SZPZM v Minister for Immigration and Citizenship
[2011] FCA 1367
•15 November 2011
FEDERAL COURT OF AUSTRALIA
SZPZM v Minister for Immigration and Citizenship [2011] FCA 1367
Citation: SZPZM v Minister for Immigration and Citizenship [2011] FCA 1367 Appeal from: SZPZM v Minister for Immigration [2011] FMCA 702 Parties: SZPZM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 1523 of 2011 Judge: LOGAN J Date of judgment: 15 November 2011 Corrigendum: 5 December 2011 Catchwords: MIGRATION – jurisdictional error – whether grounds of review disclosed errors by the Federal Magistrates Court or the Tribunal – consideration of principles of logicality or irrationality – no error made by the Tribunal or Federal Magistrates Court Legislation: Migration Act 1958 (Cth) ss 424A, 425 Cases cited: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 considered
Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 followed
Minister for Immigration and Citizenshipv SZNSP (2010) 184 FCR 485 followed
SZPZM v Minister for Immigration [2011] FMCA 702 citedDate of hearing: 15 November 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 17 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Solicitor for the Respondents: DLA Piper Australia FEDERAL COURT OF AUSTRALIA
SZPZM v Minister for Immigration and Citizenship [2011] FCA 1367
CORRIGENDUM
1.On the cover page in the catchwords, the word “logicality” should read “illogicality”.
I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 5 December 2011
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1523 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZPZM
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
15 NOVEMBER 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the first respondent’s costs of and incidental to the appeal to be taxed if not agreed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1523 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZPZM
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE:
15 NOVEMBER 2011
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant is a citizen of Nepal. He came to Australia on 1 December 2009. On 17 June 2010, he made an application under the Migration Act 1958 (Cth) (Migration Act) for that class of visa known as a Protection Visa. On 11 November 2010, a delegate of the Minister for Immigration and Citizenship (the Minister) decided to refuse that visa application. As was his right under the Migration Act, the appellant sought the review of the Minister’s delegate’s decision on the merits by the Refugee Review Tribunal (the Tribunal). On 4 February 2011, for reasons given that day in writing, the Tribunal decided to affirm the Minister’s delegate’s decision.
The appellant then sought the judicial review of the Tribunal’s decision by the Federal Magistrates Court. On 19 August 2011, for reasons published that day, the Federal Magistrates Court dismissed, with costs, that judicial review application: SZPZM v Minister for Immigration [2011] FMCA 702.
The appellant now appeals to this Court against that order of dismissal. There are four grounds of appeal:
1.I believe her Honour Barnes in connection with the Tribunal’s decision in my case, that the learned Federal Magistrate Barnes expressed reluctances in finding that the Tribunal had committed jurisdictional error.
2.I believe that I have been deprived of natural justice and fairness by the Tribunal Member in determining my application.
3.It is argued that the Tribunal had failed to exercise good faith, and to make a bona fide attempt to exercise its power to review the delegate’s earlier decision which had been also adverse to me relying in large measure in that regard upon the Tribunal’s consideration of the report. I believe that the Tribunal member was incorrect in concluding first, that the Tribunal’s failure to deal with my monarchical support and my denial to support the Maoists, and secondly the Tribunal’s approach to its assessment of the reliability of my evidence did indicate a lack of good faith on its part.
4.I believe that the Tribunal’s decision was affected by jurisdictional error as the Tribunal member’s reasoning and conclusion ignored the substantial support given to my claims by the country information
[sic]
At the heart of the appellant’s claim for a visa lay his claim that he was a member of the Rastriya Prajatantra Party (RPP), which was pro-monarchist and that, as a result of that membership, he feared persecution by, the Maoist government of Nepal. He made reference to his brother having been murdered by Maoists. In support of his application, the appellant provided documents in the Nepalese language and English translations thereof in respect of what, he stated was that murder, along with other documents relating to his claimed membership of the RPP.
The Tribunal offered to the appellant and the appellant took up the offer of giving evidence orally before it. The Tribunal’s reasons disclose a close engagement by the Tribunal with the basis of the appellant’s visa claim, both as originally made and as supported by documentation and as related in oral evidence given by him. It is also apparent on the face of the Tribunal’s reasons that the Tribunal took into account general information concerning the situation in Nepal as set out in documents described in paragraph 39 of the Tribunal’s reasons. In the course of the Tribunal members’ reasons, the following statements are made (at paragraphs 46 and 47):
46The Tribunal is not satisfied that the applicant provided a truthful account of his circumstances in Nepal. The Tribunal does not consider it appropriate to take an overly stringent approach to questions of credibility but neither does it consider it appropriate to accept all claims uncritically. In the present matter, the Tribunal has formed the view that the applicant fabricated all his claims relating to his involvement with the RPP in Nepal.
47The applicant claims that he was an active and committed member of the RPP political party in Nepal. When the Tribunal discussed the party’s recent history, its aims and its prominent members, he had no knowledge regarding these matters. The Tribunal has formed the view that a member of the party would have information regarding these aspects of the party. The applicant claims that he was a person from a village and that he had limited information about political events in Nepal. However, the Tribunal finds that if indeed the applicant was involved with the party or even if he was interested in the party to the extent claimed, he would have been exposed to information about the party even at the regional level. The Tribunal finds that the information expected from the applicant is not unique or obscure. It is basic information which would commonly be known by any person who has been involved with the party or has an interest in it. After considering the applicant’s limited and inaccurate information concerning the RPP and the reasons he provided for his lack of knowledge regarding the party, the Tribunal has formed the view that the applicant was not involved with or interested in the RPP in Nepal. The Tribunal finds that he contrived these claims to enhance his application and it does not accept as credible his claim that he was involved with the RPP in Nepal.
On this basis, and though the Tribunal expressly considered the documents provided by the appellant concerning his involvement with the RPP, the Tribunal stated that it was not satisfied that the documents were genuine. The Tribunal’s conclusion as to an absence of credibility on the part of the applicant with respect to the basis of his claim was fatal to the Tribunal being satisfied that he was a person to whom Australia owed protection obligations under the Refugees Convention. That satisfaction was an essential criterion for the grant of a protection visa under the Migration Act.
It is necessary to record that the grounds of appeal, insofar as they are meaningful, a subject to which I shall return shortly, do not wholly engage with or allege error on the part of the Federal Magistrates Court. Instead, as is not uncommon in matters such as this, there is a direct focus upon the Tribunal. That, of course, ignores the nature of the present proceeding, which is that of an appeal against the orders made by the Federal Magistrate’s Court. That said, I understand from the appellant’s oral submissions that grounds where the Federal Magistrates Courts reasons for judgment are not expressly said to be in error are put on the basis that the Federal Magistrates Court should have found error for that reason on the part of the Tribunal.
The appellant appropriately conceded that the first of his grounds of appeal was nothing more than an introduction to those which followed. It truly does not state any basis upon which one might allow an appeal against the decision of the Federal Magistrates Court.
As to the second of the grounds of appeal, it is but a general allegation of a denial of natural justice. As was put on behalf of the Minister, the Migration Act codifies the content of natural justice in relation to a proceeding before the Tribunal. That codification is subject to a qualification, in my opinion, which is that actual or apprehended bias on the part of the Tribunal could amount to jurisdictional error in any event.
Be that as it may, it is apparent from the reasons for judgment of the learned federal magistrate that there was some exploration of grounds that might amount to a denial of natural justice. I say that because her Honour expressly adverted to whether or not there had been a failure to comply with s 425 of the Migration Act or, for that matter, whether there was any evidence of either actual or apprehended bias. Her Honour concluded, correctly, that no such basis for review was made out: see paragraph 19 of her Honour’s reasons for judgment. Her Honour also there adverted to whether there was anything which would indicate an absence of good faith on the part of the Tribunal. She concluded that no such case was made out on the evidence before her.
I have separately considered that question, having regard to ground 3. There is nothing in the evidence, which relevantly comprises only the Tribunal’s reasons, as read in the context of the material before the Tribunal, which would support a conclusion that the Tribunal had acted in bad faith. Instead, and as I have observed, all that is shown is a close engagement by the Tribunal with the basis of the claim and how the appellant sought to support his claim.
The way in which ground 3 of the notice of appeal is stated might also be thought to raise an issue as to whether the Federal Magistrates Court ought to have concluded that the Tribunal’s reasoning process was irrational or illogical, particularly insofar as the Tribunal came to reject the nominally supporting documentation submitted by the appellant. Her Honour made reference to pertinent authority in her evaluation of this question: see paragraphs 28 and 29 of her Honour’s reasons and the reference there to the judgments of the Full Court in Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 (SZNSP) and Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 (SZNPG). In SZNSP at [36], North and Lander JJ observed in their joint judgment:
When a decision-maker has conducted a hearing of the kind which is conducted by the RRT and has heard the applicant, and has reached the tentative conclusion that the applicant’s claims had been fabricated, the decision-maker is entitled in our opinion to reject evidence which would, if accepted, have corroborated the applicant’s account … In circumstances where the provenance of the document is unproved but is proffered by a witness whose credibility has been destroyed, the document has no more credit than the person proffering it.
That is this case. In SZNPG, North and Lander JJ at [26] stated that the Tribunal does not necessarily fall into jurisdictional error, “if it fails to express its reasons for rejecting corroborative evidence with full clarity”.
Much may, with respect, lie behind the qualification “necessarily” having regard to the recognition in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 that, in respect of a jurisdictional fact constituted by a state of administrative satisfaction, jurisdictional error may be found in an illogical or irrational process of reasoning with respect to that state of satisfaction.
There is in respect of this Tribunal’s reasons no such illogicality or irrationality. It is important on judicial review and on subsequent appeal that a principled restraint be exercised in relation to the way in which the Tribunal has reasoned as to why it is not satisfied that an applicant is a person to whom Australia has a protection obligation. Absent such restraint there is a risk of descending into merits review, a course which is impermissible.
As to ground 4, it is apparent from the Tribunal’s reasons that use was made of country information, both to question the appellant concerning the basis of his claim, see paragraphs 33 to 36 of the Tribunal’s reasons, and also to evaluate, assuming contrary to the conclusion reached concerning his credibility, as to whether he had a well-founded fear of persecution in the event that he were to return to Nepal: see paragraph 50 of the Tribunal’s reasons. The use made by the Tribunal of that general information was unremarkable. Further, given its nature, it gave rise to no obligation on the part of the Tribunal under s 424A of the Migration Act.
There is nothing illogical or irrational about the use which the Tribunal made of the general country information in its process of reasoning.
However one approaches the grounds of appeal, they lack merit. The appeal must therefore be dismissed.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 30 November 2011
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