SZHYN v Minister for Immigration and Citizenship

[2007] FCA 1436

FEDERAL COURT OF AUSTRALIA

SZHYN v Minister for Immigration and Citizenship [2007] FCA 1436

SZHYN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1073 OF 2007

GRAHAM J
15 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1073 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHYN
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	15 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent Minister’s costs.

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 1073 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHYN
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE:	15 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant, who has been identified for the purposes of these proceedings as SZHYN, was born in Nepal on 30 September 1977.  On or about 25 December 2003 he obtained a Nepalese passport.  On 14 June 2005 or thereabouts he obtained an Australian visa.  On 8 July 2005 he left Kathmandu in Nepal and on 9 July 2005 he arrived in Australia. 

2. On 5 August 2005 the appellant applied for a Protection (Class XA) visa.  On 27 August 2005 that application was refused by a Delegate of the Minister.  On 20 September 2005 he applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the Minister’s Delegate’s decision.

3. It would appear that in the preparation of his application for a Protection (Class XA) visa the appellant was assisted by a migration agent.  That migration agent assisted him with the preparation of his application for review by the Tribunal and represented him at a hearing of the Tribunal which took place on 10 November 2005. 

4. On 13 October 2005 the Tribunal invited the appellant to attend a hearing on 10 November 2005 and on 18 October 2005 the appellant responded to that invitation indicating that he wished to be present.  On 10 November 2005, that is to say, the day of the hearing, the migration agent wrote a letter to the tribunal on the appellant’s behalf providing it with certain information and documents.

5. On 11 November 2005 the migration agent wrote a further letter to the Tribunal on the appellant’s behalf which, amongst other things, sought a further opportunity to be heard if the Tribunal was not satisfied with what had been put to it.  On 11 November 2005 the Tribunal responded to that letter indicating that if anything further was to be said the opportunity was there to do so.  On 14 November 2005 a further letter was sent by the appellant’s migration agent to the Tribunal. 

6. On 21 November 2005 the Tribunal decided that the decision of the Minister’s Delegate not to grant a protection visa to the appellant should be affirmed.  That decision was handed down on 8 December 2005.

7. On 22 December 2005 the appellant filed an application in the Federal Magistrates Court of Australia seeking constitutional writ relief in respect of the Tribunal’s decision.  That application set out certain grounds as follows:

   ‘1.TRIBUNAL DID NOT CONSIDER ALL ASPECTS OF MY CLAIMS IN MAKING ITS DECISION.  TRIBUNAL FAILED TO ADDRESS THE CULTURAL ISSUES IN RELATION TO MY CIRCUMSTANCES IN NEPAL.  TRIBUNAL FAILED TO ADDRESS THE GROUND REALITY OF MY COUNTRY, MY VILLAGE & MY FAMILY IN MAKING ITS DECISION.  ALL THESE ISSUES WERE EXPLAINED TO THE SATISFACTION OF A REASONABLE NEUTRAL PERSON IN MY SUBMISSIONS.

   2.TRIBUNAL DID NOT CONSIDER AND TEST MY ARRESTS AND TORTURE AND CONTINUOUS MENTAL AND PHYSICAL HARRASSMENT (sic) CAUSED TO MY FAMILY BY SECURITY FORCES OF NEPAL.

   3.TRIBUNAL GAVE NO WEIGHT TO THE DOCUMENTS OBTAINED (RECEIVED) FROM INDEPENDENT SOURCES.  IT GAVE NO REASONS WHY THE DOCUMENTS WERE NOT CONSIDERED.

   4.TRIBUNAL MADE BIASED DECISION WITH PREDETERMINED MIND.

   5.TRIBUNAL’S ALL CONCERNS WERE ADDRESSED BY ME & MY MIGRATION AGENT AND INDEPENDENT EVIDENCES WERE PROVIDED IN SUPPORT OF OUR (MY) ARGUMENT.  TRIBUNAL PROVIDE NO REASONS WHY SUCH MATERIAL SUBMISSIONS WERE REJECTED.

   6.        TRIBUNAL’S DECISION IS ERROR IN LAW.

   7.        TRIBUNAL MISUSED ITS DECISION MAKING POWER.

   8.TRIBUNAL’S DECISION IS THUS JURISDICTIONALLY FULL OF ERROR.’

8. On 28 April 2006 an ‘Ammedned (sic) Application’ was filed in the Federal Magistrates Court of Australia by the appellant.  The grounds of the application on this occasion were expressed as ‘Tribunal’s made Jurisdictional error in making decision on my application’.  The grounds were particularised as follows:

   ‘Particulars

   Tribunal did not consider relevant information provided to it

   On November 2005, my advisor lodged a submission to RRT addressing its concerns.  My advisor submitted in writing the following:

   ØHow I survived in Kathmandu for several months

   ØWhy it was possible for me to depart Nepal using an agent

   ØWhat made my parents not to relocate (sic) from our permanent residence

   Tribunal did not consider the submission which have addressed all of the tribunal’s concerns.

   Tribunal has accepted in its decision that there is corruption & malpractices (sic) by authorities in Nepal, including at the airport from which I left Nepal.  However, it did not accept that I could depart Nepal using agent who has arrangement at airport.

   My agent submitted the culture of Nepali people in helping each other.  Tribunal did not mention anything about this submission in its findings & reasons.  It did not accept or reject the submission.  In Kathmandu, I managed to stay at several months with the help of my friends.  This is general culture of Nepali friends & relatives.  Tribunal did not consider culture of Nepali people in arriving at its decision.  It even did not reject my claims.  It did not mention anywhere why it did not consider the submission from my advisor.

   My agent submitted that my parents were not directly targeted.  At the time when the whole Nepal is suffering, there are hundreds of people like my family who has to take risk of life because of no choices.  This was submitted to the tribunal, however the submission was not considered in its findings & reasons.

   Tribunal’s finding based on impractical imagination than ground reality
   Tribunal is required by law to take all reasonable steps to understand the ground reality of Nepal in making decision on my application.  It has been unable to understand Nepali culture, tactics of Nepali security official & people’s no choice position.

   For example:
   Tribunal noted, “The tribunal does not accept the applicant as a witness of truth.  In the Tribunal’s view it is not plausible that the applicant was able to remain in Nepal from the end of September 2004 until he left for Australia in July 2005 if the authorities were searching for him to arrest/kill him as he claims and there was a warrant for his arrest because he had not reported to police/authorities.  Although he says that after he was released from goal (sic) he moved around and lived in one place for 15 to 20 days and in another for 10 to 12 days, his remainder of the period about 7 months or more, prior to coming to Australia on 9 July 2005.  The Tribunal does not accept that he was able to avoid authorities during this time because he remained inside the house all of this time”.

   As many others I stayed underground until I departed Nepal.  Why tribunal does not accept that?  What made tribunal not to accept that I was able to hide?  Can’t people like me stayed unharmed staying underground?  Tribunal’s reasoning is based on nothing.

   Tribunal noted, “The Tribunal does not accept that the applicant was detained for supporting the Maoist and then released as he claims in August/September 2004.  In the Tribunal’s view his explanation for his release, namely that he was released because of “community pressure” is not plausible given the political climate and violence and abuses which have taken place between Maoists and their supporters and Government authorities.  It follows that the Tribunal does not accept that the “letter pertaining to release …; is evidence of the facts therein.  The Tribunal notes that this letter refers to the applicant’s “involvement with Maoist terrorists”.  Given the political climate, in the Tribunal’s view it is implausible that the applicant would be released as he claims in the circumstances set out in the letter.”

   What made Tribunal not to accept my claims?  People are arrested & released daily.  Some people are released based on no evidence, some people are released based on no evidence & community pressure.  I was released because they did not have any hard evidence against me & because of social pressure.  It is happening in Nepal every day.  Tribunal has not referred to any case or any incidents or any evidence to support its finding.  Tribunal can not make its finding based on nothing.  There should be some grounds for tribunal to arrive at its finding on an issue.

   Tribunal noted, “The Tribunal does not consider that the documents which the applicant has produced to the Tribunal to support his claims assist him.  The Tribunal does not accept these documents as reliable evidence of the facts contained in them.  There is no plausible explanation as to why the warrant document (“To arrest and handover” the applicant), which is expressed to be issued because he did not report after his release on 29 September 2004, would be issued in May 2005, some eight months after his failure to report.  Further the Tribunal does not accept, given the wording of the document, that the Amnesty International document is a genuine document based on independent enquires (sic) by that organization.  The Tribunal considers that this document and the other two documents were obtained for the purpose of giving credibility to the applicant’s claim and in the Tribunal’s view they do not provide reliable evidence to support the applicant’s claims.”

   Tribunal can’t expect me to answer the questions that could only be answered by the relevant authority who prepared it.  What evidence tribunal has before it to support its claims?  Why these documents was found not genuine?  There is no explanation in the decision. 

   Tribunal noted, “The applicant left his country legally using a passport and visa in his own name.  The Tribunal does not accept as truthful the applicant’s evidence that he could only do so because his agent talked to police and because of corruption at the airport.  Not (sic) does the Tribunal accept that the applicant’s family are being harassed by police/Government authorities in Nepal.  The applicant’s family are being harassed by police/Government authorities in Nepal (sic) [The last sentence was not part of the Tribunal’s Decision Record].  The applicant’s evidence is that they are still living in the family home where they have lived all their life.”

   Tribunal accepted that there is corruption and malpractices in airport.  My advisor’s submission & independent evidences suggest the same.  On what basis tribunal arrived at decision that I was not able to leave airport with the help of agent who has connection at the airport?  I never claimed that my parents were under life threatening situation & have well founded fear of persecution in Nepal.  They are constantly being harassed by security forces.  It is normal lifestyle of a large number of Nepali people.  My parents did not relocate does not mean that I was not followed by security forces & and my family was not harassed.  Again, tribunal made decision without understanding the ground reality.  My advisor’s submission clearly explains this.  Tribunal did not consider the submission in arriving at its decision.  Tribunal has not discussed this issue & did not comment on or did not provide any reasons not to accept my advisor’s submission. 

   Tribunal did not follow UN guidelines & relevant laws in determining my application.

   A decision maker who determine refugee application should have sound understanding of the country and its culture of the applicant from (sic).  I am from heavily conflict affected country.  Having no knowledge or little knowledge about my country, the tribunal member is not able to make correct decision.  The presiding member does not have real understanding of the situation of Nepal & the situation & suffering Nepali people are going through.  This decision is made with inappropriate research & knowledge of reality of Nepal.  So, the decision is illegal. 

   All the above mentioned grounds & explanation confirms that the RRT decision constitutes jurisdictional error.  That’s why my application should be remitted to RRT for reconsideration.

9. In its ‘REASONS FOR DECISION’ the Tribunal, constituted by Tribunal Member Ms Long, said:

   ‘The applicant stated that he was sent the three documents which he had submitted, together, in August 2005.  He produced the originals of the three documents plus an envelope and plastic courier bag with its mailing docket dated 29 August.  The originals of the three letters were returned to him at the conclusion of the hearing.’

10. The three documents mentioned have been reproduced together with translations in the appeal book although in the case of one translation the date has not been recorded according to the calendar which operates in Australia.  One letter, said to have been dated 17 May 2005, could loosely be described as an arrest warrant.  As translated it states:

    ‘Subject: To arrest and handover

    This is an order to immediately arrest and handover 28 years old [SZHYN] … after he had not presented himself before this office while being released on a date on …
    (29/09/2004) by the office, also an information has been received that he had re-joined the terrorist activities of CPN (Maoist).’

    The document is said to have been signed by a Police Inspector. 

11. The second document is said to be an Amnesty International document ‘To Whom It May Concern’ dated August 5, 2005.  The translation includes:

    ‘1.[SZHYN] son of …, was detained … following a raid conducted by the Armed Police at their residence at 6 a.m. on … (Aug 31, 2004), following suspicions of his involvement with CPN (Maoists).

    2.On … (29/09/04), after necessary interrogation, the District Police Office released [SZHYN] on condition to attend police office weekly.

    3.[SZHYN] had gone underground after his release from the police custody on … (29/09/04).

    4.Armed Police team had searched [SZHYN]’s house after his disappearance and have inflicted several atrocities, including [SZHYN’s father], in the pretext of acquiring information about [SZHYN].  [SZHYN’s father’s] family had been terrorized several times, by abuses, manhandling, vandalism and threats [e.g.: “your entire family will be killed if you don’t handover your son to us.”].

    …’

12. The third document entitled ‘Subject: Letter pertaining to release on date’, which does not indicate a date in the Australian calendar, said or included:

    ‘This is to inform you that you have been released on date on the condition that you present yourself at this office every Monday at 10 a.m. as a further investigation had been scheduled [regarding your involvement with Maoist terrorists] after your interrogation on the basis of evidences related to the Maoists following search operation conducted at your house on … (31/08/2004).’

    That letter was directed to SZHYN.

13. Before proceeding to consider the reasons for decision of the Tribunal, it is appropriate to refer to a passage from the judgment of Gleeson CJ in Re MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS; Ex parte APPLICANT S20/2002 (2003) 198 ALR 59 at [12] where his Honour said:

    ‘[12]   … The essence of the complaint is that the tribunal failed to consider the evidence as a whole, but first considered, and disbelieved, the evidence of the applicant/appellant, without taking account of the corroboration, and then considered and rejected the corroboration because of the rejection of the evidence of the applicant/appellant.  I do not accept that this is a fair criticism of the tribunal’s reasons. … It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.’

14. The making of decisions to grant or refuse visas is governed by s65 of the Migration Act 1958 (Cth) (‘the Act’) which relevantly provides:

    ‘65(1) After considering a valid application for a visa, the Minister:

    (a)        if satisfied that:

    …

    (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and

    …

    is to grant the visa; or

    (b)       if not so satisfied, is to refuse to grant the visa.’

15. In relation to a protection visa, the relevant criterion is set out in s 36(2) of the Act, which relevantly provides:

    ‘36(2)  A criterion for a protection visa is that the applicant for the visa is:

    (a)a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol;  …’

    The reference to the Refugees Convention and the Refugees Protocol are references to the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (collectively referred to as ‘the Refugees Convention’).   The Refugees Convention defines, in Article 1(A), the term “refugee” as follows:

    ‘… the term “refugee” shall apply to any person who:

    (2)          … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.’

16. It is important to remember the proceedings before the Tribunal are inquisitorial rather than adversarial. 

17. The Tribunal conducting an inquiry is obliged to be fair.  However, the Tribunal is not in a position of a contradictor of what is being advanced by an applicant.  In a case such as that brought by the appellant under his application for review to the Tribunal, it was for him to advance whatever evidence or argument he wished to advance and for the Tribunal to decide whether his claim that he was a refugee within the meaning of the Refugee’s Convention had been made out.  The Tribunal was not obliged to prompt and stimulate an elaboration which he may have chosen not to embark upon (see per Gummow and Heydon JJ in Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs); ex parte APPLICANT S154/2002 (2003) 201 ALR 437 at [57]-[58])).

18. The reasons for decision of the Tribunal in this case occupy some 13 closely typed pages.  The reasons incorporate an elaborate summary of the appellant’s claims and evidence and set out independent evidence and the findings and reasons of the Tribunal.  In summarising the appellant’s claims and evidence, the Tribunal used expressions indicating that the Tribunal had concerns with the case which the appellant was advancing.  Ultimately, the Tribunal made a number of positive findings.  In explaining its reasons for those findings, the Tribunal indicated that it did not accept the appellant as a witness of truth.

1. The Tribunal did not accept that the appellant was able to avoid authorities during the period of several months following his release from detention until he departed for Australia on 9 July 2005.  The Tribunal did not accept that the appellant was detained for supporting the Maoists and then released, as he claimed, in August/September 2004.  The Tribunal did not accept that the documents to which reference has been made provided reliable evidence of the facts therein.  The Tribunal was of the view that it was implausible that the appellant would have been released as he claims in the circumstances set out in the last mentioned letter to which reference was made above.  The Tribunal noted that there was no plausible explanation provided as to why the arrest warrant document would be issued as late as May 2005 when the appellant had failed to honour his alleged reporting condition for a period of some eight months.  The Tribunal was concerned that if the circumstances were as the appellant claimed, he would not have been able to leave the country legally using a passport and visa issued in his own name. 

2. The Tribunal concluded that the appellant was not a person to whom Australia had protection obligations under the Refugees Convention.  Nothing that has been said in the Amended Application filed by the appellant in the Federal Magistrates Court supports a finding that the Tribunal committed jurisdictional error.

3. The application for constitutional writ relief which was brought by the appellant was heard by Raphael FM on 24 May 2007 and decided by his Honour on that day.  His Honour dismissed the application and ordered the appellant to pay the Respondent Minister’s costs in the sum of $4,000.  In his Honour’s reasons for judgment he said:

   ‘In the instant case the Tribunal has explained why it believes that the evidence of the applicant was implausible.  Another Tribunal may not have felt the same, but this Court is not a court of appeal:  it is exercising the power of the High Court to provide judicial review.  Any disagreement it may have with the conclusions reached by the Tribunal should be kept private.   The Tribunal appears on the face of the document provided to this Court to have exercised its powers properly and in the circumstances I am unable to accede to the applicant’s request for the issue of constitutional writs. …’

4. On 14 June 2007 the appellant filed a Notice of Appeal in this Court appealing from the decision of Raphael FM.  It indicated that the appeal raised the following questions of law:

   ‘TRIBUNAL DID NOT CONSIDER ALL ASPECTS OF MY CLAIMS

   TRIBUNAL DID NOT CONSIDER THE EVIDENCES PROVIDED IN RELATION TO MY APPLICATION

   TRIBUNAL MADE DECISION WITH PRE-DETERMINED MIND & BIASNESS (sic)

   TRIBUNAL MADE ERROR OF LAW IN MAKING DECISION.’

5. The grounds specified in the Notice of Appeal were as follows:

   ‘1.TRIBUNAL DID NOT CONSIDER ALL ASPECTS OF MY CLAIMS.  TRIBUNAL FAILED TO ADDRESS THE CULTURAL ISSUES IN RELATION TO MY CIRCUMSTANCES IN NEPAL. TRIBUNAL FAILED TO ADDRESS THE GROUND REALITY OF MY COUNTRY, MY VILLAGE & MY FAMILY IN MAKING ITS DECISION.  ALL THESE ISSUES WERE EXPLAINED TO THE SATISFACTION OF A REASONABLE PERSON IN MY SUBMISSION.

   2.TRIBUNAL DID NOT CONSIDER AND TEST MY ARRESTS AND TORTURE AND CONTINUOUS MENTAL & PHYSICAL HARRASSMENT (sic) CAUSED TO MY FAMILY BY SECURITY FORCES OF NEPAL.

   MY CASE IS SIMILAR TO THE CASE WHICH WAS DECIDED ON 11 MAY 2007 BY FEDERAL MAGISTRATE DRIVER IN WHICH HE SET ASIDE THE TRIBUNAL’S DECISION ON THE GROUND OF APPREHENDED BIAS …

   3.TRIBUNAL GAVE NO WEIGHT TO THE DOCUMENTS OBTAINED FROM INDEPENDENT SOURCES SUCH AS AMNESTY INTERNATIONAL WITHOUT ANALYSING THE DOCUMENTS AND BASED ON ITS IMAGINATION OLIY (sic).

   4.TRIBUNAL MADE DECISION WITH PREDETERMINED MIND

   5.TRIBUNAL FAILED TO PROVIDE EXPLANATION AND REASONING IN REJECTING MY CLAIMS.

   6.TRIBUNAL MADE ERROR IN LAW.’

6. The appellant was conscious of the invitation from the Court to provide written submissions in support of his Notice of Appeal but declined to do so.  He says that the only matter that he has advanced is to be found in his Notice of Appeal and the earlier Application and Amended Application in the Federal Magistrates Court. 

7. The appellant’s oral submissions were to the following effect:

   ‘I feel the Tribunal did not make investigation, it did not believe me and made their decision there and then.  I would like investigation. What I have said is the truth.’

8. It is apparent that the appellant is simply dissatisfied with the decision of the Tribunal and seeks a merits review of it in this Court.  Plainly, he is not entitled to such a review on an appeal from a decision of the learned Federal Magistrate dismissing an application for constitutional writ relief in respect of the decision of the Tribunal.  In the foregoing circumstances the appeal should be dismissed. 

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:        12 September 2007

The Appellant appeared in person.
Counsel for the First Respondent:	L Clegg
Solicitor for the First and Second Respondents:	Blake Dawson Waldron
Date of Hearing:	15 August 2007
Date of Judgment:	15 August 2007