SZKGC v Minister for Immigration and Citizenship
[2010] FCA 270
•25 March 2010
FEDERAL COURT OF AUSTRALIA
SZKGC v Minister for Immigration and Citizenship [2010] FCA 270
Citation: SZKGC v Minister for Immigration and Citizenship
[2010] FCA 270Appeal from: SZKGC v Minister for Immigration & Anor
[2009] FMCA 1015Parties: SZKGC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 1262 of 2009 Judge: LANDER J Date of judgment: 25 March 2010 Catchwords: MIGRATION – appeal claiming that the RRT failed to exercise its jurisdiction by failing to give “proper, genuine and realistic consideration” to the appellant’s claim of fear from persecution – Division 4 of Part 7 of the Migration Act 1958 (Cth) provides for the manner in which the RRT must proceed in its consideration of an application for review – RRT not subject to a review as to its consideration of the merits of the application – only jurisdictional error if RRT does not exercise its jurisdiction in accordance with the Act. Legislation: Migration Act 1958 (Cth) ss 91R, 411, 412, 413, 414, Division 4 of Part 7 Cases cited: Anderson on behalf of the Numbahjin Clan within the Bundjalung Nation v Director-General of the Department of Environment and Climate Change (2008) 251 ALR 633 cited
Attorney-General (NSW) v Quin (1990) 170 CLR 1 applied
Minister of Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied
Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 cited
NABE v Minister of Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 citedDate of hearing: 3 March 2010 Place: Adelaide (Videolink to Sydney) Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 23 Counsel for the Appellant: Mr J R Young Counsel for the Respondents: Mr T Reilly Solicitor for the Respondents: Sparke Helmore
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1262 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZKGC
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LANDER J
DATE OF ORDER:
25 MARCH 2010
WHERE MADE:
ADELAIDE (VIDEOLINK TO SYDNEY)
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1262 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZKGC
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LANDER J
DATE:
25 MARCH 2010
PLACE:
ADELAIDE (VIDEOLINK TO SYDNEY)
REASONS FOR JUDGMENT
This is an appeal from orders made by a Federal Magistrate dismissing the appellant’s application for review of a decision of the Refugee Review Tribunal (the RRT) made on 6 April 2009, affirming a decision of a delegate of the first respondent to refuse to grant the appellant a Protection visa and ordering the appellant to pay the first respondent’s costs fixed at $5,500.
The appellant is a citizen of Nepal who arrived in Australia on 31 March 2006. On 11 May 2006 he applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa. On 29 August 2006 the first respondent’s delegate refused the application on the basis that the appellant was not a person to whom Australia owed protection obligations under the Refugees Convention as amended by the Refugees Protocol (Refugees Convention).
On 4 September 2006 the appellant applied to the RRT for a review of that decision. Two decisions of the RRT were set aside; the first by a Federal Magistrate on 21 June 2007 and the second by a Judge of this Court on 13 August 2008. In both cases an order was made remitting the proceeding to the RRT for determination according to law. On 28 October 2008 the RRT held a hearing. On 6 April 2009 the RRT affirmed the delegate’s decision not to grant the appellant a Protection (Class XA) visa.
The appellant claimed that he was entitled to a Protection (Class XA) visa because he feared persecution in Nepal by reason of his religion, political opinion and membership of a particular social group. He said that he was born in Nepal in 1969 and was a member of the ethnic group, Chetri. He said he was married and he and his wife had a son who was born in 1995. His wife and son continue to reside in Nepal. He was educated in Nepal to University level and obtained a Bachelor of Science degree. In 1996 he began work with a company, Nepal Contraceptive Retail Services (NCRS). He said his religion was Hindu/Christian and he feared persecution because he was a Christian. He is a Democrat and supports democracy for Nepal. He said he feared persecution from the Maoists and the Government authorities, including the Royal Nepal Army for holding those political opinions. He claimed to be a member of a particular social group, being an employee of an American-funded organisation. He said that in 2002 he had been kidnapped by Maoists who threatened to kill him when he was unable to pay extortion money demanded of him because of his work for a foreign NGO. He said that in November 2002 he and his family left Pokhara and moved to Kathmandu. He was principally in fear of Maoists, but also feared persecution from fundamentalist Hindus because of his Christian religion. He said that he was targeted by the Maoists because he had not paid them the extortion money in 2002; because he worked for an American company; because he was a Christian; and because of his political opinion which was against Maoists. He claimed that Maoists would kill him if he returned to Nepal.
He also claimed that he was at risk from Nepalese authorities, police and the Army because they were of the opinion he was a Maoist supporter. He said that he feared that the authorities would not protect him from harm and would persecute him for spreading Christianity.
The RRT found that he was a Nepalese citizen and that he was employed by NCRS from 1996 until just before he came to Australia. It found that prior to coming to Australia the appellant had travelled to a number of countries, including Tibet, India, Singapore and Switzerland but had returned to live with his family in Nepal. The RRT was of the opinion that he did not claim protection whilst in Singapore because he was told that he could not apply for protection in that country. It found, contrary to his evidence, that the appellant did not claim protection in Switzerland when he was in that country in 2001 because he did not fear serious harm if he were to return to Nepal from Maoists, Hindu fundamentalists, police, the military or anyone else at or before that time.
The RRT concluded that the appellant had some general community involvement with the End Time Message Church in Pokhara, and some involvement with the Church’s programs and activities from February 2001, until he left Pokhara to live in Kathmandu in March 2002. The RRT found that he had no involvement with that Church after that time. Specifically, the RRT found that the appellant was not a Christian or had ever been labelled as a Christian by Hindu fundamentalists, Maoists, authorities in Nepal or anyone else. It found, contrary to the appellant’s evidence, that the appellant had never promoted Christianity in Nepal either outside or inside his work. It found that the appellant knew very little about Christianity or the Bible. Because he had such a limited knowledge of Christianity and the Bible, the RRT found that he could not promote the Christian religion. The RRT did not accept that he was targeted by reason of his religion by Maoists, Hindu extremists or anyone else in Nepal.
The RRT did find that the appellant was threatened by Maoists in Pokhara in 2002 because of his association with his work and because he did not support the Maoists by giving them money or being involved with their activities. It accepted that he moved to Kathmandu because of Maoists threats in or about March 2002. It accepted his evidence that the appellant’s family’s fields were seized by the Maoists and that the appellant’s parents moved to Kathmandu because of their fears about Maoists in the area. The RRT rejected the appellant’s claims that he was targeted or threatened in Pokhara or Kathmandu by the police or Army because he and his family were suspected of assisting the Maoists.
It found that he did not have a political profile as a political opponent of the Maoists in Nepal at any time. It rejected his evidence that he openly opposed and spoke out against the Maoists when he was in Nepal.
Although the RRT accepted that he and his family had been threatened by the Maoists in 2002, it did not accept that the appellant left Nepal to come to Australia because he feared harm in Nepal from Maoists, the Nepalese police/Army/authorities, communist splinter groups, Shiva Sena (a fundamentalist Hindu group), or anyone else for the reasons that he gave.
Specifically, the RRT found that the appellant was not targeted by Maoists in Kathmandu where he lived with his family and parents for the four years prior to the appellant coming to Australia for any reason, including because of his political opinion, his religion or because he worked with an American-funded company.
The RRT found that there was no real chance that the appellant would be harmed or threatened or detained by Maoists, Hindu fundamentalists, the Nepalese Army/police/authorities, communist splinter groups, Shiva Sena, or anyone else for the reasons that the appellant claimed if he were to return to Nepal.
The appellant applied to the Federal Magistrates Court for a review of the RRT’s decision claiming that the RRT had failed to exercise its jurisdiction by failing to give proper, genuine and realistic consideration to the appellant’s claim of fear of persecution from Nepalese authorities, police and the Army, from Hindu fundamentalists and from Shiva Sena. He also claimed that the RRT had exceeded its jurisdiction by having regard to his conduct in Australia which was contrary to s 91R(3) of the Migration Act 1958 (Cth) (the Act).
Both grounds were dismissed by the Federal Magistrate. On this appeal only the first ground is pressed.
It was contended before the Federal Magistrate and on appeal that the RRT was under an obligation to give “proper, genuine and realistic consideration” to the appellant’s claim. It is not entirely clear what is meant by the injunction that an administrative body give “proper, genuine and realistic consideration” to the application before it. Nor is it clear that a failure to do so necessarily amounts to an error of law or jurisdictional error: Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at [59]-[66]; NABE v Minister of Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [51]; Anderson on behalf of the Numbahjin Clan within the Bundjalung Nation v Director-General of the Department of Environment and Climate Change (2008) 251 ALR 633 at [51]-[60].
The Act provides for a system of review of RRT-reviewable decisions which are defined in ss 411 and 412. Section 414 of the Act imposes a mandatory obligation on the RRT to review an RRT-reviewable decision if a valid application is made. The RRT is invested with certain powers on review: s 413. Division 4 of Part 7 of the Act provides for the manner in which the RRT must proceed in its consideration of the application for review. It will be a breach of the natural justice hearing rule if the RRT does not proceed in accordance with the injunctions in that Division.
Division 4 requires the RRT to properly consider the whole of an applicant’s claim for a Protection (Class XA) visa, including all of the material upon which the claim is based. Division 4 obliges the RRT to conduct its inquiry in relation to the applicant’s claim fairly and impartially, and in those circumstances the RRT has an obligation to make its decision by reference to the materials before it after a proper consideration of those materials. The RRT must address each of the claims made by the applicant not in a formularised manner, but rather by reference to the very claims themselves.
If an applicant can demonstrate that the RRT did not proceed upon that basis, then the application will establish jurisdictional error because the RRT will not have discharged its obligation to exercise its jurisdiction in accordance with its obligations under Division 4 of Part 7 of the Act. However, because the RRT is under an obligation to give “proper, genuine and realistic consideration” to a matter, it is not thereby subject to a review as to its consideration of the merits of the application itself: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36; Minister of Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
The claim in this case is that the RRT failed to address the appellant’s claim that he feared persecution from sources other than the Maoists. If that was his claim and the RRT did not address it, then that would amount to jurisdictional error because the RRT would, in those circumstances, have failed to exercise its jurisdiction: NABE v Minister of Immigration and Multicultural and Indigenous Affairs (No 2) 144 FCR 1. In this case, however, there was no failure to exercise jurisdiction because the RRT addressed the appellant’s claim that he feared harm from parties apart from Maoists.
The RRT expressly found that the appellant was not a Christian; that he had not ever been labelled a Christian; and that he had never preached or promoted Christianity. It found that the appellant had not been targeted for reason of his religion by Maoists, Hindu extremists, authorities in Nepal, or anyone else in Nepal at any time. Clearly, the RRT was there addressing the claim put by the appellant that he feared harm from Hindu extremists because he was labelled a Christian. The RRT has expressly addressed the claim raised by the appellant that he was liable to be persecuted by parties apart from the Maoists by reason of his religion.
The appellant contended that the RRT fell into error by holding, without giving sufficient reasons, that the appellant had not been labelled as a Christian by Hindu fundamentalists in circumstances where it had found that he had had an involvement with a Christian Church in Pokhara prior to 2002. In his written submissions he contended:
This was not open to the RRT unless it considered the nature and strength of the opposition or hatred or persecution of Christians by those Hindu fundamentalists or “anyone else” (such as Shiva Sena).
That criticism must be rejected. The RRT accepted that the appellant had had some involvement with the End Time Message Church in Pokhara prior to his leaving Pokhara in 2002. It expressly found that he did not have any involvement with the activities and communities of that Church after that time. Moreover, it found that he did not claim to have attended or been involved with any Church in Kathmandu. It found that the appellant was not a Christian and it further found that he had not been labelled as a Christian by any party. Those findings were open to the RRT on the evidence before it but, in any event, those are matters for the RRT not for the Federal Magistrates Court on review or for this Court on appeal.
In my opinion, the appellant’s argument is no more than an attempt to have this Court engage in a merits review. The appeal ought to be dismissed and the appellant should pay the first respondent’s costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate:
Dated: 25 March 2010