SZILI v Minister for Immigration and Citizenship (Corrigendum dated 26 September 2007) [2007] FCA 1439 (12 September 2007)

SZILI v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD700 OF 2007

EMMETT J
12 SEPTEMBER 2007 (CORRIGENDUM 26 SEPTEMBER 2007)
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD700 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZILI Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	12 SEPTEMBER 2007
WHERE MADE:	SYDNEY

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 referred to

SZILL v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR
NSD700 OF 2007

12 SEPTEMBER 2007
EMMETT J
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD700 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZILL Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	12 SEPTEMBER 2007
WHERE MADE:	SYDNEY

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD700 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZILL Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	EMMETT J
DATE:	12 SEPTEMBER 2007
PLACE:	SYDNEY

1 The appellant and her husband, who are nationals of Nepal, arrived in Australia on 1 June 2005. On 13 July 2005, they lodged an application for protection (Class XA) visas under the Migration Act 1958 (Cth) (the Act). The appellant’s husband claimed to be a refugee. The appellant applied for a protection visa as a member of her husband’s family unit.

2 On 10 October 2005, a delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), refused to grant protection visas and on 2 November 2005, the appellant and her husband applied to the second respondent, the Refugee Review Tribunal (the Tribunal), for review of the delegate’s decision. The appellant and her husband were invited to attend a hearing before the Tribunal. The appellant’s husband did so on 20 December 2005 and gave evidence to the Tribunal. The appellant made no claims of her own, her application being dependent on her husband’s claims. On 20 January 2006, the Tribunal affirmed the decision not to grant protection visas. The appellant and her husband were notified of that decision on 9 February 2006.

3 On 1 March 2006, the appellant and her husband applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision. After a hearing on 6 November 2006, the Federal Magistrates Court ordered on 3 April 2007, for reasons published on that day, that the application be dismissed. On 23 April 2007, the appellant and her husband filed notice of appeal to the Federal Court from the orders of the Federal Magistrates Court.

4 At some stage, although the time is not clear, the appellant’s husband departed Australia and returned to Nepal. In those circumstances, the appellant’s husband was removed as an appellant and the appeal proceeded on that basis. The Minister took no point concerning the standing of the appellant to prosecute the appeal and made no submission that the appeal should be dismissed on a discretionary basis by reason of the departure of the appellant’s husband.

5 Since only the appellant’s husband made substantive claims in relation to the grant of visas and since the appellant’s husband was the only one to claim to have a well founded fear of persecution for a Convention reason, it is convenient to refer to the appellant’s husband as the applicant.

6 In its reasons, the Tribunal recorded that the applicant claimed to have a well founded fear of persecution in Nepal for reasons of his imputed political opinion and by reason of his membership of a particular social group. The Tribunal said that the applicant claimed he came to Australia for the purpose of visiting his family and later found out that the police were seeking him in Nepal. He claimed that he would be persecuted in the event of his return to Nepal because, since his arrival in Australia, it was discovered that he had been giving to Maoist rebels confidential information about a State owned bank for which he worked.

7 In his visa application, the applicant said that he left Nepal to visit his brother and his brother’s family. He claimed in the application that security agencies of the government of Nepal would arrest and torture him and possibly kill him if he went back to Nepal. He claimed that the Nepalese police and Royal Nepalese army would mistreat him if he went back.

8 In a statement attached to his visa application, the applicant said that, since he left Nepal to come to Australia, his employer bank has suspended him, citing security concern about his involvement in Maoist activities. He said that a joint team of army and police had stormed his house, manhandled his parents and looted his documents and other valuable books and information.

9 The applicant said in his statement that he had been working for the bank for the last 19 years as a general employee. He said that Maoists used to visit him for donations and he used to donate money to the Maoists continuously, as most of his fellow members of staff did. The applicant claimed that he could not deny the Maoist’s requests and could not report them to the police because that was like a death warrant. He claimed that was why he did not refuse to provide help to them secretly.

10 The applicant’s statement then went on to say that, in the previous seven months, a few Maoists had visited him very frequently and started to ask him for security and operational information concerning the bank. He said that he provided general information only. He claimed that the Maoists visited him in his office and that they used to go around the office and get information. The applicant said that, although he did not provide any information, they used him as their vehicle to visit the bank’s office and get information. He claimed that he did not have any idea as to what they were doing and why they were asking about the bank’s operations.

11 The applicant’s statement said that he did not ask the Maoists about their intentions and that he provided general information only. He said that he thought many times of reporting them to the police but did not have the courage to put himself and his family’s lives at risk. The applicant said that, in the course of visiting him, the Maoists made friends at the bank. He claimed that bank staff thought that the Maoists were his good friends and that is probably why bank staff trusted the Maoists. The statement said that he accumulated fears from the suspicious activities of the Maoists. He claimed that he had a fear that they may be planning to loot the bank but said that he could not express his fear to anyone not even to members of his family.

12 The applicant’s statement said that, after he received an invitation from his brother in Australia, he left Nepal on 31 May 2005. He then heard from his parents that he had been suspended from his job and that his house had been raided by the army and the police and that his belongings had been seized. He said that he had some receipts in respect of donations that he made to the Maoists.

13 The applicant claimed in his statement that he had heard from fellow staff members that one of the Maoists who used to visit him in his office along with a fellow member of the bank’s staff had been arrested. The arrested staff member was released after a few days and began telling everybody that the applicant was involved with or helping Maoists in planning the looting of the bank. He said that that is the reason why the Government’s security agencies had targeted him. He claimed that, for that reason, his life was under a real threat and there was no real chance of getting justice or being cleared of that alleged accusation. He claimed that there is no rule of law in Nepal and that the army and police have no power to deal with such activities. He said that there was much evidence that they had committed inhuman and brutal acts to thousands of innocent people and that he feared they would do the same thing to him.

14 The Tribunal recorded in its reasons that the applicant had submitted to the Minister, "an alleged letter" (emphasis added) from his employer advising him of his suspension. The Tribunal referred to that letter as one in which the applicant was "supposedly advised of his suspension from the Bank" (emphasis added). The applicant provided to the Tribunal a copy of a letter from the applicant’s employer bank, dated 6 July 2005, relevantly saying as follows:

15 The Tribunal cited independent country information concerning the Maoist insurgency in Nepal, including comments that the Government continued to commit human rights abuses in its efforts to combat the insurgency. The Tribunal found that the Maoist insurgency is obviously a serious problem for national security in Nepal and found that the authorities in Nepal have a legitimate reason and have long had a democratic mandate to resist the insurgency. The Tribunal found that no part of the applicant’s evidence made a compelling argument to the effect that the prosecution of Maoists, and any persons who are found to be assisting them, is in itself persecution, let alone Convention related persecution.

16 In its reasons, the Tribunal said that the applicant did not explain in any satisfactory detail why the Maoists kept coming to the bank, even though it was clear from what he told the Tribunal that he always gave substantially less information to the Maoists than they were seeking. Further, the Tribunal said that it put to the applicant that, due to the notoriety of the Maoists, it was implausible that the applicant had no idea that the Maoists would try to use any of the information they sought from him or which he gave them to assist in their armed insurgency.

17 The Tribunal also pointed out that the applicant said that the Maoists were not his friends but that he also said that, before they started to visit him at the bank, they visited him as friends at his home. The Tribunal considered that that evidence appeared starkly contradictory. The Tribunal said that it put to the applicant that it seemed implausible that a group of Maoists, who have made no secret of that fact to him, would repeatedly visit the office of a bank officer who was not their friend. The applicant replied that, were he to tell the Maoists more than he told them, he knew he would get into trouble.

18 In the course of the applicant’s evidence to the Tribunal, the Tribunal told him that it was implausible that he was not aware that the Maoists were planning to do something against the bank and that it was implausible that the applicant would give the Maoists the sort of information that he would give to anybody about how they do work in the bank. The Tribunal said to the applicant that it was implausible that the Maoists would come to the bank to try and get information from someone who was not their friend.

19 In those circumstances, the Tribunal concluded that, on the basis of inconsistencies, serious gaps and coincidences in the applicant’s evidence, his story of meetings with the Maoists was completely fabricated. The Tribunal said that, for that reason, it could not give any weight to documents provided by the applicant including the letter from his employer.

20 In its reasons, the Tribunal also recorded that it asked the applicant to explain how the problem described by him was Convention related. The Tribunal put it to the applicant that it appeared to be a problem concerning suspicion of a criminal breach of his employer’s confidentiality conditions, even if the defence to such a charge was that no confidential information had been passed on by the applicant. The Tribunal also put it to the applicant that there did not appear to be any Convention related issues arising because the authorities appeared to have good reason to investigate government employees who were meeting with Maoists on a regular basis, especially in Government work hours and inside Government buildings.

21 The applicant’s adviser responded that the applicant was a member of a "particular social group" which was identified as "people in Nepal who are caught between the Maoists and the government". The Tribunal observed that practically all of Nepal comprises a populace that was caught between the Maoists and the Government. The Tribunal described such people as "those for whose hearts and minds each side of the civil war were fighting".

22 The Tribunal found that such a particular social group was too amorphous to be considered further. The Tribunal also observed that it was important that the action that the applicant claimed to fear was specific to his own actions, rather than anything shared with the group so identified by his adviser. The Tribunal observed that the general population, in fearing harm as a result of the struggle between the authorities and the Maoists, fear something that is not rightly identified as persecution. The Tribunal observed that it is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances. The Tribunal did not consider that that involved systematic conduct aimed at an individual or at a group of people so as to constitute persecution.

23 The Tribunal found that the applicant had identified a fear that was not related to the Convention. His fear related to the consequences of suspicions of conduct on his part that were "somewhat true". The Tribunal did not consider that the prosecution that the applicant might face could constitute persecution because of the political profile of the people the applicant claimed to have been assisting. The Tribunal considered that it was the applicant’s perceived breach of bank propriety that was the essential significant factor in relation to the fear expressed by the applicant.

24 The Tribunal was therefore not satisfied that the applicant and the appellant faced a real chance of a Convention related persecution in Nepal. It was not satisfied that they are persons to whom Australia has protection obligations under the Convention.

25 In their application to the Federal Magistrates Court, the appellant and the applicant sought relief on the ground that the Tribunal’s decision was affected by jurisdictional error. There were three bases upon which that assertion was made as follows.

26 The Federal Magistrates Court dealt with all of those grounds, which were further particularised in the application. However, only two grounds are raised in the appeal and, accordingly, it is unnecessary to deal with the whole of the reasoning of the Federal Magistrates Court.

28 The primary judge observed that the Tribunal had discussed the criteria for the granting of a protection visa and quoted Article 1A(2) of the Convention. In particular, the Tribunal discussed the four key elements in the definition and it was not shown that that exposition of the relevant test and the law by the Tribunal was mistaken. However, the applicant contended that his Honour did not properly apply the third and fourth elements.

29 His Honour dealt with the case on the basis that the applicant contended that he had been pursued by the Nepalese authorities for punishment, not because of a breach of the bank’s rules, but because the breach of the bank’s rules involved Maoists. The applicant submitted that he was being pursued because of a perceived political association or opinion and that that alleged fear of persecution was not considered by the Tribunal. His Honour referred to correspondence tendered to the Tribunal, which the applicant claimed demonstrated that the applicant’s status and his imputed political opinion as a branded Maoist was what was truly in issue.

30 His Honour was of the view that the Tribunal had considered the question of what the applicant feared but concluded, on the facts, that it was not persecution by reason of a real or imputed political opinion. His Honour considered that the Tribunal’s finding was open to it on the facts. His Honour considered that the Tribunal’s conclusion, that no weight was to be given to the applicant’s documents, was one based on a credit finding, which is the function of the Tribunal. Having considered the third element of the refugee test and having found that what the applicant may have feared was not Convention based persecution, there was no basis on which the Tribunal could have found that any fear of persecution for a Convention reason was well founded. Consequently, there was no need for the Tribunal to consider the fourth element of the refugee test and the fact that it did not consider it, did not, in his Honour’s view, amount to an error on its part. The primary judge therefore concluded that the ground based on a flawed approach to the definition of refugee was not made out.

31 In relation to the complaint concerning procedural fairness, the primary judge observed that, in circumstances where documents provided by the applicant were accorded no weight, they could not be said to have been the reason or part of the reason for the Tribunal’s decision. Accordingly, s 424A(1) had no application. His Honour also observed that the dismissal of the documents flowed from the Tribunal’s negative conclusion concerning the applicant’s credibility, indicating that it was the applicant’s credibility, not the documents, that the Tribunal relied upon.

32 Further, his Honour observed that the Tribunal is not obliged, by any requirement for procedural fairness, to disclose its thought processes or preliminary conclusions in advance. Division 4 of Part 7 provides comprehensive procedural codes that contain detailed provisions for procedural fairness, but which exclude the common law natural justice hearing rule.

33 The primary judge also dealt with a submission that the hearing was unfair, with the result that the Tribunal did not understand the case that the applicant was trying to make. The applicant submitted that he had not been given an opportunity to give his evidence and that the Tribunal should have heard his story. Rather, the applicant claimed, the Tribunal had simply asked the applicant what the accusations against him in Nepal were. The primary judge concluded that the Tribunal did not fail to give the applicant any or any proper hearing. His Honour considered that, while in the giving of his evidence the applicant was cut off by the Tribunal on a small number of occasions, when seen against the entirety of the transcript of the hearing, those occasions did not prevent the applicant from putting before the Tribunal the evidence and arguments that he wished it to consider in support of his claim, with the result that that ground was not made out.

34 The grounds of appeal in the notice of appeal of 23 April 2007 were that the primary judge erred:

Grounds (1), (3) and (4) appear to be encapsulated in the proposition that the Tribunal’s approach to the question of credibility was flawed. Ground (2) appears to relate to the definition of "refugee" in the Refugees Convention.

35 The appellant contended that the Tribunal’s conclusion concerning the credibility of the applicant in some way affected its reasoning in relation to the claim to fear persecution by reason of membership of a particular social group. However, there is no reason why the Tribunal cannot deal with those contentions in the alternative. That is to say, it would be open for the Tribunal to deal with the claim that the applicant was a member of a particular social group on the assumption that his evidence were to be accepted. It would not be illogical for the Tribunal, having reached an unfavourable conclusion on that question, to express unfavourable views on the credibility of the applicant (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [26] and [29]. That is in effect the approach adopted by the Tribunal.

36 That is to say, the Tribunal examined the applicant’s claims on the basis that the assertions made by him were true. The Tribunal concluded that, even if all of the assertions made by the applicant were true, it was not persuaded that he had a well founded fear of persecution by reason of his membership of a particular social group. As formulated by counsel for the appellant, the alleged group consisted of working families with children who were non-combatants in the civil war between the Maoists and the Government. The Tribunal characterised the formulation of the alleged group consisting of people caught between the Maoists and the Government as being too amorphous to be considered further. The Tribunal made no error in concluding that the general population, who feared harm as a result of the struggle between the Maoists and the authorities, could not properly be characterised as a particular social group that was singled out for persecution.

37 Even on the applicant’s evidence, there was no suggestion that non-combatants in the civil war are persecuted by reason of the fact that they are non-combatants in the civil war, whether or not they are members of families. It is, of course, appalling that innocent people might be severely harmed in circumstances where they do not wish to have any part to play in the fight between Maoists and government authorities. Nevertheless, there was no suggestion by the applicant that he was targeted simply by reason of his being a non-combatant in that conflict. Even if he and the appellant were innocent victims of the conflict, that would not be sufficient to attract the Refugees Convention. There would be no fear of harm for a Convention reason. Even if the applicant’s evidence were accepted, it would not constitute a basis for concluding that he may be subjected to harm by reason of an imputed political opinion.

38 There is no suggestion in the applicant’s claims that he may be subjected to harm because he was thought to have Maoist political opinions. His claims were that he may be subjected to harm because he had provided information to the Maoists. The letter from the bank of 6 July 2005 complained about relations with terrorists in activities that posed a threat to the security of the bank. The suspension was for that reason, not because the applicant was imputed with Maoist political opinions. The Tribunal’s conclusion was that any fear of harm was not because of a real or imputed political opinion but because of possible breach of confidence in relation to the bank. That was a finding that was open to the Tribunal on the evidence before it, as the primary judge found.

39 Having reached the conclusion that, on the basis of the applicant’s evidence, he did not have a well-founded fear of persecution for a Convention reason, it was strictly unnecessary for the Tribunal to deal with credibility issues. Nevertheless, the Tribunal did so, making it clear that that was a further reason why the Tribunal would affirm the delegate’s decision. The appellant’s complaint is that the manner in which the Tribunal dealt with credibility issues displayed a closed mind on the part of the Tribunal. The appellant asserted that there were no inconsistencies, serious gaps or serious coincidences in the applicant’s evidence as the Tribunal asserted in its findings.

40 However, the Tribunal identified its concerns both to the applicant in the course of his evidence and in summarising the evidence in its reasons. They were as follows.

It is clear that the Tribunal regarded those matters as inconsistencies, serious gaps and coincidences in the applicant’s evidence. That was a judgment that it was open to the Tribunal to make in the circumstances.

41 In relation to the specific complaint of denial of procedural fairness, the appellant asserted that, in circumstances where the Tribunal concluded that no weight would be given to documents provided by the applicant because they were not genuine, it was incumbent upon the Tribunal to put that to the applicant to afford him an opportunity of responding. Thus, for example, the Tribunal referred to the letter from the Bank as one in which the applicant "is supposedly advised of his suspension" (emphasis added). At another place, the Tribunal referred to "a copy of an alleged letter from the Bank advising him of his suspension" (emphasis added). The appellant asserted that the Tribunal’s conclusion was tantamount to rejection of the documents as being fraudulent and that would have been put to the applicant in specific terms.

42 The appellant also contended that the Tribunal’s conclusion concerning the status of the documents was information that formed part of the Tribunal’s reasons for affirming the delegate’s decision. She complains that there was no notification in accordance with s 424A of the Act in relation to that information. The appellant contends that that failure constituted jurisdictional error.

43 However, information for the purposes of s 424A does not encompass the Tribunal’s subjective appraisals, thought processes or determinations. The Tribunal is not obliged, by any requirement for procedural fairness, to disclose its thought processes or preliminary conclusion. There was no denial of procedural fairness or failure to comply with s 424A in relation to the Tribunal’s treatment of the documents.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Counsel for the Appellant:	Mr P King

Counsel for the Respondent:	Mr T Reilly

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	8 August 2007

Date of Judgment:	12 September 2007

Federal Court of Australia

SZILI v Minister for Immigration and Citizenship (Corrigendum dated 26 September 2007) [2007] FCA 1439 (12 September 2007)