SZIUJ v Minister for Immigration

Case •

[2007] FMCA 33

•

15 February 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIUJ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 33
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Nepal claiming fear of persecution from Maoists because of her political activities – credibility – whether the Tribunal failed to comply with Migration Act 1958 (Cth) s.414 – whether the Tribunal failed to comply with Migration Act 1958 s.430 – whether the Tribunal misconstrued and misapplied Migration Act 1958 s.91R (3) – natural justice – procedural fairness – whether Tribunal failed to consider relevant material or relied on irrelevant material.
Migration Act 1958 (Cth), ss.91R, 414, 422B, 424A, 430, 474
SZEJF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 724 referred to
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 referred to
Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 distinguished
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1536 followed
SZCIJ v Minister for immigration and Multicultural Affairs [2006] FCAFC 62 followed
Lay Lat v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 61 followed
SAAS v Minister for Immigration and Multicultural Affairs [2002] FCA 726 followed.
Applicant: SZIUJ
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent REFUGEE REVIEW TRIBUNAL
File Number: SYG 1302 of 2006
Judgment of: Scarlett FM
Hearing date: 31 October 2006
Date of Last Submission: 31 October 2006
Delivered at: Sydney
Delivered on: 15 February 2007

REPRESENTATION

Counsel for the Applicant: Mr Nair
Counsel for the Respondent: Mr Free
Solicitors for the Respondent: Sparke Helmore

ORDERS

  1. The title of the First Respondent is changed to Minister for Immigration and Citizenship

  2. The Application is dismissed.

  3. The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1302 of 2006

SZIUJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal signed on 22nd March 2006 and handed down on 4th April. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a protection visa.

  2. By her amended application, which was filed in Court on the date of the hearing, the Applicant seeks writs of certiorari quashing the Tribunal’s decision and mandamus compelling the Tribunal to rehear and redetermine the matter according to law. She also seeks a writ of mandamus compelling the Tribunal to provide reasons, findings and reference to the evidence or any other material on which the findings of fact are based, according to law.

Background

  1. The Applicant is a citizen of Nepal who arrived in Australia on


    16th September 2005. She applied for a Protection (Class XA) visa on 28th October 2005, but it was refused on 14th November. The Applicant then sought a review of that decision from the Refugee Review Tribunal.

Application for review by the Refugee Review Tribunal

  1. On 13th December 2005 the Applicant, through her migration agents, lodged an application for review at the Sydney Registry of the Refugee Review Tribunal. The Tribunal wrote to the Applicant on


    23rd December, inviting her to attend a hearing on 31st January 2006.

  2. The Applicant’s migration agents forwarded a Response to Hearing Invitation to the Tribunal, indicating that she wished to give evidence with the assistance of an interpreter in the Nepali language and would like the Tribunal to take evidence from a witness. On 24th January 2005 the Applicant’s migration agents wrote to the Tribunal, making a brief submission on her behalf and enclosing a three page statutory declaration by the Applicant, in which she claimed a fear of Maoists in Nepal and described how she had been abducted and asked to assist them. She described how she had converted to Christianity since she had come to Australia and set out that she was afraid to return to Nepal for these reasons:

    ·I am afraid that the Maoists will find me and kill and torture.

    ·I am afraid that I will not receive effective protection from the Government and the police.

    ·I am afraid I will be persecuted by my family for being a Christian.

    ·I am afraid that I will be attacked by the Hindu extremists such as “Shivasena” as I am a Braman and they very much against people from the Braman cast converting to Christianity.

    ·I am afraid I will have no protection to practice my faith as it is against the law to convert a Hindu to Christianity and I believe I as a Christian must share the good news with everyone including Hindus.[1]

    [1] A copy of the Applicant’s statutory declaration appears at pages 54 to 59 of the Court Book.

  3. The Applicant also provided a number of other documents in support of her case. She attended a hearing of the Tribunal on 31st January 2006 and gave oral evidence, with the assistance of an interpreter in the Nepali language. The Tribunal Member asked her a number of questions about her case, particularly about her claimed conversion to Christianity.

  4. A witness gave evidence on the Applicant’s behalf. He was a pastor from the Family Jesus Centre, which is a Pentecostal Church. He attested to the genuineness of the Applicant’s conversion to Christianity.[2]

    [2] See Court Book at 557.

  5. On 16th February 2006, the Applicant’s representative sent to the Tribunal a number of documents:

    ·A further submission;

    ·A further statutory declaration from the Applicant;

    ·Statutory declarations from three other people;

    ·A letter dated 14th November 2005 from the International Director of New Life Churches International; and

    ·A further letter from the pastor who gave evidence before the Tribunal.

The Tribunal’s findings and reasons

  1. The Tribunal’s findings and reasons appear on pages 561 to 566 of the Court Book. The Tribunal accepted that:

    a)The political situation in Nepal was marked by violence and insecurity;

    b)Maoists have threatened, harmed and committed acts of violence and human rights abuses against those people whom they consider to be their enemies;

    c)There have been human rights abuses by the Nepalese Army and security forces;

    d)Sometimes evangelist Christians are targeted for harm in Nepal; and

    e)The police and authorities in Nepal cannot be relied upon to provide adequate physical protection, including to evangelist Christian citizens.[3]

    [3] Court Book at 561

  2. The Tribunal accepted that the Applicant was a citizen of Nepal, having seen the Applicant’s passport. The Tribunal also accepted:

    a)that the Applicant was a founder, director and teacher at a private school which commenced operation in 2001 and is still operating;

    b)that the Applicant retained a financial interest in the school and drew income from it; and

    c)That the Applicant’s children were residing at her family home in the care of her mother in law.[4]

    [4] Court Book at 562

  3. However, the Tribunal did not accept a number of important matters about the Applicant’s claim, including:

    a)that the school is still operating because those running it have made donations to the Maoists;

    b)that the Applicant did not give the real explanation at the hearing because she did not know if she could trust the translator at the hearing;

    c)that the school was still operating was inconsistent with the Applicant’s claims that the Maoists had been asking for donations, threatening her and threatening to close the school since 2002;

    d)that the Applicant moved from place to place to avoid harm;

    e)that the Applicant was abducted by Maoists in December 2004; or

    f)that the Applicant informed on a Maoist for the murder of a man near her home.[5]

    [5] Court Book at 562 and 563

  4. The Tribunal did not accept the truthfulness of the Applicant’s explanations on these points and considered that a number of claims were invented by the Applicant to assist her review application.

  5. The Tribunal also did not accept the Applicant’s claims of having been involved with Christianity in Nepal, but accepted that since November 2005 the Applicant had attended the Family Jesus Centre regularly and that this centre advocates Christian evangelism.[6]

    [6] Court Book at 563

  6. The Tribunal considered the effect of s.91R(3) of the Migration Act, noting that where conduct in Australia is an issue, the Applicant had the practical burden of satisfying the Minister (or in this case the Tribunal) that this conduct was otherwise than for the purpose of strengthening her claim to be a refugee.[7] The Tribunal was not satisfied that the Applicant had attended the Family Jesus Centre or had been involved with Christianity and Christian activities in Australia otherwise than to strengthen her claim to be a refugee. As a result, the Tribunal disregarded that evidence for the purposes of the application.

    [7] Court Book at 564

  7. The Tribunal, having found that the Applicant was not always honest in her evidence before it, did not consider that the documents produced by the Applicant in support of her claims were reliable evidence of the facts in those documents.

  8. The Tribunal did not accept that the Applicant suffered or feared harm from Maoists or anyone else in Nepal because of her political opinion, actual or imputed, or because she was a member of a particular social group. The Tribunal also noted, and rejected, a claim made on the Applicant’s behalf that she may not have been afforded a fair hearing because of the inadequate standard of interpreting.[8] The Tribunal was not satisfied on the evidence before it that the Applicant had a well-founded fear of persecution in Nepal within the meaning of the Convention and affirmed the decision not to grant a protection visa.

    [8] Court Book at 565

Application for judicial review

  1. In her amended application, the Applicant relies on the following grounds for relief:

    i)Jurisdictional error in that the Second Respondent (the Tribunal) failed to act in accordance with ss.414 and 430 of the Migration Act by failing to provide reasons, findings and reference to the evidence or any other material on which the findings of fact were based.

    ii)Denial of natural justice and procedural fairness in that the Tribunal did not give proper, genuine and real consideration to the Applicant’s claims that she had a well-founded fear of being persecuted for a Convention reason.

    iii)Jurisdictional error in that the Tribunal misconstrued and misapplied s.91R (3) of the Migration Act.

    iv)Denial of natural justice and procedural fairness by failing to put to the Applicant why it would not accept the evidence of Pastor Boyd and other Christians in regard to the genuineness of her being a genuine evangelical Christian.

    v)Jurisdictional error in that the Tribunal failed to consider relevant material and relied on irrelevant material.

Applicant’s submissions

  1. In his written submissions, counsel for the Applicant, Mr Nair, submitted that the Tribunal had failed to provide reasons, findings and references to evidence or any other material on which the findings of fact were based. He referred the court to the decision in SZEJF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 724 at [38]-[40], where Rares J held that a failure to give proper reasons for its decision was a failure by the Tribunal to assess the appellant’s case in accordance with law.

  2. Mr Nair also referred to the decision of Kirby J in Re Minister for Immigration and Multicultural and Indigenous Affairs (2003) 216 CLR 212 at [123] – [124], where his Honour followed the decision in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 and quoted with approval this passage:

    The inadequacy of the material is not in itself a ground for prohibition. But it is a circumstance which may support the inference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters. If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact.

  3. The particular paragraph of the Tribunal’s findings and reasons is found at page 564 of the Court Book:

    On the whole of the evidence before it, including the evidence of Pastor Boyd, the Tribunal is not satisfied that the applicant has attended the Family Jesus Centre, and has practised and been involved with Christianity and Christian activities in Australia, otherwise than to strengthen her claim to be a refugee. Accordingly, the Tribunal disregards that evidence for the purposes of this application.

  4. The Applicant’s counsel contends that this is no more than a statement of conclusions (assertions) by the Tribunal and is a failure to comply with ss.414 and 430 of the Act. He also contends that, in failing to provide reasons or findings of fact, the Tribunal did not have did not have good and proper reasons and a good and proper basis for its purported decision.

  5. As to the Applicant’s second ground, counsel for the Applicant contends that the Tribunal denied natural justice and procedural fairness to the Applicant by not giving “proper, genuine and real” consideration to the Applicant’s claims. Counsel for the Applicant essentially relies on the same matters as are set out in Ground 1 and refers to the decision of Rares J in SZEJF v Minister for Immigration & Multicultural & Indigenous Affairs (supra) at [60], [66] and [67]. The particular paragraph upon which the applicant relies is at [60], where his Honour said:

    I am of opinion that the tribunal misconceived the question which it was required to address on the review under s.414(1) of the Act. It dismissed the appellant’s claims of a well-founded fear by making mere assertions…     

  6. Counsel for the Applicant submitted that the Tribunal in this matter failed to give proper, genuine and real consideration to the Applicant’s claim that she was an evangelical Christian and has a well-founded fear of persecution for that reason.

  7. As to Ground 3, Mr Nair submitted that the Tribunal misconstrued and misapplied s.91R (3) of the Migration Act. His submission is that the issue is not the reason or reasons why the Applicant engaged in the relevant conduct, being conversion to Christianity, but whether the Applicant is an evangelical Christian and for that reason has a well-founded fear of persecution. He made this submission at paragraphs 11 and 12 of his outline of submissions:

    Section 91R (3) provides the Tribunal is to disregard conduct in Australia unless satisfied it was otherwise than to strengthen the claim to be a refugee. It does not however go so far as to then enable the Tribunal to disregard the fact claimed here that the applicant is or has become a genuine evangelical Christian.

    The Tribunal did not make a finding as to whether the applicant is an evangelical Christian. The Tribunal did not make a finding that the applicant converted to Christianity and undertook the various church activities solely for the purpose of strengthening her claim to be a refugee. In fact it is fair to say that there was no basis on which the Tribunal could reject the evidence adduced by or on behalf of the applicant including the evidence of Pastor Boyd (‘genuine Christian evidence’) that the applicant is an evangelical Christian.

  8. The Applicant’s fourth ground is that the Tribunal denied the Applicant natural justice and procedural fairness in failing to put to the Applicant why it would not accept the evidence of Pastor Boyd and other Christians in regard to the genuineness of her being an evangelical Christian. Mr Nair submitted that it is not apparent from either the transcript of the hearing or the Tribunal decision why the Tribunal rejected the evidence adduced by and on behalf of the Applicant that she was a genuine evangelical Christian.

  9. Mr Nair submitted that the failure by the Tribunal to tell the Applicant precisely why the Tribunal rejected the ‘genuine Christian evidence’ and allow the Applicant an opportunity to deal with the Tribunal’s adverse reception was a denial of natural justice and procedural fairness. He referred the Court to the decision of Gummow J in Somaghi v Minister for Local Government and Ethnic Affairs (1991) 31 FCR 100 at 119-120, emphasising these passages:

    But there remains the objection as to alleged lack of procedural fairness…The decision maker has to adopt what in the circumstances of the case is a reasonable and fair procedure, having regard to the matters the decision maker is bound to take into account, and also to those matters adverse to the interests of the person in question which he proposes to take into account…

    However, in a particular case, fairness may require the applicant to have the opportunity to deal with matters adverse to the applicant’s interests which the decision maker proposes to take into account, even if the source of concern by the decision maker is not information or materials provided by the third party, but what is seen to be the conduct of the applicant in question.

  10. The Applicant’s Ground 5 is that the Tribunal made a jurisdictional error by failing to consider relevant material and by considering irrelevant material. Mr Nair submitted that there is nothing in the Tribunal’s reasons which suggests a basis or a proper basis for the Tribunal’s rejection of the Applicant’s evidence, or the evidence adduced on her behalf. Accordingly, he submits, the inference is open to the court that the Tribunal failed to consider, or properly consider, this evidence, which was central to the determination before the Tribunal.

  11. Again, he relied on SZEJF v Minister for Immigration & Multicultural & Indigenous Affairs at [59], where Rares J held:

    I am of opinion that by the way in which it dismissed the objective evidence provided in the two newspaper articles, the tribunal ignored relevant material (the newspaper articles and relied on irrelevant material (namely its bare, unsupported assertions that the objective facts demonstrated in the newspaper articles were ‘somewhat implausible’ and gave ‘no evidence’ of the Jirga’s activities). That was a jurisdictional error…

First Respondent’s submissions

  1. In a supplementary outline of submissions, in reply to the Applicant’s further amended application that was filed in Court, Counsel for the First Respondent, Mr Free, submitted in reply to the Applicant’s first ground that there was no breach by the Tribunal of either s.414 or s.430 in its handling of Pastor Boyd’s evidence. Section 91R (3) of the Migration Act places an onus on the Applicant to satisfy the Tribunal that the conduct in which she has engaged was otherwise than for the purpose of strengthening her claim to be a refugee and, in this case, it was submitted that the Applicant had not so satisfied the Tribunal.

  2. In respect of the Applicant’s second ground, alleging a breach of procedural fairness in the Tribunal’s treatment of the evidence of Pastor Boyd, Mr Free submitted that this ground of review is in substance essentially the same as the Applicant’s first ground and should fail for the same reasons.

  3. The First Respondent submitted that the Refugee Review Tribunal did not err in its application of s.91R (3) of the Act. He further submitted that it is not open to argue a breach of the natural justice hearing rule unless it can be shown that the Tribunal breached one of the provisions of Division 4 of Part 7 of the Act, due to the operation of s.422B of the Act.

  1. Finally, in reply to the Applicant’s claim of a jurisdictional error in failing to consider relevant material or considering irrelevant material, Mr Free submitted that s.91R (3) required the Tribunal to reject the evidence of Pastor Boyd because it was not satisfied that the Applicant’s conduct was engaged in otherwise than for the purpose of strengthening her claim to be a refugee. Thus, Pastor Boyd’s evidence was entirely excluded by s.91R (3).

Conclusions

  1. The Applicant relies on five grounds, which are to some extent related to each other. First, the Applicant claims that the Tribunal failed to act in accordance with ss.414 and 430 of the Migration Act in failing to provide reasons, findings and reference to the evidence. Section 414 of the Act relevantly provides in subsection (1) that if a valid application is made under s.412 for review of an RRT-reviewable decision, the Tribunal must review the decision. Section 430 relevantly provides in subsection (1) that where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

    a)   sets out the decision of the Tribunal on the review; and

    b)   sets out the reasons for the decision; and

    c)   sets out the findings on any material questions of fact; and

    d) refers to the evidence or any other material on which the findings of fact were based.

  2. The evidence which the Applicant claims the Tribunal incorrectly rejected without giving reasons concerned the Applicant’s conduct in Australia, which included attending the Family Jesus Centre, an evangelical Christian church. However, s.91R(3) of the Act requires the Tribunal to disregard such evidence unless:

    (b)    the person[9] satisfies the Minister[10] that the person engaged in the conduct otherwise than for the purposes of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

    [9] i.e. the Applicant

    [10] in this case, the Tribunal

  3. It is for the Applicant to discharge the burden of showing that the particular evidence should not be disregarded (NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1536 per Wilcox J at [26]:

    The effect of s.91R (3) is that an applicant has an onus of proof in relation to activities in Australia. The person must satisfy the Minister or the Tribunal, as the case may be, that the relevant conduct was engaged in ‘otherwise than for the purpose of strengthening the person’s claim to be a refugee’. The onus of proof is, no doubt, to the civil standard; but it is an onus borne by the applicant…).

  4. Here, the Applicant had the onus of showing that her activities in Australia were not for the purpose of strengthening her refugee claim. She did not satisfy the Tribunal in that regard. As the Tribunal was not satisfied, the Tribunal was required by s.91R (3) to disregard that conduct. Whether or not the Tribunal was satisfied is a matter for the Tribunal. The Tribunal’s finding was a finding of fact.

  5. The Applicant’s first ground must fail.

  6. The Applicant’s second ground alleges a denial of natural justice and a breach of procedural fairness in that the Tribunal did not give proper, genuine and real consideration to the Applicant’s claim of a well-founded fear of persecution. The Applicant essentially relies on the same particulars as were set out in support of the first ground. As counsel for the First Respondent correctly submitted, this application for review is one to which the provisions of s.422B of the Migration Act applies, as it was made after the date of commencement, which was 4th July 2002. Section 422B makes it clear that Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals. It is not open to the Applicant to refer to any principle of common law procedural fairness (see SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62; Lay Lat v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 61). As the Applicant has not shown any breach of any of the provisions of Division 4 of Part 7 the ground has not been made out.

  7. The Applicant’s third ground relates to a claim that the Tribunal misconstrued and misapplied s.91R (3) of the Migration Act. The short answer is that the Tribunal did not misconstrue or misapply s.91R(3). For the reasons that I set out in [34] to [37] above, I am satisfied that the Tribunal applied s.91R(3) correctly. I adopt the reasoning of counsel for the First Respondent where he submitted at paragraph 17 of his supplementary outline of submissions:

    The directive that evidence about the applicant’s ‘conduct’ must be disregarded effectively precludes all evidence to establish that the applicant is an evangelical Christian, as that proposition can only be borne out by evidence of the applicant’s conduct consistent with being an evangelical Christian. Without evidence of conduct, the claim is a bare assertion, and it would be an odd result if s.91R(3) required the RRT to act on an unsubstantiated claim about a person’s Christianity while disregarding the conduct that goes to corroborate the claim. Instead, the effect of s.91R(3) is that all evidence about the applicant’s purported conversion to Christianity is effectively precluded.

  8. I have been referred to the decision of Mansfield J in SAAS v Minister for Immigration and Multicultural Affairs [2002] FCA 726 where the facts were essentially similar to the facts of the present case. In SAAS the Tribunal found that it was not satisfied that the Applicant’s conduct relating to his practice of Christianity in Australia was engaged in other than to strengthen his refugee claim and, applying s.91R(3), disregarded all the Applicant’s claims in that regarded. Mansfield J held that the Tribunal’s approach was correct.

  9. I am satisfied that the Tribunal neither misconstrued not misapplied s.91R(3) in regard to the evidence about the Applicant’s evangelical Christianity. This ground of review fails.

  10. The Applicant’s fourth ground claims a denial of natural justice and procedural fairness in that the Tribunal failed to put to the Applicant why it would not accept the evidence of Pastor Boyd and others about the genuineness of the Applicant’s being an evangelical Christian. This ground must clearly fail, as the application was commenced after the coming into force of s.422B of the Migration Act. Whilst counsel for the Applicant has referred to Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100, this decision was handed down before s.422B came into force. Accordingly, it no longer represents the law and should not be followed.

  11. The Applicant’s fifth, and final, ground is a claim of jurisdictional error in failing to consider relevant material and relying on irrelevant material. This ground again refers to the Tribunal’s decision not to consider the evidence of Pastor Boyd. As I have set out above, the Tribunal was not satisfied that the Applicant had shown that she had engaged in practices involved with Christianity other than to strengthen her claim to be a refugee. In the light of that finding, the Tribunal was required by s.91R(3) to disregard that evidence.

  12. This ground must also fail.

  13. The Applicant has not shown any jurisdictional error on the part of the Tribunal. The Tribunal decision is a privative clause decision as defined in s.474(2) of the Act.

  14. The application will be dismissed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  5 February 2007


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