SZLAI v Minister for Immigration & Anor
[2007] FMCA 2002
•20 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLAI v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2002 |
| MIGRATION – Visa – protection 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 by Maoists – whether Tribunal failed to consider all integers of the applicant's claim – credibility – whether apprehended bias shown – no reviewable error. |
| Migration Act 1958 (Cth), s.474 |
| Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 referred to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 16 referred to Paul v Minister for immigration and Multicultural Affairs [2001] FCA 1196 referred to SZCSC v Minister for Immigration and Multicultural Affairs [2007] FCA 418 referred to Re Refugee Review Tribunal and Anor: Ex parte H and Anor (2001) 179 ALR 425 referred to NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 referred to Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 referred to |
| Applicant: | SZLAI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2045 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 11 October 2007 |
| Date of Last Submission: | 11 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2007 |
REPRESENTATION
| Appearance for the Applicant: | Mr Turner |
| Solicitors for the Applicant: | Parish Patience |
| Counsel for the Respondents: | Mr Silver |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $5,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2045 of 2007
| SZLAI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant, a citizen of Nepal, asks the court to set aside a decision of the Refugee Review Tribunal made on 5th June 2007. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant seeks:
(a)A writ of prohibition against the Minister;
(b)A writ of certiorari quashing the decision of the Tribunal;
(c)An order that the Tribunal decision was made in excess of jurisdiction and is null and void; and
(d)An order in the nature of mandamus remitting the matter to the tribunal for reconsideration according to law by a differently constituted Tribunal.
The applicant relies on two grounds:
(a)The Tribunal failed to consider all the integers of her claim; and
(b)The Tribunal’s decision was affected by apprehended bias.
Background
The Applicant arrived in Australia on 9th November 2006 and applied for a Protection (Class XA) visa on 6th December 2006. A delegate of the Minister refused her application for a visa on 15th February 2007. On 13th March 2007 the applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision.
Application for Review by the Refugee Review Tribunal
The Tribunal wrote to the applicant on 20th March 2007, inviting her to attend a hearing on 17th April. The applied replied on 3rd April, indicating that she did wish to attend the hearing and would require the assistance of an interpreter in the Nepalese language.
The applicant also wrote to the Tribunal, in which she drew attention to her vulnerability as a single mother and as a member of an ethnic minority. She claimed to have been the victim of domestic violence from her former boyfriend, who was a Maoist.
The applicant also claimed that the Maoists had demanded money from her as she had a relative living in Australia. She said that they demanded 150, 000 rupees from her, but she eventually paid 50,000 rupees.
The applicant also provided copies of articles about the political and human rights situation in Nepal by way of general country information in support of her application.[1]
[1] See Court Book at 56-76
The applicant attended the hearing on 17th April and brought her Nepalese passport with her. She also provided further country information. She gave evidence at the hearing, where the Tribunal asked her about her relationship with her child’s father and the domestic violence which she claimed had been inflicted on her.
After the hearing, the Tribunal wrote to the applicant under the provisions of s.424A of the Migration Act 1958. The Tribunal’s letter sought her comments on this information:
You claimed in a submission to the Tribunal dated 3 April 2007 that Maoists had demanded money from you and requested you attend a camp where you were held for a day, but you had not mentioned this claim in your Protection visa application.[2]
[2] Court Book at 98
The applicant replied to that letter on 1st May 2007. In her letter, the applicant told the Tribunal that she had no legal advice and relied on her sister in law to write her application in English. The applicant said:
I believe she focused more attention to social stigma attached to me as a single mother and mixed race child and forgot to include my claim about the Maoist.[3]
[3] Court Book at 100
The Tribunal handed down its decision on 5th June 2007.
The Refugee Review Tribunal Decision
In its decision, the Tribunal set out the applicant’s claims and her evidence given at the hearing. The Tribunal also referred to the s.424A letter and the applicant’s reply.[4]
[4] Court Book 112-113
The Tribunal also referred to independent country information, the US State Department’s Country Report on Human rights Practices, 2006. This information dealt with domestic violence against women and caste-based discrimination.
In its findings and reasons, the Tribunal found that the applicant was a Nepalese citizen, based on her passport.
However, the Tribunal was not otherwise satisfied about the credibility of the applicant’s case, saying:
The Tribunal formed the impression at the Tribunal hearing that her evidence was not reliable. She was unable to explain why the father of her child would continue to abuse her several years after their child had been born, and after she had left his household and gone to another town.[5]
[5] Court Book 114
The Tribunal did not accept the applicant’s explanation as to why she did not mention in her protection visa application that she had been detained by Maoists and did not find credible her account of her experiences with the Maoists. The Tribunal rejected the applicant’s claims that the Maoists demanded money from her and took her away for questioning, saying:
Not only was this claim not mentioned in her Protection Visa application, but when she was asked about it at the Tribunal hearing, she was unable to give a convincing account of what had happened to her.[6]
[6] Court Book 115
The Tribunal did not accept the applicant’s claim that her ex-boyfriend continued to abuse her after the birth of their child and her move to another town some six years earlier, saying:
The applicant was unable to provide any convincing reasons for her boyfriend’s continuing adverse interest in her, and the Tribunal is not satisfied that there is a real chance that she will suffer harm from him or her his family in the future.[7]
[7] Court Book 115
The Tribunal did accept that the applicant might face discrimination and some social rejection because of her situation as a single mother in Nepal. However, it did not accept that she would face serious harm for reasons of her ethnicity, her caste status or her status as a single mother, considered either separately or cumulatively.
The Tribunal was not satisfied that there was a real chance that the applicant would suffer persecution in a Convention sense from the authorities or the community if she returned to Nepal for reasons of her caste or membership of a particular social group, or for any other Convention reason.
The Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) visa.
Application for Judicial Review
The applicant commenced proceedings by filing an application and an affidavit on 3rd July 2007. His solicitor filed an amended application on 10th September 2007.
In that amended application, the applicant relies on the following grounds:
(1)The Tribunal failed to consider all integers of the applicant’s claims.
(2)The Tribunal’s decision was affected by apprehended bias.
Particulars
The applicant claims that the Tribunal failed to consider all integers of her claims because:
(a)the applicant feared harm for the following reasons:
·She was a single unmarried mother
·She had run away from an arranged (caste based) marriage
·She was targeted by Maoists because she had a brother in Australia who, it was perceived, was able to pay to secure her safety.
(b)The Tribunal only gave genuine and realistic consideration to the first two points and failed to give such consideration to the other point.
The applicant claims that the Tribunal’s decision was affected by apprehended bias because:
(a)The Tribunal referred to the applicant’s account of the visit by Maoists as “vague” when a fair reading of the transcript of the hearing does not support such a description.
(b)The Tribunal’s dismissal of the applicant’s evidence about threats from the Maoists because the matter was not raised in the applicant’s protection visa application and her reasons for the omission disclosed that the Tribunal had closed its mind to this aspect of the applicant’s claims.;
(c)The Tribunal placed weight on the applicant’s failure to explain the motives of her abuser. It is unreasonable to expect a victim of domestic violence to understand the motives and thoughts of her abuser.
(d)The Tribunal found that the applicant had received “significant support from some members of (her) community” when there was no evidence of such support.
(e)The Tribunal disbelieved that the applicant had not been working but went on to make findings in relation to community support on the basis that she had not been working.
The Applicant’s Submissions
As to the first ground, the claim of failure to consider all integers of the applicant’s claims, the applicant submits that the Tribunal failed to consider the applicant’s claim that she was targeted by Maoists because she had a brother in Australia who, it was perceived, was able to pay to secure her safety. Whilst the Tribunal addressed the question of her past harm from the Maoists, the applicant submits that it did not deal with the specific claim that, as she had a brother living in an affluent country, Australia, she was perceived as having the means to pay the extortion demanded by the Maoists.
Failure to consider all integers of an applicant’s claim is a jurisdictional error (see Dranichnikov v Minister for Immigration and Multicultural Affairs[8], NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2)[9], Paul v Minister for Immigration and Multicultural Affairs[10]).
[8] (2003) 197 ALR 389; [2003] HCA 26
[9] [2004] FCAFC 16
[10] [2001] FCA 1196
As to apprehended bias, the applicant submits that the test for apprehended bias is set out in SZCSC v Minister for Immigration and Multicultural Affairs[11] where Mansfield J said at [38]:
The test for apprehended bias in relation to a body such as the RRT is whether a hypothetical fair minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias might reasonably apprehend that the RRT might not bring, or might not have brought, an impartial mind to the resolution of the question to be decided.
[11] [2007] FCA 418
The applicant cites the following examples of the Tribunal’s actions in support of her claim of apprehended bias:
(a)The Tribunal referred to the applicant’s account of the visit by Maoists as “vague” when a fair reading of the transcript of the hearing does not support such a description.
(b)The Tribunal dismissed the applicant’s evidence about the Maoists as vague and because it was not raised in the application for a protection visa. The Tribunal did not believe the applicant’s explanation of the reasons for this omission. The applicant submits that in circumstances where an explanation is plausible it should not be rejected simply because of the “seriousness of the claim”[12]. If the claim was serious it deserved more consideration than simply to be dismissed because it had not been raised in the primary application.
(c)The Tribunal placed weight on the applicant’s inability to explain the motives of her abuser. The applicant submits that it is unreasonable to expect a victim of domestic violence to understand the motives of her abuser.
(d)The Tribunal found that the applicant had received “significant support from some members of (her) community”[13] when there was no evidence of such support.
(e)The Tribunal disbelieved that the applicant had not been working[14] but went on to make findings in relation to community support on the basis that the applicant had not been working.
[12] See Court Book at 114.
[13] Court Book 115
[14] Court Book 114
The applicant submitted that, taken cumulatively, the examples of conduct given above would lead a fair minded lay person reasonably to apprehend that the Tribunal might not have brought an impartial mind to the resolution of the question to be decided.
The First Respondent’s Submissions
Counsel for the first respondent, the Minister, submitted that the applicant’s assertion that the Tribunal failed to consider all integers of her claim is not supported by the facts. He submitted that it was clear that the Tribunal took careful note of the “Maoist facts”, considered them as a relevant part of the application and gave the applicant the opportunity to explain why they were absent from the application for a protection visa.
Counsel for the first respondent, Mr Silver, submitted that the Tribunal’s decision was founded on a finding of credibility adverse to the applicant. The Tribunal gave direct consideration to the applicant’s explanation for her failure to mention this claim in her primary application, and rejected the explanation.
The argument that the Tribunal did not deal with the specific claim about the applicant’s brother living in Australia and the applicant therefore being perceived as having the means to pay the extortion demanded by the Maoists should not succeed, it is submitted, because:
(a)That element of the applicant’s case was part and parcel of the “Maoist facts” to which the Tribunal specifically referred;[15] and
(b)The entire basis of the “Maoist facts”, including this element, was rejected.[16]
[15] Court Book 110 (third bullet point)
[16] Court Book 115
Turning to the applicant’s claim of apprehension of bias, Mr Silver referred the court to the test for apprehended bias in administrative proceedings characterised by the High Court in Re Refugee Tribunal and Another: Ex Parte H and Another[17] as one of “objective possibility” (see also NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs[18] at [10]-[22]).
[17] (2001) 179 ALR 425 – referred to By Mansfield J in SZCSC at [38]
[18] (2004) 214 ALR 264
Mr Silver submitted that, as there was no allegation that the Tribunal had any particular interest, affection, enmity or prejudice that might have occasioned or contributed to the impugned conduct or approach, for the applicant to succeed she must demonstrate that the Tribunal was predisposed to reaching a particular result, other than a result reached by a fair evaluation of material before it with a mind that was open to persuasion in favour of the person in question. The inquiry is not directed to the personal thought processes of the decision-maker but the decision-maker’s conduct “objectified” through the prism of what a fair minded and informed observer would reasonably apprehend
(see Minister for Immigration and Multicultural Affairs v Jia[19] at 564).
[19] (2001) 205 CLR 507
Counsel for the first respondent submitted that, given the unspecific nature of the applicant’s account, and her answers, it was open to the Tribunal to find that her evidence was vague and lacking in detail. Further, the Tribunal was entitled to form an impression, taking into account the applicant’s demeanour and the manner and time taken to respond to a question whether a narrative was given freely or only in response to questions.
It was submitted that it was open to the Tribunal to make an adverse finding based on the applicant’s failure to raise the “Maoist facts” in the application for a protection visa, specifically where:
(a)those facts formed a significant part of the reason for making the application;
(b)the Tribunal considered the applicant’s failure to include those facts in the application; and
(c)it was open to the Tribunal to reject the applicant’s reasons for this significant failure to mention the facts in the primary application.
Mr Silver submitted that the applicant’s claim that it was unreasonable for the Tribunal to expect a victim of domestic violence to understand the motives of her abuser put “an unjustified spin” on the evidence and the Tribunal’s reasoning. The Tribunal was not inquiring into the motives of the boyfriend but the plausibility of the applicant’s narrative of events. It was open to the Tribunal to conclude that the applicant’s description of the events in question was inherently improbable.
Contrary to the applicant’s claim that there was no evidence to support the Tribunal’s finding that the applicant had received significant support from some members of her community, counsel for the first respondent submitted that the transcript of the evidence showed a number of answers by the applicant that would lead to a finding that the applicant had received some community support. These answers included statements that she sought people’s pity and received help, or that she lived at some person’s place or rented a room. The applicant also told the Tribunal that a female friend of hers in Nepal was looking after her child for her.
Counsel for the Minister also submitted that there was no inconsistency in the Tribunal’s findings that the applicant received significant support from some members of the community even though it was not persuaded by her claims that she was unemployed and without support of any kind in her village.[20]
[20] Court Book at 114
Conclusions
The applicant has claimed that the Tribunal did not consider an integer of her claim, that she was targeted for extortion by the Maoists because she had a brother in Australia and was therefore perceived to have access to money. I am not satisfied that this claim has been made out.
The Tribunal most clearly referred to the claim when describing her claims and evidence. The Tribunal noted:
She says that she ahs a brother who is an Australian citizen.[21]
[21] Court Book 109
The Tribunal also noted:
The Maoists demanded money from her as she had a relative living in Australia; she was brought a letter from the Maoists requesting her attendance at their camp where she was held for a day;
The Maoists demanded 150,000 rupees from her and she paid 50,000 rupees after she received a letter from her brother.[22]
[22] Court Book 110
The Tribunal considered the applicant’s claims about the Maoists and comprehensively rejected them:
Furthermore, it did not find her account of her experience with Maoists at the Tribunal hearing credible. It was vague and lacked detail.[23]
[23] Court Book 114
The Tribunal specifically rejected the applicant’s claims about the Maoists demands for money from her:
The Tribunal rejects the applicant’s claims that Maoists demanded money from her, and that they took her away for questioning. Not only was this claim not mentioned in her Protection Visa application, but when she was asked about it at the Tribunal hearing, she was unable to give a convincing account of what happened to her.[24]
[24] Court Book 115
The Tribunal made it clear that it rejected the entirety of the applicant’s claims about the Maoists:
The Tribunal has not accepted the applicant’s claim that she has been harmed in the past by Maoists, and is therefore not satisfied that there is a real chance that she will suffer harm from them in the future.[25]
[25] Court Book 115
The Tribunal has, in my view, clearly rejected the applicant’s claims about being threatened and subjected to extortion by the Maoists.
The Tribunal has clearly considered the integers of the applicant’s claim and has not fallen into jurisdictional error.
The applicant’s first ground of relief does not succeed.
Turning to the applicant’s second ground, a claim of apprehended bias, I am not satisfied that this claim succeeds, either. In my view, the applicant’s reasons for claiming an apprehension of bias are no more than an attempt at merits review.
The applicant challenges the Tribunal’s characterisation of her evidence of her encounter with the Maoists as “very vague and lacked detail”.[26] This is a credibility finding, which is a finding of fact that is a matter for the Tribunal. The applicant asks the court to find that “a fair reading” of the transcript would not lead to a conclusion that the applicant’s answers were vague. That is clearly an invitation to embark on a course of merits review.
[26] Court Book 114
As to the Tribunal’s rejection of the applicant’s explanation for not including her claim about the Maoists in her application for a protection visa, this to my mind is purely a matter for the Tribunal. It is not the function of the court conducting judicial review to give its own evaluation of the applicant’s explanation.
Similarly, the weight that the Tribunal placed on the applicant’s inability “to provide any convincing reasons for her boyfriend’s continuing adverse interest in her”[27] is a matter for the Tribunal. It does not appear to be unreasonable for the Tribunal to make the finding that it did, even if unreasonableness is a jurisdictional error.
[27] Court Book 115
Again, I am satisfied that the evidence does support the Tribunal’s finding that the applicant received significant support from some members of her community, as counsel for the Minister pointed out in his submission. Further, there is no inconsistency about the Tribunal’s failure to be persuaded by the applicant’s claims that she was unemployed and without support of any kind in her village[28] and its finding that she had been able to live with her child in a village in Nepal for some 6 years without suffering serious harm form the authorities “and indeed she has received significant support from some members of that community”.[29] With respect, I do not see an inconsistency.
[28] Court Book 114
[29] Court Book 115
The individual points argued by the applicant’s solicitor, whether considered by themselves or cumulatively, do not establish any apprehension of bias on the part of the Tribunal member.
The applicant’s second ground does not succeed.
The applicant has not established any jurisdictional error on the part of the Tribunal. The Tribunal decision is a privative clause decision as defined by s.474(2) and is therefore not subject to orders in the nature of certiorari or mandamus.
The application will be dismissed with costs.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 26 November 2007
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