SZHYV v Minister for Immigration - [2007] FMCA 341

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHYV v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 341

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in both Nepal and Bhutan – claims assessed in relation to Nepal on the basis that the applicant was either a Nepalese national or it was his country of habitual residence – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.424A
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)
Migration Litigation (Reform) Act 2005 (Cth)

Addo v Minister for Immigration [1999] FCA 940
SZBEL v Minister for Immigration (2006) 231 ALR 592

Applicant:

SZHYV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3838 of 2005

Judgment of:

Driver FM

Hearing date:

16 March 2007

Delivered at:

Sydney

Delivered on:

16 March 2007

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr J Smith

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The Court directs that the title of the first respondent be amended to the Minister for Immigration and Citizenship.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3838 of 2005

SZHYV

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 handed down on 17 August 2000. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant filed in this Court on 23 December 2005 a show cause application in relation to the Tribunal decision. He asserted actual notification of the decision on 17 August 2000. However, pursuant to item 42 of schedule 1 to the Migration Litigation (Reform) Act 2005 (Cth) the applicant is taken to have been actually notified of the Tribunal decision on 1 December 2005. On that basis I find that the application was filed within the current time limit prescribed for applications to this Court. Nevertheless, the question of the time that has elapsed between the date when the applicant was in fact notified of the decision and when he applied to this Court is one that I will return to.
The applicant had made claims of persecution both in relation to Nepal and Bhutan. The background to his protection visa claims and the Tribunal’s decision on them is summarised in the Minister’s outline of written submissions filed on 9 March 2007. I adopt as background for the purposes of this judgment, with necessary amendments, paragraphs 2 to 7 of those submissions:
The applicant arrived in Australia from Nepal on 13 February 1996. On 6 February 1998 he lodged an application for a protection visa claiming to fear persecution because he was a citizen of Bhutan although he had lived in Nepal. He said that he feared persecution in Nepal by reason of the prejudice held against Bhutanese citizens which had the effect of limiting his employment opportunities and in Bhutan on account of the difficulties experienced by people of Nepalese race within that country. On 15 April 1998 a delegate of the first respondent refused to grant the applicant a protection visa on the basis that it was not possible to ascertain the applicant’s true identity and nationality (or country of former habitual residence). On 15 May 1998 the applicant applied to the Tribunal for review of that decision.
The applicant gave evidence at a hearing conducted by the Tribunal on 7 August 2000. Amongst other things he said that he was not a citizen of any country although his mother and father had been born in Nepal.
The Tribunal handed down its decision on 17 August 2000 affirming the decision of the delegate.
Tribunal’s decision
The Tribunal found that the applicant was not a citizen of Bhutan but that he had the right to be a citizen of Nepal or that Nepal was his country of former habitual residence. In doing this the Tribunal preferred the evidence given by the applicant at the hearing conducted by it to the account contained in submissions prepared by the applicant’s advisors in support of the protection visa application. This was because there was a professional interpreter at the hearing whereas the solicitor only had the benefit of interpretation through a Nepali man whose skills were unknown.
The Tribunal considered that the applicant would not face persecution in Nepal because the economic hardship upon which the applicant’s fears were based did not amount to persecution. Further, it found that he would not be persecuted on the basis that he had entered Nepal from Bhutan both because he would not be identified as a Nepali refugee from Bhutan but also because even if he were then the scorn and criticism to which he may be subject did not amount to persecution.
For these reasons the Tribunal affirmed the decision under review.
The application before the Court raises several grounds of review. The application asserts that the Tribunal did not identify favourable country information. Secondly, it asserts that the Tribunal did not comply with procedures required to be followed by the Migration Act 1958 (Cth). Thirdly, the application asserts that there was no evidence to justify the making of the Tribunal decision.
The application is supported by a short affidavit filed on the same day in which the applicant asserts Bhutanese citizenship and a well‑founded fear of persecution. He also states that he disagrees with the decision of the Tribunal and repeats the grounds of review. I accepted that affidavit as a submission. The applicant also relies upon written submissions filed on 7 June 2006. In those submissions he asserts a breach of the rules of natural justice, a failure to address a sur place claim and that the Tribunal ignored the question of whether the applicant had a well-founded fear of persecution in Bhutan. The applicant also addresses in more detail the grounds for review set out in the application. He asserts conduct by the presiding member which, if true, might support a finding of a reasonable apprehension of bias.
The Tribunal was faced with a difficulty of real substance in this case. That was that it was unclear where the applicant came from. His protection visa claims were based upon Bhutanese citizenship although the applicant had been living for at least a decade in Nepal. He came to Australia from Nepal. It was obviously necessary for the Tribunal to attempt to make an assessment of the applicant’s claims by reference to a country of nationality or at least of habitual residence. The applicant was invited to attend a hearing before the Tribunal and gave evidence on 7 August 2000. At the hearing the information that he provided orally was markedly different to his protection visa claims. In particular he claimed to be a citizen of no country. He also gave evidence inconsistent with documentary material which had been presented in support of his protection visa application.
The Tribunal decided to accept the oral evidence of the applicant in preference to his earlier written claims. The Tribunal took into account that it had the benefit of a qualified Nepalese interpreter whereas it did not have confidence that those assisting the applicant with his protection visa claims had the same benefit. The Tribunal had regard to the Nepali Citizenship Act in deciding that on the basis of the facts recited by the applicant orally at the hearing he was always entitled to be a Nepali citizen. The Tribunal made an alternative finding that if he was not a Nepali citizen Nepal was his country of former habitual residence. The Tribunal rejected as fabrications documents presented to the Minister’s Department which went to his asserted Bhutan citizenship on the basis that the applicant’s oral evidence was inconsistent with them and he knew nothing of those documents because they had been obtained by his father.
The Tribunal then proceeded to assess the applicant’s claim in relation to Nepal. The Tribunal found that while the applicant faced difficult economic circumstances in Nepal he was not at risk of harm amounting to persecution there. The Tribunal found that he was not at risk of harm in Nepal as a person who had come from Bhutan. The Tribunal therefore found that Australia owed no protection obligations to him.
In the proceeding in this Court the applicant seeks to revert to his original protection visa claims that he is a citizen of Bhutan. As I pointed out to the applicant it is not the function of this Court to make any decision on his refugee status.
The only evidence that I have before me in relation to the Tribunal decision is the book of relevant documents filed on 24 February 2006. On the basis of the record of the Tribunal decision I find that the hearing opportunity afforded the applicant was a fair one. The decision record discloses that the presiding member’s concerns were put to the applicant and he was given the opportunity to respond. At the relevant time, as well as having the obligation to accord procedural fairness to the applicant, the Tribunal was also subject to s.424A of the Migration Act. I accept the Minister’s submission that the decision of the Tribunal turned upon the information given by the applicant orally at the hearing conducted by the Tribunal. In the circumstances, s.424A(3)(b) applied. The Tribunal was under no obligation to disclose in writing that information to the applicant.
This is not a case in which the Tribunal made adverse credibility findings about an applicant. Although there were inconsistencies between the protection visa claims and the claims made at the hearing an applicant may be permitted by a tribunal to resile from earlier written claims in favour of current claims made orally. Where that occurs and it is the current claims made orally which are determinative of the outcome of a case. The earlier inconsistent claims if abandoned are not determinative. I think in substance that is the position here. The Tribunal decision did not turn on the earlier inconsistent protection visa claims or upon the documents that were rejected as fabrications. It turned upon the claims made orally by the applicant at the hearing which the Tribunal elected to deal with in preference to the other claims.
In other respects I agree with and adopt with necessary amendments for the purposes of this judgment paragraphs 8 to 11 of the Minister’s written submissions:
The applicant raises a number of grounds in his application: First, that the Tribunal did not identify necessary parts of important country information that was favourable and supportive of the applicant’s case and that this was done intentionally. Secondly, that the Tribunal did not have regard to material procedures required by the Act. Third, that there was no evidence or otherwise to justify the making of the Tribunal’s decision.
There is no suggestion in the material before the Court that even if the Tribunal did overlook some information that was favourable to the applicant this was done intentionally. In any event, the mere fact that favourable information is not mentioned in the Tribunal’s decision does not mean that the Tribunal has not had regard to it. There is no obligation under s.430(1) on the Tribunal to set out all of the evidence that it considers for the purposes of making its decision; or rather, it is only obliged to refer to the evidence and material upon which it bases its material findings of fact: Addo v Minister for Immigration [1999] FCA 940 at [24] and [31]. Accordingly, there is no basis for inferring any relevant information was overlooked.
The applicant does not specify which material procedures he alleges that the Tribunal failed to observe in making its decision. It is abundantly clear that the Tribunal invited the applicant to attend a hearing and that he did attend. Given that the delegate had rejected the application on the basis that he or she could not be satisfied of the applicant’s citizenship or true identity there is no issue here of denial of procedural fairness in any circumstances similar to those considered by the High Court in SZBEL v Minister for Immigration (2006) 231 ALR 592. Further, the Tribunal’s rejection of the documents relied upon by the applicant was based on the applicant’s own evidence and also the fact that the applicant said at the Tribunal hearing that he did not know about them because his father had arranged them. In these circumstances there was neither a denial of procedural fairness in the rejection by the Tribunal of the documents nor any obligation under s.424A in respect of any information because the information relied upon by the Tribunal was given by the applicant for the purpose of the application for review and so fell within s.424A(3)(b). This ground ought to be rejected.
The no evidence ground faces the difficulty that the Tribunal’s decision was based upon evidence given by the applicant at the Tribunal hearing. This evidence included the fact that the applicant was not a citizen of any country and particularly not of Bhutan, that his parents had been born in Nepal and that he agreed with the Tribunal’s suggestion that his problems in Nepal were that he was illiterate, had no technical skills and could only obtain menial labouring work which didn’t pay very well and it was this that caused him a hard life: court book, page 69.1.
Even if jurisdictional error had been demonstrated in this case I would have been inclined to refuse relief in the exercise of discretion. The applicant delayed five years in bringing this present proceeding. I understand that at the time the applicant was in fact notified of the Tribunal decision he had the option of applying to the Federal Court within a strict time limit of 28 days or to the High Court pursuant to more generous time limits. He took neither course. The applicant told me from the bar table that he was an illiterate and uneducated man and had no idea what he should do. However, he was represented by solicitors before the Tribunal. He could have obtained advice from those solicitors.
The applicant has not persuaded me that there is any plausible explanation for the very long delay in bringing this proceeding. I am left with the belief that the delay is probably only explained by the applicant’s desire to prolong his stay in Australia. If the applicant now wishes his claims in relation to Bhutan to be considered further or if he seeks humanitarian consideration, taking into account that he has now lived in this country for 11 years, he has the option of seeking that consideration from the Minister.
I will order that the application be dismissed on the basis that no jurisdictional error is disclosed, this is the first judicial review application in respect of the decision and the decision is therefore a privative clause decision, having regard to the transitional provisions in paragraph 8(2)(b) of Schedule 1 to the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).
The application having been dismissed, costs should follow the event. The Minister seeks scale costs. The applicant referred to his impecuniosity but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of Part 2 of Schedule 2 to the Federal Magistrates Court Rules 2001 (Cth). I will also direct that the title of the first respondent be amended to the Minister for Immigration and Citizenship.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 21 March 2007