SZJME v Minister for Immigration
[2007] FMCA 1948
•14 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJME v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1948 |
| MIGRATION – Whether the 424A letter provided an opportunity to comment – whether all the evidence was taken into account – whether the Tribunal must make reference to all the evidence before it. |
| Migration Act 1958 (Cth), ss.420, 424A, 474 |
| SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | SZJME |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1754 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 14 November 2007 |
| Date of last submission: | 14 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 14 November 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms K. Hooper of DLA Phillips Fox |
ORDERS
The application and amended application are dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $3,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1754 of 2007
| SZJME |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 1 May 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
Background
On 2 February 2006 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In a statutory declaration attached to his application, the applicant claimed to be a member of the Nepali Congress and to fear persecution from both the Maoists and the Royal Nepalese Army (Court Book “CB” 56-57).
The application was refused by a delegate of the first respondent on 12 April 2006 (CB 66) and by the Tribunal on review on 17 August 2006 (CB 116). An application for judicial review was filed with this Court, and on 8 March 2007, Driver FM remitted the matter to the Tribunal to be determined according to law (CB 127). By decision signed on 1 May 2007, the second Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.
The matter is now before this Court pursuant to an application for judicial review filed on 4 June 2007, and an amended application filed on 9 August 2007.
Issues for determination
The issues before the Court are as follows:
·Whether the Tribunal provided the applicant with an opportunity to comment under s.424A;
·Whether the Tribunal took the applicant’s evidence into account;
·Whether it is necessary for the Tribunal to refer to all items of evidence before it.
The application
In his application, the applicant set out three grounds as follows:
(1)The Second Respondent made a jurisdictional error by failing to provide the applicant with an opportunity to comment on the adverse information under section 424A of the Migration Act 1958.
Particulars
(a)The Second Respondent was satisfied that the applicant was targeted by Maoists and the authorities in the way he described. The Second Respondent also conceded on the basis of external sources that the civilians in Nepal were subjected to widespread human rights violations by the Maoists and authorities during civil war. However it made a negative decision stating that significant changes have occurred since the applicant applied for a protection visa. The Second Respondent never provided the applicant with the information on which it was relied on to say “significant changes”.
(2)The Respondent made jurisdictional error by failing to take account of relevant facts and taking account of irrelevant considerations.
Particulars
(a)The applicant’s claim and evidence that he was subjected to perpetual extortion by the Maoist Insurgents and his inability to meet their demands was not considered by the Tribunal.
(b)The Second Respondent flatly ignored the correspondence sent to it by the applicant’s Agent on April 2007 indicating that the situation in Nepal was still fragile.
(3)The Tribunal made a jurisdictional error by misinterpreting and misapplying the Convention ground as to what amounts to “serious harm”.
Particulars
(a)The Tribunal accepted the Maoists’ presence and activities in the applicant’s country but failed to consider the applicant’s claim that he has a well founded fear in Nepal by the hands of the Maoists.
(b)The Tribunal accepted that the applicant left Nepal because he had difficulty running his business and working successfully there due to the security situation, yet it failed to consider depriving from such rights constitutes serious harm.
The applicant filed an amended application on 9 August 2007 setting out the following grounds and particulars:
[The applicant repeats the grounds and particulars of the original application]
Additional Grounds
(1)The Tribunal constructively failed consider whether there is a real chance of Convention-related harm occurring in the event the applicant return to Nepal.
Particulars
(a)The Tribunal stated that it is mere speculation that Maoists sunk the applicant’s canoes or that he is still targeted by Maoists in Nepal.
(b)The Tribunal earlier in its findings and reasons was satisfied that the applicant was targeted by Maoists in the way he described.
(c)In rejecting his claim as speculative the Tribunal stated that the applicant “has no reliable information to support his claim that he is still a person of interest to Maoists”.
(d)The applicant claimed that his wife informed him that Maoists sunk his canoes.
(e)The applicant further claimed that the majority of people in the area where his canoes were are Maoists
(f)In the preceding circumstances the Tribunal fell into error by not applying the language of the Convention such that it did not turn its mind to whether there is a real chance that the applicant will be persecuted upon his return to Nepal (see Minister v Guo (1997) 191 CLR 559 at 572-573).
Findings of the Court in relation to the grounds in the application
Ground one alleges that the Tribunal failed to provide the applicant with an opportunity to comment under s.424A. The particulars complain that the Tribunal “made a negative decision stating that significant changes have occurred since the applicant applied for a protection visa” (CB 176). Before and after making that finding the Tribunal referred to information from external sources “summarised above and discussed with the applicant at the hearing” (CB 177.1). That information is subject to the exception in s.424A(3)(a) and was not required to be included in a s.424A letter. Ground one is rejected.
Ground two alleges a failure to take into account the applicant’s evidence that he was subjected to perpetual extortion by the Maoist insurgents and his inability to meet their demands. The Tribunal referred to his claims
· that Maoists “kept extorting money from him” (CB 170.3);
· that Maoists threatened “to kill him if he does not…pay them money” (CB 170.3);
· that “the Maoists demanded money, often large amounts of money” and that “he only gave them small amounts of money” (CB 171.6);
· that the Maoists sent him threatening letters asking for money (CB 171.7) and to harassment from Maoists (CB 171.8); and
· that he was “harassed by the Maoists and asked for money and he was not earning much money” (CB 172.3).
The Tribunal also referred to
· the applicant’s evidence that “they were facing economic hardship” (CB 176.2);
· the applicant’s claims that Maoists extorted money from him (CB 176.6), and accepted that the applicant was targeted by Maoists (CB 176.8).
The Court finds that the Tribunal did take into account the claims in ground 2(a). Ground 2(a) is rejected.
Ground 2(b) alleges that the Tribunal “flatly ignored the correspondence sent to it by the applicant’s Agent on April 2007 indicating that the situation in Nepal was still fragile”. The Tribunal referred to an article dated 22 April 2007 submitted by the applicant (CB 175.7). The Tribunal noted that some tensions remain (CB 175.8). The applicant’s agent submitted a letter dated 18 April 2007 about the then current situation in Nepal. The letter enclosed copies of country information. The finding by the Tribunal that “some tensions remain” (CB 175.8) dealt with the issue raised in the letter of 18 April 2007, and it was not necessary for the Tribunal to refer to the letter of 18 April 2007. As stated in SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 at [58]:
It is well established that the Tribunal is not obliged to refer in its reasons to every item of evidence that was before it: Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 593; Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 at [79]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 (‘Applicant WAEE’) at [46]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14]. It follows that the omission to refer to a piece of evidence does not necessarily require a conclusion that it has been overlooked: Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621 per Fox J; Karras v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167 at 173.
The Tribunal did not ignore the issue raised in the letter of 18 April 2007. Failure to take a relevant consideration into account can only be made out where the Tribunal failed to take into account a consideration which it is bound under the Act to consider: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. Where the elements of the claim have been considered, the failure to mention expressly part of the applicant’s evidence does not show jurisdictional error: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79] per Allsop J; Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68]; MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1314 at [13]-[15] per Middleton J. Further, it is a matter for the Tribunal which country information it accepts. As stated by the Federal Court of Australia in Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
Also, in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [11] as follows:
By s.420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
Ground 2(b) is rejected.
Ground three alleges that the Tribunal misapplied the Convention as to what amounts to serious harm. Particular (a) complains that the Tribunal failed to accept the applicant’s claim that “he has a well founded fear in Nepal by the hands of the Maoists”. That finding of fact by the Tribunal is not open to review. As stated in NAHI (ante) at [10] :
In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.
Particular (a) is rejected.
Particular (b) complains that the “Tribunal accepted that the applicant left Nepal because he had difficulty running his business and working successfully there due to the security situation, yet it failed to consider depriving from such rights constitutes serious harm”. The Tribunal found that the applicant “fled his country because he was targeted by the Maoists and the authorities” (CB 176.5). It did not find he “left Nepal because he had difficulty running his business and working successfully there due to the security situation”. There was therefore no relevant question before it of whether depriving him of that right constituted “serious harm”. Particular 3(b) is rejected.
Findings of the Court in relation to the grounds in the amended application
Ground one alleges that the Tribunal “constructively failed consider [sic] whether there is a real chance of Convention-related harm occurring in the event the applicant return [sic] to Nepal”. Particular (a) complains that the Tribunal found “that it is mere speculation that Maoists sunk the applicant’s canoes or that he is still targeted by Maoists in Nepal” (CB 177.8). The Court agrees with the following statement by the Tribunal in another matter:
However, the mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for reasons of political opinion. It remains for the minister in the first place to be “satisfied” and, where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out”: Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 596.
Also,
Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Rhandawa v MIEA (1994) 52 FCR 437 at 451.
The applicant failed to establish his claims to the satisfaction of the Tribunal. Particular (a) is rejected.
Particular (b) complains that the Tribunal was satisfied earlier in its findings that the applicant was targeted in the way he described. The Court refers to the decision in Lee (ante) that the Tribunal “is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”. There was no error in the Tribunal finding that there is
no reliable information to support his claim that he is still a person of interest to the Maoists or that Maoists were indeed responsible for the sinking of his canoes…it is mere speculation on the applicant’s part that Maoists sunk his canoes or that he is still targeted by Maoists in Nepal. (CB 177.8)
Particular (b) is rejected.
Particular (c) complains about the finding that “the applicant has no reliable information to support his claim that he is still a person of interest to Maoists”. That finding of fact was properly open to the Tribunal on the material before it and is not open to review. Particular (c) is rejected.
Particular (d) refers to the applicant’s claim that his wife informed him that Maoists had sunk his canoes. It is a matter for the Tribunal which evidence it accepts or rejects: Lee (ante). It was open to the Tribunal to find that the applicant had no reliable information to support his claim that Maoists were responsible for sinking his canoes. The Tribunal was entitled to accept or reject or give weight to the evidence proffered as it thinks appropriate. No error has been established. Particular (d) is rejected.
Particular (e) repeats a claim that the majority of the people in the area where his canoes were are Maoists. It was properly open to the Tribunal to make its findings of “no reliable information” and “mere speculation”. No error has been established. Particular (e) is rejected.
Particular (f) alleges that the Tribunal “did not turn its mind to whether there is a real chance that the applicant will be persecuted upon his return to Nepal”. The Tribunal found:
·“[that it] is satisfied that under improved conditions the applicant will no longer attract the adverse interest of the either Maoists or the authorities in Nepal.” (CB 177.2);
·“[that it] is satisfied by information from external sources referred to above that a ceasefire has been in place in Nepal since April 2006 and that all sides have demonstrated a commitment to end the hostilities.” (CB 177.4);
·“the applicant’s fear that Maoists will not conform to the peace and disarmament agreements, and that he will be targeted by Maoists if he returns to Nepal, is not well-founded.” (CB 177.5);
·“that significant changes have taken place since the applicant left the country and citizens of Nepal are no longer at risk of harm by the authorities because they are Maoists or Maoist sympathisers.” (CB 177.6);
·“[that] the applicant will not be a person of interest to the authorities in Nepal because he was previously considered to be a Maoist or a Maoist sympathiser…that the chance that the applicant will be at risk of harm by the authorities in Nepal, as a Maoist or a Maoist supporter, is remote.” (CB 177.7);
·“that the applicant has no reliable information to support his claim that he is still a person of interest to the Maoists or that Maoists were indeed responsible for the sinking of his canoes.” (CB 177.8);
·“that it is mere speculation on the applicant’s part that Maoists sunk his canoes or that he is still targeted by Maoists in Nepal.” (CB 177.8)
The Tribunal therefore turned its mind to the chance of the applicant being persecuted if he returns to Nepal. Particular (f) is rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application are dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: M Giang
Date: 21 November 2007
0
20
1