SZKRF v Minister for Immigration
[2007] FMCA 1514
•5 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKRF v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1514 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister refusing to grant a protection visa – applicant claims to be a citizen of Bhutan claiming to fear discrimination and harm in Nepal arising from his lack of rights or citizenship in that country – credibility – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.424A |
| Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 NABE v Minister for Immigration & Multicultural Affairs(No.2) [2004] FCAFC 203 |
| Applicant: | SZKRF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1617 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 22 August 2007 |
| Date of Last Submission: | 22 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Young |
| Solicitors for the Applicant: | Simon Diab & Associates |
| Counsel for the Respondents: | Mr Izzo |
| 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 $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1617 of 2007
| SZKRF |
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 (“the Tribunal”). The decision was signed on 11th April and handed down on 24th April 2007. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection (Class XA) visa. The applicant by means of an application and an affidavit filed on 22nd May 2007 seeks judicial review of that decision.
The applicant has filed an amended application on 21st August 2007, and the Minister's legal representatives do not object to leave being granted to rely on that amended application.
The applicant seeks the following orders:
i)A writ of certiorari quashing the decision of the Refugee Review Tribunal.
ii)A writ of mandamus requiring the Refugee Review Tribunal to determine the application for a protection visa according to law.
iii)A writ of prohibition preventing the first respondent, the Minister for Immigration & Citizenship, from taking any action upon the decision of the Refugee Review Tribunal.
iv)An order that the first respondent pay the applicant's costs.
The background of this matter is that the applicant claims to be a citizen of Bhutan. He arrived in Australia on 1st October 2006 and applied for a protection (Class XA) visa on 26th October 2006.
The application for a visa was refused on 5th January 2007, and on
24th January 2007 the applicant applied to the Refugee Review Tribunal for a review of the delegate's decision.He provided a considerable amount of material as well as a statement of claims. He provided a birth certificate said to be issued from the Kathmandu Metropolitan City office showing that he was born on
30th March 1985, a Nepalese citizenship certificate, and some documentation from the Arena Development Consult Private Ltd of Kathmandu, Nepal relating to the applicant's father's financial circumstances, and a variety of other financial documents.
He provided a certificate from the Onyx Computer and Language Institute from Kathmandu in Nepal showing that on 24th September 2004 he had completed certain computer courses. He provided a school leaving certificate examination from the office of Controller of Examination of the Ministry of Education and Sports of the Government of Nepal. He also provided a passport issued by the Government of Nepal.The Tribunal invited the applicant to attend a hearing. The applicant attended the hearing and gave evidence. The Tribunal heard evidence from the applicant at the hearing on 26th March 2007. That same day the Tribunal wrote to the applicant care of his migration agent in a letter headed, "Invitation to comment on information" and set out information which the Tribunal considered relevant to deal with the one issue, namely that the applicant is not in fact from Bhutan but was born in Nepal and is a Nepalese citizen, and that would lead the Tribunal to form the view that the applicant's claims to be a refugee for the reasons that he stated were fabricated.
The Tribunal invited the applicant to comment on that information in writing in English by 10th April 2007. The Tribunal received a letter first of all from the applicant's agent asking for an extension of time, and then a letter dated 10th April 2007 in which the applicant commented on that information. That letter said:
(1) As I mentioned in my submission with my protection visa application my maternal uncle obtained a Nepali passport for me through an agent by paying Nepal rupees $50,000. The agent first obtained Nepali citizenship and a Nepal passport was issued based on the Nepali citizenship.
(2) I used the details in the passport for all the official documents related to my overseas travel and other purposes. I used same details while I obtained visa for Singapore and while I applied for a visa for Australia. At the time of lodging application for Australian visa I hold Nepali passport and citizenship. I do not have any documents which could prove my Bhutanese citizenship.
(3) My main objective was to get a visa to enter into Australia. If I had provided my true information I would not get an Australian visa. It is because I did not have any documents to substantiate my true information.
(4) I was born in Wang Diphodang, Bhutan, and I am a citizen of Bhutan. The information provided in 48R form that I was a citizen of Nepal and born in Kathmandu was incorrect.
(5) The Nepali citizenship certificate submitted with my application for a visa to travel to Australia was obtained through the same agent. The citizenship certificate was obtained for the purpose of obtaining a passport.
(6) My current Nepali passport and Nepali citizenship certificate was obtained just to get out of the country. My main objective was to get out of the country to seek protection.
(7) The documents provided to Australia High Commission in Singapore that my father owns a carpet business, and the current bank balance of the business of $US529,713.66 were fake, those documents were provided just to obtain Australian visa.
(8) My father never owned any business.
(9) The letter from TAFE Western Sydney dated 11 September 2006 was obtained based on my passport. I presented myself as a Nepali citizen in all official paperwork to make the information consistent with my passport.
(10) I worked at Buddha Carpet Industries on casual basis as a carpet labourer. It was on daily wages basis, it was not a permanent full-time job.
(11) Please look at my school leaving certificate as you will see I attended the examination privately. This means I was not a regular student of any school. Normally school level student does not give exam privately. Only the student who cannot afford school fees attends SLC privately. I left school in 1999 because of financial problems. This information is consistent to my daily wages casual job from 1999 to 2001. This also supports my claim that my father was not a business man but was a simple labourer.
(12) When Tribunal asked me about employment I thought of formal full-time employment. I was confused and I said no. However, I clarified the issue later in the hearing.
(13) As I mentioned during the hearing and in my original protection visa application that I do not hold any evidence regarding my Bhutanese citizenship. According to my parents Bhutanese authority burnt all the documents with our home. There is no possibility that my parents or myself can obtain those documents from Bhutan.
(14) I would like to request the Tribunal to look at the very fact of my circumstances. The Nepali citizenship and passport were obtained for the purpose of getting out of Nepal, seek for protection. The information in application for Australian visa was provided just to secure a visa for Australia. If I had not provided the fake documents and information I would not be able to get Australian visa and I would not be able to apply for a protection visa in Australia.
(15) I understand that securing visa with fake documents is not a right way, but life is more dearer to anything else, for the security of my life and future I had to do all these.
I again request the Tribunal to look at my circumstances very seriously. I am a young man who spent my whole childhood illegally in Nepal, my country does not accept me, that's why I should be granted a protection visa.[1]
[1] Court Book at 93-94
The Tribunal handed down its decision on 24th April 2007. A copy of the Tribunal decision record can be found at pages 101 through to 117 of the Court book.
The Tribunal summarised the applicant's claims at pages 104 through to 112 of the Court book. That information included the applicant's claims when applying for his visa, the applicant's evidence to the Tribunal hearing, the applicant's application for a visa to Australia, the s.424A letter that the Tribunal sent to the applicant on 26th March 2007, and the applicant's response in the letter dated 10th April 2007, the contents of which I have already read onto the record.
The Tribunal's findings and reasons can be found at pages 112 through to 117 of the Court book. The findings and reasons begin with the heading "The applicant's credibility". The Tribunal noted the applicant's claim as to nationality and said:
On the evidence before it the Tribunal cannot be satisfied that the applicant is a citizen of Bhutan, but rather of Nepal. The Tribunal finds that the applicant has been dishonest about his claims in evidence, in fact given the range of inconsistencies between the applicant's visa application and his written claims and evidence at hearing, the Tribunal cannot be satisfied that the applicant has been truthful in his claims in evidence and cannot be satisfied that he has any claim to have a well founded fear of persecution for a Convention reason. The Tribunal's reasons are discussed below.[2]
[2] Court6 Book at 113
The Tribunal then went on to consider the evidence about the applicant's nationality from page 113 through to page 116.
The Tribunal considered in particular the applicant's responses to the s.424A letter, saying:The Tribunal has given careful consideration to the applicant's responses to its s.424A letter of 26 March 2007 but it cannot be satisfied that the applicant's responses are either persuasive or reliable for the following reasons. The Tribunal finds that while the applicant has provided documents to demonstrate his Nepalese citizenship, he has provided not one shred of documentation or evidence to support a claim to be Bhutanese. It finds his claims that "all documents" were destroyed in a fire to be self serving and lacking credibility. The fact that the applicant was a private candidate when sitting an examination for a school certificate could have been for any number of reasons and not simply because as he claimed in his letter of 10 April 2007 because he was not a regular student. The fact that the applicant was a private candidate is not conclusive of his lack of Nepalese citizenship.[3]
[3] Court Book 115
The Tribunal went on to find:
The Tribunal finds that the applicant has not explained to the Tribunal's satisfaction the inconsistency between the information provided by him in his application for a visitor's visa and the documents accompanying his application and the claims made in his protection visa application. The Tribunal finds that the applicant has not been truthful to the Tribunal about his claims to be Bhutanese.[4]
[4] Ibid
In summary the Tribunal noted that at the conclusion of the hearing the Tribunal pointed out to the applicant that there were numerous contradictions in his claims at various stages in the refugee process and noted their lack of consistency and contradiction of the independent evidence. The Tribunal then noted that the applicant was given the opportunity in writing in the letter from the Tribunal that day to clarify those contradictions regarding his various claims.
The Tribunal went on to find, however:
Considering the applicant's mendacity on not only the essential elements of his claim but other aspects of her claims - - -
Note: That should be "his".
- - - discussed above, the Tribunal finds that the claims of harm and threats of harm in Nepal to be a fabrication. Given the significant adverse findings on credibility in relation to the applicant, the Tribunal cannot be satisfied that the applicant has a real chance of being persecuted for a convention reason in Nepal in the foreseeable future. The Tribunal therefore finds on the evidence available to it that the applicant is a national of Nepal. The applicant has not put forward any claims of fearing harm in Nepal for any reason other than his claims to be Bhutanese. In light of the Tribunal's findings - namely that he is not Bhutanese but rather a citizen of Nepal - the Tribunal cannot be satisfied that as a national of Nepal the applicant has a well founded fear of harm for any convention reason in the reasonably foreseeable future in the Nepal.[5]
[5] Court Book 116
The Tribunal affirmed the decision of the delegate not to grant the applicant a protection (Class XA) visa.
In the applicant's amended application the applicant provides a third ground, and counsel for the applicant, Mr Young, told the Court that there was a change to ground 1(b) and that otherwise neither ground 1 nor ground 2 would be pressed, but the applicant would rely on ground 3.
Ground 1(b) in the amended application states:
The applicant stated that he obtained a Nepalese passport illegally in order to leave Nepal. The respondents gave sole weight to the evidence submitted when he applied for a visitor visa to Australian High Commission in New Delhi and failed to the applicant's claim that those documents were prepared for the purpose of obtaining a visa to Australia to seek asylum. The applicant would not be able to obtain an Australian visa if he had stated his nationality as a Bhutanese refugee.
Ground Three:
The second respondent made jurisdictional error (a) failing to exercise or by constructively failing to exercise jurisdiction in relation to the applicant's claims, and/or (b) so misconstruing the applicant's claims to have left Nepal and to have entered Australia using force and/or illegally obtained Nepalese documents as to regard documents including visitor's visa application to enter Australia or brought into existence in pursuit of such enterprise as being directly inconsistent with the applicant's claim for a protection visa.
The applicant submitted through his counsel was that the applicant's case was that this was a dispossessed Bhutanese citizen living illegally in Nepal, he needed a travel document to leave Nepal, and he obtained that document and used it to obtain the visa which brought him to Australia. Claims of this nature are hardly unusual.
The Tribunal in its decision stated that the visitor's visa application directly contradicted the applicant's claim for a protection visa.
The Tribunal decision to the effect that the alleged information directly contradicts the applicant's claim for a protection visa, set out at page 113 of the Court book in a series of five dot points, is clearly and correctly to be shown to be an alleged contradiction between the protection visa application and the visitor's visa application. Those five dots points summarised are:·In his application for a protection visa the applicant claims to have been born in Bhutan, while according to information given by the application in form 48A for a visitor's visa he stated that he was born in Kathmandu, Nepal.
·According to his protection visa application he was born in Bhutan and described his citizenship as Bhutanese. Yet in form 48R for the visitor's visa the applicant stated that he was a citizen of Nepal.
·In his claims for a protection visa the applicant stated this his father was injured and was unable to work after surviving a major motor vehicle accident. According to original documents submitted by the applicant to the High Commission in Singapore his father owned a carpet business and the current balance of the business in the bank was $US529,713.66.
·The applicant submitted a letter from TAFE Western Sydney dated 11 September 2006 as part of his visitor's visa application in which it is stated that the applicant is Nepalese not Bhutanese as claimed by the applicant in his protection visa.
·The applicant submitted documents including a Nepalese citizenship certificate with his application for a visa to travel to Australia.
The applicant submitted that in approaching the matter in this way the Tribunal constructively failed to exercise jurisdiction because it fundamentally misconstrued the application before it regarding this directly contradictory information which the applicant was putting forward as being the basis in whole or in part of his claim.
The application was saying:I am Bhutanese living illegally in Nepal. I illegally obtained a Nepalese passport and I used it to travel to Singapore and to obtain a visitor's visa to come to Australia.
Of course the Tribunal was not bound to accept this claim but it had to consider it but it did not do so. Instead it treated part of his claim, involving the use of the false Nepalese passport, as destroying his credibility and directly contradicting his claim to be Bhutanese. In fact it was part and parcel of his claim. The Tribunal treated this as an inconsistency leading to a finding of mendacity. To make such a finding the Tribunal first had to take into account the claim made and to consider that claim.
To regard the visitor's visa information as necessarily contradicting, the protection visa application failed to identify the nature of the applicant's claim. On the Tribunal's approach the applicant had to fail. Jurisdictional error includes identifying a wrong issue, asking a wrong question or ignoring relevant material (see Minister for Immigration & Multicultural Affairs v Yusuf[6] ).
[6] (2001) 206 CLR 323
The Tribunal was required to deal with the case that the applicant raised by the material before it (see NABE v Minister for Immigration & Multicultural Affairs (No. 2)[7] .
[7] [2004] FCAFC 203
The false passport and the visitor's visa application using that false passport were in fact integral to that case. It was the applicant who claimed that the Nepalese documents were part of a plan by him to get a passport, leave Nepal and enter Australia so as to apply for a protection visa. And the applicant's answers to the s.424A letter attests to his considering of a protection visa application was consistent with the visitor's visa application, and in particular his holding a Nepalese passport.
The jurisdictional issue for the RRT was whether it accepted the applicant's claims as formulated. It could if it found so properly reject the protection visa application as a fabrication invented after arrival in Australia, but not simply because the protection visa claimed the Bhutanese citizenship, whereas the visitor's visa application relied on the false Nepalese passport. It could only be done so by taking into account the applicant's actual claims which embraced the false Nepalese documents. Instead Mr Young submitted the Tribunal relied on the alleged inconsistency between the visitor's visa application and the protection visa application which demonstrated that the Tribunal fundamentally misconstrued the applicant's claim. Thus it is submitted the Tribunal made a jurisdictional error which infected its reasoning.
Against this, counsel for the respondent Minister, Mr Izzo, submitted that the Tribunal had rejected the applicant's claims to be Bhutanese on the ground that given its adverse findings as to his credibility it could not be satisfied that the applicant was anything other than a national of Nepal. The applicant's complaint was essentially that in making its finding the Tribunal should have given greater weight to the applicant's own evidence than in fact it did. Even if that criticism were made good that could not give rise to any error of law. The weight to be given to any particular consideration is a matter for the Tribunal and not for the Court to determine (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [8]).
[8] (1986) 162 CLR at [41]
In oral submissions Mr Izzo told the Court that the applicant submitted that the Tribunal did not consider his claim that he needed the false documents to help him leave Nepal.
However, Mr Izzo submitted that that claim was expressly considered by the Tribunal and in great detail. At page 113 of the Court book the Tribunal assessed the visitor's visa application. The Tribunal proceeded to consider and reject the applicant's claims.
At page 114 of the Court book the applicant's response to the s.424A letter sets out the applicant's claim which the applicant says the Tribunal did not consider. In fact at page 115 of the Court book the Tribunal gave careful consideration to the applicant's responses to the s.424A letter. The Tribunal drew the conclusion that the applicant had not explained to the Tribunal's satisfaction the inconsistency in his evidence.
First the Tribunal said the documents were inconsistent. The applicant had given a reason but the Tribunal did not accept that reason. Second, the last paragraphs at page 115 of the Court book are further reasons to negate the applicant's explanations in the answer to the s.424A letter.
In my view, the Tribunal's reasons as set out at page 115 indicate that the Tribunal did consider the applicant's claims, not just the inconsistency between the claims for a visitor's visa and the claims for a protection visa. It is quite clear that in the applicant's response to the Tribunal's s.424A letter the applicant did set out exactly why he made the false claims and relied on what he said were false documents.
But the Tribunal set out that it could not be satisfied that the applicant's responses were either persuasive or reliable.The Tribunal then in seven paragraphs on page 115 of the Court book set out the reasons why it considered the applicant's responses were neither persuasive nor reliable. In the second last paragraph on page 115 the Tribunal noted the applicant's evidence at the hearing. The Tribunal asked the applicant if he could tell the Tribunal a little of the historical background to the expulsion of Nepalese from Bhutan, and the applicant stated that the Bhutanese did not want the Nepalese living there and that was what he had heard.
The Tribunal then asked the applicant why the Bhutanese did not want the Nepalese living there, and the applicant stated that there might have been a situation, but he does not know. The applicant stated that he, "Never asked about it." The applicant could not give any reasonable explanation for his failure to know about any past events.
The Tribunal finds the fact that the applicant has never asked about the past or his family's history or events that shaped his life and led to his family leaving their country to lack credibility.[9]
[9] Court Book 115
In the final paragraph at page 115 of the Court book the Tribunal noted that at the hearing the applicant was unable to give any reasonable explanation as to why his family, unlike many thousands of Bhutanese, never registered with the United Nations High Commission for Refugees in Nepal. The Tribunal said:
The applicant's evidence regarding UNHCR and registration is somewhat contradictory. On the one hand he gave evidence that he had an uncle living in Nepal for a long time and who assisted then with accommodation and other needs. Yet on the other hand he claims that in spite of having a long term relative in Nepal he did not know about where to go and what to do when registering with UNHCR as refugees. The applicant then gave contradictory evidence and stated that they were going to go to the UNHCR camp in Jhapa but the situation was very bad.[10]
[10] Court Book 115-116
Thus the Tribunal considered not only the inconsistencies in the applicant's claims but the reason why the applicant said those claims were inconsistent. The Tribunal considered the applicant's explanations in the response to the s.424A letter, and the Tribunal considered the applicant's evidence about those matters given at the hearing. In particular the Tribunal asked the applicant about why as a citizen of Bhutan as he claimed that he had a well founded fear of persecution in Bhutan. The applicant was unable to satisfy the Tribunal about that fact.
On the applicant's own case he had a well founded fear of persecution in Bhutan. If the applicant is claiming to be a citizen of Bhutan he needed to show the Tribunal why it was that he could not live in his country of nationality because of a well founded fear of persecution. He was unable to do so. He was unable to satisfy the Tribunal that his evidence was credible.
I am not satisfied therefore that the Tribunal fell into jurisdictional error by giving sole weight to the evidence submitted when the applicant applied for a visitor's visa. I am not satisfied that the Tribunal made a jurisdictional error by failing to exercise, either actually or constructively, its jurisdiction in relation to the applicant's claims. And I am not satisfied that the Tribunal made jurisdictional error by so misconstruing the applicant's claims to have left Nepal and to have entered Australia using false and/or illegally obtained Nepalese documents, as to regard documents including a visitor's visa application to enter Australia, or brought into existence in pursuit of such enterprise as being directly inconsistent with the applicant's claim for a protection visa.
In my view the Tribunal did not misconstrue the applicant's claims. The Tribunal gave the opportunity to set out his claims clearly, the Tribunal assessed his claims, and in particular assessed his claims in (a) the response to the s.424A letter, which was quite detailed, and (b) the applicant's own evidence. The Tribunal found the applicant's evidence wanting, and was satisfied the applicant's evidence was not credible. And in my view there was ample evidence to justify the Tribunal making the finding that it did. The Tribunal did not misconstrue the applicant's claims; it did not apply the wrong test. There is no jurisdictional error.
The Tribunal decision is a privative clause decision, and accordingly it is not subject to review in this Court.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 31 August 2007
0