SZRJH v Minister for Immigration
[2012] FMCA 798
•28 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRJH & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 798 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – applicants claiming political persecution in Nepal – relevant claims made by first applicant who was not believed – whether the review conducted by the Tribunal was procedurally fair considered. PRACTICE AND PROCEDURE – Observations on the interrelationship of ss.36(2) and (3) of the Migration Act 1958 (Cth) and the impact on the efficiency of the review process. |
| Migration Act 1958 (Cth), ss.36, 420, 422B, 425 |
| Khan v Minister for Immigration [2011] FCAFC 21 Minister for Immigration v Li [2012] FCAFC 74 Minister for Immigration v SZKTI (2009) 238 CLR 489 Minister for Immigration v SZMOK (2009) 257 ALR 427 NAIS v Minister for Immigration (2005) 228 CLR 470 Ogawa v Minister for Immigration (2011) 199 FCR 51 Re Minister for Immigration; Ex parte Durairajasingham (2000) 74 ALJR 405 SZREH v Minister for Immigration Anor [2012] FMCA 525 VAAD v Minister for Immigration [2005] FCAFC 117 X v Minister for Immigration [2002] FCAFC 3 |
| First Applicant: | SZRJH |
| Second Applicant: | SZRJI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 826 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 4 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 28 September 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr J D Smith |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The amended application filed on 22 August 2012 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 826 of 2012
| SZRJH |
First Applicant
SZRJI
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (the Tribunal). The decision is dated 19 March 2012 on its face and was certified on behalf of the Tribunal’s District Registrar on 20 March 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are two applicants, who are a husband and wife from Nepal. The relevant protection claims were made by the first applicant, who claimed political persecution.
The following statement of background facts is derived from the submissions of the parties.
The applicant[1] is a citizen of Nepal who arrived in Australia with his wife, the second applicant, in March 2010. On 4 June 2010 they applied for protection visas.
[1] The first named applicant was the only one who made claims to be a refugee. For that reason, references to the “applicant” in these reasons are references to him.
The applicant’s claims were that he feared harm from Maoists because he supported the pro-monarchy RPP party. He said that he was a successful businessman and had been forced by the Maoists to pay them protection money. On 10 November 2010 a delegate of the Minister decided to refuse to grant the applicants protection visas. The applicants applied to the Tribunal for review of that decision on 7 December 2010.
Tribunal's decision
The Tribunal found that the applicant had fabricated his claim to have faced extortion by the Maoists. It found that he had no strongly held political views and that there was no real chance of his being persecuted on return to Nepal.
These findings were based on several aspects of the applicant’s evidence: first, his written claims identical to the claims made in an old decision of the Tribunal; secondly, the party he claimed to support had not supported the King after a factional split and the applicant himself had not voted in the election held to determine whether to retain the monarchy.
The judicial review application
These proceedings began with a judicial review application filed on 16 April 2012. The applicants now rely upon an amended application filed on 22 August 2012. There are three grounds in that application:
1. The Tribunal misled the Applicant as to the content of information that it had before it concerning the attitudes of different political parties in Nepal towards the constitutional monarchy.
Particulars
The Tribunal put to the First Applicant that the RPP, the party he said he supported as a monarchist at the relevant time, “had no longer been supporting the King” (CB 268, [50]). Instead, it was another party, the RPP (Nepal), which supported the King. This resulted in the First Applicant saying that he was “very confused”. The document relied on by the Tribunal (Annexure A to the affidavit of Michelle Elizabeth Stone) in fact implies that both parties supported the monarchy.
2. The Tribunal failed to have regard to evidence that was constructively before it which supported the First Applicant’ claim that the party he supported was a supporter of the monarchy.
Particulars
On 9 May 2011 the Refugee Review Tribunal published on its website a country advice in relation to Nepal which, while stating that of the two RPP parties the RPP (Nepal) “appears to be more devoted to the restoration of the monarchy”, both the RPP and another party, the RJP, “advocate constitutional monarchy”.[2] The Member in this case decided the matter in February 2012 without reference to that advice, although it was constructively before him.
3. The Tribunal failed to advise the Applicants that material which they had reason to believe was before the Tribunal was not in fact before the Tribunal. By failing to alert the Applicants to this fact, the Tribunal effectively denied them the opportunity to fully present their case either in writing or at the hearing.
[2] Nepal – NPL38646 – Myagdi – Rashtriya Prajatantra Party – RPP – RPP-N – Maoists – YCL – State Protection – Relocation, online at copy to be tendered at the hearing.
Particulars
The Tribunal noted (CB 262, [20]) that a letter from the Applicants’ solicitors to the Minister’s Department dated 23 September referred to information which it said was attached, but no copies of that information were on the Department’s file and therefore it was not before the Tribunal. The Tribunal did not alert the Applicants to the absence of that information.
I received as evidence the court book filed on 10 May 2012 as well as the following documents:
a)the affidavit of Michael Terrence Jones made on 4 September 2012, to which is annexed a transcript of the hearing conducted by the Tribunal on 25 February 2011;
b)the affidavit of Michelle Elizabeth Stone made on 24 May 2012, to which is annexed additional country information to that included in the court book[3]; and
c)a Tribunal country advice report on Nepal dated 9 May 2011[4].
[3] Exhibit A1.
[4] Exhibit A2.
Both parties made written and oral submissions. The applicant contends that there was a want of procedural fairness in this case because the Tribunal confused the applicant at the hearing by representing to the applicant a state of affairs concerning the party he claimed to support which is said to have been incorrect. The Tribunal is also said to have erred by failing to have had regard to correct information concerning the political party contained in the Tribunal’s own country advice[5]. Finally, the Tribunal is said to have erred by failing to alert the applicants (or their legal advisers) that relevant documents had apparently been omitted from a submission made on the applicants’ behalf by their advisers.
[5] See Exhibit A2.
The Minister denies that the Tribunal fell into error in any of these respects.
Consideration
At the time of the Tribunal decision, s.36 of the Migration Act provided as follows:
(1) There is a class of visas to be known as protection visas.
Note: See also Subdivision AL.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa.
Protection obligations
(3) Australia is taken not to have protection obligations to a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.
(4) However, if the non‑citizen has a well‑founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.
(5) Also, if the non‑citizen has a well‑founded fear that:
(a) a country will return the non‑citizen to another country; and
(b) the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;
subsection (3) does not apply in relation to the first‑mentioned country.
Determining nationality
(6) For the purposes of subsection (3), the question of whether a non‑citizen is a national of a particular country must be determined solely by reference to the law of that country.
(7) Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.
The Tribunal’s decision was made just before the commencement of amendments to the Migration Act to include provisions in relation to complementary protection[6]. The section at the time of the Tribunal decision relevantly required the Tribunal to consider whether Australia has protection obligations under the Refugees Convention (as amended by the Refugees Protocol[7]) or by reference to the limitation on Australia’s protection obligations contained in s.36(3), as qualified by ss.(4) and (5). At the hearing before the Tribunal the presiding member alerted the applicant to the possibility that s.36(3) may apply. However, the Tribunal gave no consideration to that possibility in its reasons. I infer from the Tribunal’s silence on that issue that it considered it unnecessary to have regard to the application of s.36(3) as it was satisfied (for the purposes of s.36(2)) that Australia owed no protection obligations to the applicant under the Refugees Convention.
[6] Migration Amendment (Complementary Protection) Act 2011.
[7] Section 36(2).
I see no error in the Tribunal’s approach although there may be an issue for consideration by the Tribunal about the efficient management of its workload. Sections 36(2) and (3) of the Migration Act are capable of operating independently of one another or in conjunction with one another. If the Tribunal decides that s.36(3) applies, then there would be no need to give (and indeed the Tribunal would probably be prevented from giving) any consideration to s.36(2). Conversely, if the Tribunal is satisfied that Australia has no protection obligations to an applicant under the Refugees Convention for the purposes of s.36(2) it is unnecessary to consider the operation of s.36(3). In the case of applicants from Nepal, the Tribunal sometimes determines such applications by the application of s.36(3) and sometimes is entirely silent on that question.
It is a matter for the Tribunal to determine which is the more appropriate way to proceed in a particular case. In that consideration, it would no doubt be relevant for the Tribunal to consider the management of its large caseload. If the Tribunal were to determine that it could deal with its caseload of Nepali applicants more efficiently by dealing with the operation of s.36(3) first then that approach would, in my view, be one that should not attract any judicial criticism. The Tribunal’s review in this case ran from 7 December 2010 until 20 March 2012. The Tribunal hearing in this matter was conducted more than a year before the Tribunal published its decision. It may be that the Tribunal could have dealt with the case more quickly if it had given priority to the consideration of the operation of s.36(3)[8].
[8] See SZREH v Minister for Immigration & Anor [2012] FMCA 525.
Ground 1 – Did the Tribunal confuse the first applicant at the hearing?
This ground derives from the following exchange between the presiding member of the Tribunal and the applicant at the Tribunal hearing[9]:
[9] Transcript, page 10, line 46 – page 12, line 15.
[PRESIDING MEMBER]: Well, Mr [Applicant], although you claim to be a supporter of the party, you don’t appear to know anything about the split in the party.
THE INTERPRETER: I’m aware of the split of the party from Chand and Kamal Thapa. Two – there was split among two of them.
[PRESIDING MEMBER]: All right. So which of those two did you support?
THE INTERPRETER: When they started fighting with each other and started splitting among themselves, I did not support any of them. I just supported the party as a whole. I did not support the leaders.
[PRESIDING MEMBER]: Well, the problem, Mr [Applicant], is that there are two RPP parties in Nepal. There’s one called the Rastriya Prajantantra Party and the other called Rastriya Prajatantra Party Nepal. They have different policies, different political positions. Obviously they have different leaders and that’s why I’m asking you which of them you supported.
THE INTERPRETER: I will tell you step-by-step. First of all, I supported the king. I believed in the king and it was the panchayat system. And when the democracy came, the party that supported the king was Rastriya Prajatantra Party, and that’s the party I believed in. It’s only a belief. It’s not anything else. I believed the king, I believed the party that supported the king. And in Nepal the political situation was such, all the leaders, they were fighting for the seat, fighting the position, so it become like a game. And it was a bad game. And that’s when I started thinking that Nepal – the politics is a dirty game. And that’s when I started concentrating more on my business rather than on the politics. I did not even go to vote. And the way I have told that I’m a supporter of the Rastriya Prajatantra Party is only because of the pressure I have got from the society. When asked which party you support I told them I supported the king and the Rastriya Prajatantra Party, and that was it. And I had nothing else to do with them. And after that, the incidents happened in the royals and I started losing all the faith.
[PRESIDING MEMBER]: Well, that’s the problem, Mr [Applicant]. You’re saying you supported the party, but you don’t know which faction of the party you supported, and one of the major differences between the two factions is about the monarchy. Now, if you were genuinely a supporter of the monarchy I would expect you to know that.
THE INTERPRETER: In Nepal it’s quite different because when I say I support the king, I believe in the king, I never worked with them, I never did anything – political activities. I never worked with the party. I just supported the king from my heart.
[PRESIDING MEMBER]: Well, Mr [Applicant], if that were the case you could have said honestly in your statutory declaration “I’m a supporter of the king”, but you didn’t. You said in your statutory declaration that you’re a supporter of the Rastriya Prajatantra Party.
THE INTERPRETER: The basis, the main thing is that I was a supporter of the king and Rastriya Prajatantra Party being the supporter of the king, I was targeted by other people and because I was a businessman and this – this is the only reason I was targeted by the Maoists, and that’s how the topic came.
[PRESIDING MEMBER]: Well, Mr [Applicant], that’s why I’m asking you these questions because by the time you claim you were targeted [by] the Maoists, the Rastriya Prajatantra Party was not a supporter of the king.
THE INTERPRETER: Sorry, Member, I did not understand.
[PRESIDING MEMBER]: By the time you claim you were targeted by the Maoists, the Rastriya Prajatantra Party was not a supporter of the king. That’s why they split. It’s the Rastriya Prajatantra Party Nepal that is the supporter of the king. Do you understand what I’m saying?
THE INTERPRETER: I’m very confused, Member.
[PRESIDING MEMBER]: Well, what [it] suggests to me, Mr [Applicant], is that you weren’t in fact a supporter of the Rastriya Prajatantra Party at all.
It was central to the applicant's claims that he was a supporter of the monarchy and a political party referred to as the RPP. The Tribunal put to him that the RPP had split and subsequently only a breakaway group known as the RPP (Nepal) supported the monarchy[10]. The Tribunal stated that the applicant said he was “very confused” by this information. The Tribunal concluded at least in part that the applicant's lack of knowledge on this point meant that he was not a supporter of the monarchy or the RPP[11].
[10] CB 267-268, [47]-[50].
[11] CB 278-279, [95].
The document on which the Tribunal relied was the section on Nepal in the Political Handbook of the World Online Edition 2010, a copy of which is attached to the affidavit of Michelle Elizabeth Stone.
The document states, in relation to the RPP[12]:
In January 2006 President Rana ousted ten members of the party's central committee, including six cabinet ministers. The royalist dissidents ultimately formed the RPP (Nepal) …. With nine seats, the RPP became the largest opposition party in the interim government. Party divisions, as well as the RPP's opposition to ending the monarchy, weakened its showing in the Constituent Assembly balloting; the party won eight seats. It subsequently joined the UML-led government in June 2009.
[emphasis added]
[12] Page 14 of the annexure to the affidavit, under the indicator “Page 1037”.
This ground relies on two factual assertions: first, that the Tribunal misstated the effect of information about the RPP; and secondly, that the applicant was misled by this misstatement. Neither assertion has been made out.
I do not accept the applicant’s contention that he was misled by the presiding member as to the circumstances of the split in the RPP. He may have been confused but the issue is whether there was a want of procedural fairness. The Tribunal was entitled to test the applicant on his knowledge of the political party he claimed to support. If the applicant’s understanding of the split of the party was better than that of the presiding member, the applicant had an opportunity at the hearing to advance his knowledge. He was represented at the hearing by his legal adviser and a post hearing submission was made which included a supportive document from the RPP (Nepal).
Further, there may well have been a material distinction between support for the monarchy as an institution and support for former King Gyanendra. The presiding member referred to support for the then King rather than for the institution of monarchy. It may well have been that the RPP split not over the merits of the monarchy but over support for the then current occupant of the throne.
I am not persuaded, on the available material, that the Tribunal’s understanding of the split in the RPP was incorrect.
I conclude that the Tribunal did not fail to identify for the applicant the essential and significant issues upon which the review would turn. There was no breach of s.425 (or, to the extent that it is relevant, s.420). Neither was there otherwise a breach of the rules of procedural fairness, to the extent that they apply, notwithstanding s.422B of the Migration Act.
Ground 2 – Did the Tribunal fail to have regard to relevant material?
The applicant relevantly contends as follows:
According to the Tribunal's website,[13] the Tribunal prepares "country of origin information" which it provides to Tribunal Members to assist them to undertake reviews, and publishes a selection of it on the website. It can be inferred that material published on the website during the time when a particular application is under consideration by a Member will be constructively before the Member when the decision is made.
A document identified as NPL38646 was placed on the website on 9 May 2011, while this matter was under consideration.[14] That document states (page 3, last paragraph) that the RPP, along with another party called RJP, advocates constitutional monarchy. The Tribunal's finding to the contrary, without reference to the evidence constructively before it, amounted to a failure to exercise the jurisdiction of reviewing the decision under review on the basis of all of the evidence.[15]
[13] See See X v Minister for Immigration & Multicultural Affairs [2002] FCAFC 3 at [12]-[25] and cases cited.
I reject this contention.
The applicant relies upon the majority decision in Minister for Immigration v Li[16]. The Minister contends that that decision was not only inconsistent with unanimous decisions of the Full Federal Court[17] and a single judge on appeal from this Court[18] but, critically, with High Court authority[19]. For the reasons which follow, it is unnecessary for me to express a view on whether the majority decision of the Full Federal Court in Li is clearly wrong.
[16] [2012] FCAFC 74.
[17] Minister for Immigration v SZMOK (2009) 257 ALR 427; Khan v Minister for Immigration [2011] FCAFC 21.
[18] Ogawa v Minister for Immigration (2011) 199 FCR 51.
[19] Minister for Immigration v SZKTI (2009) 238 CLR 489 at [21]; NAIS v Minister for Immigration (2005) 228 CLR 470.
I accept the Minister’s contention that the applicant has not established that the Tribunal did not have regard to the information on the website. Section 430 does not require the Tribunal to list everything it looks at, only the evidence or other material on which it based its material findings of fact[20]. This means that the mere absence of a reference to some material does not give rise to any inference that the Tribunal did not consider it.
[20] Re Minister for Immigration; Ex parte Durairajasingham (2000) 74 ALJR 405.
I do not rule out the possibility that the Tribunal may in particular circumstances come under an obligation to have regard to relevant country advice prepared by the Tribunal for the assistance of members of the Tribunal and at least constructively available to those members. However, it is by no means obvious that there is anything in Exhibit A2 which required specific mention by the Tribunal in dealing with the credibility of the applicant’s claims. In particular, the assertion contended for by the applicant is not strictly accurate. The document states in the second paragraph on page 3:
Of the two RPP parties, the RPP-N appears to be the more devoted to the restoration of the monarchy.
To the extent that the country advice is a statement of the political situation in Nepal at the time the advice was prepared, it is not directly relevant. The Tribunal at the hearing it conducted was testing the applicant’s knowledge about an earlier time period, namely when the RPP split. It was the RPP’s views about the monarchy (or more particularly the King) at that time that the Tribunal was seeking to test the applicant about.
Ground 3 – Did the Tribunal err in not alerting the applicants or their advisers to documents missing from the Department’s file?
In a letter to the delegate dated 23 September 2010[21], the applicants’ representatives made submissions concerning the first applicant’s claims and referred to a large amount of documentation in support of those submissions, some of which the letter said was attached.
[21] CB 118-141.
At [5][22] the letter listed a number of reports on Nepal from a website which it said were attached.
[22] CB 124.
At [72]-[73] of the letter[23] the representative referred to articles “attached to these submissions and listed by title under the heading Articles on Maoist Activities”, which were said to “add circumstantial weight to the claims of [the applicant] that he was targeted by Maoists due to his political affiliations, political work and opinions”.
[23] CB 138.
At [20] of its reasons[24] the Tribunal noted that there were no copies of the documents referred to in the letter of 23 September on the Department’s file. The absence of those documents from the file was at no time brought to the applicants' attention either by the delegate or by the Tribunal before, during or after the hearing.
[24] CB 262.
The applicants contend that they were entitled to expect that supporting materials which they, or their representative, believed were before the Tribunal would be taken into account. They rely on the decision of the Full Federal Court in VAAD v Minister for Immigration[25].
[25] [2005] FCAFC 117.
This case can be distinguished from VAAD. In that case, the Tribunal drew an adverse credibility conclusion in the mistaken belief that a document furnished late in the proceedings by the applicant was a recent invention. In fact, the document existed in untranslated form in the file before the Tribunal. The situation here is the reverse. The documents identified by the applicants’ advisers were not on the departmental file. It appears that the documents were inadvertently omitted from the submission sent to the Department by the applicants’ legal advisers. The Tribunal cannot take into account something it has not been given. Further, the Tribunal would only have come under an obligation to make some enquiry about the missing documents if they were likely to have some impact on a determinative issue in the review. From the description of the documents by the applicants’ legal advisers, they bore only on the general assessment of the threat posed by Maoists in Nepal, not on the question of the applicant’s credibility.
Likewise, this case can be distinguished from that of the Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal[26]. There is no allegation that the applicants were misled and that, for that reason, they failed to take some action to bring the material to the Tribunal’s attention.
[26] (2002) 76 ALJR 966.
I conclude that there was no procedural unfairness in the Tribunal failing to follow up with the applicants, or their advisers, the missing documents.
Conclusion
The applicants have failed to demonstrate any jurisdictional error in the decision of the Tribunal. It is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 28 September 2012
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