SZJKI v Minister for Immigration
[2007] FMCA 807
•21 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJKI & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 807 |
| MIGRATION – RRT decision – Nepali applicants claiming persecution after converting to Christianity – disbelieved by Tribunal – no jurisdictional error found. |
Federal Magistrates Court Rules 2001 (Cth), r.21.02(2)(c)
Federal Court Rules (Cth), O.62
Migration Act 1958 (Cth), ss.91R(3), 424A, 424A(1), 425, 474(1), 476, 476(1)
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Dissanayake v Minister for Immigration & Multicultural Affairs [2002] FCA 976
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225
Win v Minister for Immigration & Multicultural Affairs (2001) 105 FCR 212
| First Applicant: | SZJKI |
| Second Applicant: | SZJKJ |
| Third Applicant: | SZJKK |
| Fourth Applicant: | SZJKL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2720 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 21 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 21 May 2007 |
REPRESENTATION
| Counsel for the Applicants: | First Applicant in person |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The first and second applicants must pay the first respondent’s costs as agreed or as assessed at 80% of his costs taxed in accordance with Federal Court Rules O.62. Pursuant to r.21.02(2)(c), refer those costs for taxation under O.62.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2720 of 2006
| SZJKI |
First Applicant
| SZJKJ |
Second Applicant
| SZJKK |
Third Applicant
| SZJKL |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 25 September 2006, which has been set down for final hearing today on whether the applicants are entitled to relief under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 23 August 2006 and handed down on 31 August 2006. The Tribunal affirmed a decision of a delegate made on 15 March 2006, refusing to grant protection visas to the applicants. The applicants are a husband and wife and their two children. As did the Tribunal, I shall refer to the applicant husband as “the applicant”, since it was his claims that were largely the basis for the fears of the family against return to Nepal.
Under s.476(1) of the Migration Act, the Court has “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 set aside the Tribunal’s decision and send the matter back 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 refugee claims should be believed, nor whether he and his family are entitled to protection visas or any other permission to stay in Australia.
The applicant is a national of Nepal, who came from a Gurkha village. He enlisted in the police force of Singapore in 1980, and served in that force rising to the rank of corporal before he retired in 2005. After his retirement, he returned briefly to Nepal before coming to Australia where he arrived in December 2005. His wife and children had travelled directly to Australia from Singapore in November 2005. On 23 December 2005 they applied for protection visas.
The claims upon which the applicant sought protection under the Refugee’s Convention were set out in the application, and were explained more fully in a statutory declaration which was forwarded to the Department on 30 December 2005. In that statement, the applicant claimed that he came to know about Christianity in February 2000 after his son commenced attending a Christian secondary school in Singapore. He said: “one of his Christian teachers came to my home and shared about the good news. A month later, I accepted Jesus as my Lord and Savior. I started going to Church named “Hope” at Orchard Road, Singapore”. He said that he understood his responsibility to share the good news and “started sharing my faith with other Gurkha Police friends”.
In June 2000 the applicant and his wife returned to Nepal for a holiday, and he claimed to have told his own family members about his faith. He said: “I was so encouraged that I even started sharing my faith with other close relatives”. He claimed that one afternoon in September 2000, 20 people from his village surrounded his house. They were rude and aggressive, and threatened him “that I would be certainly killed if they found me spreading Christianity in the village”. Later that day, a group of armed Maoists broke in to the house and threatened to kill him, taking money and gold ornaments. He said: “before they left, they explained that I was punished because I was Christian. They also said to me that they hate Christians and foreigners who help the King’s government and were lucky not to be killed that night”. The applicant claimed to have relocated his extended family to a town, before returning to Singapore in December 2000.
The applicant’s statement referred to events occurring on his next visit to Nepal in September 2003. On this occasion, he said that his bus was stopped by security forces who searched the luggage, and “one of the soldiers saw the Holy Bibles in my bag”. As a result, he claimed to have been falsely accused by the soldiers and their officers, and punched and forced to make a payment. They also stole some of his belongings.
Also on that visit, one night in October 2003 “armed Maoists came to our home”. He said one of the Maoists told him that he “must join their Red Army to fight against the government. He explained that I would be useful for them because I was a policeman and I knew how to handle the weapon”. He claimed that he was hit on his hand with a gun butt, and was required to pay money. The events were shocking for his father who died the following month. He said: “my Christian Faith however grew stronger despite all those incidents and the village community always remained hostile to me. On December 2003 I came back to Singapore with my wife for my last employment term”.
He claimed that the Maoists had subsequently visited his family in Nepal demanding that money should be sent from Singapore, and that the army “on the other hand blamed my family for providing food and shelter for the Maoists”, and threatened his brother “that they would kill him if he allowed Maoists to stay in the house anymore”. He claimed that the family then moved back to their village, but that this was not safe, and in May 2004 “13 members of our entire family including 5 years old boy and 3 years old girl were abducted by the Maoists”. They were released after three days, except for his two brothers, one of whom was released after eleven days and the other has “gone missing”.
He explained that after the termination of his employment in Singapore:
I fear for my life to go back to Nepal because of my religious belief and the degree of insecurity in the country. The state security forces and the Hindu community including my own villagers will mistreat, harm or even kill me. I also fear for my life to go back to Nepal because of Maoists Rebels. They have already tortured me and have threatened to kill me. They know me well. They want to extort my money.
The applicant forwarded some general country information concerning the situation in Nepal, and a voluminous amount of additional such material was subsequently forwarded to the Tribunal by the applicant’s solicitor. This has all been reproduced in three volumes of court books, although I doubt that this was necessary.
The delegate, when refusing the visa applications, assessed the applicant’s claims upon the basis that they were true in their factual narrative. The delegate said: “I find it difficult to accept the applicant’s claim that he had been targeted by the Maoists because of being a Christian”, and thought that he had been targeted: “for extortion or forced recruitment because he was perceived to have money and because he was regarded as having work experience for fighting”. The delegate was not satisfied that this would provide a Convention reason. The delegate also thought that the mistreatment at the hands of the police did not constitute serious harm, and that on country information there was no real chance that he would face serious mistreatment for his religious belief if he returned to Nepal. The delegate also applied law which was subsequently overruled in the High Court, when finding that the applicant had “effective protection in Singapore” as a result of having “multiple entry visas for Singapore, valid till May 2007”. As I shall indicate below, the Tribunal’s reasoning followed a different path.
On appeal, the applicant was represented by Parish Patience Immigration Lawyers who presented submissions, evidence and general country information to the Tribunal. In the course of a submission lodged on 7 July 2006, the applicant’s solicitor formulated the applicant’s refugee claims:
It is submitted that the applicant is a person to whom Australia has protection obligations, as he has a well–founded fear of persecution in Nepal for reasons of;
1.Imputed political opinion – He is seen as a political opponent of the Maoists because; he is a Christian and / or “member of a foreign NGO”, he has refused to join the Maoists, and has failed to continue to provide financial support to the Maoists.
2.Membership of a particular social group – As a Christian, the applicant can also be perceived as a member of a foreign NGO, returnee from the West, and / or returnee from a wealthy country.
3.Religion: Because he is a Christian who is committed to sharing his faith and sharing the gospel with non‑Christians.
Among the material submitted to the Tribunal were statements from pastors of the Jesus Family Centre at Cabramatta (in Sydney), confirming that the applicant and his family have been regular attendees at church. A pastor of that church also attended the hearing held by the Tribunal on 11 July 2006, with the applicant and his wife. The applicant’s solicitor was subsequently sent the tapes of the hearing, but a transcript has not been tendered to the Court. There is no evidence before the Court as to what happened at the hearing, other than the description given by the Tribunal in its statement of reasons.
The Tribunal took evidence separately from the applicant husband and the applicant wife, and questioned them about their conversion to Christianity. They claimed that the family had converted in March 2000, but that the applicant’s son was baptised in Singapore in August 2005 and the applicant husband and wife were baptised in Sydney in March 2006. The daughter was due to be baptised later in July 2006.
The Tribunal questioned the applicant husband and wife about their possession of Bibles, in particular when they acquired a Bible in the Nepali language. The Tribunal also questioned them about whether they had spoken to the applicant wife’s family about Christianity during their visit to Nepal in 2000, and about their claimed conversion of fellow Nepalese in Singapore.
The Tribunal identified inconsistencies in their responses about these matters, and put the inconsistencies to the applicants after the hearing in an invitation for comments under s.424A(1) of the Migration Act. That letter warned the applicants that the information showing inconsistencies was “relevant because it raises the issue of the applicants’ credibility in relation to their material claims and could lead the Tribunal to make an adverse credibility finding”.
According to the Tribunal’s description of the hearing, some of the particular inconsistencies had also been raised in the course of the hearing, and a general concern appears to have been expressed at the end of the hearing. The Tribunal summarised the end of the hearing:
Applicants’ fears about returning to Nepal
The applicants fear they will be persecuted should they return to Nepal because of their Christian faith. They also fear serious harm from the Maoists and Hindus. They fear harm from the government and the army because they support the Hindus. They fear harm from the Maoists because they are Christian and the applicant husband was taken by force on one occasion and spoken to about joining the Maoist Army. Because Nepal is a Hindu society, being Christian and wanting to spread the word of god would lead to the applicants’ being harmed.
I mentioned to the applicants that the Tribunal was concerned that, given their evidence that they converted to Christianity in 2000, they were not baptised until after they arrived in Australia. The applicant wife stated that it was not possible to be baptised in Singapore as it would become known that they had broken the rule. Her husband would have been punished and perhaps sacked. They did not have time for such things during their stay in Singapore.
The Tribunal asked the applicants if they wished to add anything further. The applicant husband stated that because of their religion and their intended attempts to spread the word of God, it would cause the family to be at risk in Nepal. He stated that the Bible says that a Christian should spread the word of God so he would be obliged to proselytise.
As I have indicated the applicants were then subsequently served with a s.424A notice, and they responded by way of submissions and statements from themselves and the pastor. They sought to explain that there were difficulties of communication and some defects in memory in the course of the hearing.
Under the heading “Findings and Reasons”, the Tribunal identified the applicants’ claims in the terms in which they had been presented to the Tribunal by the applicants’ solicitor, set out above.
The Tribunal accepted their history of living in Singapore with visits back to Nepal, and said:
The Tribunal is satisfied that the applicant husband and applicant wife attend the Jesus Family Centre at Cabramatta and have done so for some months. The Tribunal is also satisfied that the applicant husband and wife were baptised in March 2006.
However, it said: “the Tribunal did not find the applicant husband and applicant wife to be credible on some key aspects of their claims as outlined below”. The Tribunal then identified, over several pages, “inconsistencies, contradictions and implausibility” which led it to make findings which rejected entirely the applicants’ claims to have converted to Christianity before coming to Australia, and consequently all of their claims to have suffered harassment in Nepal as Christians or for possessing Bibles and to have attracted the attention of the Maoists and police as a result.
Inconsistencies in their evidence about the possession of a Nepalese Bible prior to arriving in Australia led the Tribunal to conclude that: “I do not accept that the Applicants developed an interest in Christianity leading to conversion in 2000”. Inconsistencies about what had been told to the wife’s family assisted that conclusion, as did inconsistencies in their account of converting friends while in Singapore. The Tribunal thought that the delays in returning to Singapore from Nepal after the events which they described, also pointed against the plausibility of their claims.
The Tribunal did not find to be persuasive the explanations for these inconsistencies which were offered in response to the s.424A notice. The Tribunal did not accept their explanation for their delay in being baptised, nor their explanation for not being aware of their son’s baptism.
The Tribunal also took an adverse view of the motives of the applicants’ attendance at church and involvement in Christianity in Australia. It said:
In respect to the applicants’ involvement in the practice of Christianity in Australia, the Tribunal accepts the applicants have been attending the Jesus Family Centre since shortly after their arrival in Australia, and that the applicant husband and applicant wife were baptised in March 2006. The Tribunal does not accept, however, that the applicants were involved in or converted to Christianity between 2000 and 2005 whilst living in Singapore. The Tribunal does not find the applicants’ explanations regarding not being baptised in Singapore to be convincing. It is the Tribunals’ view that had the applicants been serious about an interest in Christianity since 2000, they would have made an effort to be baptised in Singapore and prior to coming to Australia. The Tribunal is not satisfied that the applicants converted to Christianity as claimed and is supported in this finding by the applicants’ conflicting evidence relating to the obtaining of a Bible or Bibles in the Nepali language. It is the Tribunal’s view that the applicants became involved with the Jesus Family Centre shortly after their arrival in Australia with a view to enhancing their protection visa applications.
As a result of this finding, the Tribunal applied s.91R(3) of the Migration Act which required it to disregard the conduct in Australia because “it is not satisfied that the applicants have engaged in this conduct otherwise than for the purpose of strengthening their claims as refugees”.
The Tribunal completed its statement of reasons, by rejecting the applicants’ history of events which had occurred in Nepal during their visits in 2000 and 2003, and as to what had happened to the applicant husband’s family subsequently. It also addressed the situation they might face if they returned to Nepal. Its findings were:
Overall, the Tribunal is not satisfied that the applicants genuinely converted to Christianity at any time prior to lodging their protection visa applications. Since the Tribunal finds that the applicants did not convert to Christianity, the Tribunal does not accept that the applicants suffered harm as claimed in Nepal in September 2000, September 2003 and October 2003. As a consequence the Tribunal does not accept the applicants’ claims that the applicant husband’s family has suffered serious harm at the hands of the Maoists. The Tribunal is not satisfied that the applicants would practise Christianity, engage in proselytising or any other practice of Christianity should they return to Nepal now or in the reasonably foreseeable future. In relation to the claim of fear of persecution as returnees from the West and/or returnee from a wealthy country, the Tribunal is unable to locate any country information particularising any incidents of serious harm being directed at such persons in Nepal. I am not satisfied that the applicants would attract such harm upon their return to Nepal.
I have carefully considered the procedures followed by the Tribunal and its reasoning, and have not been able to identify jurisdictional error affecting the Tribunal’s decision.
The applicants have not been assisted by legal representation in the proceedings in the Court. They have presented in an application, and in an amended application, lengthy grounds of application which are almost entirely too general in their references to alleged jurisdictional errors to allow the grounds to be meaningfully addressed by the Court in the absence of detailed argument. Unfortunately, no such detailed arguments have been presented, either in written submissions or by the applicant husband when he attended today’s hearing representing the rest of his family.
I do not think it is necessary to recite all of those grounds in this judgment, but I shall endeavour to group them into the categories of complaint which are made, and to explain why I do not think that those complaints are made out.
In Grounds 1 and 8 of the amended application, complaints of denial of procedural fairness are made. It is complained that: “the member did not use all the means at her disposal to produce the substantial evidence in terms of my fear on return to Nepal”. I am unsure what criticism is intended by this. If it is suggested that further investigation was required to be undertaken by the Tribunal, then such a contention does not have the support of authority (cf. Dissanayake v Minister for Immigration & Multicultural Affairs [2002] FCA 976 at [18], Win v Minister for Immigration & Multicultural Affairs (2001) 105 FCR 212 at [15], Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43], Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187], and WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73]).
It is also complained that: “I did not know the concerns of the Tribunal that I needed to address. I was not given an opportunity to respond to the all‑embracing credibility concerns held by the Tribunal”. However, in my opinion, the applicants were given those opportunities to the extent that they are required by the Migration Act. In particular, I consider that the requirements of s.424A(1) have been met.
So far as I can detect on the evidence before me, the applicants were also alerted to the fact that their credibility in general was in issue. In particular, it would appear to have been made clear to them from the questioning at the hearing and from the s.424A(1) letter that the genuineness of their conversion to Christianity, and the truth of their claims to have converted prior to coming to Australia, might not be accepted by the Tribunal. Certainly, in the absence of a transcript I am not satisfied that any breach of s.425 occurred such as was found by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63.
Many paragraphs of the amended application argue that the Tribunal failed to address claims based on membership of a particular social group. The particular criticism which appears to have be made is that the Tribunal did not address the situation of the applicant as a “foreign worker” and as somebody who had “served as a Gurkha Police Officer in Singapore for many years”.
However, the applicant’s case had not been put in those terms to the Tribunal by his solicitors, who are very experienced immigration lawyers. As I have shown above, the Tribunal did address the bases on which his claim was put and made clear findings addressing them. I am not persuaded that any of the complaints now made do more than attempt to recast the applicants’ claims, by identifying a basis for claiming to be a refugee which was not actually made to the Tribunal (cf. Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [31], NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [62], and NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195 at [73]).
A number of paragraphs of the amended application argue that the Tribunal did not consider the situation of the applicants if they returned to Nepal as people who had converted to Christianity in Australia, even if they had not been converted prior to coming to Australia.
However, the Tribunal did address that situation with its adverse finding that it was “not satisfied that the applicants would practise Christianity, engage in proselytising or any other practice of Christianity should they return to Nepal now or in the reasonably foreseeable future”. I consider the applicants’ criticisms of that conclusion address only the merits of the Tribunal’s fact‑finding, and have not identified jurisdictional error. That finding involved an assessment of credibility and a prediction in the light of all the evidence, and I am not persuaded that it was not open to the Tribunal.
There are unparticularised complaints in the amended application criticising the Tribunal’s use of country information, and alleging misdirection in law as to the meaning of “serious harm” and other errors, but these are not particularised and I am unable to give them substance.
Several paragraphs in the amended application allege bias or an appearance of bias on the part of the Tribunal, and the following criticisms are made:
11.Based on the Tribunal’s statement at the hearing, a reasonable observer would gain the impression that the Tribunal had already made up his mind and that anything else would be a waste of time. The tone of the member’s comments from then on made it clear that she wanted to finish the hearing as soon as possible. Even though the Tribunal did ask me if I wanted to add anything more. The damage had already been done as the Tribunal seemed to have already made it clear that her mind was made up.
12.The Tribunal’s comments throughout the course of the questioning and reasoning were belittling of my responses, which admitted a lack of consistency. The Tribunal’s conduct intimidated me into giving incomplete evidence. In addition, it created the impression in my mind that it had decided against me and there was nothing further I could say to change these adverse opinions.
13.I argue that the Tribunal had closed its mind prematurely was confirmed by the Tribunal’s subsequently published reasons, whose foundation was its opinion that I demonstrated a lack of credibility as it failed to undertake a duty to consider all the possible ways in which I made my claims in terms of my fear on return to Nepal.
However, no transcript of the hearing has been presented to me. I am unable to identify any reasons in the material before me, including the Tribunal’s reasons for forming an adverse conclusion about the applicants’ refugee claims, which support an allegation of bias under the tests explained in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425. There is no evidence before me that the Tribunal made “belittling” comments, nor suggesting that the applicant was “intimidated” into giving “incomplete evidence”, nor that there would be an apprehension that it closed its mind “prematurely”. I consider that its statement of reasons shows no more than a Tribunal attempting to decide a difficult case in relation to the credibility of events which were presented to the Tribunal without corroboration.
Similarly, I do not consider that any substance is shown for complaints about “bad faith on the part of the Tribunal”.
The applicant husband attended today, and his submissions to me were that the Tribunal arrived at wrong conclusions. He affirmed that in fact he is a Christian, had been a Christian in Singapore, and should have been believed by the Tribunal. However, in my opinion his complaints addressed the merits of the Tribunal’s decision only, and did not identify anything amounting to a failure by the Tribunal to perform its jurisdictional duties.
I have considered all of the matters raised by the applicants in the documents they have filed and orally today, and am not satisfied that the Tribunal’s decision was affected by jurisdictional error. It was therefore a privative clause decision, and I must dismiss the application.
The first respondent has sought a costs order far exceeding the scale amount, and which I am not prepared to award without an examination of its justification. Partly this may be accounted for by the voluminous court books, but I am not at present satisfied that these were reasonably prepared without first querying the expense with the applicants. These questions may be addressed by a Registrar upon a taxation, if the parties cannot reach agreement.
I certify that the preceding forty‑three (43) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 5 June 2007
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