SZHWI v Minister for Immigration
[2008] FMCA 1025
•25 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHWI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1025 |
| MIGRATION – Review of Refugee Review Tribunal decision – no failure to consider evidence – no failure to consider claims, or integers of claims – no denial of procedural fairness – application dismissed. |
| Migration Act 1958 (Cth), ss.425, 425A, 426, 48B, 417 Migration Regulations 1994 (Cth), reg.4.35D(b) |
| WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 |
| Applicant: | SZHWI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3828 of 2007 |
| Judgment of: | Nicholls FM |
| Hearing date: | 3 June 2008 |
| Date of Last Submission: | 3 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 25 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Dr K Stern |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 13 December 2007 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $8,700.00.
I will allow the applicant six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3828 of 2007
| SZHWI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 13 December 2007 under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 31 October 2007, and handed down on 22 November 2007, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background and Claims to Protection
The first respondent has put a bundle of relevant documents before the Court (the Court Book – “CB”) from which the following background may be discerned.
The applicant is a citizen of Nepal who arrived in Australia on 6 June 2005. He applied for a protection visa on 30 June 2005 (see CB 1 to CB 37). The applicant’s claims to protection were that he feared harm from Maoist rebels, and although he had been living in Thailand for a few years working for the Nepali embassy “as a social worker”, whenever he returned to his home town in Nepal, the Maoists would seek donations from him. On one occasion they sought a large amount of money and when he refused to pay the money, they “kidnapped my son for week”, and only released his son when he promised that he would pay the money. He reported the matter to police and returned to Thailand, although his family remained in Nepal. He claimed that the Nepalese authorities were unable to protect him from the Maoists if he were to return to Nepal. (See in particular CB 20 to CB 23.)
The Delegate’s Decision
A delegate of the first respondent refused the application on 1 September 2005 (see CB 56 to CB 63). The delegate saw the applicant’s claims as arising as a result of attempts by “Maoists to extort money from him for the reason of his occupation and his perceived wealth”. The delegate found that these were not claims which were Convention-related (CB 62.8). Further, the delegate found that (at CB 63.1):
“[I]f for any reason at all he does not wish to return to the part of Nepal where he previously lived, there would appear to be no valid reason why he would not now be able to return to another part of Nepal. Also, he has the option of living in India.”
The Tribunal
The applicant applied for review of this decision by the Tribunal on 6 September 2005 (CB 64 to CB 67). He attended a hearing before the Tribunal on 8 November 2005 (as previously constituted) (CB 68).
The Tribunal affirmed the decision of the delegate on 9 November 2005 (CB 78 to CB 87). The applicant subsequently sought judicial review. On 21 December 2006 a Federal Magistrate dismissed the application (CB 235 to CB 253). However, on appeal to the Federal Court the appeal was allowed and the applicant’s matter was returned to the Tribunal for reconsideration (CB 255 to CB 271).
By way of letter dated 9 August 2007 the applicant was invited to appear before the Tribunal for a second time (CB 279 to CB 280). The Tribunal wrote to the applicant again on 6 September 2007 and rescheduled the hearing for 18 October 2007 (CB 285 to CB 286). (This was done at the instigation of the Tribunal. In any event, the “second” letter rescheduling the hearing complied with the Tribunal’s relevant statutory obligations and notice period: ss.425, 425A, 426 and reg.4.35D(b) Migration Regulations 1994 (Cth) (“the Regulations”).)
The applicant appeared before the Tribunal on 18 October 2007.
The Tribunal’s account of what occurred at the hearing is set out in its decision record (CB 327.3 to CB 331.2). The Tribunal affirmed the decision under review (CB 320 to CB 336).
The Tribunal understood the applicant’s claims to fear persecution in Nepal from the Maoists to be based on the Convention ground of political opinion, or imputed political opinion, and membership of a particular social group in Nepal (CB 332.9 to CB 333.2).
The Tribunal:
1)Accepted that the applicant may have held anti-Maoist views as a young man, but did not accept that they would cause him to come to the attention of Maoists if he were to return to Nepal (CB 333.4).
2)Because of a “very significant discrepancy in detail” as between evidence given at the earlier Tribunal hearing and before the Tribunal as currently constituted, the Tribunal doubted the veracity of the applicant’s claim that his son had been abducted by Maoists. But did accept that at the time when the applicant was living on a farm 50km away from Kathmandu he: “may have attracted demands for money from the Maoists which he did not pay, and that as a result he moved his family to Kathmandu for safety” (CB 333.8).
3)Accepted that the applicant had moved his family to Kathmandu in 2002 and that they had lived there since that time. Given evidence that he had provided to the Tribunal about his ancestral property and the disposition of his siblings, the Tribunal considered it reasonable to conclude that if the applicant were to return to Nepal, he would live in Kathmandu (CB 334.3).
4)Considered implausible the applicant’s claim that Maoists in Malaysia had phoned him in Thailand to make threats to him that Maoists in Bangkok “would get him”, and did not accept that he had received such threats (CB 334.5).
5)Did not accept the applicant’s evidence that his wife had received threats from Maoists in Kathmandu. This arose from the Tribunal’s consideration of the applicant’s evidence (CB 334.6 to CB 335.2).
6)Did not consider that the applicant would come to the attention of the Maoists if he were to return to Kathmandu in the future, and considered that Kathmandu was safe for the applicant because of independent country information available to it (CB 335.3 to CB 335.6).
In all, the Tribunal accepted that the applicant was a Nepalese citizen who had lived and worked in Thailand, that he may have a political opinion or imputed political opinion as an anti-Maoist, and may come within a social group of returning Nepalese who have lived and worked overseas.
However, the Tribunal concluded that the applicant, and his family, were able to reside and work in Kathmandu safely: “as shown by the independent information discussed above” (CB 335.7). In all, therefore, the Tribunal found that there was only a remote chance that the applicant would suffer harm amounting to persecution for a Convention reason in the reasonably foreseeable future. It concluded that Australia did not owe protection obligations to the applicant. On this basis, the Tribunal affirmed the delegate’s decision.
The Application to the Court
The application before the Court puts forward the following grounds (these actually appear as an attachment to the applicant’s affidavit of 13 December 2007, filed at the same time as the application, and annexing the Tribunal’s decision record):
“1.The Tribunal has erred in its judgements by it’s failure to consider crucial evidence relating to my application for Protection visas.
2.The Tribunal has erred in it’s judgements by it’s failure to consider my esteemed position as held within the Royal Nepalese Embassy.
3.The Tribunal was of the view that relocating to Kathmandu or even to india was in the interest of the applicant where as the maoists have now formed a government in coalition and as for relocating to india i belived that as i am already in Australia it would be violation of system of Natural justice.”
(Errors in original)
The Hearing Before the Court
The applicant has also filed, by way of covering affidavit of 7 March 2008, a transcript of the hearing before the Tribunal (the applicant’s transcript – “AT”). The first respondent has filed the affidavit of Antonia Jean Clarke of 23 May 2008, annexing a transcript (the respondent’s transcript – “RT”) of the Tribunal hearing. The applicant has not filed any further material before the Court. The first respondent filed submissions on 27 May 2008 prepared by Counsel.
The applicant appeared before the Court in person. He was assisted by an interpreter in the Nepalese language. Dr K Stern of Counsel appeared for the first respondent.
Hearing before the Court
At the hearing before the Court it became clear that the applicant had not served his affidavit, annexing his version of the transcript of the Tribunal hearing, on the first respondent. Dr Stern raised objections as to form, and relevance. (It was not apparent on its face that the transcript had any relevance to the grounds of the application as stated.)
Given that the applicant was unrepresented before the Court, and given the possibility (although remote without particulars) of some relevance to Ground One of the application, I did not rule on the admissibility of the applicant’s affidavit and allowed him to make submissions to see if relevance could be discerned. I treated the affidavit of Ms Clarke in similar fashion.
The applicant submitted:
1)That his “main problem” was that he could not return to Nepal. He claimed that everything he told the Tribunal was true.
2)That he did not know “about laws” (in Australia). He began to tell the Court about advice he had received from a lawyer until he was advised of his privilege in this regard.
3)That he told the Tribunal that he would be killed by the Maoists if he returned. That they kill doctors, engineers, even children and that as a social worker he also would be killed.
4)That what he told the Tribunal in this regard was omitted from the transcript prepared on behalf of the Minister. He clarified this by submitting that he told the Tribunal that seven children had been killed by the Maoists, and that a diplomatic officer had been killed, but this was omitted from the (first respondent’s) transcript. He referred to page 17.
5)That there were “spelling mistakes”, incomplete words, and repetition in the first respondent’s version of the Tribunal hearing. (He referred to page 8 to page 16.)
6)That (at page 17) the transcript states that he told the Tribunal that he worked in Malaysia but he did not say this to the Tribunal.
Consideration: Failure to Consider Evidence
Ground one in the application asserts a failure on the part of the Tribunal to consider “crucial evidence” relating to his application.
The application does not particularise what evidence the Tribunal was said to have failed to consider. The applicant’s submissions are considered below.
I note that the obligation on the Tribunal in considering the review is, of course, to consider each claim and integer of a claim made by an applicant. In its decision record, the Tribunal is not required to refer to every piece of evidence before it (WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [47]).
In any event, the applicant’s evidence as given to the Tribunal at the hearing on 18 October 2007 is that contained (on the best scenario for the applicant) in the transcript of the hearing put before the Court by the applicant himself. On any plain reading of this, I cannot see that the Tribunal failed to consider crucial evidence or failed to consider any claim or integer of claim put forward by the applicant.
The applicant’s claims were that he feared persecution in Nepal from Maoists who had sought to extort money from him in the past, and had used his son as a hostage in this regard. The applicant claimed to have moved his family to Kathmandu some years ago while he returned to Thailand to continue working for the Nepalese embassy. Visits to his family were, most recently, in Kathmandu. The Tribunal ultimately found that the applicant could safely return to Kathmandu.
On what is before the Court, I cannot see that the Tribunal failed to consider crucial evidence in its analysis and findings.
In submissions the applicant complained that evidence he had given to the Tribunal concerning Maoists killing children had not been considered by the Tribunal. He submitted that what he told the Tribunal in this regard was omitted from the transcript of the hearing (with reference to page 17).
The relevant part of that transcript appears to be (at RT 17.5):
“A:I was only just telling you. ▌I’d stay for 10 days ad then I would meet them and then I would travel back. If I’d liven underground now ▌ they’re killing people, subjecting people to fear. They’re killing people in ▌ the villages. They’re also killing people in the public service. Children [inaudible].”
The difficulty for the applicant is that his own transcript reveals the following (at AT 28.7):
“Applicant: I was only staying for no more than 7-10 days and after meeting them I would travel back. Before they were underground and now they are in open and killing people and subjecting people to fear. They are killing people at all level from Military to high government officials. They have even killed children.”
Obviously neither version of the transcript was before the Tribunal. The Tribunal heard the applicant’s evidence given orally. That a complete sentence relating to the “children” was omitted from the first respondent’s transcript now does not reveal error on the part of the Tribunal.
Dr Stern submitted that there was independent evidence before the Tribunal that on occasions Nepalese children were the target of Maoist activists and that people had been forced to flee the Maoists to escape being killed. The Tribunal referred to this in its decision record (see CB 329.8 to CB 330.5).
The applicant’s claim before the Tribunal was that the Maoists subjected people to fear and killed people (“from Military to high government officials” – AT 28, or “public service” – RT 17).
Both transcripts make reference to children in this context.
The Tribunal did not reject the applicant’s evidence or claims in relation to the Maoists. It understood his claim in this regard (at CB 329.4):
“Now they [the Maoists] are in the open and kill people. He is afraid for the sake of his children.”
But the Tribunal found that notwithstanding this the applicant and his family could safely live in Kathmandu. The place from which the applicant had come to Australia and where he had “moved his family … for safety” (in 2002). The Tribunal’s finding in this regard clearly encompassed the applicant’s claim that the Maoists killed people in Nepal, including children. I cannot discern error.
The applicant also relied on the respondent’s transcript (at RT 17) to submit that it shows that he said (at RT 17.5):
A:… I work in Malaysia.”
Yet he claims he never said this.
The applicant’s transcript shows at the same point in the hearing as follows (at AT 28.8):
“Member: How did the Maoists in Malaysia threaten?”
Applicant: Lot of these Nepalese are sent by manpower agencies and some of them are Maoists working in Malaysia and they come to know where I am.”
I note further in both transcripts:
1)RT 17.7:
“TMSo you’d had a mobile phone?
AI had a mobile phone when I was in Bangkok.
TMAnd so what, you used to get phone calls from Malaysia?
AYes, I used to get phone calls.
TMThat seems unlikely that Maoists in Malaysia would telephone you in Thailand to threaten you.
AThey came to know that I was in Thailand. They made a phone call. It might have been ▌ whatever, but that is something that they do. They try to extort money. They send me a letter. I think I’ve got a copy of the letter with me ▌. I have lost my documents. I wanted to give them to the ▌and get it translated to English. And at the time when I submitted it to the tribunal, the tribunal member said he would look at it later but I couldn’t get it translated. It was lost.”
2)At AT 30.7:
“Member: And now when they phoned you from Malaysia what did they say?
Applicant: We know where you are staying. We have our people living there as well and that our people can locate you easily and when they do we will not let you go.
Member: So they said we know where you are staying. What else did they say?
Applicant: That wherever we find you we will not let you go.
Member: And over what period did you get this threat?
Applicant: I got this threat twice. Once I got this threat in 2004 at the end of 2004 sometimes on December. Then again in 2005 just a month or so after that.
Member: Does seem odd that if there were Maoists in Bangkok that they did not get them to contact you. It also seems odd that if they knew where you were that they did not directly confront you rather than making two unusual phone calls.”
What is quite clear, irrespective of what is set out in the respondent’s transcript, is that the Tribunal understood the applicant’s evidence to be that he was phoned by Maoists in Malaysia while he was working in Thailand. That is what it dealt with (see CB 329.5, CB 334.5).
The applicant’s complaint that a part of the respondent’s transcript is repetitive is correct (see RT 8.9 to RT 12.7, and RT 12.7 to RT 16.5). But this is plainly some error in transcription and does not reveal error on the part of the Tribunal.
Similarly, the spelling errors and omissions in the transcript do not reveal error on the part of the Tribunal. When regard is had to the applicant’s transcript and the Tribunal’s record it is clear that the applicant was not denied the opportunity to put his evidence or that the Tribunal misunderstood his claims.
In all, this ground does not succeed.
Nor is there anything before the Court to show that the Tribunal failed to consider any aspect of the applicant’s evidence. Nor, if what the applicant really means is that it failed to consider his claims, is that evident. In all, I can only observe that the applicant’s complaint (apart from taking issue with the respondent’s transcript – in some senses, justifiably so) appears to take issue with the Tribunal’s findings to the extent that the Tribunal did not accept certain aspects of the applicant’s claims. As such, the applicant seeks impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
Consideration: The Applicant’s “Esteemed Position”
Ground Two asserts that the Tribunal “failed to consider my esteemed position as held within the Royal Nepalese Embassy”. This complaint is simply not made out on any plain reading of the Tribunal’s decision record.
The Tribunal found that the applicant had not worked for the Nepal embassy: “since 2005 and his employment was not as a diplomat but at a lower level: as an interpreter and ‘social worker’” (CB 335.3).
The Tribunal did not consider that the applicant would come to the attention of Maoists if he returned to Kathmandu in the future because of his work for the Nepalese Embassy, in that it found that such work had not given him a high profile. Plainly, the Tribunal did consider his work with the Embassy, and as to whether that may give rise to a well-founded fear of persecution. There is nothing in the material before the Court to show that the Tribunal misunderstood or misrepresented the applicant’s claim in this regard in its analysis (see CB 335.3).
Again, what remains is that the applicant takes issue with the Tribunal’s finding that his work did not give him a high profile.
As such, this again seeks impermissible merits review.
I agree with Dr Stern that Ground three takes issue with the Tribunal’s finding that the applicant would be safe in Kathmandu. In all the circumstances, this was a finding open to the Tribunal on what was before it, and for which it gave reasons. I cannot see error in the Tribunal’s decision in this regard.
I should just note that the applicant complains in Ground three that the Tribunal was of the view that the applicant could relocate to Kathmandu or even India. In my view, this misrepresents the Tribunal’s finding in two ways. While the Tribunal raised the issue at the hearing of people fleeing to India to escape the Maoists, and this was something derived from independent information before it at the hearing (CB 329.8), I cannot see that the Tribunal made any finding in relation to the applicant moving or relocating to India. The Tribunal’s finding was that the applicant did not face a real chance of persecution if he were to return from Australia to Kathmandu.
Second, I did not understand the Tribunal’s analysis to include any reference to the issue of relocation in the sense as requiring it to consider this issue where a well-founded fear of persecution for a Convention reason is found to exist in relation to an applicant’s home area.
In the case currently before the Court, the Tribunal found on the evidence given by the applicant himself (even though there was some inconsistency in that evidence) that the applicant had already moved his family from his ancestral home (where the problems with the Maoists were said to have first arisen) to Kathmandu in 2002, and that his family continued to live there while the applicant returned to the Nepalese embassy in Thailand, and would visit them occasionally (CB 333.8 to CB 334.3).
In light of this evidence, and subsequent findings, the Tribunal considered: “it is reasonable to conclude that if the applicant returns to Nepal in the future he will live in Kathmandu” (CB 334.3). The Tribunal therefore assessed the applicant’s claims to fear persecution as against returning to Nepal to that place to which he had moved his family in 2002, and where his family had remained since. In this regard, the Tribunal found that it would be safe for the applicant to return to Kathmandu, and that there was not a real chance of persecution for a Convention reason if he were to do so. I cannot see error in how the Tribunal reasoned in this regard.
To the extent that what is stated in Ground Three seeks to assert that the Maoists “have now formed a government in coalition” in Kathmandu, this was not a claim made before the Tribunal. It was open to the Tribunal to proceed on the only independent evidence in this regard available to it (that is, evidence as at the date of the making of its decision). If events in Nepal have subsequently changed in this regard (and the Court is aware of current and recent media reports concerning the formation of a new government in Nepal, and its move from a monarchy to a republic) then such events post date the Tribunal’s decision and do not assist in revealing jurisdictional error on its part.
It may be that such events may be relevant in other contexts, and may be of assistance to the applicant in relation to the Minister considering exercising his powers available under ss.48B or 417 of the Act.
But they do not assist the applicant in the current proceedings before this Court.
Procedural Fairness
The delegate’s decision turned on the finding that the applicant’s claims did not reveal a Convention nexus. The Tribunal’s decision differed on what turned out to be the determinative issue. The Tribunal did consider that the applicant’s claims may give rise to issues relating to the applicant’s political opinion or membership of a particular social group.
Bearing in mind what was said by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”), I did consider whether the Tribunal complied with the Court’s explanation of what constitutes procedural fairness and its obligations pursuant to s.425 of the Act.
I should just note again that the Tribunal complied with its statutory obligations in this regard (see [6] above).
The transcripts and the Tribunal’s account of the hearing all reveal that the Tribunal put questions and discussed with the applicant the factual basis of his claims.
Further, the Tribunal’s account of what occurred at the hearing, and the transcripts of the hearing before the Court, reveal that the Tribunal squarely put its doubts about those aspects of the applicant’s claims in respect of which it ultimately found adverse to the applicant. These were:
1)That his son had been abducted by the Maoists. The Tribunal told the applicant that it doubted his story (CB 329.4).
2)That his return to Nepal in late 2003, or early 2004, and in 2005, suggested to the Tribunal that he had “no particular fear of returning to Kathmandu” (CB 329.4).
3)That the Tribunal doubted that Maoists from Malaysia telephoned him in Thailand (CB 329.5).
4)The Tribunal put to the applicant that independent information available to it showed that “through the years people have fled to the cities like Kathmandu … to escape the Maoists” (CB 329.8).
5)Indicated to the applicant that it would make findings about “the story of the son being abducted” and further, that the applicant’s inconsistent evidence “may give the Tribunal cause to doubt the story” (CB 330.8).
6)The Tribunal also indicated it had doubts that he and his wife received threats as claimed (CB 330.8).
In all, the issue on which the Tribunal’s decision turned was the adverse credibility findings made in relation to some aspects of his claims to fear harm, and second, his ability to return safely to live in Kathmandu. On either the Tribunal’s decision record, or either of the two transcripts before the Court, it is clear that the Tribunal put both issues to the applicant at the hearing, thereby enabling him to address those issues and provide explanations. In this regard, I am satisfied that the Tribunal fulfilled its obligations pursuant to s.425 of the Act, and its obligation in relation to procedural fairness.
Conclusion
In all, I cannot discern jurisdictional error as it is said to arise from the grounds stated in the application, nor otherwise. For the applicant to succeed in this application before the Court, such error would have to be discerned. In these circumstances, the application is dismissed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 25 July 2008
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