SZJJA v Minister for Immigration

[2007] FMCA 1498

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJJA v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1498

MIGRATION – RRT decision – Nepali businessman – Tribunal not satisfied by claimed fear of persecution by Maoists – whether sufficient reasons provided – no jurisdictional error found – application dismissed with costs.

Migration Act 1958 (Cth), ss.430, 430(1)(c), 430(1)(d), 474(1), 476

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
SZIAY v Minister for Immigration & Anor [2006] FMCA 1680

Applicant: SZJJA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2620 of 2006

Judgment of: Smith FM

Hearing date: 16 August 2007

Delivered at: Sydney

Delivered on: 16 August 2007

REPRESENTATION

Counsel for the Applicant: Mr J R Young

Solicitors for the Applicant: Simon Diab & Associates

Counsel for the First Respondent: Mr J A C Potts

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $5,000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2620 of 2006

SZJJA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 18 September 2006, which has been set down for final hearing under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal dated 21 July 2006 and handed down on 10 August 2006. The Tribunal affirmed a decision of the delegate made on 21 March 2006, refusing to grant a protection visa to the applicant.

2. The Court’s jurisdiction under s.476 is “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474(1), so that I do not have power to remit the matter to the Tribunal unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s claims should be believed nor whether he qualifies for a protection visa or any other permission to stay in Australia.

3. The applicant is a national of Nepal who arrived in Australia in November 2005 on a temporary business visa, travelling without his wife.  An application for a protection visa was lodged on 22 December 2005.  The application did not disclose any person assisting the applicant.  In response to the question: “Why did you leave that country?”, the applicant said: “to save my life.  See attached”.  He also said: “I fear for being killed”, and suggested a concern about “kidnap, kill, etc”. 

4. The attachment was in Nepalese script, but the Department was subsequently sent a translation.  In it, the applicant referred to being politically active in his home area in a rural district of Nepal, by being involved in Congress Party politics during the 1990s when there was a democratic constitution established in Nepal.  He said he had worked actively “as a district level Secretary in the Nepali Congress Party for about two years”.  In the course of this, he became interested in assisting farmers and became the secretary of the District Orange Business Committee.  He said: 

   The Constitutional Democracy was established in 1990AD, but the government began to collapse due to the Maoist guerrilla insurgency that was launched in 1996 AD by the Communist Party of Nepal‑Maoist.  The Maoist People’s War became a direct threat to the Orange Business Committee in the village.  It was necessary to get permission or permits from the Maoists in order to operate.  After the third threat from the Maoists, I was under compulsion to leave the Orange Business Committee for the protection of my life.  As a secretary of the Committee, and because of the Maoists’ threats and demands, I had to donate Rs 500,000 (five lakhs) to them.  Constant threats and demands were made to take part in their program, to go against the old system, to follow their rule and regulation.  My family and I had to leave the District and come to Kathmandu. 

5. In Kathmandu, the applicant borrowed money and established a business which traded fresh vegetable products on the market in Kathmandu and also assisted farmers.  It received supplies from various areas of the country, as well as importing fruit and vegetables from India and China, and apples from Australia. 

6. His statement referred, without giving any details, to “many verbal telephone threats from the Maoist rebels since 2060BS (2004AD)” and to the fact that “rebels looted varieties of fresh apples costing about [a stated amount] in a remote place”.  The statement said: 

   In 1961, the Centre imported apples from Tasmania, Australia, to fulfil the shortage of apples in the Nepalese market.  But the Maoists were against this, did not like the trading partnership with any imperialist countries and later started to demand donations amounting to the same as the payment for the trading.  It became very hard and difficult to run the centre due to the regular telephone threats from the Maoist rebels. 

7. His statement itemised his “reasons for not going back to Nepal” as follows: 

   a.Maoists regular threats. 

   b.Not allowed to trade with imperialist countries.  A large amount of donation to the rebels required. 

   c.Constant demands for donations for 2 to 5 lakhs rupees.  Physical punishment and torture if the demands are not met. 

   d.Demand for the support of the business people to fight against the government for the rebels. 

   e.Under compulsion to take part in the fighting against the government. 

   f.Threats of physical torture to the family, such as decapitations, amputations, strangulation, etc. 

   He also referred to general economic problems which his business faced when trading in Nepal in the then political situation. 

8. The delegate refused the application on the ground: 

   Although it is generally understood that Maoists are present in all parts of Nepal, I have not found information which suggests that the situation in Kathmandu has deteriorated in recent times such that Maoists are able to operate with impunity against the general population there.  The applicant does not appear to be a person that would attract attention from Maoist rebels to any extent greater than would other business people.  A real chance of Convention based persecution cannot be made out exclusively on the grounds that the Nepalese authorities cannot guarantee the safety of all of its citizens.  I do not believe that the applicant faces a real chance of persecution in Nepal for the essential and significant reason of his political opinion. 

9. On appeal to the Tribunal, the applicant was assisted by a solicitor.  He attended a hearing on 31 May 2006, without his representative being present, and submitted some documents to the Tribunal in Nepalese script.  These were examined by the Tribunal, and translated in the course of the hearing.  From the Court Book it is unclear whether some of the documents were passed back to the applicant without a copy being kept on the file. 

10. The applicant has led no evidence to clarify the situation in relation to those documents, nor has he led any evidence to contradict the Tribunal’s description of what happened at the hearing.  When this was pointed out in the course of submissions today, counsel for the applicant sought an adjournment to obtain a transcript.  However, he was unable to say that a transcript would reveal any inadequacy in the Tribunal’s description of the hearing or would otherwise support his case.  The application was, therefore, speculative as to the advantage which would result from an adjournment. 

11. I declined the application for adjournment.  The matter had been listed before me at two directions hearings, in October 2006 and in December 2006.  My directions on the first occasion set a date for evidence to be presented.  On the second occasion I listed the matter for a final hearing today, and expressly set a time for the applicant to file and serve a transcript of the Tribunal’s hearing if this was relied upon.  I therefore consider that the applicant has had ample opportunity to obtain a transcript and file it.  I note that his present solicitors have only been on the record since 25 July 2007, but in my opinion this bare fact does not justify the grant of an adjournment. 

12. According to the Tribunal’s description of its hearing, the applicant gave contradictory evidence as to the current state of his business in Kathmandu, in particular, on whether his wife was currently involved in its operations or whether it was being run by a friend.  He said that it had been targeted in the past by Maoists for demands of money because “the Maoists knew what business he ran and from what business’s coffers they expected the money to come from”.  He said: “they demanded money from him because they knew his business generated a lot of money”.  For most of his evidence, the applicant told the Tribunal that the business was still operating, although one truckload of fruit had been commandeered.  He also said that the Maoists were still trying to get money out of the business.  The Tribunal said: 

    The Applicant confirmed that the Maoists know his business address.  He said the Maoists go there and demand money from his friend.  He said the friend never gives them any money.  The Tribunal observed that the friend was still there operating the business, apparently regardless of this situation. 

    The Applicant said the friend has told him not to come back to Nepal lest the same thing happen to him, but in his evidence, the friend keeps on operating his business. 

    The Applicant then said the business has stopped because he cannot get his trucks to the villages.  He said he has had to use a helicopter to transport fruit on occasions. 

13. The Tribunal put to the applicant that, notwithstanding that he may have had difficulties getting supplies from remote districts, he had indicated that he was importing fruit, “so it seemed that there was no need to go to the remote districts, and that his business was not seriously affected”. 

14. The Tribunal referred to the production by the applicant of two letters purportedly from Maoists, and two letters purportedly corroborating his reports of Maoists seizures of fruit.  On its description of the hearing, some deficiencies in relation to these documents were put to the applicant. 

15. The Tribunal’s description of the whole hearing is not complete, and it does not purport to be verbatim.  However, in my opinion, it provides ample support for the Tribunal’s conclusion that it was not satisfied “that the Applicant is a reliable witness”, and that the documents he presented did not provide conclusive evidence supporting his claimed fears of personal harm at the hands of Maoists. 

16. The Tribunal’s “Findings and Reasons” were expressed very shortly: 

    The Tribunal accepts on the evidence before it that the Applicant is a Nepalese national.  The Tribunal accepts that he is a Kathmandu‑based proprietor of a fruit company. 

    The Tribunal accepts on the evidence before it that the Applicant had, for a time in the past, some trouble successfully transporting produce from rural regions in Nepal to places like Kathmandu but that he has remedied this through import contract with producers in India and the PRC. 

    The Tribunal does not accept on the evidence before it that the Maoists have been targeting the Applicant for donations, whether for Convention‑related reasons or even just for criminal, mercenary ones.  The Tribunal accepts that such a practice has been going on in Nepal but does not accept that it has been happening to the Applicant. 

    If the Applicant’s claims about himself were true, one would reasonably expect much different circumstances to obtain in relation to his business in Nepal and to his family, but they evidently do not and consequently the Tribunal is not satisfied that the Applicant is providing reliable evidence about his protection prospects in Nepal. 

    The Tribunal finds that it can give no weight to the documents provided by the Applicant in support of his claims about threats from the Maoists. 

    The Tribunal is not satisfied that the Applicant is a reliable witness in the present matter.  The Tribunal is not satisfied that his claimed fear of Convention‑related persecution in Nepal is well founded. 

17. The grounds of review relied upon by the applicant’s counsel formed paragraphs 3, 4 and 5 of an amended application filed at the hearing: 

    3.The Second Respondent failed to review the decision of the delegate and conduct the review as required by Part 7 of the Migration Act 1958.  

    4.The Second Respondent made jurisdictional error by failing to give a proper, genuine and realistic consideration in the decision of the claims and evidence. 

    5.The Second Respondent made jurisdictional error by making findings that were irrational, illogical and not based on findings or inferences of fact supported by logical grounds. 

    Particulars

    (a)The Second Respondent at CB 83.5 stated that it accepted that Maoists targeted people for donations, including for Convention‑related reasons but without stating any reasons the Second Respondent stated that it did not accept that it had been happening to the applicant. 

    (b)The Second Respondent at CB 83.6 stated without elaboration, reference to evidence or otherwise that if the applicant’s claims were true different circumstances would be likely to obtain in relation to his business and his family but they evidently do not. 

    (c)The Second Respondent, without giving any reasons, stated at CB 83.7 stated without giving any reasons or references to evidence that it could give no weight to documents provided by the applicant. 

    (d)At CB 83.8 the Second Respondent stated without giving any reasons or reference to evidence as to demeanor that the Second Respondent was not satisfied that the applicant was a relative witness. 

18. In short, counsel relied upon authorities which allow the Court in some circumstances to conclude that a purported exercise of the Tribunal’s function of reviewing a delegate’s decision has not actually been performed.  I was referred to my own summary of principles in SZIAY v Minister for Immigration & Anor [2006] FMCA 1680 at [5]‑[7]:

    5.A requirement that the applicant’s evidence should “be given a proper, genuine and realistic consideration in the decision” made by the Tribunal appears to be accepted in the High Court (see NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77 at [9]‑[10], [37], [171]‑[172]; but compare the previously stated position in the Federal Court: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 (“NABE”) at [51]). There also appears to be acceptance by the High Court that jurisdictional error may be found if the Court can answer negatively the question “whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds” (c.f. Gummow and Hayne JJ, Gleeson CJ agreeing, in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 (“SGLB”) at [38], citing Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [34] and [37], and c.f. Kirby J in Applicant S20 at [81] and [137]: “not a real exercise” of jurisdiction). 

    6.However, these propositions are qualified by the proposition that “want of logic does not of itself suffice to constitute error of law, still less error of law which is jurisdictional” (NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [30], followed in VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 at [16], emphasis added).  Further, a long line of authorities warn that “mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision” (see NABE (supra) at [53], emphasis added).  In the paragraph of SGLB containing the statement quoted above, it was said that “inadequacy of the material before the decision‑maker concerning the attainment of that satisfaction [as to a factual matter] is insufficient in itself to establish jurisdictional error” (emphasis added). 

    7.The poorly defined scope of the jurisdictional obligation on the Tribunal to arrive at its decision by a rational process of thought usually causes a court on judicial review to treat irrational or unsupported factual findings only as potentially evidentiary of a better understood head of jurisdictional error.  Such defects may establish a failure to address the refugee claims which were before the Tribunal, or show a misconception of the legal principles governing the Tribunal’s review.  They may reveal a failure to take into account relevant matters required to be addressed, or the taking into account of irrelevant matters, which themselves may also amount to jurisdictional error (c.f. Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] citing Craig v South Australia (1995) 184 CLR 163 at 179). An erroneous finding as to the effect of significant evidence may reveal only an error of factual assessment made within jurisdiction, or it might allow the conclusion that the Tribunal did not, in fact, consider the evidence and therefore did not “finish its jurisdictional task” (c.f. Allsop J in SZHFC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1359 (“SZHFC”) at [38]‑[42]). In extreme cases, flawed reasoning might support the conclusion that the Tribunal approached its task recklessly, without an honest or genuine attempt to consider the evidence favouring the applicant (c.f. SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547 (“SAAG”) at [36], Minister for Immigration & Multicultural & Indigenous Affairs v NASS [2003] FCA 477 at [34], and the discussion of “bad faith” in the context of the “Hickman principles” in Wu v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 123 FCR 23 at [57]‑[61] and Applicant WAFV of 2002 v Refugee Review Tribunal (2003) 125 FCR 351 at [38]–[54]).

19. Counsel dissected the reasoning provided by the Tribunal which I have extracted above, pointing to obscurity in some of the expressions used, and to the absence of any particular findings explaining why the Tribunal did not accept the applicant’s claims to have been targeted personally for donations.  However, in my opinion, the Tribunal’s reasons sufficiently disclose the simple reason why it affirmed the delegate’s decision, and I am not persuaded that they show that it did not perform a genuine consideration of all his claims and evidence. 

20. The simple reason was that the Tribunal was not satisfied as to the reliability of the applicant as a truthful witness in relation to his claimed fear of persecution.  How it arrived at that conclusion is, in my opinion, sufficiently apparent from reading the whole of the Tribunal’s reasons, including its description of its hearing. 

21. I reject the submission that the Court is unable to draw upon the Tribunal’s description of the hearing, so as to understand the reasoning process indicated in the “Findings and Reasons”.  In my opinion, in the present case it is appropriate to understand, and indeed the author of the reasons intended the reader to understand, that his findings and the reasons should be read with the description of the hearing.  When both parts of the statement of reasons are read together, in my opinion, the Tribunal can be seen to have addressed the refugee claims which were before it, and to have genuinely and rationally assessed them.  I am certainly not persuaded to the contrary.  

1. The Tribunal identified significantly contradictory evidence given by the applicant, which rendered him generally an unreliable witness, and also identified a basic inconsistency undermining his own claims.  This was that his business was still operating in Kathmandu in his absence, without its operators being forced to meet extortionate demands by Maoists. 

2. Ultimately, I consider that the criticisms made by the applicant’s counsel of the Tribunal’s reasoning pointed only to the brevity of the statement of reasons, and possible inadequacies under s.430(1)(c) of the Migration Act from a failure to set out findings on some particular material questions of fact, or under s.430(1)(d) from the absence of reference to evidence on which findings of fact were made. However, as Yusef’s case has pointed out, the Court’s opinion as to the inadequacy of a statement of reason does not, of itself, provide a jurisdictional error vitiating the decision which the reasons purport to explain.  It is necessary for the Court to be able to draw an inference of jurisdictional error from the reasons.  Such an inference might be available in some cases, but in the present case I would not draw an inference of any of the jurisdictional errors to which I referred in my discussion in SZIAY. 

3. In my opinion, the Tribunal sufficiently revealed reasons for affirming the delegate’s decision, and that it had undertaken a genuine and rational review of the matter before it.  It was clearly open to it to arrive at its stated conclusion that it was not satisfied that the applicant’s claimed fear of Convention‑related persecution in Nepal was well founded.  I therefore do not accept the grounds of the review argued before me today, and must dismiss the application. 

Addendum 

1. In relation to costs, the applicant’s counsel submits that this is an exceptional case where the Court should decline to award costs to the Minister, but should award costs to the applicant. He submits that the Tribunal’s reasons were patently inadequate in terms of the requirements of s.430 of the Migration Act, and that this justifies the bringing of the application and the award of costs, notwithstanding that the application has been dismissed.

2. I accept that no detailed findings of fact are made in the Tribunal’s “Findings and Reasons”, and there is no detailed reference to evidence.  However, as I have indicated, that part of the Tribunal’s statement of reasons is accompanied by a full description of the evidence before the Tribunal.  Read in its entirety, as I found above, the statement sufficiently explained the Tribunal’s decision.  After reading it, I was not satisfied that the Tribunal had not performed its statutory function of review according to law.  

3. The application to the Court did not itself seek any relief in relation to the Tribunal’s compliance with s.430, and that issue has not been decided by me. The applicant has failed to make out the grounds of jurisdictional error which were presented to the Court, and I am not persuaded that the criticisms of the reasons of the Tribunal in this case should cause me to depart from the usual principle that costs should follow the event.

I certify that the preceding twenty‑seven (27) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  14 September 2007