SZKGC v Minister for Immigration
[2009] FMCA 1015
•21 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKGC v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1015 |
| MIGRATION – Visa – Protection (Class XA) visa – review of Refugee Review Tribunal decision – citizen of Nepal claiming fear of persecution by Maoists, Nepalese authorities, communist splinter groups, Hindu fundamentalists and Shiv Sena – whether the Tribunal gave proper, genuine and realistic consideration to the applicant’s claims – whether the Tribunal failed to comply with Migration Act 1958 (Cth) s. 91R(3) – whether a failure to give proper, genuine and realistic consideration is an error of law or jurisdictional error – no failure to give proper, genuine or realistic consideration – where Tribunal did not accept that conduct in Australia had occurred – no failure to comply with s. 91R(3) – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.36, 91R, 414, 425, 476 |
| SZKGC v Minister for Immigration & Anor [2008] FMCA 774 Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 Oreb v Willcock [2004] FCA 1520 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470; 223 ALR 171; 80 ALJR 367 SZIIF v Minister for Immigration and Citizenship [2008] FCA 913 SZHYW v Minister for Immigration & Anor [2007] FMCA 2113 SZLPG v Minister for Immigration & Anor [2008] FMCA 820 SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 SZHFE v Minister for Immigration, Multicultural and Indigenous Affairs (No 2) [2006] FCA 648 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Abebe v Commonwealth (1999) 107 CLR 510 SZLDV v Minister for Immigration and Citizenship [2008] FCA 1211 SZMDC v Minister for Immigration & Anor [2008] FMCA 1282 SZMBS v Minister for Immigration and Citizenship [2009] FCAFC 65 SZNDT & Ors v Minister for Immigration & Anor [2009] FMCA 482 Minister for Immigration and Citizenship v SZJGV [2009] HCA 40 |
| Applicant: | SZKGC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 998 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 27 August 2009 |
| Date of Last Submission: | 27 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 21 October 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Young |
| Solicitors for the Applicant: | No solicitor on record |
| Counsel for the Respondents: | Mr Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $5500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 998 of 2009
| SZKGC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal affirming the decision of a delegate of the Minister for Immigration and Citizenship not to grant the applicant a Protection (Class XA) visa.
By an amended application filed in Court on the hearing day, the applicant seeks the following:
a)A writ of certiorari;
b)A writ of mandamus;
c)A writ of prohibition; and
d)Costs.
Background
The applicant is a citizen of Nepal who arrived in Australia on 31st March 2006. He applied for a Protection (Class XA) visa on 11th May 2006, claiming to fear harm from the Communist party of Nepal (Maoist), Nepalese government authorities including the Royal Nepal Army, Hindu fundamentalists and Shiv Sena.[1]
[1] See Court Book at page 20
The Minister’s delegate refused the application for a visa on 3rd August 2006. The applicant applied to the Refugee Review Tribunal for review of that decision on 5th September 2006.[2] On 12th January 2007 the Refugee Review Tribunal, differently constituted, affirmed the delegate’s decision.
[2] Court Book 56-59
The applicant then applied to the Federal Magistrates Court for judicial review of that decision. On 21st June 2007 the Court set aside the Tribunal decision and the matter was remitted to the Tribunal to be determined according to law.[3] A second Tribunal affirmed the delegate’s decision on 26th October 2007.
[3] Court Book 128
The applicant again applied to the Federal Magistrates Court for judicial review of the Tribunal decision. On 19th June 2008 his application was dismissed.[4] The applicant appealed and on 13th August 2008 orders were made by consent, issuing writs of certiorari and mandamus, thereby returning the matter to the Tribunal for review according to law.[5]
[4] SZKGC v Minister for Immigration & Anor [2008] FMCA 774
[5] Court Book 144
The Tribunal invited the applicant to attend a hearing on 28th October 2008.[6] His then solicitors and migration agents forwarded a further written submission to the Tribunal on 21st October 2008.[7] The applicant attended the hearing, accompanied by his adviser, and gave evidence with the assistance of a Nepalese interpreter.[8] He provided a copy of his passport and some letters and documents from his employer in Nepal to the Tribunal.[9]
[6] Court Book 149
[7] Court Book 152-163
[8] Court Book 164
[9] Court Book 166-175
At the hearing, the Tribunal allowed the applicant the opportunity to provide further information. On 11th November 2008 he forwarded a submission and a statutory declaration to the Tribunal.[10]
[10] Court Book 193 at [50], 176-179
The Refugee Review Tribunal Made its decision on 6th April 2009, affirming the decision not to grant the applicant a Protection (Class XA) visa.[11]
[11] Court Book 183
The Tribunal’s findings and Reasons
The Tribunal noted the applicant’s claim that he feared harm in Nepal mainly because he was targeted by the Maoists. The Tribunal also noted:
The applicant also claims that he fears harm in his country from Nepalese authorities/police and the army because they considered he was supporting the Maoists and searched for him. He also claims that the authorities will not protect him from harm as they will persecute him for spreading Christianity. He also fears Hindu fundamentalists because they have labelled him a Christian. He also told the Tribunal that he fears harm from communist groups which are splinter groups from the main group; he also fears Shiv Sena.[12]
[12] Court Book 195 at [60]
The Tribunal accepted that independent country information supported the applicant’s claims of persecution by the Maoists and their supporters and there is no effective protection available.[13]
[13] Ibid at [61]
The Tribunal accepted that the applicant is a citizen of Nepal.[14] It also accepted that:
a)The applicant was employed by the CRS company in Nepal from 1996 until just before he came to Australia.[15]
b)The applicant travelled to Tibet, India, Singapore and Switzerland.[16]
c)He did not claim protection in Singapore in 2004 because he learned that he could not apply there.[17]
d)The applicant had some general community involvement with the End Time Message Church in Pokhara from 2001.[18]
e)He was threatened by Maoists in Pokhara in 2002 because of his general association with his work at CRS and because he did not support the Maoists or give them money.[19]
[14] Court book 196 at [65]
[15] Ibid at [66]
[16] Ibid at [68]
[17] Ibid at [69]
[18] Court Book 197 at [70]
[19] Court Book 198 at [72]
However, the Tribunal did not accept as reliable the information from the applicant’s employer obtained by the prior Tribunal and gave it no weight.[20]
[20] Court Book 196 at [67]
Also, the Tribunal did not accept the applicant’s explanation as to why he did not claim protection when he visited Switzerland for a human rights conference in Geneva, saying:
In the Tribunal’s view if the applicant truly feared harm in his country as he claims when he went to Switzerland in 2001 he would have sought protection there. ..The Tribunal finds that the applicant did not claim protection in Switzerland when he went there in 2001, and that he returned to his country after his trip to Switzerland, because he did not fear serious harm in his country from Maoists, Hindu fundamentalists, police, the military or anyone else at or before that time.[21]
[21] Court Book 197 at [69]
The Tribunal did not accept that:
a)The applicant was a Christian or had been labelled as one;[22]
b)That he was interested in Christianity;[23]
c)That he had any involvement with a Christian church in Nepal before or after his involvement with the church in Pokhara between February 2001 and March 2002;[24] or
d)That he had attended church in Australia.[25]
[22] Ibid at [70]
[23] Ibid
[24] Ibid
[25] Ibid
Because the Tribunal did not accept that the applicant was a genuine Christian, it did not accepted that he had been targeted because of his religion by the Maoists, Hindu extremists or anyone else in Nepal.[26]
[26] Court Book 198 at [71]
Further, the Tribunal did not accept that the applicant had been targeted by the Nepalese police or the army because he and his family were suspected of assisting the Maoists and found that he did not have a political profile as a political opponent of the Maoists in Nepal.[27] The Tribunal also did not accept that the applicant left Nepal because he feared harm from various groups.[28]
[27] Ibid at [73]-[74]
[28] Court Book 199 at [75]
The Tribunal stated:
The Tribunal does not accept that there is a real chance that the applicant will be harmed or threatened or detained by Maoists, Hindu fundamentalists, the Nepalese Army/police/authorities, communist splinter groups, Shiv Sena or anyone else for the reasons that he claims if returns to Nepal.[29]
[29] Court Book 200 at [79]
The Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention and, therefore, he did not satisfy the criterion set out in s. 36(2) of the Migration Act for a protection visa.
Application for Judicial Review
The applicant commenced proceedings in this Court by filing an application and an affidavit in support on 28th April 2009.
In his amended application, the applicant relies on the following grounds of review:
a)Ground 1 – The Second Respondent made jurisdictional error by failing to give proper, genuine and realistic consideration to his claim to fear future persecution from Nepalese authorities, police and the army, from Hindu fundamentalists and from Shiv Sena.
b)Ground 2 – The Second Respondent made jurisdictional error by having regard, contrary to section 91R(3) of the Migration Act 1958, [to] the conduct of the Applicant in Australia.
The particulars of that second ground are:
At [70] and [71] the Second Respondent had regard to the Applicant’s church attendance in Australia concluding that he was not a genuine Christian.
The Applicant’s Submissions
Counsel for the applicant, Mr Young, first of all addressed the submission by counsel for the Minister that the formulation that the Tribunal failed to give “proper, genuine and realistic consideration” to the applicant’s claim was not a proper ground of review. It had been submitted that this formulation was problematic and that there is a considerable body of authority that it is not a recognised basis of error of law or jurisdictional error (Minister for Immigration and Multicultural Affairs v Anthonypillai[30] at [59]-[66]; NABE v Minister for Immigration and Multicultural Affairs (No 2)[31] at [51]). At most, it was submitted that it means that the Tribunal cannot apply an inflexible policy to the case at hand (Oreb v Willcock[32] at [171]-[172]).
[30] (2001) 106 FCR 426
[31] (2004) 144 FCR 1
[32] [2004] FCA 1520
Mr Young submitted that it is a proper and recognised ground (NAIS v Minister for Immigration and Multicultural and Indigenous Affairs[33]; SZIIF v Minister for Immigration and Citizenship[34] per Weinberg J at [67]; SZHYW v Minister for Immigration & Anor[35] per Nicholls FM at [13]; and SZLPG v Minister for Immigration & Anor[36] per Smith FM at [26]).
[33] [2005] HCA 77; (2005) 228 CLR 470; 223 ALR 171; 80 ALJR 367
[34] [2008] FCA 913
[35] [2007] FMCA 2113
[36] [2008] FMCA 820
Mr Young submitted that there is nothing in the Tribunal’s reasons that indicates that it gave any proper, genuine and realistic consideration to the applicant’s claims. It is the duty of the Tribunal to review the decision, which involves considering the integers of the claim and giving proper, genuine and realistic consideration to the claims made (SZIIF v Minister for Immigration & Citizenship[37]). He submitted that nothing in the Tribunal’s reasons that indicates the slightest consideration to the nature of persecution in Nepal by either Hindu Fundamentalists or, in particular, Shiv Sena.
[37] supra
Further, it was submitted that the applicant’s claim was a future fear of persecution. It was not open to the Tribunal to reject that Hindu Fundamentalists generally or Shiv Sena in particular might regard the applicant’s involvement with a Christian church in 2001 and 2002 as sufficient to label him a Christian without giving some consideration to his claims.
As to the applicant’s second ground, Mr Young submitted that, in relation to its ultimate finding that the applicant was not a genuine Christian, the Tribunal relied upon a preliminary finding that it did not accept that he had attended church in Australia. This was conduct which the Tribunal was bound to disregard under s. 91R(3) (see SZJGV v Minister for Immigration and Citizenship[38] at [22], [24]).
[38] [2008] FCAFC 105
The submission is that the applicant had raised the suggestion that he had attended church in Australia at a prior Tribunal hearing in support of his claims. Thus, there was no question that the possible application of the decision of Jacobson J in SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [39]could arise.
[39] [2006] FCA 648
Here, it is submitted, the Tribunal regarded the applicant’s previous evidence as being in support of claim based on his Christianity. The Tribunal rejected the evidence and also used it as part of the basis of its decision that the applicant was not a genuine Christian.
Counsel for the applicant also relied on SZMBS v Minister for Immigration and Citizenship[40] and SZNDT & Ors v Minister for Immigration & Anor[41]
[40] [2009] FCAFC 65
[41] [2009] FMCA 482
Counsel for the applicant submitted that this was a clear case of jurisdictional error.
The First Respondent’s Submissions
Counsel for the first respondent, the Minister for Immigration and Citizenship, submitted that the Tribunal’s reasons were open to it for the reasons that it gave. The Court cannot review the merits of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang[42] at 272). There is no error of law in the Tribunal making a wrong finding of fact (Abebe v Commonwealth[43] at [137]).
[42] (1996) 185 CLR 259
[43] (1999) 197 CLR 510
As to the applicant’s first ground, counsel for the Minister, Mr Reilly, submitted that the Tribunal did not accept that the applicant was a genuine Christian and therefore did not accept that he had been targeted for reason of his religion by Maoists, Hindu extremists or anyone else in Nepal at any time. In doing so it was clearly addressing the applicant’s claim that he feared harm from Hindu extremists because he was labelled a Christian.
As there was no failure by the Tribunal to address the applicant’s claims within the principles explained in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [44] it was submitted that the applicant’s first ground must fail.
[44] supra
Turning to the applicant’s second ground, the claim of a breach of s 91R(3) of the Act, Mr Reilly submitted that the Tribunal had explicitly found that the applicant had not attended church in Australia, so there was no conduct to disregard.
Mr Reilly further submitted that it was not a fair reading of the Tribunal’s reasons to suggest that the Tribunal had positively relied on the fact of the applicant’s not attending church in Australia as a reason for its conclusion that the applicant was not a genuine Christian and thus would not be subject to persecution for that reason. Inaction is not conduct within s 91R(3) (SZLDV v Minister for Immigration and Citizenship[45] and SZMDC v Minister for Immigration and Citizenship[46]).
[45] [2008] FCA 1211
[46] [2008] FMCA 1282
Thus, it was submitted that there is no jurisdictional error.
Conclusions
The applicant’s first ground claims a failure by the Tribunal to give proper, genuine and realistic consideration to his claim to fear future persecution from Nepalese authorities, police, the army, Hindu fundamentalists and Shiv Sena.
The first point to be considered is whether a failure to give proper, genuine and realistic consideration can be regarded as an error of law or jurisdictional error. Certainly, Weinberg J appeared to be of the view that it is in SZIIF[47], which is a decision on appeal from the Federal Magistrates Court. In that decision, his Honour referred extensively to the decision of the High Court in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs[48].
[47] supra
[48] supra
The phrase “proper, genuine and realistic consideration” appears, interestingly enough in the dissenting decision of Gummow J:
Even Gummow J, in dissent, noted at [37] that counsel for the Minister:
“…accepted that it is implicit in the reference in s 425 to a hearing where evidence may be given that the challenge to the decision under review by the RRT be given a proper, genuine and realistic consideration in the decision to be subsequently made by the RRT.”
Gummow J seems to have accepted as correct the concession on behalf of the Minister that the Tribunal was obliged to give “proper, genuine and realistic consideration to the case. Implicitly, his Honour also accepted that this requirement did not involve merits review.[49]
[49] [2008] FCA 913 at [81]-[82]
In the circumstances, it is not for this Court to argue that a failure to give proper, genuine and realistic consideration to the decision under review is not a jurisdictional error. From the decision of Gummow J in NAIS it appears to be a part of the Tribunal’s obligation to provide a fair hearing under s. 425 of the Migration Act, although it would also appear to me, with respect, to have a bearing on the Tribunal’s obligation under s. 414 of the Act to review an RRT-reviewable decision.
In SZIIF, Weinberg J found that the third Tribunal had erred by not giving proper, genuine and realistic consideration to the decision under review:
Had the inconsistencies that T3[50] identified been both real and substantial, one might well understand how it arrived at its conclusion. Even then, it would have been highly desirable for T3 to have stated expressly that it had taken into account the dangers associated with drawing sweeping conclusions from what on any view was a mere handful of discrepancies.
However, when one adds to the mix the fact that none of the inconsistencies identified were properly analysed, several seemed to have misstated the appellant’s earlier position, and some involved summaries taken out of context, the entire process appears to have gone badly wrong. To use the language of Gummow J in NAIS, the Tribunal did not give “proper, genuine and realistic consideration to the appellant’s case. He was not afforded the hearing to which the law entitled him.
In my view, the Federal Magistrate erred in dismissing the appellant’s complaints by treating the Tribunal as having “implicitly” taken into account matters that I frankly doubt it ever considered.[51]
[50] i.e. the third Tribunal
[51] [2008] FCA 913 at [97]-[99]
The applicant in this case complains of a failure by the Tribunal to give proper, genuine and realistic consideration to the decision under review. In particular, he claims that the Tribunal did not give consideration to the nature of persecution in Nepal by either Hindu fundamentalists or Shiv Sena.
In considering this claim, the Tribunal’s Findings and Reasons show that it was aware of the nature of the applicant’s claims:
The applicant also claims that he fears harm in his country from Nepalese authorities/police and the army because they considered he was supporting the Maoists and searched for him. He also claims that the authorities will not protect him from harm as they will persecute him for spreading Christianity. He also fears Hindu fundamentalists because they have labelled him a Christian. He also told the Tribunal that he fears harm from communist groups which are splinter groups from the main group; he also fears Shiva Sena.[52]
[52] Court Book 195 at [60]
The Tribunal did not accept that the applicant was a Christian or had been labelled as a Christian by Hindu fundamentalists, Maoists, authorities in Nepal “or anyone else” because of his Christianity or his involvement with the church in Pokhara.
The Tribunal made this finding:
The Tribunal finds that the applicant knows very little about Christianity or the Bible; he himself agrees in his statutory declaration made 3 November 2008 that he does not know very much about Christianity. In the Tribunal’s view he would know more about that religion if he were a genuine Christian as he claims and had preached and promoted Christianity; in the Tribunal’s view it is not plausible that the applicant preached about and promoted a religion that he knows/knew very little about. The Tribunal does not accept as reasonable his explanation for his lack of knowledge about Christianity.[53]
[53] Court Book 197 at [70]
The Tribunal went on to find:
Because the Tribunal considers that the applicant is not a genuine Christian it does not accept as true that the applicant was targeted because of his religion by Maoists, Hindu extremists or anyone else in Nepal at any time.[54]
[54] Court Book 198 at [71]
The applicant’s claims, in his statutory declaration submitted after the hearing, were that:
I fear to return to Nepal because I am targeted by Maoists, who are now controlling government authorities…[55]
I again say that I have a grave fear for my life on Religious basis because Hindu fundamentalists have labelled me as a Christian.[56]
[55] Court Book 177
[56] Court Book 178
The Tribunal addressed those claims. It rejected the claims that the applicant feared harm on a religious basis because it did not accept that he was a Christian or had been labelled as one. It gave its reasons for not accepting that the applicant was a Christian, and it was open to the Tribunal on the evidence to make that finding.
I am not satisfied that the Tribunal failed to give proper, genuine and realistic consideration to the applicant’s claims. The applicant’s first ground has not been made out.
The applicant’s second ground claims that the Tribunal breached s. 91R(3) of the Act by having regard to the applicant’s conduct in Australia, specifically the applicant’s church attendance in Australia, when it concluded that the applicant was not a genuine Christian.
The applicant relies on the decision of the Full Court of the Federal Court in SZJGV v Minister for Immigration and Citizenship[57]. I note that the Full Court’s decision has recently been reversed on appeal to the High Court (Minister for Immigration and Citizenship v SZJGV[58]), although it has no direct bearing on this matter.
[57] supra
[58] [2009] HCA 40
The Tribunal referred in paragraph [70] of its reasons to the applicant’s claim to have attended church in Australia:
He told the prior Tribunal that he attended church in Australia in Cabramatta, infrequently, but could tell that Tribunal very little about the church or about Christianity. The Tribunal does not accept that the applicant has attended church in Australia.[59]
[59] Court Book 197 at [70]
That is the full extent of the reference to the applicant’s claim to have attended church in Australia. The Tribunal did not accept it.
Subsection 91R(3) requires the Tribunal, when determining whether the applicant has a well-founded fear of persecution, to:
disregard any conduct any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
As far as the Tribunal was concerned, there was no conduct to disregard. The applicant had claimed that he went to church in Australia. The Tribunal did not believe him. Consequently, s. 91R(3) was not engaged.
In any event, the Tribunal did not rely on its disbelief of the applicant’s claim to have attended church in Australia as a reason for finding that the applicant was not a Christian. It found he was not a Christian because he did not know very much about Christianity.
The applicant’s second ground has not been made out.
There is no jurisdictional error. Accordingly, the Tribunal decision is a privative clause decision as defined by s. 474(2). It is final and conclusive and not subject to certiorari, mandamus or prohibition (s. 474(1)).
The application will be dismissed with costs.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 21 October 2009
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