SZIBR v Minister for Immigration & Anor
[2006] FMCA 1490
•11 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIBR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1490 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – Application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of Nepal claiming fear of persecution for reasons of imputed political opinion – whether no evidence for Tribunal’s finding – whether Tribunal’s findings were irrational or illogical or not based upon findings of fact supported by logical grounds – credibility. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.476
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231 referred to.
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 referred to.
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte S20 of 2002 (2003) 198 ALR 59 referred to.
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 referred to.
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 referred to.
NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52 followed.
M153 of 2004 v Minister for Immigration [2006] FMCA 42 referred to.
NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 followed.
SZEOO v Minister for Immigration [2005] FMCA 1177 referred to.
S635/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1162 referred to.
| Applicant: | SZIBR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 87 of 2006 |
| Delivered on: | 11 October 2006 |
| Delivered at: | Sydney |
| Hearing date: | 10 May 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Karp |
| Solicitors for the Applicant: | Parish Patience |
| Counsel for the Respondent: | Mr Braham |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.
The Application is granted.
An order in the nature of certiorari is to issue quashing the decision of the Refugee Review Tribunal made on 24 November 2005 and handed down on 13 December 2005.
An order in the nature of mandamus is to issue requiring the Refugee Review Tribunal to re-determine the review application before it according to law.
The First Respondent is to pay the Applicant’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 87 of 2006
| SZIBR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 24th November 2005 and handed down its decision on 13th December 2005.
The Tribunal affirmed a decision of a delegate of the Minister not to grant a protection visa to the Applicant.
The Applicant seeks writs of certiorari, mandamus and prohibition.
Background
The Applicant is a citizen of Nepal who arrived in Australia on
29th April 2005. He applied for a Protection (Class XA) visa on 7th June 2005 but it was refused on 5th August. He applied to the Refugee Review Tribunal for a review of that decision.
Review by Refugee Review Tribunal
The Applicant lodged his application for review on 31st August 2005. The Tribunal wrote to the Applicant and invited him to attend a hearing on 25th October 2005. His migration agent at the time made a written submission and enclosed a number of documents for the purpose of the application.
The Applicant attended the hearing and gave evidence with the assistance of a Nepali interpreter. He affirmed his claim that he left his country because he feared that the Maoists believed that he had informed the authorities about their leader. He also feared that the police would interrogate him about this man and suspect him of supporting the Maoists.
The Tribunal’s findings and reasons
The Tribunal was satisfied that the Applicant was a citizen of Nepal. The Applicant had produced his passport at the hearing. The Tribunal noted the Applicant’s claim that he was at risk of persecution from the Maoists in Nepal because they suspected him of spying and of being connected to the arrest of a Maoist leader who was his tenant in Kathmandu. The Tribunal also noted that the Applicant feared persecution from the authorities, who were investigating him in connection with supporting the Maoists.
The Tribunal found the Applicant’s evidence of having avoided the Maoists by keeping a low profile and staying his home to be “implausible”. The Tribunal referred to country information to the effect that the situation in Nepal is “desperate” and that:
…if the Applicant were truly at risk of being harmed by the Maoists he would not have remained in his village as he said but would have fled immediately.[1]
[1] See Court Book at page 136
The Tribunal referred to a claim by the Applicant of having been assaulted by two Maoists:
The Applicant claims that he was a victim of an assault by two Maoists at his factory because they suspected he was involved in his tenant’s arrest. I am not satisfied that had the Maoists suspected the Applicant of such behaviour, he would have lived to tell the tale. As already stated above, the Maoists are brutal in their treatment of any person perceived to be an enemy. I do not accept that the Applicant was the victim of the alleged attack sometime in December 2004 as claimed. I do not accept that he suffered injury at the hands of the Maoists.[2]
[2] Court Book at 136
The Tribunal found that the applicant did not face a real chance of being persecuted by the Maoists and did not have a well founded fear of persecution for reasons of his actual or imputed political opinion or for any other Convention reason.
The Tribunal also did not accept that the Applicant was at risk of being harmed by the authorities prior to his departure from Nepal. Because of the Tribunal’s earlier finding, it did not accept that the Applicant was under suspicion by the authorities for assisting the Maoists.
The Tribunal referred to independent information to find that:
…if the Applicant was of any adverse interest to the Nepalese authorities and they were in any way suspicious that he was a Maoist supporter he would have been treated much more harshly than simply been[3] questioned on one occasion and not approached at any time again for the period of 4 months up to his departure from Nepal, legally on a passport in his own name.[4]
[3] sic
[4] Court Book at 137
The Tribunal found that the Applicant did not face a real chance of being persecuted by the Nepalese authorities for reasons of his actual or imputed political opinion should he return to Nepal and affirmed the delegate’s decision not to grant a protection visa.
Application for judicial review
The Applicant commenced proceedings in this court on 10th January 2006. His counsel obtained leave to file in court an amended application that set out the following grounds:
Ground 1
The Tribunal committed jurisdictional error in that there was no evidence of the following facts which are implicit in the Tribunal’s finding that had the Maoists suspected the Applicant of informing on one of their leaders “…he would have lived to tell the tale.”[5]
a)That the Maoists kill everybody who they consider an enemy, and
b)That they do not give warnings to their enemies.
[5] Meaning that the Tribunal was not satisfied that had the Maoists suspected the applicant he would have lived to tell the tale.
Ground 2
The Tribunal committed jurisdictional error by making findings that were irrational, illogical, or not based upon findings of fact supported by logical grounds.
Particulars:
a)The reasoning that because the Maoists are brutal towards their enemies, all their enemies whom they catch are killed.
b)The Tribunal reasoned that as it had already found that the Applicant was not threatened or harmed by the Maoists, it did not accept that he was under suspicion of assisting the Maoists by the Nepalese authorities.
Submissions
Counsel for the Applicant, Mr Karp, submitted that the Applicant had recounted two sets of circumstances which he said led to his current fear:
a)His activities involving reporting to his superiors about the effects of the Maoist insurgency, leading to the damage to his house, the destruction of his family business and his eventual flight to Kathmandu; and
b)His wife’s inadvertent renting of a self contained unit in the Kathmandu house to a Maoist district leader. This led to the apprehension of the leader and suspicion being cast upon the applicant by the Maoists and the police.
Counsel for the Applicant referred to the paragraph in the Tribunals and Reasons at Court Book 136 where the Tribunal stated:
The applicant claims that he was the victim of an assault by two Maoists at his factory because they suspected that he was involved in his tenant’s arrest. I am not satisfied that had the Maoists suspected the Applicant of such behaviour he would have lived to tell the tale. As already stated above, the Maoists are brutal in their treatment of any person perceived to be an enemy. I do not accept that the Applicant was the victim of the alleged attack sometime in December 2004 as claimed. I do not accept that he suffered injury at the hands of the Maoists.
It is submitted on behalf of the Applicant that, apart from the rather facetious suggestion that the Applicant would have to be dead to be a refugee, that the following findings may be inferred:
a)That the Maoists kill everybody who they consider an enemy; and
b)That they do not give warnings to their enemies.
Counsel for the Applicant submitted that there is no evidence to support either statement. He submitted that there is evidence to the contrary, which is contained in the annexure to the affidavit of Nicholas Alexander McNally, solicitor, dated 4th May 2006.
The document referred to in the annexure is Human Rights Watch, Between a Rock and a Hard Place: Civilians Struggle to Survive in Nepal’s Civil War, Volume 16, No.12, October, to which the Tribunal refers at Court Book 137.
Mr Karp submitted that this document contains evidence that contradicts the Tribunal’s conclusions that the Maoists kill everyone they consider an enemy and do not give warnings to their enemies.
In his oral submission he referred to pages 6, 7, 8, and 9, which contained examples of people being warned by the Maoists on occasions before being killed and people being captured and released.
The particular passages are as follows:
(a)The Maoists had repeatedly come to see Nagendra Shah to negotiate over the amount he should pay them, and finally murdered him when he refused to meet their demands.[6]
(b)Musharaff Khan was a member of a small Muslim committee in the village of Raniapur who had secretly started an anti-Maoist committee, working to counter some of the Maoist propaganda. The Maoists found out about this committee, and told him to stop his activities.[7]
(c)After being questioned, Buwan Thapa was released at about 2 a.m.[8]
(d)After half an hour, several of the men were released…All were then released, except for Girdhari Shah, who was a well-known supporter of the king.[9]
[6] At page 6
[7] At page 7
[8] At page 8
[9] At page 9
Similar evidence was reported in the other document annexed to
Mr McNally’s affidavit, the United States Department of State Country reports on Human Rights, referred to by the Tribunal at page 131 of the Court book.
Counsel for the Applicant relied on SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) ALD 402; [2003] FCAFC 231 at [18] – [20], Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [148], and Re Minister for Immigration& Multicultural & Indigenous Affairs; Ex parte S20 of 2002 (2003) 198 ALR 59 at [71]-[72]). He submitted that whilst it is clear that the Maoists in Nepal are ruthless and have engaged in sickening violence, the implied findings that the Maoists kill everybody they consider to be their enemy and that they do not give warnings to their enemies are simply not open to the Tribunal.
The Applicant’s second ground is that the Tribunal’s findings are irrational, illogical and not based upon findings of fact supported by logical grounds.
In support of that proposition, Mr Karp submitted that a further implication that arises from the passage referred to at [16] above is that because the Maoists are brutal towards their enemies, all enemies (or at least all enemies whom they catch) are killed. He submits that this reasoning is “astounding”, both from the point of view of human experience and the evidence in this case.
Mr Karp also submitted that the reasoning is perverse and that the Tribunal’s reasoning lacked a basis in findings or inferences of fact supported on logical grounds (see S20 (supra at [52]). He took issue with this extract:
As the Tribunal has already found that the Applicant was not threatened or harmed by the Maoists, the Tribunal does not accept that he was under suspicion of assisting the Maoists by the Nepalese authorities.[10]
[10] Court book at 137
The submission is that the finding is irrational, illogical and arbitrary and is infected by jurisdictional error.
Counsel for the First Respondent, Mr Braham, submitted that neither of the Applicant’s contentions could be maintained.
As to the “no evidence” ground, Mr Braham submitted that the implied findings at [17] above were not made by the Tribunal. The Tribunal concluded that, if the applicant’s version of the events were true, in those circumstances he would not have been allowed to survive.
The Tribunal did not find that the Maoists kill all their enemies or that they do not give warnings to their enemies, rather it found that a person in the Applicant’s claimed position who had been located by Maoists who suspected him of spying on them and assisting the police to arrest an operative would not have been allowed to survive.
Mr Braham submitted that there was an evidentiary basis for that conclusion on the applicant’s own evidence. He agreed that the Maoists wanted to kill him[11] and that they would kill a person they suspected of spying on them.[12]
[11] at Court Book 127
[12] at Court Book 129
It was further submitted on behalf of the First Respondent that a possible “no evidence” ground of review cannot exist where the only relevant finding of the Tribunal is as to whether or not to believe the Applicant. The Tribunal essentially accepted the Applicant’s characterisation of the Maoists as violent and efficient killers, but it did not believe the Applicant’s evidence of his own experiences.
It is for the Tribunal to decide whether or not to believe the Applicant. Credibility findings are not amenable to review (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 per McHugh J at [67]).
Mr Braham also submitted that it is not open to the Applicant to challenge the Tribunal’s decision simply on the basis of an attack on the Tribunal’s reasoning process (see Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FRCR 220 per Kenny J at [146] and the authorities reviewed there). He submitted that the “no evidence” ground is no more than an attempt at merits review and should be rejected.
As for the Applicant’s second ground, that the Tribunal’s finding was irrational, illogical or not based on findings of fact supported by logical grounds, Mr Braham submitted that this ground is no more than a restatement of the first ground and should be rejected for the same reasons.
As to the second part of the ground, relating to the Tribunal’s rejection of the Applicant’s claim to fear persecution at the hands of the Nepalese authorities, Mr Braham submitted that the sentence found at the top of Court Book 137 (As the Tribunal has already found that the Applicant was not threatened of harmed by the Maoists…) does not contain the reason for the Tribunal’s rejection of that claim, merely the fact of it. The reasons for the Tribunal’s findings are contained in the second paragraph of Court Book 137, where the Tribunal referred to independent country information to form its conclusions.
Conclusions
I will deal with the Applicant’s second ground first. The Applicant’s submission that the reasoning is “astounding, both from the point of view of human experience and the evidence in this case”[13] is an attempt at merits review, which is not available on judicial review.
The Applicant submits at [23]:
As far as human experience is concerned, neither Hitler nor Stalin, to name two mass murderers, killed all their enemies that they caught. There is no basis for supposing that the Maoists are more brutal, or more murderously efficient, than the regimes in Nazi Germany or Stalin’s USSR.
[13] Applicant’s written outline of submissions at [22]
Whether or not that submission is true, it is no more than an attempt at merits review.
The Applicant also submits that the reasoning is perverse, irrational and illogical.
The Full Court of the Federal Court has held that want of logic does not of itself constitute an error of law (NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52; see also M153 of 2004 & Ors v Minister for Immigration [2006] FMCA 42).
In NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [29] and [30] the Full Court of the Federal Court held that there is nothing in the remarks of the High Court in S20 of 2002 (supra( that would warrant a departure from the earlier line of decisions in the Federal Court that illogical reasoning does not in itself constitute an error of law or jurisdictional error (see also SZEOO v Minister for Immigration [2005] FMCA 1177 at [13] and [14]; S635/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1162 at [53]).
In my view, the Federal Magistrates Court is bound to follow the Full Court of the Federal Court’s decision in NACB (supra) and NATC (supra). The Applicant’s claim about illogicality or irrationality or making a finding not based on a finding not supported by logical grounds must fail.
The “no evidence” ground
The statement by the Tribunal at Court Book 136 has been given differing interpretations by counsel for the Applicant and counsel for the First Respondent. In my view, the proper way for the court to approach the statement is:
a)to read the statement in context; and
b)to give the words their ordinary English meaning
The statement in context is as follows:
The Applicant claims that he was the victim of an assault by two Maoists at his factory because they suspected that he was involved in his tenant’s arrest. I am not satisfied that had the Maoists suspected the Applicant of such behaviour, he would have lived to tell the tale. As already stated above, the Maoists are brutal in their treatment of any person perceived to be an enemy.
The ordinary English meaning of those words, when taken in context, is that the Maoists suspected that the Applicant was involved in the arrest of the Maoist leader and assaulted the Applicant. The Tribunal was not satisfied that, if that were the case, the Maoists would not have murdered him. They are brutal toward their perceived enemies.
That is not entirely the meaning ascribed by counsel for the Applicant. Again, the evidence referred to by counsel for the First Respondent does not accurately cover the situation, either. The fact that the Applicant gave evidence at Court Book 127 that the Maoists wanted to kill him at some stage does not necessarily contradict the Applicant’s statements.
In my view, there was evidence available to show that the Maoists kill some but not all people who they suspect to be opposed to them and there was evidence available to show that the Maoists could have killed the Applicant at some stage but did not. That evidence came from the country information referred by the Tribunal but not included in the Court Book.
In my view, the decision in SFGB (supra) applies to this case.
The decision is a one of the Full Court of the Federal Court and is binding on the Federal Magistrates Court. The finding by the Tribunal was a “critical step” in the Tribunal’s ultimate conclusion and there is no evidence to support the finding. This constitutes jurisdictional error (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357[14].
[14] Cited in SFGB at [19]
As I am satisfied that jurisdictional error has been made out, it follows that the application must be granted. Orders will be made in the nature of certiorari and mandamus. I will take submissions on costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 6 October 2006
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