal for a review of the delegate's decision. The Refugee Review Tribunal differently constituted affirmed the delegate's decision on 6 April 2005. The applicant then sought judicial review of that decision from the Federal Magistrates Court.
On 25 January 2007 Nicholls FM made orders by consent issuing a writ of certiorari to quash the Tribunal decision and a writ of mandamus directing the Tribunal to reconsider and determine the matter according to law. The Tribunal then invited the applicant to attend a further hearing. The applicant accepted the invitation and appeared before the Tribunal on 3 April 2007. He gave evidence with the assistance of an interpreter in the Nepali language. He had not provided any further documentary evidence to the Tribunal prior to the hearing. The Tribunal signed its decision on 4 April and handed that decision down on 19 April 2007. A copy of the Tribunal decision record can be found at pages 111 through to 120 of the Court Book.
In the decision record the Tribunal sets out the applicant's claims and evidence taken from his application for a protection visa and noted that the applicant claimed that he had left Nepal because he feared persecution at the hands of the Maoists. He claimed that his family had been directly hit by the Maoists who extorted money from his father since 1996. He claimed to have been kidnapped by some Maoists in 2003 and held for two days. He stated that he agreed to join them as a means of securing his release even though he had no intention of becoming a Maoist. A few days later he was approached by the police who knew that he had been kidnapped by the Maoists and he claimed that he was interrogated and tortured by the police regarding his time with the Maoists and was subsequently placed under surveillance by the police. The applicant claims that if he returns to Nepal he will be at risk of harm by the Maoists and by the authorities. Whether he joined the Maoists or not, he claimed that he would lose his life in Nepal.
The Tribunal considered the applicant's submissions to the earlier Tribunal on 22 April 2005 and considered independent country information about Nepal. That information is set out on pages 116 and 117 of the Court Book. The Tribunal also considered the applicant's evidence at the hearing. The Tribunal's Findings and Reasons are set out on pages 118 to 120 of the Court Book. The Tribunal was satisfied that the applicant is indeed a citizen of Nepal and assessed his claim against that country. The Tribunal noted the applicant's claims to have fled the country because he was targeted by the Maoists and by the authorities in Nepal. The Tribunal noted the applicant's claim that the Maoists detained him for two days in 2003 and attempted to recruit him to the party and that the authorities subsequently detained and mistreated the applicant because they assumed that he was associated with the Maoists. He claims that the Maoists had threatened to harm him after he declined to join the party. He claims that they sent him threatening letters, and the Tribunal accepts those claims. The Tribunal noted that the applicant claimed that he would again be targeted by Maoists in Nepal and they would seek to kill him for not joining the party. He claimed to the Tribunal that there was no state protection for citizens of Nepal and fears that the authorities may target him again for the same reasons. The Tribunal was satisfied that the applicant was targeted by Maoists and was targeted by the authorities in the way that he described.
The Tribunal referred to information from external sources to the effect that civilians in Nepal were subjected to human rights violations by the Maoists and by the authorities during the 10-year civil war and the Tribunal noted that that information supported the applicant's claims that people such as himself, who were people with influence and leadership qualities, were approached by Maoists seeking their support and then mistreated by the authorities for being Maoists or Maoist sympathisers. The Tribunal noted the applicant's claims that he would suffer similar harm in the future for the same reasons; in other words, he claimed the Maoists would seek to harm him because he declined to join the party and the authorities would target him because they have attributed to him an adverse political opinion, assume that he is Maoist. However, the Tribunal did not accept those current claims. The Tribunal said:
However, the Tribunal finds that significant changes have occurred in Nepal since the applicant applied for a protection visa and his fear in this regard is not well founded. The Tribunal is satisfied by evidence from external sources summarised above and discussed with the applicant at the hearing that the civil war in Nepal has ended. The Tribunal finds with the signing of the recent peace and disarmament agreement and the involvement of the United Nations in supervising the implementation of these agreements, the conditions which motivated the applicant to leave the country and seek protection in Australia no longer exist. The Tribunal finds that the Maoists and the authorities in Nepal are no longer subjecting civilians to human rights violations as they did before the ceasefire in April 2006. The Tribunal is satisfied that under improved conditions the applicant will no longer attract the adverse interest of either the Maoists or the authorities in Nepal[1].
[1] See Court Book at page 118
The Tribunal did note that the applicant claimed that those peace and disarmament agreements had not altered conditions in Nepal and that there were still human rights violations both by the Maoists and the Nepalese authorities, but the Tribunal stated that it was satisfied from information from external sources that a ceasefire had been in place in Nepal since April 2006 and that all sides had genuinely demonstrated that they wanted an end to hostilities. The Tribunal was satisfied that the Maoists have conformed to the ceasefire and are conforming with the peace and disarmament agreements which their leaders have signed. The Tribunal went on to find:
The Tribunal is satisfied by the evidence from external sources that these conditions will continue in the reasonably foreseeable future. The Tribunal finds that the applicant's fear that Maoists will not conform to the peace and disarmament agreements and that he will be targeted by Maoists if he returns to Nepal is not well founded[2].
[2] see Court book at page 118
The Tribunal went on to state that it had accepted the applicant's claim that the authorities in Nepal had detained and tortured him on suspicion of being a Maoist or a Maoist sympathiser but the Tribunal was satisfied that due to the significant change that had taken place since the applicant left Nepal, that citizens are no longer at risk of harm by the authorities because of being Maoist or Maoist sympathisers. The Tribunal found that the chance that the applicant would be at risk of harm by the authorities in Nepal as a Maoist or a Maoist supporter was remote. The Tribunal therefore found that the applicant did not have a well-founded fear of persecution in Nepal either by Maoists or the authorities for reasons of political opinion or any other Convention reason. The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol and therefore did not satisfy the criterion set out in s.36(2) of the Migration Act for a protection visa.
When the Tribunal affirmed the decision of the Minister's delegate not to grant the applicant a protection visa the applicant then sought judicial review of that decision from this Court. He filed an application and an affidavit in support. In that application the applicant seeks amongst other things a writ of mandamus requiring the Tribunal to determine the application and a writ of prohibition preventing the Minister from taking any action upon the Tribunal decision. In the application the applicant claims that the Tribunal erred in law and failed to exercise its jurisdiction by applying incorrect facts and ignoring relevant material.
At the hearing Mr Newman, who appeared for the applicant, told the Court that the ground was essentially a no‑evidence ground. He submitted that there was no evidence upon which the Tribunal could be satisfied that the applicant's fear was not well founded and could not be satisfied that the Maoists and the authorities in Nepal are no longer subjecting civilians to human rights violations as they did before the ceasefire in April 2006. He submitted that the Tribunal could not be satisfied on the evidence that the conditions described would continue in the reasonably foreseeable future. In a written outline of submissions the applicant referred the Court to the decision of Madgwick J in NACZ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 457 at 42 and 43. In oral submissions to the Court Mr Newman took the Court to the extensive material constituting independent information at pages 127, 128, 130, 133, 135, 138, 139, 141, 142 and 146 of the Court Book. The submission is that the information relied upon was "all tentative". Whilst the independent information referred to hopeful signs, the Tribunal's firm findings were not indeed justified by the evidence. As Mr Newman said, it is all tentative, it is all hopeful. He asked in fact on what evidence could the Tribunal have made the findings that it made at page 118 of the Court Book. At Court Book page 138 the independent country information stated:
Jubilation across Nepal has marked the signing of a landmark peace agreement between the government and the country's Maoist rebels.
At page 139 the independent country information said:
The US Embassy in Kathmandu expressed the hope that the peace agreement would place Nepal on the path of lasting peace and democracy.
And again:
The country's multiparty government and the Maoist rebels have been observing a ceasefire for more than six months since they coordinated mass protests that forced King Gyanendra to restore parliament and end direct palace rule.
And again on page 139:
Mr Koirala was equally ecstatic. "The agreement has ended the politics of killings, violence and terror and started the politics of cooperation," the 85-year-old Prime Minister said. "Now we need to meet together in cooperation and understanding to make sure this agreement is fully implemented."
Again at page 141 the independent country information says:
Nepal's multiparty government and Maoist rebels have signed a disarmament accord aimed at decisively ending the 10-year-old civil war. The agreement was reached after extended meetings between the UN and government and Maoist representatives at different venues in Kathmandu. Under a landmark peace deal signed last week the rebels will join a transitional government. About 13,000 people were killed during the Maoist insurgency. Under the detailed plans thousands of rebel fighters will be confined to seven main camps under UN supervision ahead of elections next year.
Disarmament details
Thousands of rebel fighters to be confined to seven main camps under UN supervision. A joint coordination committee comprising the government, insurgents and the UN to monitor rebel camps. Maoist weapons to be locked in 70 metal containers and monitored by the UN[3].
[3] See Court Book at page 141
Again the independent country information said:
Sources in New York say that the UN is now understood to be close to dispatching a team of multinational armed monitors to Nepal[4].
[4] See Court Book at page 142
Again the independent country information says:
"This is a very big opportunity for them to prove themselves, to show their decade-long people's war was fought to change the existing problems of the state," said Krishna Khanal, a political scientist at Tribhuvan University in Kathmandu[5].
[5] See Court Book at page 146
The submission is that there was simply no evidence to support the Tribunal's finding and the Tribunal in fact ignored another document that would have been available to it, which was submitted by Mr Newman on the behalf of the applicant, the Nepal Monitor, which set out a somewhat less hopeful view of the situation in Nepal. Thus it was submitted that the Tribunal had fallen into jurisdictional error and that there was no evidence upon which it could make the findings that it could make.
For the respondent Minister, Ms Hooper referred to the decision of Madgwick J in NACZ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 457, which she pointed out, was in fact part of a draft judgment where the matter was otherwise settled by consent. She submitted that the Court should not rely upon the draft portion of the judgment in NACZ because it was a draft and relied on the decision of Driver FM in SZCKE v Minister for Immigration & Multicultural Affairs (2005) FMCA 1633 where his Honour declined to adopt Madgwick J's draft views as having any judicial authority.
As to the submissions given to the Court at the hearing, Ms Hooper submitted that there was evidence upon which the Tribunal could have made the findings that it did. As far as the document, the Nepal Monitor, was concerned, she submitted that that document was not before the Tribunal and there was in fact no duty on the Tribunal to conduct its own inquiries. She went on to submit that the material that was before the Tribunal was not all one way and weighing up the factual material was a task for the Tribunal. She went on to submit that the Tribunal has to engage in speculation in matters of that nature and submitted that the applicant was in the submission engaging in impermissible attempt at merits review. She went on to concede that the Tribunal's confidence may have been misplaced in April 2007 but that was not an example of jurisdictional error. It is not open to the Court to apply hindsight in considering the reasoning of the Tribunal.
In reply Mr Newman submitted that the Tribunal had made an unfounded finding, i.e., one which was not supported by the evidence. It was a factual finding without any evidence and accordingly the Tribunal had fallen into jurisdictional error.
I will deal first of all with the decision in NACZ v Minister for Immigration & Multicultural & Indigenous Affairs. It is indeed the case that what was referred to were draft reasons for judgment and in SZCKE v Minister for Immigration and Anor Driver FM accepted that he should not adopt the views as set out in the draft judgment as having any judicial authority. In my view, with respect, that is a decision that is correct in law and I see no reason to depart from it. Indeed, the principle of judicial comity requires me to follow the decision in SZCKE unless I were to be satisfied that it was wrongly decided. I am not satisfied that it is wrongly decided. In my view, a draft judgment is just that and does not have the authority of a published judgment.
Turning now to the thrust of the submissions that the Tribunal made its decision or made its findings with a great deal of certainty which was not open to it on the evidence. There is much to be said for Mr Newman's submissions that the country information was all rather tentative and hopeful. It certainly appears to be the case that the Tribunal has accepted that evidence at its most optimistic and in the best possible light. It may well have been that another Tribunal member may not have placed such confidence in the independent country information. However, in my view that is only a matter of degree. There was evidence upon which it was open to the Tribunal to form the rather optimistic view that it did. It is no answer to say that the Court, if it were conducting merits review, which of course it does not have the power to do, may not have placed such weight on that evidence. Certainly, as Ms Hooper conceded, the evidence was not all the one way, but weighing up factual information is a task for the Tribunal, not for the Court. Whilst I am satisfied that the Tribunal placed what in hindsight appears to be an overly optimistic gloss on the evidence available to it, it is not in my view a situation that there was no evidence to justify the factual findings that the Tribunal made. It was open to the Tribunal to make those findings on the evidence and accordingly no jurisdictional error has been shown.
In the absence of jurisdictional error, the Tribunal decision is a privative clause decision and is not therefore subject to orders in the nature of mandamus or prohibition which the applicant seeks. It follows that the application will be dismissed and I will hear submissions as to the matter of costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 19 March 2008
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