SZGNK v Minister for Immigration and Citizenship

[2007] FCA 1790

FEDERAL COURT OF AUSTRALIA

SZGNK v Minister for Immigration and Citizenship [2007] FCA 1790

SZGNK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1527 OF 2007

RYAN J
19 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1527 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGNK
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

RYAN J

DATE OF ORDER:

19 NOVEMBER 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the first respondent’s costs fixed in the amount of $3,400.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1527 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGNK
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RYAN J
DATE:	19 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders made by Driver FM on 20 July 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  By a decision handed down on 9 January 2007, the Tribunal had affirmed a refusal on 19 January 2005 by a delegate of the then Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”), to grant a protection visa to the appellant. 

2. By an earlier decision on 27 April 2005, the Tribunal had affirmed the delegate’s decision.   On 31 October 2005, the Federal Magistrates Court set aside that earlier decision and remitted the matter to the Tribunal differently constituted which, on 7 February 2006, again affirmed the delegate’s decision.  On 4 September 2006, the Federal Magistrates Court set aside the second decision of the Tribunal and remitted the matter to the Tribunal, again differently constituted.  It is that third decision of the Tribunal dated 9 January 2007 which is the subject of the present appeal.

3. The appellant is a national of Nepal who claimed in his application for a protection visa to have a well-founded fear of persecution by Maoists and by Nepalese government security forces.  The appellant indicated that he had supported the Maoists until 1996 when the civil war began.  He further claimed that Maoists had destroyed a family shop in 2002 and the appellant and his family had been accused of giving donations to Maoist rebels.  The appellant had also claimed that, in 2003, he had been taken for questioning and held in detention and beaten for five days before his parents paid money for his release.  Although from then he refused further help to the Maoists, the government still accused him of being a Maoist informant.

4. At the third hearing before the Tribunal the appellant asserted that, approximately one year after his detention, a warrant had been issued for his arrest and he had gone into hiding and planned to go to India.  However, his relatives there refused to shelter him as they feared of being targets themselves.  According to the appellant, his parents then obtained a visa for him and he managed to depart Nepal without question as he was accompanied by the ex-Finance Minister. 

5. The Tribunal accepted the majority of the appellant’s claims and was satisfied, in the light of independent country information, that the appellant had been targeted by Maoists and by the authorities, and that each group had imputed to him an adverse political opinion.  Nevertheless, the Tribunal was satisfied by evidence from external sources that the civil war in Nepal had ended and the conditions which had existed at the time when the appellant had left Nepal and applied for a protection visa no longer obtained.  It found that the chance that the family of the appellant would be at risk of harm, either by Maoists or by the Nepalese government authorities, was remote. 

6. The Tribunal did not accept as credible the appellant’s claim that an outstanding warrant for his arrest was in force, and that the authorities would seek to arrest him if he were to return to Nepal.  It regarded that claim as not having been consistently presented by the appellant throughout the processing of his application, and found that the documents submitted in support of the claim were not genuine. 

7. Before the learned Federal Magistrate, by amended application dated 26 April 2007, the appellant contended that the Tribunal had committed jurisdictional error including a denial of procedural fairness or natural justice.  The appellant challenged the factual findings of the Tribunal, particularly its finding that the civil war in Nepal was over.  He also criticised what he said was a failure by the Tribunal to consider the adequacy of the protection which would be available to him from the Nepalese state authorities.  As well, he claimed that the Tribunal had been guilty of bias and a lack of logic in discounting his own evidence.  He also claimed that the Tribunal had applied the wrong test and taken into account irrelevant considerations. 

8. The learned Federal Magistrate adopted the Minister’s submissions. It was noted that, although s 422B of the Migration Act 1958 (Cth) (“the Act”) relieved it of the common law obligation to accord procedural fairness, the Tribunal had raised with the appellant critical information upon which it based its decision.

9. His Honour regarded the appellant’s disagreement with the Tribunal’s finding in respect of the current conditions in Nepal as properly to be characterised as an attempt at merits review.  He found it to be open to the Tribunal to rely on independent country information that had not been before the Tribunal as previously constituted when it made its earlier decision.  The assertion of bias was rejected as there was nothing contained in the reasons of the Tribunal to give rise to an apprehension of bias or to constitute actual bias.  Further, in his Honour’s view, there was no basis for suggesting that the Tribunal had adopted a wrong test in assessing the appellant’s claim. 

10. The learned Federal Magistrate concluded that, except for its finding in relation to the arrest warrant, the Tribunal had not rejected the appellant’s claims as “fabrications”. The assertion by the Tribunal that the “documents” were rejected as not genuine was regarded as confined to the arrest warrant and not as extending to all documents relied on by the appellant. In any event, his Honour considered that any lack of clarity in this aspect of the Tribunal’s reasons was insufficient to amount to jurisdictional error. Moreover, even if the Tribunal’s finding had extended beyond the arrest warrant, it was a finding which had been open to the Tribunal on the evidence. His Honour was also satisfied that at the hearing before the Tribunal there had been discussion about the relevant issues and a letter pursuant to s 424A of the Act had been sent to the appellant by the Tribunal as previously constituted.

11. The learned Federal Magistrate regarded it as clear from the decision of the Tribunal that it had addressed the two essential integers of the claim, namely, that the appellant feared persecution from both Maoists and the Nepalese government authorities.  Accordingly, the Tribunal, having already rejected the claims that the appellant would be harmed if he were to return to Nepal, was not required specifically to assess whether the appellant would be afforded adequate State protection against the persecution which he claimed to fear. 

12. His Honour also held that an acceptance by the Tribunal that, at the time when he first applied for protection, the appellant would have been regarded as a refugee, did not preclude a finding that changed circumstances obtaining at the time of the Tribunal’s latest decision eliminated a well-founded fear of persecution for a Convention reason;  see Minister for Immigration and Multicultural Affairs v QAAH of 2004 (2006) 231 ALR 340.

13. Finally, his Honour considered whether the Tribunal should have disclosed to the appellant the use which it ultimately made of his failure to include in his application for a protection visa the claim that he would be subject to arrest in the event of his return to Nepal.  The decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 made it doubtful that s 424A of the Act required the Tribunal to disclose in writing to the appellant any gaps of information in the protection visa application. However, it was noted that the requisite disclosure had been made in a letter purportedly sent pursuant to s 424A of the Act.

14. The notice of appeal to this Court, filed on 6 August 2007, largely restates the grounds argued in the Court below which challenged the factual findings of the Tribunal. The notice makes the additional claim that the Tribunal failed to comply with s 425(1) of the Act by omitting to disclose an issue that had arisen during the application for review to the Tribunal.

15. The appellant’s notice of appeal contains eight so-called “grounds”, most of which comprise a narrative of contentions that the Tribunal had been guilty of various species of jurisdictional error. The new ground particularised in paragraph 1 and paragraph 2 of the notice of appeal is that the Tribunal had contravened s 425(1) of the Act by “failing to disclose” an issue that had arisen for consideration, or failing to consider issues which the appellant claimed to have raised.

16. In part, paragraph 2 restates paragraph 1. In my view, s 425(1) does not avail the appellant in the circumstances of this appeal. That subsection provides;

    ‘The Tribunal must invite the appellant to appear before the Tribunal, to give evidence and present arguments relating to the issues arising in relation to the decision under review.’

17. It is not disputed that the appellant did appear before the Tribunal and did give evidence and present arguments in support of his application for a protection visa. Section 425(1) does not embody a “no evidence” ground of review, nor does it oblige the Tribunal to articulate reasons for rejecting each particular piece of evidence adduced, or each argument advanced, on behalf of an applicant. This case cannot be assimilated to that examined by the High Court in SZBYR v Minister for Immigration and Citizenship (supra) because it is clear that the authenticity of the arrest warrant was the subject of a letter pursuant to s 424A of the Act and was, throughout the proceedings before the Tribunal, a live issue.

18. The other grounds of appeal essentially seek to agitate again other matters canvassed before the learned Federal Magistrate.  I can discern no error in his Honour’s treatment of each of those matters. 

19. It follows, for the reasons which I have endeavoured to explain, that the appeal must be dismissed, with costs, and that will be the order of the Court.   I order that the appellant pay the respondent’s costs, fixed in the sum of $3400.  

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:        21 November 2007

Counsel for the Appellant:	The appellant appeared in person
Counsel for the First Respondent:	Ms L Clegg
Solicitor for the First Respondent:	Clayton Utz
Date of Hearing:	19 November 2007
Date of Judgment:	19 November 2007