SZUAL v Minister for Immigration

[2016] FCCA 347

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUAL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 347

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to have regard to all the evidence, made a decision which was illogical or unreasonable, relied on incorrect information and relied on outdated information.

ADMINISTRATIVE LAW – Jurisdictional error arising out of intermediate finding of fact which was illogical.

Legislation:

Migration Act 1958, ss.36, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Lu v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 141 FCR 346
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389
LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166
Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration & Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
SZWCO v Minister for Immigration & Border Protection [2016] FCA 51

Applicant: SZUAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 654 of 2014

Judgment of: Judge Cameron

Hearing date: 16 February 2016

Date of Last Submission: 16 February 2016

Delivered at: Sydney

Delivered on: 25 February 2016

REPRESENTATION

Solicitors for the Applicant: Mr N. Dobbie of Dobbie & Devine Immigration

Counsel for the First Respondent: Mr D.A. Hughes

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. A writ of certiorari issue bringing the second respondent’s decision of 17 February 2014 into this Court to be quashed.

2. A writ of mandamus issue directing the second respondent to re-determine according to law the applicant’s application made to it on 30 March 2013.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 654 of 2014

SZUAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Nepal who last arrived in Australia on 16 October 2012.  On 5 November 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Nepal predominantly because of his religious beliefs.  On 6 March 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the Tribunal’s decision will be set aside and the matter remitted to it to be determined according to law.

Background facts

1. In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for a protection visa.  As summarised by the Tribunal, the applicant relevantly made the following claims in a statement attached to his protection visa application:

   a)he was born into a Newari family.  He is a Christian;

   b)his father was a police officer and was an aggressive alcoholic.  When he lived in Nepal he argued a lot with his father.  His father had threatened to assault him on many occasions;

   c)when he finished high school he moved to Kathmandu and opened a business with his brother.  Things were going well until his father moved to Kathmandu and started to disturb him.  He then sold his business and moved to Australia;

   d)in 2010 while in Australia he married a Thai citizen.  On 6 October 2012 he travelled with his wife to Nepal to visit his family.  His family were surprised and his problems began when he told them that his wife was Thai and did not have a caste.  His father threatened to report him to the police if he did not denounce Christianity, leave his wife and marry a Newari woman;

   e)on the second day of his visit he spoke to his brother and sister about Jesus and told them that their Hindi practices were sinful.  He refused to pray and give offerings of food in memory of his grandfather’s death and convinced his brother and sister to also refuse to do so.  This angered his parents and his father threatened to report him to the police.  His father gathered some community elders to dissuade the applicant from his Christian practices but he did not listen to them; and

   f)on 14 October 2012 his brother noticed his father and uncle writing to the local police about his activities.  His father accused him of “forcefully changing religion”, disobeying the rules of the Newari community and being disrespectful of his family beliefs.  He left and returned to Australia.  On 15 October 2012 the police attended his house with an arrest warrant and had been searching for him since then.

2. At a Tribunal hearing on 8 November 2013 the applicant made the following additional claims:

   a)he and his wife had divorced;

   b)he converted from Hinduism to Christianity while in Australia, had been baptised and attended church every Sunday.  Three months before the Tribunal hearing he had started proselytising on Saturdays by standing across the road from his church and handing pamphlets to members of the public;

   c)although there were claims of religious freedom in Nepal, it is a Hindu state and people did not accept his Christianity and had told him to change his religion.  Christian groups had been attacked in Nepal;

   d)he could not relocate in Nepal because his father was a police officer and the police were everywhere.  He feared that people would tell his father of his whereabouts and his father would find him;

   e)if his father spoke to the police and he was arrested and wounded, no-one would care because of his religion and his father’s influence;

   f)if he returned to Nepal he would tell people about Christianity.  He had already proselytised to his family on his previous visit in October 2012; and

   g)his brother had told him about the warrant issued for his arrest and, although he had not seen a copy of it, he believed one had been issued.  He had asked his father to provide him with a copy but his father would not assist him.  His sister and brother were unable to obtain a copy for him.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons.

   a)the Tribunal accepted that the applicant was a practising Christian who had attended church and proselytised in Australia. It accepted that the applicant had also proselytised in Nepal by speaking to his immediate family about Christianity and encouraging them to discontinue their Hindu practices and traditions. The Tribunal also accepted the applicant’s evidence that he would continue to proselytise if he returned to Nepal and that there was a real chance that the Nepalese authorities would become aware of his proselytising because of the likelihood that his father would report him. However, the Tribunal found that the applicant would not face harm in Nepal as a result of his religion or proselytising. In that regard, the Tribunal noted that Nepal’s interim Constitution allowed for religious freedom and, based on country information that things were changing in Nepal and that people could change religions, it found that the applicant would be free to practise his Christianity in Nepal. While noting that it was against Nepalese law to proselytise, the Tribunal accepted country information indicating that converts were generally not afraid to state publicly their new religious affiliations. Of particular significance to this case, relying on a news report of February 2010 the Tribunal stated that:

   ... no one has been prosecuted in relation to converting others ...

   b)the Tribunal also considered the applicant’s evidence that the police had issued a warrant for his arrest and accepted that he believed that such a warrant had been issued.  However, based on the limited evidence before it, the lack of a copy of the warrant and the country information indicating the lack of prosecutions for proselytising, the Tribunal was not satisfied that such a warrant had been issued;

   c)the Tribunal was not satisfied that the applicant would face harm from the broader Nepalese community and/or the Newari community and/or the Nepalese authorities.  While the Tribunal accepted that there was some prejudice based on religious conversion or affiliation, it referred to country information indicating that the adherents of Nepal’s many religious groups generally coexisted peacefully in respect of places of worship.  The Tribunal also found that there was no systematic or discriminatory persecution by the Nepalese authorities, including the police, based on religious conversion and that although the Nepalese authorities had on a few occasions interfered with the practice of a religious group, they generally respected religious freedom; and

   d)the Tribunal accepted that there was some animosity between the applicant and his father.  However, apart from the religious issues it referred to, it found that the issues raised by that animosity were not Convention-related.  The Tribunal was not satisfied that the animosity between the applicant and his father had led to a warrant being issued for the applicant’s arrest or that the police had pursued him.  It also found that the applicant had previously lived away from his father and could choose to do so again on his return to Nepal and to have no contact with him.

Proceedings in this Court

1. In his amended application the applicant alleged:

   1.The Tribunal failed to give proper, genuine and realistic consideration to the material before it; or failed to have regard to or ignored relevant material; or the decision is irrational or unreasonable

   Particulars:

   (A)The Tribunal failed to give proper, genuine and realistic consideration to the material before it; or failed to have regard to or ignored relevant material; or the decision is irrational or unreasonable.

   (i)     The Applicant claimed that he feared harm as result of his conversion to Christianity; and on the basis of being a proselytizing Christian and on the basis of a warrant issued for his arrest.

   (ii)     The Tribunal found the Applicant to be a credible witness.  However, it found that he would not suffer serious harm or persecution.  The Tribunal also found that there was no warrant issued in respect of the Applicant. Central to these findings was its reliance on country information report CX253459 (“the CX253459 report”).  It stated at CB 185 at [37]:

   However, in considering whether the applicant would face serious harm or persecution for this reason the Tribunal notes that country of origin information reports that no one has been prosecuted in relation to converting others (CX253459) ... (emphasis added)

   (iii)   When one has regard to the information contained in the CX253459 report, it is clear that the report refers to the prosecution of four individuals for proselytizing (CB 190).  The same report also refers to an increasing number of anti-Christian atrocities committed by extremist Hindus and that aggression against Christians is on the rise.

   (iv)    The Tribunal committed jurisdictional error:

   (a)By not giving proper, genuine and realistic consideration to the CX253459 report, as it clearly relates to the prosecution of four individuals for proselytizing, and their detention for three months pending the outcome of their trial.

   (b)By ignoring relevant information or not having regard to relevant information in relation to the CX253459 report, as it clearly relates to the prosecution of four individuals for proselytizing, and their detention for three months pending the outcome of their trial.

   (c)By stating that the CX253459 report showed that no one had been prosecuted for proselytizing, when that report related to the prosecution of four individuals for proselytizing, was irrational or unreasonable.

   (d)By having regard to outdated country information, by relying on a report dated 26 October 2009 (referred to as Annexure C), when the CX253459 report, which was dated 1 February 2010, confirmed that aggression against Christians was on the rise.

Consideration

1. The applicant stressed that he had been accepted by the Tribunal as a credible witness and that the Tribunal’s conclusions that he did not have a well-founded fear of persecution for a Convention reason and that a warrant for his arrest had not been issued had arisen out of its finding, based on part of the February 2010 news report, that no one in Nepal had been prosecuted under Nepalese law for proselytising.  The applicant’s case was that, in circumstances where the Tribunal’s findings depended on the country information before it, a failure to consider that information in a manner required by the law would be an error going to the exercise of jurisdiction and, so, jurisdictional error.

2. The Tribunal must consider an applicant’s claims in light of the facts as disclosed by the evidence in its possession. If the Tribunal fails to consider evidence which might have had a bearing on the outcome of the review, in that the evidence was not “so insignificant that the failure to take it into account could not have materially affected the decision”, and where such failure could possibly have deprived the applicant of a successful outcome to his or her application for review because the evidence might have persuaded the Tribunal that it was satisfied that the applicant met the criteria for the grant of the visa sought, then that amounts to a failure to conduct the review in the manner required by the Act and is properly characterised as a jurisdictional error: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Gibbs CJ at 30-31, Mason J at 40, 44-45 and Dawson J at 71; Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82] per McHugh, Gummow and Hayne JJ; Lu v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 141 FCR 346 at 360 [64] per Sackville J, Black CJ and Sundberg J agreeing; VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [73]-[83]; SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389 at [72]; LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166 at 198-199 [145]; Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 at 130 [111] and 132 [122].

3. The applicant submitted that the Tribunal’s statement in its reasons that “no one has been prosecuted in relation to converting others”, citing a third party news report of February 2010, did not reflect the substance and tenor of the report as a whole but just one statement included in it.  The report concerned a group of Nepalese Christians who, during a meeting, had been mobbed by Nepalese Hindus who then caused them to be charged with offences which appear, relevantly, to have included proselytising.  The trial did not proceed and the charges were dismissed because the prosecution witnesses failed to attend.  In its final paragraph the news report also stated:

   Proselytising is banned and carries a three-year jail penalty, but no one thus far has been prosecuted. 

   The applicant submitted that the Tribunal’s paraphrase “no one has been prosecuted in relation to converting others” did not reflect the substance and tenor of the report as a whole and that in any event the statement to that effect in the news report was properly to be characterised as a mistake on the part of the report’s author. 

4. The applicant’s argument, as pressed at the hearing of this application, had four components:

   a)the Tribunal’s decision to base its findings on one sentence in the news report which was inconsistent with the substance of that report manifested either:

   i)a failure to have regard to evidence amounting to jurisdictional error because it affected the Tribunal’s exercise of jurisdiction; or

   ii)illogicality or unreasonableness amounting to jurisdictional error;

   b)the statement relied on by the Tribunal was wrong and should not have been relied on; and

   c)the Tribunal erred by having regard to outdated country information.

5. The success of the allegation that the Tribunal failed to have regard to the greater part of the news report in question depends on the Court drawing an inference that because the Tribunal referred specifically only to one part of that report it failed to consider the remainder of that report.  It is difficult to draw that conclusion when the entirety of the report was annexed to the Tribunal’s reasons for decision.  Further, given that the statement on which the Tribunal relied in its reasoning is found in the twelfth and final paragraph of the comparatively short news report, it seems to me most unlikely that the Tribunal did not read the preceding eleven paragraphs before deciding to rely on that one statement.  Although failure to refer to material which is significant to a decision may well betoken a failure to have regard to it (Minister for Immigration & Border Protection v MZYTS (2013) 230 FCR 431 at 448 [52]), the fact that the news report is quite short and was annexed to the Tribunal’s reasons for decision persuades me that the Tribunal could not have reached the conclusion it did without having had regard to the entirety of that report.

6. Turning to the second point, a finding of illogicality or unreasonableness sufficient to ground a finding of jurisdictional error requires the Court to find that the Tribunal made a decision which no rational or logical decision-maker would have made:  Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at 647-648 [130]-[131]. An intermediate finding of fact which is illogical or unreasonable in that sense may justify a finding of jurisdictional error: SZWCO v Minister for Immigration & Border Protection [2016] FCA 51 at [60]-[62]. In this case, the Tribunal’s statement that “country of origin information reports that no one has been prosecuted in relation to converting others” was said to be such a decision. However, contrary to the applicant’s argument, rather than being illogical or unreasonable, the Tribunal’s statement was plainly correct because, relevantly, it paraphrased what part of the news report of February 2010 said, albeit that that report also recounted the proceedings involving the Nepalese Christians.

7. Whether the Tribunal should have relied on that part of the news report as a basis for its ultimate conclusion is another matter, however.  Because it did, it is convenient to interpose here consideration of the third element of the applicant’s argument: the allegation that the statement was wrong and should not have been relied on.

1. The allegation that the statement relied on by the Tribunal was wrong depended on a conclusion that it contradicted or was contradicted by the remainder of the news report in which it was found. As the applicant said in his written submissions:

   Contrary to what the Tribunal found, [the news] report showed that persons are prosecuted for proselytizing in Nepal.

   The relevant part of the sentence in question was not, according to its precise terms, consistent with, or factually accurate according to, the remainder of the report.  However, it is also unlikely that it was correctly expressed.  In my view a better reading of that part of the final paragraph of the news report of February 2010 would be that no one had been convicted of, or prosecuted successfully for, proselytising.  That certainly is the sense of that paragraph. 

2. Be that as it may, the Tribunal did not read the final paragraph of the news report that way and accepted the statement that there had been no prosecutions according to its terms.  That fact returns this consideration to the applicant’s second point and to the other aspect of the illogicality argument raised against the Tribunal’s decision.  In his written submissions the applicant said:

   It is hard to see how any Tribunal, acting reasonably, given the content of the [news report] could find, in conducting the review required by the Act, that that report showed that the Applicant did not have a real chance of serious harm for a Convention ground.

   The Tribunal’s statement that “no one has been prosecuted in relation to converting others” was to find as a fact a situation whose existence was not supported, at least in the news report, by any evidence.  As such it was not a finding which a rational or logical decision-maker would have made.  Accordingly, that finding was illogical in the SZMDS sense.

3. However, the illogicality of that intermediate finding of fact does not necessarily render the ultimate decision on the review illogical and affected by jurisdictional error on that account:  SZWCO v Minister for Immigration & Border Protection at [64]. The Tribunal’s principal conclusion was that the applicant did not face a risk of Convention-related harm. That conclusion was based not only on the finding that there had been no prosecutions in Nepal for proselytising but also on other material which the Minister’s submissions identified to be country information that:

   a)Nepal’s interim Constitution allowed freedom of religion;

   b)attitudes  were changing in Nepal; and

   c)in general converts in Nepal were not afraid to state publically their new religious affiliations.

   The Tribunal stated that it considered “the evidence overall” but was not satisfied that the applicant’s claim to fear persecution was well-founded.

4. The law does not prevent the Tribunal from relying on information which is factually incorrect.  The question is whether an intermediate decision, such as an intermediate finding of fact, which is illogical or unreasonable, might have been material to the ultimate decision on the review.  If the impugned finding or reasoning was immaterial to the ultimate decision, it is difficult to see how the decision could be said to have been affected by jurisdictional error: SZWCO v Minister for Immigration & Border Protection at [64].

5. I am not persuaded that the Tribunal’s reliance on what was said in the final paragraph of the news report of February 2010 was immaterial to its decision on the review.  Indeed, as the Tribunal cited it twice when explaining why it was not satisfied that the applicant had a well-founded fear of persecution, it appears to have been important to its reasoning.  I therefore find that the Tribunal’s decision is affected by jurisdictional error arising out of its reliance on an illogical intermediate finding of fact.

6. Given that finding, it is not necessary to give separate consideration to the issue of the Tribunal’s lack of satisfaction that a warrant had been issued for the applicant’s arrest.

7. The final element of the applicant’s case was his allegation that the Tribunal had relied on old country information in reaching its decision and that in doing so it had erred. In support of this allegation the applicant implied in his written submissions that the Tribunal had preferred information contained in a report of October 2009, which amongst other things said that Nepal’s interim Constitution guaranteed freedom of religion and that people were changing their religions, over the news report of February 2010 to which reference has already been made.

8. The applicant’s argument mistakes the Tribunal’s duty.  The Tribunal must have regard to the information before it, including the most recent information, but which information it prefers is a matter for it, as long as its choice is not one which no rational or logical decision-maker would have made.  Contrary to the implication in the applicant’s submissions, MZYTS does not say anything different.  I have already found that the Tribunal did not fail to have regard to all of what was said in the news report of February 2010.  In that circumstance, I find that the Tribunal’s reliance on material in the October 2009 report did not involve a failure to have regard to the information contained in the February 2010 report.

Conclusion

1. Jurisdictional error on the part of the Tribunal has been demonstrated.

2. Consequently, the Tribunal’s decision will be set aside and the matter remitted to it to be determined according to law.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 25 February 2016