SZKGC v Minister for Immigration

Case •

[2008] FMCA 774

•

19 June 2008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKGC v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 774
MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Nepal claiming fear of persecution from Maoists, the Nepalese authorities, Hindu fundamentalists and Shiv Sena – whether the Tribunal reviewed the delegate’s decision as required by Migration Act 1958 (Cth) s.414 by considering all the applicant’s claims – whether the Tribunal fell into jurisdictional error by failing to consider the applicant’s claims and their component integers – credibility – adverse view of applicant’s credibility – Tribunal found applicant to be “a witness of low credibility” – adverse view of credibility one reason for rejecting the applicant’s claim.
Migration Act 1958 (Cth) ss.91R, 414, 424A, 474
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 cited
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263 cited
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 cited
SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 cited
WALT v Minister for Immigration and Multicultural Affairs [2007] FCAFC 2 cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited
Abebe v Commonwealth (1999) 197 CLR 510 cited
Applicant: SZKGC
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 3724 of 2007
Judgment of: Scarlett FM
Hearing date: 1 May 2008
Date of Last Submission: 1 May 2008
Delivered at: Sydney
Delivered on: 19 June 2008

REPRESENTATION

Counsel for the Applicant: Mr Young
Solicitors for the Applicant: Simon Diab & Associates
Counsel for the Respondent: Mr Reilly
Solicitors for the Respondent: Sparke Helmore

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3724 of 2007

SZKGC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. The Applicant, a citizen of Nepal, asks the Court to set aside a decision of the Refugee Review Tribunal signed on 26th October 2007 and handed down on 6th November. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.

  2. He seeks the following orders:

    i)A writ of certiorari quashing the decision of the Second Respondent (the Refugee Review Tribunal) handed down on 6 November 2007.

    ii)A writ of mandamus requiring the Second Respondent to determine the application for a Protection Visa made by the Applicant according to law.

    iii)A writ of prohibition preventing the First Respondent (the Minister for Immigration and Citizenship) from taking any action upon the decision of the Second Respondent.

    iv)An order that the First Respondent pay the costs of the Applicant

  3. The Applicant claims that the Refugee Review Tribunal made jurisdictional error in that it failed to consider the claims of the Applicant and/or their component integers.

  4. The Minister has filed a Response that claims that the application for judicial review does not establish any jurisdictional error in the Tribunal’s decision.

Background

  1. The Applicant arrived in Australia on 31st March 2006. He applied for a Protection (Class XA) visa on 11th May 2006. He claimed to fear harm from the Communist Party of Nepal (Maoist), Government authorities including the Royal Nepal Army, Hindu fundamentalists and Shiv Sena.

  2. A delegate of the Minister noted that the Applicant claimed that his fears arose from his support for Christianity as expressed during his work for an organisation partly funded by American aid. He claimed that he had always believed in democracy and opposed both communism and the autocracy of the royal regime[1]. The delegate noted that the Applicant and his wife and children had considered relocating to India but had decided that this would not be a safe course to take due to the large number of Maoists living in India.

    [1] See Court Book at 41

  3. The delegate was not satisfied that the Applicant had explained how his involvement in encouraging the conversion of people from Hinduism to Christianity was linked with his work for the Nepal CRS, his employer. The delegate was also not satisfied that a photocopied document purporting to be from the Pastor of the End Time Message Church in Pokhora was genuine. The delegate was not satisfied that the persecution that the Applicant claimed could not be avoided by relocating to India. The delegate also found that the Applicant had a legally enforceable right to enter and remain in India and that India was a safe third country for the Applicant[2].

    [2] Court Book at 51

  4. The delegate refused the application for a protection visa on 3rd August 2006.   

Application for Review by the Refugee Review Tribunal

  1. The Applicant, with the aid of his solicitors and migration agents, then applied to the Refugee Review Tribunal on 5th September 2006 for review of the delegate’s decision. The Applicant did not supply any additional documentary evidence with his application.

  2. The Tribunal wrote to the Applicant on 20th September 2006, inviting him to attend a hearing of the Tribunal on 23rd October 2006. The Applicant’s advisers wrote to the Tribunal on 20th October 2006, confirming that he would attend and making a written submission about his case. Several documents were provided to the Tribunal. The Applicant attended the hearing and gave evidence.

  3. The Tribunal handed down its decision on 23rd January 2007, affirming the decision not to grant the Applicant a protection visa. The Applicant sought judicial review of that decision and the Federal Magistrates Court subsequently remitted the application to the Tribunal for reconsideration.

  4. The Tribunal wrote to the Applicant on 20th July 2007, inviting him to attend a hearing on 28th August. The Applicant attended the hearing and gave evidence with the assistance of an interpreter in the Nepalese language. He produced his Nepalese passport to the Tribunal at the hearing.

  5. The day after the hearing, on 29th August 2007, the Tribunal wrote to the Applicant in a letter headed “Invitation to Comment on Information in Writing”. The letter invited the Applicant to comment on information that the Tribunal considered would, subject to any comments he made, be the reason or part of the reason for affirming the delegate’s decision. The letter was clearly intended to comply with the requirements of s.424A of the Migration Act 1958 (Cth).

  6. The Tribunal’s letter set out certain information that the Tribunal had obtained from the Managing Director of the Nepal CRS Company and other information from the Department of Foreign Affairs and Trade. The letter told the Applicant why the Tribunal considered the information to be relevant and invited his comments. The Applicants’ solicitors replied on 11th September 2007, supplying a Statutory Declaration from the Applicant in which he commented on the information from the CRS Company.    

The Refugee Review Tribunal Decision

  1. The Tribunal signed its decision on 26th October 2007 and handed the decision down on 6th November. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa. A copy of the Tribunal Decision Record is set out on pages 193 to 219 of the Court Book.

  2. In the Decision Record, the Tribunal set out the Applicant’s claims taken from his application for a protection visa, his advisers’ pre-hearing submission, the Applicant’s evidence to the First Tribunal on 23rd October 2006, a post-hearing submission made on 20th November 2006, the Applicant’s evidence to the second Tribunal hearing, the s.424A letter to the Applicant written on 29th August 2007, and the Applicant’s comments of the 11th September 2007. The Tribunal also considered external information about:

    ·Nepal’s political and security situation

    ·A March 2004 report on the Nepal Contraceptive Retail Sales 9CRS) company;

    ·Advice from the Managing Director and Area manager of the Nepal CRS Company; and

    ·Maoists and other Family Planning or health Organisations

The Tribunal’s Findings and Reasons

  1. The Tribunal’s findings and reasons are set out on pages 209 to 219 of the Court Book. The Tribunal found that the Applicant has Nepalese nationality, based on his passport and his oral evidence.

  2. The Tribunal set out what it considered to be the Applicant’s “overlapping and sometimes interrelated claims”[3].

    [3] Court Book 209

  3. The most prominent claim was that the Maoists would harm the Applicant because of:

    a)his past employment with CRS, which they consider to be pro-Christian, pro-US and anti-Maoist;

    b)his conversion to Christianity and his proselytising;

    c)his failure to fulfil the promises he made in 2002 to meet an extortion demand and leave CRS;

    d)his political opposition to the Marxists; and

    e)the Marxists’ belief that the Applicant acted as a spy for the Nepalese authorities and US interests.

  4. The Tribunal also noted the Applicant’s claim that the Nepalese authorities may target him because of:

    a)his promotion of Christianity; and

    b)their suspicion that he and his family support the Maoists.

  5. Further, the Applicant told the Tribunal of his fear of Hindu fundamentalists and Shiv Sena, who are Hindu political radicals, who would reject him as a convert to Christianity.

  6. The Tribunal did not accept the applicant’s evidence about these matters. It found:

    The Tribunal formed an unfavourable view of the applicant’s credibility. The applicant appeared to have little conviction in his numerous claims and readily changed his evidence when it was tested[4]. 

    [4] ibid.

  7. The Tribunal considered the Applicant’s claims that various groups would target him because of his conversion to Christianity and because of his proselytising Christianity, which he claimed to be illegal.

  8. The Tribunal did not accept that the Applicant was a Christian convert or that he had “any other commitment to or association with the Christian faith (such as being ‘highly influenced’ by it)[5]. The Tribunal found the Applicant’s knowledge of Christianity to be “minimal” and found that:

    The applicant’s level of knowledge about Christianity and demonstrated contact with churches in Kathmandu and Australia are incompatible (with) his claim to have a genuine interest in the faith.[6]

    [5] Court Book 210

    [6] ibid.

  9. The Tribunal rejected all the Applicant’s claims relating to his claimed Christianity:

    The Tribunal finds that the applicant is not a Christian convert or sympathiser; and that he will not be perceived as a Christian on the basis of his personal practice or activity. It does not accept that he has promoted Christianity, or engaged in any activities that might be perceived as ‘proselytising’. It therefore dismisses his claims to have been targeted in the past and to fear prospective harm for this reason, from Maoists; from the Nepalese authorities; from Hindu fundamentalists, Shiv Sena or any other religious groups; or from society at large.

    The Tribunal finds that the applicant has fabricated this claim, and that this establishes him as a witness of low credibility[7].

    [7] Court Book 211

  10. The Tribunal accepted that the Applicant was employed with CRS but did not accept his claim that Maoists had targeted CRS staff, including him, for reason of any actual or perceived religious or political affiliations (pro-Christian, pro-US) or members of any particular social group. The Tribunal then set out its reasons for that finding.

  11. The Tribunal also rejected the Applicant’s claim that CRS staff routinely promoted Christianity, noting that it found no public reference linking CRS to Christianity. It also rejected his claims that the Maoists targeted him in May 2002 while he was working for CRS in Pokhara. The Tribunal rejected the Applicant’s claims of past harm from the Maoists. It also rejected his claims that the Maoists turned on his family in his absence.

  12. The Tribunal then considered the Applicant’s claim to fear harm from the Nepalese authorities for reasons of an imputed political opinion. The Tribunal rejected his claim that the Nepalese authorities, or, as he claimed at the hearing, the local police misinterpreted his family’s interaction with the Maoists and imputed tot hem and the Applicant an anti-government or pro-Maoist political opinion.

  13. The Tribunal also considered, and rejected, the Applicant’s claim, put by his advisers in their letter of 11th September 2007, that the Tribunal’s inquiries to CRS in Kathmandu and in Pokhara put the Applicant at risk of persecution from the Maoists.

  14. The Tribunal also considered the Applicant’s claims that he was relatively well-off and missed his family, but rejected these as reasons to show that the inevitable conclusion was that he was fleeing persecution when he left them behind.

  15. The Tribunal then went on to consider the Applicant’s claim that he was not able to live safely in India because of the presence of Maoists there. The Tribunal considered that, since it had found that the Applicant did not have a well-founded fear of Convention-related persecution in Nepal, it did not need to consider questions of protection in India.

  16. Finally, the Tribunal acknowledged the Applicant’s evidence and recent information about the uncertain situation regarding the political, security and economic outlook in Nepal and agreed that the future role of the Maoists was a critical factor. The Tribunal stated:

    The applicant is understandably apprehensive about returning to Nepal given these uncertainties, and he considers that he and his family have better prospects in Australia. However, such general concerns do not establish persecution within the meaning of s.91R(1) of the Act[8].

    [8] Court Book at 217

  17. The Tribunal was not satisfied that the Applicant had a well-founded fear of Convention-related persecution if he were to return to Nepal and affirmed the decision not to grant the Applicant a protection visa.

Application for Judicial Review

  1. The Applicant commenced proceedings on 4th December 2007 by filing an application and an affidavit in support. The Applicant’s counsel obtained leave to file in Court an amended application, to which counsel for the First Respondent did not object.

  2. Counsel for the Applicant, Mr Young, told the Court that the Applicant only sought to argue Ground 3A from the amended application, which says:

    The Second Respondent made jurisdictional error in that it failed to consider the claims of the applicant and/or their component integers.

  3. The particulars of the ground are:

    The Second Respondent noted at CB 197 that the applicant had claimed to have been kidnapped in May 2002 by Maoists, that Maoists targeted his family in his village, that Maoists made a demand of Rp 200,000 to the applicant’s father and thereafter ceased the families fields (sic) and destroyed the produce. The applicant also claimed that apart from his employment with CRS Company, Maoists targeted him and his family because of his political opinion in that he was a supporter of democracy and opposed to communism, that he was critical of Maoists and that he was popular and socially active in his community.

  4. Counsel for the Applicant, Mr Young, provided a detailed written submission in which he pointed out that, whilst the Tribunal found the Applicant to be a witness of low credibility[9], it did not find him to be a witness without any credibility. Mr Young submitted that, whilst the Tribunal dealt with the Applicant’s claims relating to Christianity and his employment with CRS from 1996 to 2005, it did not deal with the Applicant’s claim to fear the Maoists based upon his political opposition to them:

    The applicant also mentioned other reasons why the Maoists will target him. These are: (a) his failure to fulfil the promises he made to them in 2002, to meet an extortion demand and to leave CRS, (b) his political opposition to them; and (c) their belief that he acts as a spy for the Nepalese authorities and US interests[10].

    [9] Court Book at 211

    [10] Court Book at 209

  5. It is submitted that this is both in substance and as articulated a different claim to the claim of fearing the Maoists because of his employment with CRS. The claims based on the Applicant’s political opinion and political opposition to the Maoists raised a claim relating to the Applicant’s personal political stance and actions, rather than those attributed to him by reasons of his employment.

  6. Mr Young further submitted that the Tribunal would not have considered the integers of the Applicant’s claims unless it considered his claim that he was kidnapped by Maoists on 19th March 2002 and his claim that the Maoists had targeted him because of his political opposition to them. However, it is submitted that the Tribunal considered neither of those claims.

  7. The submission is that the Tribunal fell into jurisdictional error when it stated that it did not accept that the Maoists targeted the Applicant when he was working for CRS in Pokhara in May 2002. The Applicant was claiming that he had been targeted not only because of his employment with CRS but because he was an outspoken critic of the Maoists. Merely finding that there was a lack of evidence that the Maoists targeted CRS did not dispose of the Applicant’s claims, nor did reference to a general adverse view of his credibility.

  8. The Tribunal, it is submitted, had not considered the claim of kidnapping in itself at all or being targeted by the Maoists for reasons of the Applicant’s political opinion. To reject all of the Applicant’s claims of past harm based only on what the Tribunal considered to be a lack of evidence that the Maoists targeted CRS was to fail to consider an alternative basis on which the Applicant based his claim in relation to having been persecuted in the past, his own political opinion.

  9. Counsel for the Applicant referred the Court to the decision in Htun v Minister for Immigration and Multicultural Affairs[11], where Allsop J (with whom Spender J agreed) held:

    The requirement to review the decision under s. 414 of the Act requires the Tribunal to consider the claims of the Applicant. To make a decision without having considered all of the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration…[12]

    [11] (2001) 194 ALR 244

    [12] (2001) 194 ALR 244 AT 259 [42]

  10. Mr Young also referred the Court to the decision in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2)[13], where the it was held that the question was ultimately whether the case put by the Applicant before the Refugee Review Tribunal had sufficiently raised the relevant issue so that the Tribunal should have dealt with it. 

    [13] (2004) 144 FCR 1; [2004] FCAFC 263 at [60]

  11. It was submitted that the Tribunal had failed to consider all of the Applicant’s claims. Mr Young referred to three jurisdictional errors:

    a)failing to consider the claims in relation to the Convention ground raised;

    b)failing to consider the claims in respect of past persecution; and

    c)failing to consider the applicant’s claim cumulatively.

  12. However, he submitted, the jurisdictional error can concisely be put as a jurisdictional failure to consider the Applicant’s claims and their component integers.

  13. Counsel for the First Respondent, Mr Reilly, submitted that:

    ·The Tribunal’s conclusion that the Applicant was not credible is a finding of fact par excellence (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham[14]);

    ·The Tribunal was entitled to explore the Applicant’s knowledge of Christianity at the hearing and come to this conclusion based on that exploration (SBCC v Minister for Immigration and Multicultural Affairs[15]; WALT v Minister for Immigration and Multicultural Affairs[16]);

    ·The Tribunal’s findings were open to it;

    ·The Court cannot review the merits of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang[17]);

    ·There is no jurisdictional error in the Tribunal making a wrong finding of fact (Abebe v Commonwealth[18]).

    [14] (2000) 168 ALR 407 at [67]

    [15] [2006] FCAFC 129 at [45]

    [16] [2007] FCAFC 2 at [30]

    [17] (1996) 185 CLR 259 at 272

    [18] (1999) 197 CLR 510 at [137]

  1. As to the Applicant’s specific claims, Mr Reilly submitted that it was based on a wholly unfair and artificial reading of the Tribunal decision and the Applicant’s claim had been addressed and rejected. He submitted that the Tribunal had considered all aspects of the Applicant’s claims about the Maoists, and referred to the Tribunal’s Findings and Reasons at page 209 of the Court Book.

  2. Mr Reilly further submitted that the Tribunal had, in its findings and Reasons under the heading “CRS Employment”, dealt with all of the Applicant’s claims to fear the Maoists. Again, he submitted that the Tribunal had rejected all of the Applicant’s claims, both individually and cumulatively.

Conclusions

  1. In my view, a reading of the Tribunal Decision Record shows that the Tribunal did consider all aspects of the Applicant’s claims to fear harm from the Maoists. I am satisfied that the Tribunal had noted the Applicant’s claim to fear persecution from the Maoists in its Findings and Reasons:

    The applicant also mentioned other reasons why the Maoists will target him. These are:…(b) his political opposition to them;…[19]

    [19] Court Book at 209

  2. Having noted the Applicant’s claim, the Tribunal then proceeded to deal with that claim, amongst the other claims. In the passage referred to the Court by Mr Reilly, the Tribunal dealt with claims under the heading “CRS Employment”, saying:

    The Tribunal does not accept that the Maoists have targeted CRS staff, including the applicant, for reason of any actual or perceived religious or political affiliations (pro-Christian, pro-US, etc) or as members of any putative particular social group. The reasons follow[20].

    [20] Court Book at 211

  3. The Tribunal then proceeded to set out its reasons. Whilst the above passage is not very specific, the Tribunal later went to deal more specifically with that particular claim:

    The Tribunal does not accept that Maoists targeted the applicant in May 2002 while he was working for CRS in Pokhara. The applicant claims he was a popular person and an outspoken critic of the Maoists, who promoted his political views amongst villagers; that the Marxists perceive CRS employees to be pro-US; and that they suspected him to be a spy for the Nepalese authorities. There are 2 strands to these claims. First, any association with CRS leads to Maoist perceptions  of a person as a political opponent. Second, the applicant’s personality and political profile led him to be even more vulnerable than other CRS employees. The Tribunal has had regard to country information indicating a higher level of Maoist activity in certain areas around Pokhara. However, given the lack of evidence that the Maoists target CRS and given the Tribunal’s adverse view of the applicant’s credibility, it is not prepared to accept that the Maoists had any interest in or contact with him at all[21].

    [21] Court Book at 214

  4. In my view, this is a clear statement by the Tribunal that it had considered and rejected the Applicant’s claim to fear harm from the Maoists because of his political opposition to them. The Tribunal rejected the claim, not only because it was not satisfied that there was evidence to support that claim, but also because of its adverse view of the Applicant’s credibility.

  5. At this stage, it is useful to discuss what the Tribunal did decide about the Applicant’s credibility. The Applicant’s counsel submitted that it is not strictly accurate to say that the Tribunal found that he was not a witness of any credibility, but that he was a witness of low credibility. This is correct, in that the Tribunal did not make an absolute finding rejecting the Applicant as a witness of any credibility at all. However, the Tribunal did form an adverse view of the Applicant’s credibility, saying that it had formed “an unfavourable view of the Applicant’s credibility”[22] and that the Applicant’s fabrication of a claim “establishes him as a witness of low credibility”[23]. This adverse view of the Applicant’s credibility was one of the reasons, but not the only reason, why the Tribunal did not accept that the Maoists targeted the Applicant in May 2002 while he was working for CRS at Pokhara.

    [22] Court Book at 209

    [23] Court Book at 211

  6. Lest it be thought that the Tribunal only dealt with the Applicant’s claim that he feared harm from the Maoists because of his political opposition only on the basis of events in Pokhara in May 2002, the Tribunal made more general statements about the Applicant’s claims, stating:

    In light of the above, the Tribunal rejects all of the applicant’s claims of consequent past harm from the Maoists…The Tribunal finds that the applicant’s transfer from Pokhara to Kathmandu was for reasons unrelated to his refugee claims, and not in order to escape the Maoists[24].

    [24] Court Book at 215

  7. Further, the Tribunal stated:

    The Tribunal has considered the applicant’s claims individually and cumulatively[25].

    [25] Court Book at 217

  8. I am satisfied that the Tribunal was aware of the Applicant’s claim to fear harm from the Maoists because of his political opposition to them and rejected that claim, because:

    a)the factual evidence did not support that claim; and

    b)the Tribunal had formed an adverse (i.e. low) opinion of the Applicant’s credibility

  9. Accordingly, I am not satisfied that the Tribunal made jurisdictional error by failing to consider a component integer of the Applicant’s claim. It follows that in the absence of jurisdictional error, the Tribunal’s decision is a privative clause decision and not susceptible to orders in the nature of certiorari, mandamus or prohibition (Migration Act, s.474(1)).

  10. The application will be dismissed with costs.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  12 June 2008


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Cases Citing This Decision

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SZKGC v Minister for Immigration [2009] FMCA 1015