SZMHU v Minister for Immigration and Citizenship

[2009] FCA 1162

FEDERAL COURT OF AUSTRALIA

SZMHU v Minister for Immigration & Citizenship [2009] FCA 1162

Migration Act 1958 (Cth) ss 424, 424A, 424B, 425

Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 cited
Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434 followed
Minister for Immigration v Yusuf (2001) 206 CLR 323 referred to
SZBELv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 cited
SZBYR v Minister of Immigration and Citizenship (2007) 235 ALR 609 cited
SZKCQ v Minister for Immigrationand Citizenship (2008) 170 FCR 236 referred to
SZKTI v Minister for Immigration and Citizenship (2008) 168 FCR 256 referred to
SZLPO v Minister for Immigration and Citizenship (2009) 255 ALR 407 followed
SZMHU v Minister for Immigration and Citizenship [2008] FMCA 1243 affirmed

SZMHU and SZMHW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1438 of 2008

BENNETT J
13 OCTOBER 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1438 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMHU
First Appellant

SZMHW
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	13 OCTOBER 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants 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 eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1438 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMHU
First Appellant

SZMHW
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE:	13 OCTOBER 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellants are citizens of Nepal who arrived in Australia on 22 April 2007.  On 1 June 2007 the appellants lodged applications for protection visas which were refused by a delegate of the Minister on 24 August 2007.  The appellants applied to the Tribunal for a review of that decision.  The Tribunal upheld the decision of the delegate.  On appeal to the Federal Magistrates Court, Raphael FM dismissed the appellants’ application for review of the Tribunal decision (SZMHU v Minister for Immigration and Citizenship [2008] FMCA 1243).

2. The appellants are husband and wife.  The appellant wife makes her claims as a member of the family unit of her husband (‘the appellant’).  The appellant claimed to fear persecution in Nepal on the basis of his imputed political opinion as a perceived Monarchist and his membership of a particular social group, being a businessman in Nepal.  He claimed that he was a successful businessman and that, because of this, he became the subject of extortion threats from Maoists in Pokhara.  He says that he was targeted by the Young Communist League (‘YCL’), a Maoist offshoot, for extortion due to his perceived wealth.  He claimed that he initially made the contributions but eventually decided to stop making any more contributions.  As a consequence, his face was tarred and he was paraded around the town as a public humiliation (‘the incident’).  He claimed that an attempt to relocate to Kathmandu was not successful in avoiding the Maoists who discovered him there and subjected him to further extortion. He also claimed that the authorities were unable to protect him.

3. The delegate noted that the appellant claimed persecution on the grounds that he was perceived as an active Monarchist by the Maoists, that he belonged to the particular social group “businessmen in Nepal” and was targeted by Maoists for extortion.  However, the delegate concluded that the appellant’s claims lacked credibility and sufficient specific detail for him to be satisfied that the appellant faced a real chance of persecution because of his membership of a particular social group or because of an imputed political opinion.  The reasons given by the delegate were, in summary:

   1.The appellant’s passport had indicated that he departed Nepal on two different occasions and returned in July 2006 and in 2007.  His voluntary return to Nepal suggested that he did not have a real fear of persecution in Nepal.

   2.The passport appeared to indicate that the appellant had returned to Nepal on 31 January 2007.  It was therefore unlikely that his claim to have been harmed by the YCL in the incident on 28 January 2007 was true.

   3.The appellant’s claims to have fled Pokhara because of threats from the Maoists were inconsistent with a document he provided which showed that once he left Pokhara, his brother took over the business and appeared to run it profitably.

   4.The claims that the appellant took considerable time to apply for the protection visa because he was monitoring the human rights situation in Nepal was inconsistent with the fact that the independent country information showed that, over the relevant period of time, the human rights situation in Nepal was improving.

4. That is, the appellant’s credibility was in issue.  A reason for the delegate’s decision was that the appellant could not have been harmed by the YCL in the incident on 28 January 2007 as claimed as he had only returned to Nepal on 31 January 2007.

   THE TRIBUNAL DECISION

5. The Tribunal set out the appellant’s evidence and claims.  The Tribunal noted the appellant’s claim that the Maoists mistook him for a very rich man and someone who followed the monarchy.

   Further information relating to the incident

6. The Tribunal noted that there was further information directed to the occurrence of the incident which was given to the Tribunal but which was not before the delegate.

   ·Prior to the commencement of the hearing, the appellant submitted a statutory declaration in which he said that the date of 28 January in his previous declaration was a mistake and should have been 20 January.  Included in the statutory declaration was a newspaper cutting which was said to confirm the fact that the incident had taken place on 20 January 2007 and had been reported in the local press.

   ·The appellant appeared at the hearing before the Tribunal and gave evidence which the Tribunal summarised.

   ·Post hearing, the Tribunal conducted inquiries through the Australian Department of Foreign Affairs and Trade (‘DFAT’) to verify the authenticity of the newspaper article.  It was informed by DFAT that the article submitted by the appellant was not published by the Pokhara Hotline National Daily on 21 January 2007 as claimed.  The Tribunal was provided with a copy of the front page of the actual newspaper published by that newspaper on that date.  According to the Tribunal this was obtained by DFAT without disclosing the purpose for which it was being sought.

   ·The Tribunal wrote to the appellant pursuant to s 424A of the Migration Act 1958 (Cth) (‘the Act’), providing him with a copy of the front page of the newspaper as received from DFAT and requesting comments or a response in writing.

   ·The Tribunal received a letter from the appellant’s migration agent requesting an extension of time, which it granted.

   ·The Tribunal received a statutory declaration from the appellant and a letter from a Mr Sharma, the Managing Director of the Pokhara Hotline National Daily dated 23 January 2008.  The letter stated that the article submitted by the appellant to the Tribunal was true and correct.  The statutory declaration confirmed that the incident had taken place on 20 January 2007 and had been reported in the newspaper on 21 January.  The appellant said in his statutory declaration that he was not sure why there were two different copies of the front page of the newspaper but said ‘I am not sure if anyone associated with Pokhara Hotline newspaper had arranged to print extra few copies on the instruction of Maoists to defame or embarrass me’.

   ·The Tribunal noted a letter from the appellant’s migration agent accompanying the statutory declaration.  Although the Tribunal did not set out the contents of that letter, in it the migration agent observed that it was unlikely that there would have been two different editions of the newspaper on 21 January 2007 and said ‘we urge the Tribunal to contact the responsible person from Pokhara Hotline newspaper and investigate the authenticity of the documents, as we have been unable to obtain “convincing” evidence from the [appellants]’.

   ·DFAT subsequently contacted Mr Sharma, the editor of the Pokhara Hotline National Daily, and obtained a letter from him in which he stated that the Pokhara Hotline National Daily had not published any articles in relation to the appellant and had not issued any letter in relation to that issue.  Mr Sharma stated that the letterhead, stamp and signature on the letter submitted to the Tribunal by the appellant were not his and that the email address and telephone number were incorrect.

   ·The Tribunal sent a s 424A letter to the appellant enclosing the letter from Mr Sharma.

   ·In response to this information, the appellant’s migration agent said in correspondence that ‘[the appellant] concedes that at least one of the letters received by the RRT from Pokhara Hotline signed by Madhav Sharma should be fake’.  The appellant later forwarded a statutory declaration in which he said that he had been informed that Mr Sharma had asked for money to authenticate his previous reference, which the appellant refused to pay.  He speculated that Mr Sharma ‘must have tried to discredit me by sending the above facsimile’.

   Tribunal’s findings on credibility

7. The Tribunal stated that it formed the view that the appellant’s material claims lacked credibility and could not be accepted.  The Tribunal did not accept the appellant’s explanation as to why he initially claimed to the delegate that the incident took place on 28 January 2007 and later revised the date to 20 January 2007 before the Tribunal.  In particular, the Tribunal concluded that the newspaper article submitted by the appellant was fraudulent, as was the supporting letter allegedly written by Mr Sharma and provided to the Tribunal by the appellant.  Basically, the Tribunal did not accept that the letter obtained by DFAT from Mr Sharma was a fake, nor that Mr Sharma had asked for a bribe and then sought to discredit the appellant. 

8. The reasons given by the Tribunal for its conclusion that the appellant lacked credibility were in summary:

   (a)the discrepancies in the dates given by the first appellant in relation to the incident;

   (b)the acceptance of the information from DFAT that claims and documents made and submitted by the appellant were fraudulent; and

   (c)a rejection of the appellant’s explanation for the delay in lodging the application for protection visas.

   The date of application for protection visa

9. The Tribunal noted the correct date upon which the applicant arrived in Australia, 22 April 2007, and the date of application for protection visa, 1 June 2007.  The Tribunal said that it did not accept the appellant’s explanation as to why it took him so long to lodge an application if he came to Australia because of threats on his life and fear for his safety.  In that context the Tribunal said that it took the appellant over four months after his arrival in Australia to lodge the application for protection visa.  That clearly was not the case.

   Particular social group

10. The Tribunal accepted that the appellant was a businessman in Nepal.  It did not accept that “businessmen in Nepal” per se constituted a particular social group.  It noted that country information on Nepal indicated that the YCL may be still targeting wealthy landowners or businessmen with anti-Maoist political affiliations.  The Tribunal noted that the appellant did not claim to be a royalist (in contrast to being perceived to be a royalist) or to have anti-Maoist political affiliations.  The Tribunal expressed itself satisfied that the appellant was not at risk of being perceived to be a royalist or to have anti-Maoist political affiliations and was therefore not at risk of being specifically targeted by the YCL.

11. That is, the Tribunal did not consider that “businessmen in Nepal” was a social group for the purposes of the Convention.  It did consider whether the appellant was a member of a similar group which the Tribunal identified as ‘businessmen in Nepal with anti-Maoist affiliations’ but found that the appellant was not a member of that group.

    JUDGMENT OF THE FEDERAL MAGISTRATE

12. Not all of the grounds in the application for review filed in the Federal Magistrates Court on 23 May 2008 are pursued by way of appeal.  Accordingly, most of the decision of Raphael FM is not challenged in this appeal.

13. At the end of the judgment, his Honour raised and addressed the application of ss 424, 424A and 424B of the Act in relation to the information obtained by DFAT. His Honour referred to the decisions of the Full Court in SZKTI v Minister for Immigration and Citizenship (2008) 168 FCR 256 and SZKCQ v Minister for Immigrationand Citizenship (2008) 170 FCR 236. His Honour concluded that the case before him could be distinguished from SZKCQ because ‘here the information provided by the DFAT was crystal clear, and the basis upon which it had been obtained, namely the letter from the editor of the newspaper, was provided to the applicant.  There is nothing more that the applicant could have gained from knowing what questions were asked of the editor by DFAT’. His Honour held that the s 424A letters complied with that section. His Honour’s reasons indicate that he did not consider that s 424 of the Act applied to the information obtained by DFAT. Even if there had been a breach of s 424, it is apparent from his Honour’s reasons that he understood that the provision of the letters from the Tribunal to the appellant complied with obligations to afford procedural fairness. It followed that relief should be refused (SZBYR v Minister of Immigration and Citizenship (2007) 235 ALR 609 at [29]).

14. Federal Magistrate Raphael accepted that the Tribunal had miscalculated the date between the appellants’ arrival in Australia and the making of the application for protection visas but did not accept that this constituted jurisdictional error, as it did not go to an integer of the appellants’ claims (Minister for Immigration v Yusuf (2001) 206 CLR 323 at [84]).

15. Federal Magistrate Raphael concluded that the Tribunal’s findings on credibility were opened to it.  His Honour was satisfied that the relevant claims had been considered by the Tribunal.

    THE NOTICE OF APPEAL

16. The grounds of the notice of appeal are as follows:

    1.The Federal Magistrate erred by not finding that the second respondent had made jurisdictional error by finding that businessmen in Nepal did not constitute a particular social group by reference to persecution on the grounds of political opinion and without reference to the tests for the determination of whether a group falls within the definition of a “particular social group” as determined by High Court authority.

    2.The Federal Magistrate erred by not finding that the second respondent made jurisdictional error by failing to comply with ss 424, 424A and 424B of the Act in relation to information obtained from Pokhara Daily Hotline in Nepal.

    3.The Federal Magistrate erred by not finding a breach by the second respondent of s 425 of the Act upon the basis of the statements of the Full Court of the Federal Court in SZKTI at [56].

    Ground 1 – particular social group

17. As the Federal Magistrate noted at [16], the Tribunal did not consider that “businessmen in Nepal” constituted a particular social group for the purposes of the Convention but accepted that there might be some targeting of wealthy landowners or businessmen with anti-Maoist political affiliations by the YCL.  The Tribunal concluded that, as the appellant did not claim to be a royalist or to have anti-Maoist affiliations, he was not at risk.  This represents a fair summary of the Tribunal’s reasons.  This finding was open to the Tribunal based upon the evidence before it, including the country information to which the Tribunal referred in its decision.  It was open to the Tribunal on material before it to determine whether or not there was a social group of “businessmen in Nepal” per se (Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at [81]). The Tribunal did not fail to properly identify the social group to which the appellant belonged.

18. At the hearing of the appeal the appellant appeared in person assisted by an interpreter.  He stated that he had claimed to be a Monarchist.  However, there was no reference to such a claim in the Tribunal decision and the appellant could not show that any such claim had been advanced to the Tribunal.  The appellant did claim in his protection visa application that he was accused of being a Monarchist; the Tribunal dealt with the appellant’s claim that he was perceived as being a royalist.

    Ground 2 – alleged breaches of ss 424, 424A and 424B of the Act

19. It would seem by this ground that the appellant is referring to an issue raised by Raphael FM at the hearing, namely whether or not the information received by the Tribunal from DFAT (the newspaper article and the letter from Mr Sharma) was of the types of information considered in SZKTI or in SZKCQ.

20. The procedural restrictions on the specific power to issue an invitation to give additional information under s 424(2) do not qualify the Tribunal’s general power in s 424(1) to “get any information that it considers relevant” (Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434 at [48]). Therefore, there was no jurisdictional error on the part of the Tribunal in the way in which it obtained the information.  In any event, the request for information from DFAT was not a request for “additional information” from a “natural person” (SZLPO v Minister for Immigration and Citizenship (2009) 255 ALR 407). The first request or invitation to DFAT resulted in the provision of the information that the newspaper article was not genuine. The second request or invitation was made through DFAT to Mr Sharma. Insofar as it was a second request to DFAT, it was not from a natural person; to the extent that it was from Mr Sharma, it was not additional information. Consequently there was no breach of s 424(2) of the Act or, it follows, of s 424B.

21. The Federal Magistrate concluded that the letters sent by the Tribunal to the appellant in regard to the alleged false documents submitted by the appellant amounted to full compliance with s 424A and that the appellant would clearly have understood why the information referred to in the letters was relevant to the review. The appellant has not shown that his Honour erred.

22. To the extent that this ground of appeal may be referring to evidence given by the appellant’s wife to the Tribunal, that has not been raised by the appellant.  In any event, none of the evidence given by the appellant’s wife could be said to constitute “information” that the Tribunal considered would be the reason or part of the reason for affirming the decision that was under review, the delegate’s decision to reject the appellant’s claims.  The Tribunal merely found that it did not accept her claims and that she ‘was prepared to fabricate her evidence in order to support the [appellant]’. The Tribunal’s thought processes and appraisals of the evidence of the appellant’s wife do not constitute information for the purposes of s 424A (SZBYR at [18]).

    Ground 3 – s 425 of the Act

1. This ground of appeal relates to the provision of the DFAT documents to the appellant after the oral hearing.  The appellant contends that he should then have been invited to a further oral hearing to give evidence on the issue of whether the documents he submitted to the Tribunal were fraudulent.

2. In response to the s 424A letters and the provision of the DFAT documents which contradicted the appellant’s documents, the appellant did not, by himself or through his migration agent, seek a further opportunity to give oral evidence. He was, however, given the opportunity to respond in writing (SZKTI (2009) 258 ALR 434 at [51]).

3. In any event, the question is whether the subject of the s 424A letters was part of an issue that had previously arisen and whether the appellant had an opportunity to deal with it during the hearing. The Minister submits that the issues arising on review before the Tribunal should be characterised as those which the original decision-maker identified as determinative against the appellant (SZBELv Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35]). The relevant issue, the Minister says, is whether the appellant had suffered the incident, which was also an issue before the original decision-maker, the delegate. The Minister submits that it is not appropriate to describe the issue as the authenticity of the documents submitted by the appellant. If that were the case, the Minister concedes that that issue, having been raised after the hearing, would have entitled the appellant to a fresh hearing pursuant to s 425 and the Tribunal decision would be affected by jurisdictional error.

4. Whether the relevant issue is the credibility of the appellant or the incident which the appellant originally said occurred on 28 January 2007, the subsequent documentation submitted to the Tribunal after the hearing did not raise a fresh issue.  Where a document is submitted after the Tribunal hearing in relation to a pre-existing issue, either on request from the Tribunal or volunteered by an applicant, that does not, of itself, constitute a new issue.  It is additional information about an extant issue (SZKTI (2009) 258 ALR 434 at [51]). The contrary outcome would mean that, by proffering fresh documentation to the Tribunal, there would, of necessity, be a never-ending series of additional hearings required pursuant to s 425(1). That cannot be what that section envisaged.

5. The issues on the review conducted by the Tribunal in light of the documents submitted after the hearing remained the same as those that had been identified by the delegate and dealt with at that hearing and which, in turn, formed the focus of the hearing before the Tribunal.  That was the credibility of the appellant’s claims to persecution and the certainty of the dates upon which the incident on which those claims were based had allegedly occurred.  The documents provided by the appellant, which the Tribunal found to be fraudulent, merely provided another particular of the appellant’s lack of credibility on that issue.

6. At the hearing of the appeal, the appellant also alleged bias on the part of the Tribunal.  When asked to give a basis for such an allegation, he said it was because the Tribunal rejected his claims.  That does not establish bias.

7. The only other matters that the appellant raised at the hearing went to the merits of the Tribunal decision, which did not go to questions of jurisdictional error.

   CONCLUSION

8. The appellant and, through him, the second appellant has not demonstrated any error that would lead to the conclusion that the Tribunal decision was subject to jurisdictional error.  The appellant has not demonstrated any error on the part of the Federal Magistrate.  It follows that the appeal should be dismissed with costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice BENNETT.

Associate:

Dated:       13 October 2009

Solicitor for the Appellants:	The first appellant appeared in person.
Counsel for the First Respondent:	Ms R Francois
Solicitor for the First Respondent:	Clayton Utz

Date of Hearing:	13 August 2009
Date of Judgment:	13 October 2009