SZLDN v Minister for Immigration and Citizenship [2008] FCA 1459 (26 September 2008)

Last Updated: 30 September 2008

FEDERAL COURT OF AUSTRALIA

SZLDN v Minister for Immigration and Citizenship [2008] FCA 1459

MIGRATION – whether error made by Refugees Review Tribunal was jurisdictional in nature








Re Minister for Immigration and Multicultural Affairs: Ex parte Cohen [2001] HCA 10
NAHI v MIMIA [2004] FCAFC 10
NABE v MIMIA (No 2) [2004] FCAFC 263
NBKT v MIMA [2006] FCAFC 195; (2006) 156 FCR 419
SZIIF v Minister for Immigration and Citizenship [2008] FCA 913













SZLDN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 697 OF 2008




MOORE J
26 SEPTEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 697 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLDN Appellant

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

JUDGE:	MOORE J
DATE OF ORDER:	26 SEPTEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal.










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	NSD 697 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLDN Appellant

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

JUDGE:	MOORE J
DATE:	26 SEPTEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal against a judgment of a Federal Magistrate of 24 April 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal of 12 July 2007: SZLDN v Minister for Immigration and Citizenship [2008] FMCA 505. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

Background

2 The appellant is a citizen of Nepal who arrived in Australia on 30 November 2006. On 12 January 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 9 March 2007. On 30 March 2007 the appellant applied to the Tribunal for review of that decision.

3 Before the Tribunal, the appellant claimed to have well-founded fear of persecution if he returned to Nepal. In summary, he said he feared persecution at the hands of the Maoists because of, firstly, his refusal to pay the extortion demand made by Maoists in 2004, secondly, his perceived links with the monarchy as a result of his former position of Ward Chairman (for six months in 2003-2004) and thirdly, because of his position with Amnesty International. The appellant also claimed that he will be targeted by various political parties, including the Nepalese Congress Party.

The Tribunal's decision

4 The Tribunal accepted the appellant was a national of Nepal, had held a position as Ward Chairman, had received threats from the Nepalese Congress Party and Maoists and had been requested to pay a donation to Maoists. However, the Tribunal did not accept that the appellant would be harmed in the reasonably foreseeable future for his perceived political opinion or for a Convention reason.

5 Although the Tribunal accepted that the appellant had been asked to pay a donation to the Maoists, it did not accept that he was subsequently targeted as claimed. The Tribunal found his evidence in relation to his being targeted not to be credible, especially his claims concerning whether he was able to avoid harm.

6 The Tribunal accepted that whilst he was Ward Chairman, he had a well-founded fear of persecution from Maoists due to his perceived links with the monarchy in that position. The Tribunal accepted the appellant was a monarchist and was not a member of a royalist party. However, it did not accept that he faced future harm or was targeted after he resigned. The Tribunal did not accept the Maoists would single out the appellant upon his return three years after their initial request for payment. The Tribunal also found on the evidence that the appellant did not receive any continuing threats or that he was harmed following his resignation as Ward Chairman.

7 In relation to his claims of persecution for being perceived as a servant of the king, the Tribunal said:

The Tribunal further considers that the independent evidence indicates that it is not persons with the applicant’s perceived profile as a Monarchist supporter who are being targeted by Maoists. The independent evidence indicates that it is persons who are members of royalist political parties who may be targeted by the youth wing of the Maoists (see International Crisis Group, 2007, Nepal’s Maoists: purists or pragmatists? ICG website, 27 April [the ICG report]).

8 The Tribunal concluded that as the appellant was not a member of such a party or would become a member in the future, he would not be targeted by Maoists for his links with the monarchy.

9 The Tribunal did not accept the appellant would be targeted for his involvement with human rights and Amnesty International. It did not accept he had a profile that would attract the attention of Maoists since he resigned as Ward Chairman. The Tribunal considered country information and found there were significant changes in Nepal that lessened any remote chance his profile would attract adverse attention. The Tribunal also found there was no evidence to support the claim that the appellant’s family would be targeted by the Madhesi Janadhikar Forum for a Convention reason and any extortion demand would be motivated by a desire to obtain money. The Tribunal also found the appellant had not received any ongoing threats from the Nepali Congress Party after his resignation as Ward Chairman.

The application in the Federal Magistrates Court

10 On 6 August 2007 the appellant filed an application for judicial review in the Federal Magistrates Court. An amended application was filed by the appellant on 20 February 2008. Before the Federal Magistrate, only ground four of the amended application was pressed. The appellant contended that:

The second respondent at CB 220.5 to 220.7, made jurisdictional error by rejecting the claims of the applicant to fear persecution from Maoists by reason of the fact that the applicant was a supporter of the Monarchy, where that rejection: a. Was based upon alleged country information of which there was no evidentiary basis; and b. Was based upon a distinction which was neither made by the applicant nor was it relevant, that members of the "youth wing of the Maoists" were targeting members of royalist political parties(and by implication members of the ‘youth’ wing of the Maoists’ were not targeting supporters of the Monarchy who were not members of political parties). And where the Second Respondent had accepted at CB 219.7 that the applicant had (had) a well founded fear of persecution from the Maoists because of his perceived links with the Monarchy.

11 The Federal Magistrate accepted that there was a distinction between a Tribunal relying on incorrect country information, and a Tribunal asserting a fact by reference to country information that does not contain that fact (SZLDN v Minister for Immigration and Citizenship [2008] FMCA 505 at 37). In the case of the former, the Tribunal’s choice of country information is a purely factual matter for it (NAHI v MIMIA [2004] FCAFC 10); an error of fact caused by the Tribunal relying on incorrect country information does not amount to an error of law, let alone jurisdictional error (NAHI). The weight the Tribunal gives to any country information is ultimately a factual matter for it (NBKT v MIMA [2006] FCAFC 195; (2006) 156 FCR 419). In the case of the latter, and depending on the circumstances, the error of fact may amount to a jurisdictional error.

12 The Minister apparently conceded that the Tribunal had committed a factual error, but submitted that this did not amount to a jurisdictional error. In relation to the question of when an error of fact amounts to a jurisdictional error, her Honour referred to NABE v MIMIA (No 2) [2004] FCAFC 263 at [52] – [54], in which the Court cited McHugh J in Re Minister for Immigration and Multicultural Affairs: Ex parte Cohen [2001] HCA 10, noting that an ‘error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact’. Applying the approach of McHugh J in Ex parte Cohen, her Honour found that the question that the Tribunal had to decide in this case was whether the appellant had a well founded fear of persecution by Maoists if he returned to Nepal. In determining whether the Tribunal fell into jurisdictional error, her Honour therefore considered, firstly the nature of the Tribunal proceedings, secondly three further references to relevant country information and thirdly the Tribunal’s findings in regard to the applicant’s evidence. The Federal Magistrate found that (at [67]):

Putting aside the factual error made by the Tribunal for the present purposes, and taking into account the totality of the evidence considered, and the relevant findings made by the Tribunal as to whether the applicant would be targeted by Maoists if he were to return to Nepal, I am satisfied that it does not compel the conclusion that the applicant would be so targeted. Rather, I consider that it was open to the Tribunal to find, for the reasons that it did, that the applicant did not have a well founded fear of persecution by Maoists if he returned to Nepal. In these circumstances, I am satisfied that the error of fact in this case is not a jurisdictional fact.

The Appeal

The gravamen of the case advanced by the appellant in the appeal was that a critical finding made by the Tribunal that there was independent evidence indicating that it was persons who are members of royalist political parties who may be targeted by the youth wing of the Maoists was not sustainable having regard to the independent evidence. That is, none of the independent evidence contained a statement to this effect. In support of this submission, counsel for the appellant referred to observations of Weinberg J in SZIIF v Minister for Immigration and Citizenship [2008] FCA 913 at [64].

13 It is unnecessary to survey the authorities referred to by counsel concerning the extent to which erroneous findings of fact might or might not constitute jurisdictional error. It may be accepted that the Tribunal found that the appellant, when occupying the position of Ward Chairman, had a well founded fear of persecution from the Maoists. However, it is tolerably clear from the Tribunal's reasons that it did not accept that after the appellant had left the position of Ward Chairman, there was a risk he would be harmed because he had occupied the position or, because of his perceived profile as a monarchist supporter, he would be targeted. It is also clear that the Tribunal concluded that the "ceasefire" then prevailing in Nepal, would "lessen any remote chance" that the appellant would attract the attention of the Maoists upon his return to Nepal.

14 In the result, the question of whether persons who are members of royalist political parties are targeted by the Maoists was not of central relevance to the reasoning of the Tribunal that led to the conclusion that the appellant did not have a well founded fear of persecution. Indeed it was, at best, peripheral to the Tribunal's reasoning. Any error of the Tribunal in asserting that the fact referred to in the preceding paragraph was to be gleaned from independent evidence would not constitute jurisdictional error. The Federal Magistrate did not err in reaching the conclusion that there was no jurisdictional error though her Honour reached that conclusion, in part, by a slightly different process of reasoning.

15 The appeal should be dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated: 26 September 2008

Counsel for the Appellant:	J R Young
Solicitor for the Appellant:	Simon Diab & Associates
Counsel for the Respondents:	J Mitchell
Solicitor for the Respondents:	DLA Phillips Fox

Date of Hearing:	13 August 2008
Date of Judgment:	26 September 2008