SZIEW v Minister for Immigration
[2009] FMCA 352
•30 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIEW v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 352 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision – citizen of Nepal claiming fear of persecution by government security forces and by the Maoists – credibility – where the Tribunal failed to consider the reasons for the remittal of the application – jurisdictional error – certiorari and mandamus to issue. |
| Migration Act 1958 (Cth), ss.91R, 474, 476 |
| SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 SZIEW v Minister for Immigration & Anor [2007] FMCA 561 Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59; [2003] HCA 30 WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188 SZIEW v Minister for Immigration and Citizenship [2008] FCA 522 S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 |
| Applicant: | SZIEW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3129 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 February 2009 |
| Date of Last Submission: | 17 February 2009 |
| Delivered at: | Sydney |
| Delivered on: | 30 April 2009 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Newman |
| Solicitors for the Applicant: | Newman & Associates |
| Counsel for the Respondents: | Mr Cleary |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
That an order in the nature of certiorari is to issue to quash the decision of the Second Respondent signed on 17 October 2008 and handed down on 28 October 2008 affirming the decision not to grant the Applicant a Protection (Class XA) visa.
That an order in the nature of mandamus is to issue remitting the Applicant’s application for review of a decision not to grant him a Protection (Class XA) visa to the Second Respondent for determination according to law.
That the First Respondent is to pay the Applicant’s costs fixed in the sum of $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3129 of 2008
| SZIEW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This application is an application for review of a decision of the Refugee Review Tribunal that was signed on 17th October 2008 and handed down on 28th October, affirming a decision not to grant the Applicant a Protection (Class XA) visa.
The Applicant asks the Court to make two orders:
i)an order quashing the Tribunal’s decision; and
ii)remittal of the matter to the Tribunal differently constituted.
The application for an order in the nature of mandamus requiring the Tribunal to be “differently constituted” is to my mind problematic, as the Full Court of the Federal Court in SZEPZ v Minister for Immigration and Multicultural Affairs[1] has expressed doubt that the Federal Magistrates Court has the power or jurisdiction to direct that the Tribunal be differently constituted for the purpose of reconsidering the application for review. The constitution of the Tribunal is a matter for the Principal Member[2].
[1] [2006] FCAFC 107
[2] [2006] FCAFC 107 at [30]
The Applicant relies on this ground:
The grounds of the Application are: The Federal Court held in SZIEW v MIAC [2008] FCAFC 522 that “When the evidence is legally available for consideration notwithstanding that the person who was the original source of the information is not present, the Tribunal must do its best to assess the weight to be given to the evidence of the absent person. This will involve such questions as the likely truthfulness and means of knowledge of that person and how accurately the witness actually before the Tribunal is likely to have reported the original statement. The absent person in this case was a Maoist rebel leader, speaking to a relative and naming another person as a fellow Maoist rebel leader. This, on the face of it, can only be inferred to have been a conversation between trusted intimates in which the original maker of the statement is likely to have known what he was talking about.”
The Tribunal refused, despite this ruling, to make any assessment of the evidence of the oral witness who said that she heard from relatives that the Applicant’s husband had become a Maoist (other than to reject it) on the basis of the Tribunal’s view that the Applicant lacked credibility and in so doing ignored relevant evidence.
Background
The Applicant is and was found by the Tribunal to be a national of Nepal. She arrived in Australia on 16th February 2005. She applied for a Protection (Class XA) visa on 30th March 2005, but her application was refused by a delegate of the Minister for Immigration and Citizenship[3] on 15th July 2005.
[3] then the Minister for Immigration and Multicultural and Indigenous Affairs
The Applicant claimed, in a statutory declaration dated 27th March 2005, that she feared persecution in Nepal because:
a)her estranged husband has been working for the Maoists in Nepal, which would make her a target of the government; and
b)she disagrees with the philosophy and policies of the Maoists, which would make her a target of the Maoists, also.[4]
[4] Court Book 26-27
The Minister’s delegate was not satisfied that the Applicant’s claims to fear persecution were either well-founded or credible. The delegate noted that the Applicant had been separated from her husband for over two years and had not suffered any adverse consequences. She gave no reason to show that the security forces in Nepal knew about her husband’s possible involvement with the Maoists.
The delegate also noted that the Applicant had left her children in Nepal. She had first come to Australia in 2003 and returned to Nepal in 2004. She had left her children in Nepal at that time. She claimed to fear for her children’s safety, but had not brought them to Australia with her when she left Nepal for the second time.
The delegate found:
The applicant’s fear of persecution from both the Nepalese security forces and the Maoists is entirely speculative and without any reasonable grounds. There is nothing in her own background or the country information to indicate she might be a target for either party.
According to the country information on Nepal, school children are a particularly vulnerable group as they are targeted by the Maoists. It therefore makes no sense that the applicant would flee Nepal for fear of persecution yet leave her children behind.[5]
[5] Court Book 40
The Applicant applied to the Refugee Review Tribunal for a review of that decision on 1st August 2005. The Tribunal affirmed the decision not to grant a protection visa to the Applicant on 8th December 2005.
The Applicant sought judicial review of the Tribunal decision by means of an application to the Federal Magistrates Court. On 19th June 2006 Lloyd-Jones FM made orders by consent issuing writs of certiorari and mandamus, returning the applicant’s application for a visa to the Tribunal.
On 25th October 2006, after another hearing, the Tribunal, differently constituted, again affirmed the delegate’s decision. The Applicant again sought judicial review of the Tribunal decision.
On 16th April 2007 the application for judicial review was dismissed (SZIEW v Minister for Immigration & Anor[6]). An appeal was upheld and the application was again remitted to the Tribunal for reconsideration according to law (SZIEW v Minister for Immigration and Citizenship[7]).
[6] [2007] FMCA 561
[7] [2008] FCA 522
The Third Tribunal Decision
The Tribunal wrote to the Applicant’s migration agent on 27th May 2008, inviting the Applicant to submit any further documents or written arguments not previously provided to the Tribunal. On 11th June 2008 the Tribunal invited the Applicant to attend a hearing that was scheduled to take place on 7th July 2008.
The Applicant attended the hearing and gave evidence with the assistance of a Napli (Nepalese) interpreter. She produced an article downloaded from the International Herald Tribune dated 29 May 2008 about the abolition of the monarchy in Nepal.[8]
[8] Court Book 199-200
The Tribunal handed down its decision on 28th October 2008, affirming the decision not to grant the Applicant a Protection (Class XA) visa.
The Tribunal, in its findings and reasons, made scathing remarks about the credibility of the Applicant’s evidence:
113. On the inconsistent evidence before it, the Tribunal does not accept that the Applicant considered her marriage problem-free until after she came back from Australia and learned new information about her husband and his politics.
114. The Tribunal does not believe the Applicant’s inconsistent and far-fetched claims about suspecting and finding out that her husband was a Maoist.
115. The Tribunal does not believe the Applicant’s inconsistent claims about strange visitors who, in disparate versions of events, came only as far as the front gate, or spent evening[9] or stayed the night with her husband behind locked doors.
116. The Applicant failed to convince the Tribunal that such visitors were or could rationally be construed to be Maoists.
117. The Tribunal does not accept the Applicant’s poorly-argued claims about the police taking an interest in her husband because he was a Maoist. The Tribunal gives weight, rather, to the applicant’s claim that the police came to her house when her father-in-law reported his son’s violent behaviour.
118. Generally, the applicant made clumsy efforts to re-cast as Convention-related claims the difficult economic and social decisions she was having to make concurrent with the decline in her marriage to a man who had been violent and exploitative for many years…The Applicant’s claims tended to follow this pattern of bald assertions about her husband and his Maoist activities, but the Tribunal finds that those claims do not stand up to close examination.[10]
[9] sic
[10] Court Book 219
The Tribunal was no less scathing about the material produced by the Applicant in support of her claim and about the evidence of a woman at the second Tribunal hearing, saying:
The Tribunal gives no weight to the many letters and statutory declarations written in support of the Applicant. For a start many of them cite the Applicant and/or her family as the source of their information. In view of the Applicant’s own lack of credibility, the Tribunal is of the view that the many witnesses here have willingly or unwittingly echoed the baseless factual ambits of the Applicant and/or her family. Owing to the same negative views about the Applicant’s credibility, the Tribunal does not accept the evidence of the oral witness who said she had heard from relatives that the Applicant’s husband had become a Maoist.[11]
[11] Court Book 219-220 at [119]
The Tribunal had referred to the evidence of the witness at the second hearing in this way:
41. Significantly, the Applicant presented a witness at the hearing before the second Tribunal. The witness said she had known the Applicant back in Nepal because the latter used to come into her shop there. She said she visited the Applicant’s children at their boarding school in 2006. She said that one of her own relatives had been arrested as a Maoist in 2004 and that she had heard from this relative that the applicant’s husband was also a Maoist. She said her own relative and the Applicant’s husband were good friends.
42. This evidence is significant as it was on the basis of the second Tribunal’s views in relation to the perceived “hearsay” character of this information that the Applicant’s protection visa application was last remitted to the RRT.[12]
[12] Court Book 212
The Tribunal addressed the Applicant’s claim to have a fear of persecution arising from her involvement with Christian churches since she came to Australia by finding that she only became involved with those churches for the purpose of strengthening her visa application. Accordingly the Tribunal disregarded it (applying s.91R(3)).
The Tribunal also considered and rejected the Applicant’s claims to fear harm because:
a)as a woman she was a member of a particular social group and would be unable to avail herself of state protection in Nepal; and
b)that she came from a family loyal to the now-removed monarchy of Nepal.[13]
[13] Court Book 220
The Tribunal was not satisfied that the Applicant faced a real chance of Convention-related persecution in Nepal and was therefore not satisfied that the Applicant was a person to whom Australia has protection obligations under the Convention. Thus the Applicant did not satisfy the criterion in s.36(2)(a) for a protection visa.
Application to the Federal Magistrates Court
The Applicant filed her application and affidavit in support on 25th November 2008, nominating the one ground of review. She claims that the Tribunal fell into error because it essentially failed to follow the ruling in SZIEW v Minister for Immigration and Citizenship[14]at [16].
[14] supra
Mr Newman, who appeared for the Applicant, submitted that the previous Tribunal had rejected the evidence of the witness who gave evidence in support of the Applicant as hearsay. In the case under review, the Tribunal considered that the Applicant’s evidence was so lacking in credibility that the witness’s evidence was not to be accepted.
Mr Newman submitted that the Tribunal was critical of the Applicant’s evidence but did not brand her as a liar. He referred to Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002[15] where McHugh and Gummow JJ said at [49]:
In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party.
[15] (2003) 198 ALR 59; [2003] HCA 30
Mr Newman submitted that, relying on S20/2002, it would be necessary for the Tribunal to take that final step and find that the Applicant was lying before giving no weight to the witness’s evidence, which otherwise would be corroborative of the Applicant’s claim. He said that the Tribunal found the Applicant to be a weak witness, which is what corroborative evidence is meant to bolster.
Mr Newman conceded that corroborative evidence cannot support lies. However, the strongest criticism the Tribunal made of the Applicant is at paragraph 119 on page 220 of the Court Book, where the Tribunal said:
Owing to the same negative views about the applicant’s credibility…[16]
[16] Court Book 220
Those words, he submitted, indicated a weak witness, not a lying one.
Counsel for the Minister, Mr Cleary, submitted, first, that the Applicant would only be entitled to relief if she could demonstrate jurisdictional error by the Tribunal (S157/2002 v Commonwealth of Australia[17] at [76]).
[17] (2003) 211 CLR 476
It was submitted on behalf of the Minister that the argument that the third Tribunal committed the same error as the error identified in the second Tribunal decision by Madgwick J misconceives the judgment and misunderstands the third Tribunal’s findings. In SZIEW v MIAC[18] the Federal Court concluded that the second Tribunal committed jurisdictional error by giving the evidence of the corroborative witness little weight for the sole reason that the Tribunal had no opportunity to test the evidence (SZIEW at [11]). This was found not to be a proper basis for rejecting corroborative evidence.
[18] supra
In this case, it is submitted that the Tribunal did not commit that error but rejected the evidence of the oral witness because it was undermined by the credibility findings made against the Applicant. This was not a jurisdictional error.
Mr Cleary submitted that in the case under review the Tribunal had made extensive findings about the Applicant’s credibility at paragraphs [109]-[118][19], including describing a claim by the Applicant about her husband as “far-fetched”.[20] The Tribunal rejected the evidence of the oral witness, because it was undermined by its findings about the tendering party’s credibility (i.e. the Applicant’s credibility). There was no jurisdictional error (WAGU v Minister for Immigration and Multicultural and Indigenous Affairs[21] at [36]).
[19] Court Book 219
[20] Ibid at [114]
[21] [2003] FCA 912
Mr Cleary submitted that the weight to be given to the evidence is a matter for the Tribunal, which is a finding of fact that cannot be challenged in an application for judicial review (Lee v Minister for Immigration and Multicultural and Indigenous Affairs[22] at [27]).
[22] [2005] FCA 464
In reply, Mr Newman submitted that the facts in S20/2002 provided the foundation for the appellant in that case to be branded a liar but in the case under review the Tribunal did not make that finding.
Conclusions
The issue to be decided is whether, as the Applicant submits, the Tribunal made the same error as it did in the second Tribunal hearing.
In SZIEW v Minister for Immigration and Citizenship, Madgwick J said at [11]:
The first issue in this case is whether it is proper and fair to say that the sole reason for according the evidence of the witness little weight was that the Tribunal had no opportunity to test the evidence of the witness’ relative. I think it is. The rejection of the appellant’s credibility and the reliability of the mere documentary corroboration (for reasons given) provide no basis for inferring that, under cover of silence, the Tribunal also concluded that the applicant’s witness, whom the Tribunal saw and heard, was also unreliable. The Tribunal offered no other reason for rejecting her evidence. The Court may infer that there was no reason other than the stated one.
This approach was found to be jurisdictional error. The Court said at [17]:
In such a case, it would be, and was here, perverse not to accord the reported statement considerable weight, unless the witness reporting it appeared untruthful or unreliable. But the Tribunal made no criticism at all of the reporting witness and may safely be inferred to have had none.
It was held that the Tribunal was obliged to give the appellant a fair and full hearing of such material as she produced as might support a conclusion that she met the Convention of refugee. His Honour went on to find:
Not only was this material unlawfully rejected, if properly considered and accepted, it could have directly affected an assessment of the appellant’s prospects vis a vis the government and the Maoists respectively if she returned to Nepal. It could indirectly have forced some re-examination of her credit, otherwise damned. That is, material of crucial importance to her case was effectively excluded from consideration for no legally acceptable reason. On this aspect of her case the Tribunal effectively did not give her a fair hearing. That was also a jurisdictional error.[23]
[23] SZIEW at [21]
In the decision under review, the Tribunal dealt with the evidence of the witness in one sentence:
Owing to the same negative views about the Applicant’s credibility, the Tribunal does not accept the evidence of the oral witness who said she had heard from relatives that the Applicant’s husband had become a Maoist.[24]
[24] Court Book 220 at [119]
In WAGU v Minister for Immigration & Multicultural & Indigenous Affairs[25] French J said at [34]:
It may well be the case that where a Tribunal has made findings adverse to the credibility of an applicant before it, those findings may form a basis for rejecting the authenticity of documentary evidence tendered to the Tribunal by the applicant. there is a danger in so proceeding because it may be that documentary material itself should be taken into account in assessing credibility. To proceed otherwise risks putting the cart before the horse. But to complain of such an approach is perhaps to complain about want of logic or inferior modes of reasoning rather than to identify jurisdictional error.
[25] [2003] FCA 912
His Honour then went to consider S20/2002 at [49] and said at [36]:
Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party’s credibility.
In WAIJ v Minister for immigration & Multicultural & Indigenous Affairs[26] at [26] and [27], Lee and Moore JJ held:
[26]The Tribunal determined the matter adversely to the appellant by disregarding the documents it had been directed to consider by the order made by consent in this Court, stating that the documents “do not overcome the problems I have with the applicant’s evidence”.
[27]Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material. (See: S20/2002 per McHugh, Gummow JJ at [49]).
[26] [2004] FCAFC 74
It may well be argued that the Tribunal’s scathing criticisms of the Applicant’s evidence show that the “well” had been “poisoned beyond redemption”[27] and no amount of corroborative evidence would overcome the problem of the applicant’s lack of credibility.
[27] S20/2002 at [49]
However, in my view, the way in which the Tribunal dealt with this piece of evidence in one line “Owing to the same negative views about the Applicant’s credibility, the Tribunal does not accept the evidence of the oral witness who said she had heard from relatives that the Applicant’s husband had become a Maoist”.[28]
[28] Court Book 220 at [119]
True it is that that the Tribunal had noted the effect of the Federal Court’s decision on appeal relating to the second Tribunal decision on that very point, but the Tribunal’s reference is slight, to say the least:
This evidence is significant as it was on the basis of the second Tribunal’s views in relation to the perceived “hearsay” character of this information that the applicant’s protection visa application was last remitted to the RRT.[29]
[29] Court Book 212 at [42]
As has been shown, Madgwick J had more to say than that. His Honour said that “the Tribunal must do its best to assess the weight to be given to the evidence of the absent person”[30] and “Not only was the material unlawfully rejected, if properly considered and accepted, it could have directly affected an assessment of the appellant’s prospects vis a vis the government and the Maoists respectively if she were returned to Nepal. It could indirectly have forced some re-examination of her credit, otherwise damned” [31](emphasis added).
[30] SZIEW at [16]
[31] SZIEW at [21]
Here, there was no such analysis of the evidence or, indeed, any suggestion that the matters referred to in his Honour’s decision had been given any consideration other than the bald statement that the application had been remitted because of “the second Tribunal’s views of the perceived ‘hearsay’ character of this information”. What the Tribunal should have done was consider the evidence of the witness, including considering whether it could have some weight in an assessment of the Applicant’s prospects and whether or not it would lead to some re-examination of the Applicant’s credit, which was “otherwise damned”.
The Tribunal may well have embarked on such an analysis and still have come to a conclusion that its adverse finding as to the Applicant’s credibility still outweighed what corroborative value the witness’s evidence had. However, it was not open to the Tribunal to dismiss the evidence in such a peremptory way without undertaking an analysis of that particular piece of evidence in the way that Madgwick J had made clear in SZIEW.
The Tribunal did not make exactly the same error in the decision under review as the second Tribunal did but, in my view, it fell into the same error as the Tribunal in WAIJ had done at [26], by failing to consider the reasons given by the Court.
I find that jurisdictional error has been made out. Orders in the nature of certiorari and mandamus will be made. I will consider the issue of costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 24 April 2009
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