SZGNK v Minister for Immigration
[2007] FMCA 1177
•20 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGNK v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1177 |
| MIGRATION – Review of Refugee Review Tribunal – refusal of a protection visa – applicant claiming political persecution in Nepal – Tribunal found circumstances in Nepal changed so that his fear not well founded – numerous errors by Tribunal alleged – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.422B, 424A |
| Minister for Immigration v Ibrahim (2000) 204 CLR 1 Minister for Immigration v Lay Lat (2006) 151 FCR 214 Minister for Immigration v QAAH (2006) 231 ALR 340 NAHI v Minister for Immigration [2004] FCAFC 10 Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 SZBYR v Minister for Immigration [2007] HCA 26 SZCIJ v Minister for Immigration [2006] FCAFC 62 SZEPZ vMinister for Immigration [2006] FCAFC 107 VFAB v Minister for Immigration [2003] FCA 872 |
| Applicant: | SZGNK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 305 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 20 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 July 2007 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Ms L Clegg |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the amount of $4,700.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 305 of 2007
| SZGNK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 13 December 2006 and was handed down on 9 January 2007. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The background to the applicant's protection visa claims, his review application to the Tribunal and the decision of the Tribunal are set out in written submissions filed on behalf of the Minister on 16 July 2007.
I adopt with minor amendments as background for the purposes of this judgment paragraph 2 through to paragraph 19 of those written submissions.
The applicant, a citizen of Nepal, arrived in Australia on 3 December 2004.[1] On 20 December 2004 the then Department of Immigration, Multicultural and Indigenous and Ethnic Affairs (Department) received an application for a protection visa from the applicant.[2] On 19 January 2005 a delegate of the Minister refused the application for a protection visa.[3]
[1] Court Book (“CB”) 15
[2] CB 1-30
[3] CB 37
On 24 February 2005 the Tribunal received an application for review of the delegate’s decision.[4]
[4] CB 45
The matter has been remitted twice by this Court to the Tribunal.[5]
[5] CB 58 and 75
After the second remittal the applicant was invited by the Tribunal to present further documents or written arguments.[6]
[6] CB 76
On 6 October 2006 the applicant was invited to attend a hearing[7] which hearing (after an adjournment at the applicant’s request) was eventually held on 4 December 2006.[8] The applicant attended the hearing and gave oral evidence. The Tribunal signed a decision on 13 December 2006, handing it down on 9 January 2007. [9]
[7] CB 80
[8] CB 93
[9] CB 96 - 110
The application for judicial review of the third Tribunal decision was filed in the Court on 1 February 2007. An amended application was filed on 26 April 2007.
The applicant’s claims
The applicant, a business owner in Nepal, claimed that he had been constantly targeted by both the Maoists and the Government in Nepal. He said he was ‘caught between the Nepali security forces and the Maoist rebels’. Both sides have attributed an adverse political opinion to him.
In short, the applicant claimed that for a period of time he supported the Maoists and did so financially by making numerous donations. He claimed that as a businessman he also made donations to other major parties. He also said that he was a member of the Ristrya Prajatantra party. The continuing donations to the Maoists turned into bribes, and he began to withdraw his support because he disagreed with the Maoists’ emerging political agenda. The applicant claimed that he tried to become politically neutral but the Maoists destroyed his family’s shop when he refused to pay ‘donations’. The Maoists did not kill him because he was once a member of the Maoist party. However he claimed that next time the Maoists will kill him.
The applicant claimed that he proceeded to complain to the police about the Maoists burning down his family’s shop. Two days later he was then accused by the authorities of being a Maoist supporter. He was detained for 5 days and questioned by at least 10 people. He was also beaten during this period and denied sleep. He was denied access to the Court system and released only after his father had paid a bribe. The applicant claimed that when he was released the Maoists threatened to harm him and he became an easy target for them. They also threatened to execute his family. The applicant claimed that one year later a warrant was issued for his arrest. A copy of a document purporting to be an arrest warrant was provided by the applicant to the Tribunal.[10]
[10] CB 52
The applicant claimed he had originally planned to go to India to seek protection but he did not go because his relatives there refused to shelter him for fear of being targeted by Maoists. He was only able to leave Kathmandu airport because of connections he had with a former Nepalese Finance Minister.
The applicant claimed that if he returns to Nepal he will be put in a Maoist prison camp. He also claimed that the government of Nepal is unable to protect him. Further, as a warrant has been issued for his arrest, he will be arrested by the Nepalese authorities if he returns to Nepal.
Tribunal’s decision
In short, the Tribunal relied upon independent country information concerning changed country circumstances to conclude that Australia did not have protection obligations towards the applicant.
The Tribunal accepted the applicant’s broad claims that he had been targeted by both Maoists and Nepalese authorities and that in his endeavour to remain politically neutral, both sides had attributed an adverse political opinion to him.[11]
However, the Tribunal accepted on the basis of independent country information before it 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.[12]
The Tribunal accepted the information contained in external sources summarised in its decision, and which it discussed with the applicant at the hearing, to find that the conditions which existed when the applicant left Nepal no longer existed. The Tribunal found that Maoists and the Nepalese authorities are no longer subjecting civilians to human rights violations as they did prior to the ceasefire in April 2006.[13]
The Tribunal addressed the applicant’s stated fears that the ceasefire and disarmament agreements had not really altered the conditions and that the Maoists were uneducated and would not conform to the agreements. The Tribunal also addressed the applicant’s fears arising out of claims (which it appeared to implicitly accept) that the applicant’s wife had told him that the Nepalese authorities and the Maoists were seeking to find him. The Tribunal found that with the changed conditions, neither the applicant nor any member of his family would be persons of interest to either the Maoists or the Nepalese authorities.[14]
The Tribunal referred to the question of the outstanding arrest warrant but found (giving reasons) that this aspect of the applicant’s claim was not credible as it was not consistently presented by the applicant throughout the processing of [the applicant’s] protection visa application.[15] The Tribunal expressly found that this aspect of the applicant’s claim was fabricated so as to enhance his protection visa application and that the documents submitted in support of the application were not genuine.[16]
The Tribunal concluded that the applicant did not have a well-founded fear of persecution in Nepal from either the Maoists or the Nepalese authorities for reasons of political opinion or for any other Convention-related reason.[17]
[11] CB 108.2
[12] CB 108.4
[13] CB 108.5
[14] CB 108.9 – 109.5
[15] CB 109.6
[16] CB 109.9
[17] CB 109.10
These proceedings began with a show cause application filed on
1 February 2007. The applicant asserted actual notification of the Tribunal decision on 9 January 2007. I find that the application was filed within time. The applicant no longer relies upon that application or the affidavit filed on the same day in support of it.
He now relies upon an amended application and supporting affidavit filed on 26 April 2007. The applicant made oral submissions in support of his application today. I also received his affidavit as written submissions. The applicant is clearly concerned that the Tribunal rejected his claim of being subject to arrest in Nepal. The Tribunal appears to have had accepted the applicant's claim to have been a businessman in Nepal and appears to have accepted that the applicant and/or members of his family were harassed by the Maoists in the past.
Fundamentally the Tribunal decision turned on the Tribunal's assessment of the future risk of harm the applicant would face in Nepal. Having regard to available country information the Tribunal formed the view that the situation in Nepal had improved to a degree that the applicant's fear of future harm was not well founded. I have seen in recent times differing opinions expressed by members of the Tribunal on the stability of the political situation in Nepal.
Based on the available information minds can differ about the extent to which the situation has improved and the extent to which that improvement can be expected to continue, however, as I pointed out to the applicant the merits of the Tribunal decision are beyond the scope of this proceeding. He has the opportunity to seek ministerial intervention should he wish the Minister to substitute a more favourable decision to that of the Tribunal. The findings by the Tribunal in respect of its forward looking assessment about the risk of harm faced by the applicant were open to it on the material before it.
The Tribunal did make an adverse credibility finding in relation to the applicant's claim of being subject to an arrest warrant. The Tribunal said:
The applicant claims that there is an outstanding warrant for his arrest and the authorities will seek to arrest him if he returns to Nepal. The Tribunal is not satisfied that this claim is credible because it was not consistently presented by the applicant throughout the processing of his application. The applicant claims that he did not present the claim in his protection visa application because he did not consider it important at the time he lodged the application. He claims that it was only after his migration agent told him that evidence was required to support the application that he realised the claim and the documents were relevant to his protection visa application. The Tribunal is not satisfied that the applicant has been truthful regarding this matter. The Tribunal finds that if indeed the applicant fled the country to avoid arrest, and a warrant had been issued against him, he would have realised at the time of the application that the claim was relevant to the application. The Tribunal finds that the applicant did not make the claim at the time if application because he was not at risk of arrest and a warrant against him had not been issued by the authorities in Nepal. The Tribunal finds that the applicant's claim, that the arrest warrant was issued against him on 16 July 2004 by the authorities in Nepal, lacks credibility. The Tribunal finds that the applicant fabricated the claim to enhance his protection visa application. The Tribunal finds that the documents he submitted in support of the application are not genuine.
Subject to what the Tribunal says in the last sentence of the passage quoted above I am satisfied that the findings made by the Tribunal were open to it on the material before it. The generality of the last sentence is unfortunate however I do not read that sentence as referring to all of the documents submitted by the applicant in support of his application. The documents are reproduced in the court book, which I accept as evidence, from pages 49 to 57.
Some of the documents, for example, the documents reproduced at pages 53, 54 and 55 of the court book are uncontroversial; indeed the Tribunal appears to have accepted that the applicant was a businessman in Nepal and the documents simply corroborated that claim. The controversial documents were the arrest warrant, which I understand appears on page 57 of the court book in the Nepalese language, and the English translation of it on page 52 of the court book. The Tribunal rejected the arrest warrant as a fabrication. The Tribunal should probably have referred to “document” singular rather than “documents”. It would be hard to say that the English translation on page 52 of the court book was not genuine. Nevertheless I regard the sentence in issue as simply an example of loose language.
In other respects I agree with and adopt, for the purposes of this judgment, the Minister's submissions in paragraph 20 through to paragraph 34 on the grounds of review advanced in narrative form in the amended application.
The amended application pleads 10 grounds of review, some of which are also canvassed in an affidavit filed by the applicant (which does not contain evidence but is in the nature of submissions). Not all of the articulated grounds readily give rise to an argument for jurisdictional error. Rather than address each ground in turn, the Minister has grouped the various complaints into general categories of complaint and addresses those complaints as follows.
Denial of common law procedural fairness (grounds 1 and 10)
Section 422B applies to this decision, and there is no obligation upon the Tribunal to provide the applicant with common law procedural fairness.[18]
[18] Minister for Immigration v Lay Lat (2006) 151 FCR 214 [2006] FCAFC 61 and SZCIJ v Minister for Immigration [2006] FCAFC 62
Despite that, the Tribunal raised the critical information upon which it based its decision with the applicant. There can be no suggestion that the applicant was not accorded a fair hearing when regard is had to the basis upon which the decision was made: see CB 108.5 which makes clear that the independent country information relied upon by the Tribunal was discussed with the applicant at the hearing, even though s424A(3)(a) had the effect of removing the Tribunal’s s424A obligations in respect of independent country information.
Disagreement with the Tribunal's findings in connection with current conditions in Nepal (grounds 2, 3, 5 7, 9)
Most of these identified grounds of review effectively seek to revisit the facts of the case, which can not sustain a ground of judicial review. There is also a suggestion that the Tribunal viewed the situation by accepting that the conditions in Nepal were now akin to Australia and ignored the ‘reality’ of the situation. This complaint also seeks to re-agitate the merits by calling into question the Tribunal’s reliance upon independent country information.
The Tribunal relied heavily on independent country information to arrive at its conclusion that the applicant did not have a well-founded fear of persecution were he to return to Nepal. Although this information had not been before the previously constituted Tribunals, it was open to the newly constituted Tribunal to rely on this new information. The independent country information relied upon was dated between June 2006 and December 2006, so no criticism can be made of its currency.
Further, as highlighted above, it is clear that the significantly changed political situation in Nepal was discussed with the applicant in some detail during the hearing: CB 106.7 – 107.7 and 108.5. The fact that the applicant may disagree with the Tribunal’s assessment of the situation in Nepal is simply not to the point. [19]
[19] See Full Federal Court in NAHI v Minister for Immigration [2004] FCAFC 10 (2 February 2004) at [11].
Bias, an ‘absence of caution’, going beyond a ‘vigorous exchange’, ‘impulsive’ decision making (grounds 3, 6 and 10)
There is nothing contained in the Tribunal's reasons which would give rise to an apprehension of bias or actual bias. Even if the exchange was rigorous (which has not been demonstrated by the applicant through the provision of a transcript) the Tribunal is entitled to assertively test the applicant’s claims in an inquisitorial proceeding of this kind.[20]
.p[20] See VFAB v Minister for Immigration [2003] FCA 872 at [81] per Kenny J at [81].
The Tribunal thought the applicant was an ‘economic refugee’ rather than a Convention based refugee because it applied the wrong test (ground 4)
This complaint appears to infer or make an assumption that the Tribunal viewed the applicant’s case in a particular way, which led it to adopt the ‘wrong test’ (there is no reference in the decision to the applicant being an economic refugee). However, there is no basis for suggesting that the Tribunal adopted the wrong test in assessing the applicant’s claims. The correct tests and principles were identified by the Tribunal at CB 100 – 101, and there is nothing in the reasoning to suggest a departure from or misunderstanding of those principles. It is true that the Tribunal found that the applicant was not a refugee for the purposes of the Convention, but this was the precise question it was required to address.
Illogical and unbalanced reasons in connection with factual findings and in particular in connection with the rejection of ‘the claims’ as fabrications (ground 5)
As explained above, the applicant’s claims were not wholly rejected by the Tribunal as fabrications. Rather, the applicant’s claims were largely accepted by the Tribunal. The only exception was the finding of fabrication in relation to the arrest warrant: CB 109.9. It is noted that there is an express finding of fabrication in relation to the arrest warrant and the Tribunal goes on to find that ‘the documents submitted in support of the application are not genuine’. Given that there were further, more general documents submitted by the applicant in support of the application for review (CB 53 – 57), this begs the question whether the Tribunal intended to include those documents within the finding that ‘the documents submitted by the applicant in support [were] not genuine’. In light of the discussion which precedes the finding it is likely that the finding relates only to the arrest warrant.
In any event, the absence of clarity on this question is not sufficient to ground jurisdictional error in the circumstances of this case: see Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 92 where his Honour noted that judicial review is not a forum for interfering with the ‘evidentiary and factual basis of administrative decisions on the grounds of minor infelicities or trivial lapses in logic’. However, even if the Court were to take the view that the finding goes beyond a finding in respect of the arrest warrant, the finding was open to the Tribunal.[21]
[21] There being no common law obligation of procedural fairness in this case, and having regard to the fact that the s 424A(3)(b) exception applied to the documents
It is also clear that there was discussion about this issue at the hearing (CB 106.3). Further, the Tribunal (as previously constituted) sent a s 424A letter to the applicant about this issue.[22] There can be no doubt that the applicant was on notice of the Tribunal’s concerns about this aspect of his claims.
Misdirection of the test of ‘serious harm’, and of the essential integers of the claim, and state protection (ground 8)
The test of serious harm was articulated by the Tribunal: CB 101.3. Later, the Tribunal’s 'Findings and Reasons' made it clear that the chances of the applicant being harmed by either the Maoists or the authorities in Nepal were remote: CB 109.2, 109.3 and 109.5. By these findings the Tribunal made clear that it addressed the two essential integers of the claim, namely the claim to fear persecution from both the Maoists and the authorities.
The Tribunal was not required to specifically address the issue of state protection when it had already rejected the claim that the applicant would be harmed at all if he was to return to Nepal.
Changed circumstances as the basis for the decision: Minister’s additional submissions
Implicit in the Tribunal’s decision is an acceptance by the Tribunal that at the time the applicant first applied for a protection visa, he would have been accepted as a refugee. However this is no barrier to the Tribunal finding that the applicant does not satisfy the criteria for a protection visa on the basis of changed country circumstances. The majority of the High Court in Minister for Immigration and Multicultural Affairs v QAAH of 2004 (2006) 231 ALR 340 (per Gummow ACJ, Callinan, Heydon and Crennan JJ at [38] – [50]) put that issue beyond any doubt. To the extent that the applicant suggests that the only reliable events for assessing the chance of persecution in Nepal are the past events, that is not sustainable: see Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1; 175 ALR 585 per McHugh J at [83] where his Honour said:
"In most cases, it is necessary for a Tribunal considering a claim for refugee status to make findings about past events that are alleged to constitute persecution. That is because what has occurred in the past is ordinarily a reliable indicator of what is likely to occur in the future. Past acts of persecution are usually strong evidence that the applicant will again be persecuted if returned to the country of his or her nationality. But the relevance of past acts of persecution depends upon the degree of likelihood that they or similar acts will occur in the future."
Here, the Tribunal accepted that most of the past events claimed by the applicant had occurred, but on the basis of independent country information, effectively found the relevance of the past events was no longer significant. The Tribunal found that the likelihood that similar events would occur in the future was remote. This finding was not only open to the Tribunal on the evidence before it, but it was an entirely likely finding given the developments in Nepal outlined in the updated country information which was before the Tribunal.
[22] CB 65. See SZEPZ vMinister for Immigration [2006] FCAFC 107 per Emmett, Siopis and Rares JJ at [37] – 43].
In the course of oral argument I explored with counsel for the Minister the Tribunal's obligation to disclose to the applicant his failure to include in his protection visa application a claim that he was subject to arrest in Nepal. It is evident from what the presiding member says on pages 105 to 106 of the court book that that was one of a number of issues discussed at the hearing conducted by the Tribunal on 4 December 2006.
In the light of the decision of the High Court in SZBYR v Minister for Immigration [2007] HCA 26, it is doubtful that s.424A of the Migration Act1958 (Cth) (“the Migration Act”) required the Tribunal to disclose to the applicant in writing any gaps of information in his protection visa application. Nevertheless, the Tribunal did disclose the absence from the protection visa application of the arrest warrant claim in a letter purportedly written pursuant to s.424A and reproduced on pages 65 and 66 of the court book. In the event that disclosure in writing was required by that section the Tribunal's obligation was met.
The applicant has failed to establish any jurisdictional error in the decision of the Tribunal, neither is any jurisdictional error apparent to me from my own reading of the material. I order that the application be dismissed on the basis that the Tribunal decision is a privative clause decision
The application having been dismissed costs should follow the event. Scale costs would be $5000. The Minister properly seeks a lesser amount of $4,700. The applicant was concerned about his capacity to pay but the issue for me is whether the costs have been properly and reasonably incurred. I am satisfied that they have been when assessed on a party and party basis. I order that the applicant pay the first respondent's costs and disbursements of and incidental to the application fixed in the sum of $4,700.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Deputy Associate:
Date: 24 July 2007
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