SZHQG v Minister for Immigration & Anor
[2006] FMCA 1275
•27 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHQG v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1275 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Nepal claiming fear of persecution for reasons of political opinion – where applicant had studied in New Zealand and then travelled to Australia – Tribunal not satisfied that the applicant’s account was credible – whether any breach of Migration Act 1958 (Cth) ss.424, 424A or 425A – allegation of bias – whether Tribunal should have made its own investigations – the word “information” in Migration Act 1958 (Cth) s.424A means information given for the general purpose of the application rather than to a separate and specific hearing – information provided by the applicant to an earlier Tribunal hearing is caught by Migration Act 1958 s.424A(3)(b) – there is no breach of the Migration Act or the Migration Regulations 1994 (Cth) in the Tribunal in the decision under review considering the evidence and other information given to the earlier Tribunal hearing – a claim of “wrong findings, conclusions, misunderstandings, misinterpretations” of the facts is a claim for merits review – merits review is outside the scope of judicial review proceedings – whilst Migration Act s.424 gives the Tribunal the power to obtain further information, the Tribunal does not have a duty to investigate the applicant’s claims – privative clause – no reviewable error. |
| Migration Act 1958 (Cth), ss.36(2), 424, 424A, 425A, 474 |
SZEEX v Minister for Immigration & Anor [2005] FMCA 359 referred to
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263 referred to
SZAGF v Minister for Immigration & Anor [2005] FMCA 1448 followed
Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 followed
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 followed
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 applied
| Applicant: | SZHQG |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3403 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 21 June 2006 |
| Date of Last Submission: | 21 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2006 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | Not legally represented |
| Counsel for the Respondent: | Ms Mason |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,300.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3403 of 2005
| SZHQG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is application for review of a decision of the Refugee Review Tribunal signed on 30th September and handed down on 27th October 2005. The Tribunal affirmed the delegate’s decision not to grant the Applicant a protection visa.
The Applicant seeks writs of certiorari and mandamus to quash the Tribunal’s decision and remit the application to the Tribunal for determination according to law.
Background
The Applicant is a citizen of Nepal. He arrived in Australia on 6th July 2001. He applied for a Protection (Class XA) visa on 6th August 2001. The application for a visa was refused on 23rd September 2001. The Applicant applied to the Refugee Review Tribunal for a review of that decision. The Tribunal affirmed the delegate’s decision. The Applicant sought judicial review of that decision and on 18th April 2005 this court remitted the application to the Tribunal (SZEEX v Minister for Immigration & Anor [2005] FMCA 359).
The Applicant attended a further hearing of the Tribunal on 24th August 2005. After the hearing, the Tribunal wrote to the Applicant to put a number of concerns to him. The Applicant replied by letters dated
25th August and 19th September 2005. The Tribunal handed down its decision on 27th October 2005.
The Tribunal’s findings and reasons
The Tribunal’s findings and reasons can be found on pages 370 to 375 of the Court Book.
The Tribunal accepted that the Applicant is a national of Nepal who had lived all his life in Kathmandu. The Tribunal did not accept that the Applicant’s activities in Nepal were political or were perceived, as he had claimed.
The Tribunal was not “impressed overall with the Applicant’s evidence as to what his politics were”.[1] The Tribunal found that it could not give any weight to the Applicant’s claim of having been a member of a party called the CPN-UML. The Tribunal found that the Applicant’s case lacked a significant element that he claimed was central to it; it lacked a credible political profile on his part, real or imputed.
[1] Court Book page 370
The Tribunal noted that:
The Applicant’s application was remitted to the Tribunal on the grounds that it failed to consider whether the Applicant might face persecution in Nepal for another Convention-related reason: “membership of a particular social group” defined in the judgment of the Federal Magistrates’ (sic) Court as “successful Nepalese businessmen personally known to the Maoists”. The Tribunal will now analyse the Applicant’s claims from this perspective with this (so argued) Convention factor in mind.[2]
[2] Court Book page 371
The Tribunal did not accept that the Applicant ran a successful business of his own, on the side, on which the Maoists began to prey, motivated either by a desire for his money or to punish him for his refusal to support them. The Tribunal did not accept that the Applicant ran his own business.
One factor that the Tribunal took into consideration was the fact that the Applicant left Nepal in 2001 and obtained a student visa from New Zealand. He entered New Zealand in February 2001 and remained there until July 2001. He did not apply for a protection visa in New Zealand. Instead, the Applicant travelled to Australia and applied for a protection visa in Australia. The Tribunal found that the Applicant had failed to provide credible, compelling reasons why he did not apply for protection in New Zealand. The Tribunal did not accept the Applicant’s explanation about deciding to go home to Nepal after six months in New Zealand as being inconsistent with “the claimed grimness of his prospects in Nepal.”[3] The Tribunal did not accept as credible his explanation that he only found out that he could not return to Nepal after he had arrived in Australia.
[3] Court Book page 373
The Tribunal was not satisfied that the Applicant faced a real chance of Convention-related persecution in Nepal and found that his claimed fear of persecution was not well founded. The Tribunal was not satisfied that the applicant was a persecution to whom Australia owes protection obligations under the Convention and therefore did not satisfy the criterion in s.36(2) of the Migration Act.
Application to the Federal Magistrates Court
The applicant commenced proceedings in this court on 22nd November 2005 and filed an amended application on 23rd March 2006. In his Amended Application, the Applicant sets out these grounds (paraphrased):
(i)The Tribunal constantly referred to the previous Tribunal hearing without giving him notice under s.424A of the Migration Act.
(ii)The Tribunal decision was wholly or partly affected by wrong findings, conclusions, misunderstandings, misinterpretations of facts and breached s.425A of the Act.
(iii)The Tribunal made little or no attempt to investigate the facts and made no attempt to ask for more evidence “under section 424A” (the Applicant appears to have meant s.424).
(iv)The fourth ground was withdrawn.
(v)The Tribunal made comments or statements in favour of the Applicant’s claim but neglected or failed to consider them when making its decision.
(vi)The Tribunal overlooked the possibility that part of the claim could be true as the Tribunal cannot prove whether that part of the claim was imputed or true.
(vii)The seventh ground was withdrawn.
The Applicant filed an affidavit on 14th March 2006 in which he annexed a memorandum of advice he had received from a barrister on the Refugee Review Tribunal legal advice panel. Also attached was a written submission by the Applicant addressing his claims.
The Applicant made oral submissions at the hearing in which he complained about the manner of the Tribunal Member. He was of the view that the Tribunal Member was disgruntled that the matter had been remitted to the Tribunal by a Federal Magistrate. He did not provide a transcript of the Tribunal hearing.
In his written submission, the Applicant claimed that the Tribunal’s reference to the earlier Tribunal decision was limited to finding inconsistencies and contradictions in his account regarding dates of events, as set out on pages 372 and 373 of the Court Book. He claimed that this was a breach of s.424A of the Migration Act.
The Applicant complained that the Tribunal Member misunderstood his claim and made factual errors. He complained of “misunderstanding, misinterpretation and omitting of facts which, if taken into consideration, would have helped the case”. The Applicant claimed that this was a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review. Relying on the decision of the Full Court of the Federal Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263, he submitted that there was a jurisdictional error either by way of a failure of procedural fairness or a failure conduct the review required by the Migration Act. He went on to say that the Tribunal had made “an error of fact in misunderstanding or misconstruing a claim” that he had advanced and thereby based its conclusion in whole or in part upon the claim so misunderstood or misconstrued.
The Applicant submitted that the Tribunal had referred at page 373 of the Court Book to the fact that he was able to apply for a business licence in Australia soon after he had obtained a bridging visa was an example of his abilities but then ignored that statement by stating that he was not a businessman. He went on to make other complaints about various conclusions made by the Tribunal about his company and his partner in Nepal.
The Applicant further submitted that the Tribunal never asked him to provide more evidence to prove that he was a businessman and had never asked him for contact details of his partner “to investigate the issues with him”.
Further, the Applicant submitted that he had told the Tribunal that he had been targeted for extortion and possessed a fear of persecution “by a group of fellow students who may have joined the Maoists party”. He referred to the fact that the Tribunal at page 365 of the Court Book had said that he had used words like “may” but never said he knew for sure that particular Maoists could have been behind the extortion claims. The Applicant stated that he had used the word “may” because he had never seen the people’s faces and the voices over the telephone were different on each occasion.
The Applicant referred to the earlier decision of the Federal Magistrates Court remitting his application to the Tribunal, where Smith FM said at [36]:
The Tribunal’s conclusion that ‘I do not accept that members of the [Maoists] have been seeking [the applicant] since he left Nepal’ does not make a finding that the applicant would not again be targeted for extortion and violence as a businessman if he returned to Nepal. Moreover, since the Tribunal has overlooked this Convention claim, it is impossible to read it as saying this by implication.
The Applicant relies on this finding to submit that the present Tribunal committed a similar error by saying at page 374 of the Court Book:
The Tribunal is not satisfied that the applicant faces a real chance of convention related persecution in Nepal.
The Applicant submits that “Both Tribunals were unable to prove that I would not be persecuted. I don’t think they will be able to do so until whole evidences are investigated thoroughly…”
Counsel for the First Respondent, Ms Mason, submitted that the Tribunal’s reference to the Applicant’s evidence to the previous Tribunal did not enliven s.424A and the Tribunal was entitled to take into account information and claims that the applicant had made to the first Tribunal in assessing the applicant’s credit, relying on a previous decision of mine in SZAGF v Minister for Immigration & Anor [2005] FMCA 1448.
The First Respondent submits that there was no breach of s.425A of the Migration Act. As to the third ground, the First Respondent submits that the Tribunal was under no obligation to seek further information from the applicant by way of s.424A letter.
As to the fifth ground, the fourth having been withdrawn, counsel for the First Respondent submits that the ground is merely a complaint that the Tribunal did not ultimately find in the Applicant’s favour. The sixth ground is submitted to be contrary to the fifth, in that it alleges that the Tribunal overlooked the possibility that some aspects of the Applicant’s claim might have been true.
In conclusion, counsel for the First Respondent submitted that there is no jurisdictional error manifest on the basis of the grounds of review raised, or at all, with the result that the decision is a privative clause decision and the application should be dismissed.
Conclusions
In considering the first ground, I am satisfied that no breach of s.424A has been shown. The Tribunal was entitled to take into account information and claims that the Applicant had made to the earlier Tribunal in assessing the Applicant’s credit (SZAGF, supra). The Migration Act and Regulations do not require that the Tribunal in the decision under review should have treated the earlier hearing and reasons, particularly claims made and evidence given before the earlier Tribunal, as if they had never existed. It was the decision of the earlier Tribunal that was set aside by the Court in SZEEX, (supra), not the hearing itself. It was not the information or evidence given to the earlier Tribunal that were made inapplicable by the Court’s ruling, but the decision reached by the Tribunal Member on the basis of that evidence and information. It was open to the Tribunal to consider the evidence of the earlier Tribunal hearing (see SZAGF at [13]-[14] and [16]).
The word ‘information’ in s.424A means information given for the general purpose of the application for review, rather than a specific and separate hearing (see Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27). Information provided by the Applicant to the earlier Tribunal is clearly covered by s.424A (3)(b), so that s.424A(1) does not apply (SZAGF at [14]).
In considering the material from the earlier Tribunal hearing, the Tribunal was making its own decision as to what conclusions should be drawn from that material (SZAGF at [20]). There is no breach of s.424A of the Migration Act made out.
As to the Applicant’s second ground, the claim of “wrong findings, conclusions, misunderstandings, misinterpretations of whole or part of facts, evidences or claims” is a challenge to the factual findings of the Tribunal and constitutes a claim for merits review, which is outside the scope of judicial review proceedings.
The Applicant also claims that the Tribunal’s decision involves a breach of s.425A (3) of the Migration Act. It is hard to see how. s.425A(3) provides:
The period of notice (to appear at a hearing) must be at least the prescribed period or, if no period is prescribed, a reasonable period.
The Tribunal sent a letter of invitation to the Applicant on 28th July 2005, inviting him to attend a hearing on 24th August 2005. In my view the prescribed period was complied with, and there is no breach of s.425A.
The Applicant claims that the Tribunal made no attempt or “just a little attempt” to prove or investigate the facts. There is no positive duty to investigate claims on the part of the Tribunal (see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]). Section 424 of the Act provides that, in conducting the review, the Tribunal may get any information that it considers relevant, but there is no obligation on the Tribunal to do so. The Tribunal has the power to obtain further information but it does not have a duty to investigate the Applicant’s claims.
The Tribunal does not have an obligation under s.424A to put an Applicant on notice that of its view that the Applicant’s evidence is insufficient. This ground must fail.
The Applicant’s fifth ground, that the Tribunal made comments or statements favourable to his case but has “failed to consider” or “crossed out” or “neglected” those statements when making its decision, has been accurately characterised by counsel for the First Respondent as merely a complaint that the Tribunal ultimately did not find in his favour. It is more of a challenge to the merits of the decision and is not a basis for a finding of jurisdictional error.
The Applicant’s sixth claim is that the Tribunal overlooked the possibility that some aspects of his claims may have been true. The Tribunal did accept some of the Applicant’s claims, it is true, but this is not a jurisdictional error. The Tribunal is not obliged to disprove an Applicant’s case. Again, there is no jurisdictional error.
The Applicant has not made out any jurisdictional error. I am unable to discern any jurisdictional error, or any arguable case of jurisdictional error, that the Applicant has not raised. I am aware that he was not legally represented during the proceedings.
As there is no jurisdictional error, the decision is a privative clause decision as defined by s.474(2) of the Act (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76]). It is not subject to prohibition, mandamus, injunction, declaration or certiorari. The application will be dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 30 August 2006
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