SZHWI v Minister for Immigration and Citizenship (Corrigendum dated 9 February 2009) [2009] FCA 64 (9 February 2009)

Last Updated: 10 February 2009

FEDERAL COURT OF AUSTRALIA

SZHWI v Minister for Immigration and Citizenship [2009] FCA 64

CORRIGENDUM

SZHWI v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1296/2008

JAGOT J
9 FEBRUARY 2009 (CORRIGENDUM 9 FEBRUARY 2009)
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1296/2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	JAGOT J
DATE:	9 FEBRUARY 2009
PLACE:	SYDNEY

1. On page 5 in the Appearances “Counsel for the Respondent” was omitted and should read “Counsel for the Respondent: Mr P Reynolds”.
2. On page 5 in the Appearances the hearing date is incorrect. Delete “13 November 2008” and insert “9 February 2009”.
   

I certify that the preceding two (2) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate:

Dated: 9 February 2009

FEDERAL COURT OF AUSTRALIA

SZHWI v Minister for Immigration and Citizenship [2009] FCA 64

MIGRATION – application for protection visa

Held: appeal dismissed

Migration Act 1958 (Cth)
Federal Court of Australia Act 1976 (Cth)

SZHWI v Minister for Immigration & Anor [2008] FMCA 1025

SZHWI v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1296/2008

JAGOT J
9 FEBRUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES	NSD 1296/2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	JAGOT J
DATE OF ORDER:	9 FEBRUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.
2. The appellant is to pay the first respondent’s costs fixed in the sum of $3,452.
3. The exhibits are returned.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1296/2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	JAGOT J
DATE:	9 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against an order of the Federal Magistrates Court of 25 July 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal in connection with refusal of a protection (class XA) visa under s 65 of the Migration Act 1958 (Cth) (SZHWI v Minister for Immigration & Anor [2008] FMCA 1025). Under s 36(2) of the Act the criterion for a protection visa is that the applicant for the visa is (relevantly) 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 (meaning, in accordance with s 5(1), the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees). Section 474 of the Act protects “privative clause decisions” (defined to include decisions with respect to protection visas) from challenge other than on the grounds of jurisdictional error.
2. When the matter was called for hearing this morning the appellant did not appear. The Minister sought summary dismissal of the appeal under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) which permits summary dismissal if an appellant fails to appear at a hearing relating to the appeal. In support the Minister tendered two letters (one from the Court Registry dated 8 January 2009 and one from the Minister’s solicitors dated 4 February 2009) notifying the appellant of the hearing and advising of the possible consequences of a failure to appear. I am satisfied that the appeal should be dismissed by reason of the appellant’s failure to appear. I am also satisfied that, in any event, the documents relating to the appeal do not disclose any jurisdictional error. My reasons are as follows.
3. The appellant is a citizen of Nepal. He arrived in Australia on 6 June 2005 and applied for a protection visa on 30 June 2005. The Minister’s delegate refused the application on 1 September 2005. The appellant applied to the Refugee Review Tribunal for a review of this refusal on 6 September 2005. The Tribunal affirmed the decision on 9 November 2005. The appellant sought judicial review of the Tribunal’s decision. This Court, on an appeal from the Federal Magistrates Court, quashed the Tribunal’s decision by orders dated 15 June 2007 and remitted the application for review to the Tribunal. The Tribunal conducted a further hearing and affirmed the decision under review on 31 October 2007. The appellant again appealed to the Federal Magistrates Court and that Court dismissed the appellant’s claim on 25 July 2008. On 13 November 2008 this Court, pursuant to an application for leave to extend time, permitted the appellant to file an appeal against the orders of the Federal Magistrates Court.
4. The appellant’s notice of appeal to this Court specifies three grounds which may be summarised as follows: - (i) the Federal Magistrates Court failed to consider the serious nature of the appellant’s claims of errors by the Tribunal, (ii) the Federal Magistrates Court failed to consider the effect of the appellant’s employment at the Nepalese Embassy in Thailand given that the Maoists are presently in power in Nepal, and (iii) the Tribunal failed to consider the appellant’s status as the parent of a child who had been kidnapped and asked to pay a donation.
5. The second ground of appeal may be rejected immediately. The Federal Magistrates Court dealt with (and thus considered) the appellant’s claim that his previous employment in an “esteemed position by the Royal Nepalese Embassy” meant that he would be persecuted on return to Nepal by the new Maoist regime.
6. Insofar as this second ground related to a new Maoist government, the Federal Magistrates Court said:

[48] To the extent that what is stated in Ground Three seeks to assert that the Maoists “have now formed a government in coalition” in Kathmandu, this was not a claim made before the Tribunal. It was open to the Tribunal to proceed on the only independent evidence in this regard available to it (that is, evidence as at the date of the making of its decision). If events in Nepal have subsequently changed in this regard (and the Court is aware of current and recent media reports concerning the formation of a new government in Nepal, and its move from a monarchy to a republic) then such events post date the Tribunal’s decision and do not assist in revealing jurisdictional error on its part.

[49] It may be that such events may be relevant in other contexts, and may be of assistance to the applicant in relation to the Minister considering exercising his powers available under ss 48B or 417 of the Act. But they do not assist the applicant in the current proceedings before this Court.

7. Sections 48B and 417 of the Act, referred to by the Federal Magistrates Court, empower the Minister to make certain decisions in favour of an applicant for a protection visa (despite other provisions of the Act) if satisfied it is in the public interest to do so. I agree with the conclusion of the Federal Magistrates Court that the appellant’s claims about the circumstances in Nepal that postdate the Tribunal’s decision cannot found any claim of error by the Tribunal.
8. Insofar as this second ground related to the appellant’s position at the Nepalese Embassy and potential profile in Nepal, the Federal Magistrates Court (at [39] to [47]) identified the way in which the Tribunal had dealt with this claim and concluded that the appellant sought an impermissible review of the Tribunal’s findings on the merits (namely, that the appellant’s position would not mean that the appellant had such a profile as to give rise to a well-founded fear of persecution as claimed). I agree with this analysis, as well as the Court’s observations in these paragraphs rejecting the appellant’s claims about the Tribunal concluding that the appellant could relocate to India or Kathmandu. As the primary judge said, the Tribunal considered that the appellant would live in Kathmandu if he returned to Nepal and that there was not a real chance of persecution for a reason relating to the 1951 Convention if he did so (being findings open on the material available to the Tribunal).
9. The first ground must also be rejected. The reasons for decision of the Federal Magistrates Court disclose a comprehensive assessment of the appellant’s claims of error by the Tribunal. Those reasons also show that the Federal Magistrates Court did not limit itself to the grounds on which the appellant relied but also considered (at [50] to [55]) whether the Tribunal complied with its obligations under s 425 of the Act (“The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”) and to give the appellant procedural fairness.
10. The third ground claims that the Tribunal was bound to consider the appellant’s status as the parent of a child who had been kidnapped and asked to pay a donation. The Tribunal’s reasons for its decision of 31 October 2007 disclose that the appellant attended the further hearing and gave evidence about, amongst other things, the kidnapping of his son which prompted the appellant to move his family to Kathmandu. The Tribunal noted inconsistencies in the appellant’s claims about the abduction and concluded that it was not satisfied it had taken place. The Tribunal, having regard to the material available to it, did not accept that the appellant would come to the attention of Maoists if he returned to Kathmandu by reason of the alleged abduction (which it also did not accept occurred) or otherwise. Hence, while the Tribunal accepted that the appellant may come within a social group of Nepalese who have lived and worked overseas there was no factual basis for the Tribunal to consider any alleged social group of parents of children who had been kidnapped and asked for a ransom. It follows that the third ground of appeal cannot be sustained.
11. In summary, I agree with the following conclusion of the Federal Magistrates Court:

[55] In all, the issue on which the Tribunal’s decision turned was the adverse credibility findings made in relation to some aspects of his claims to fear harm, and second, his ability to return safely to live in Kathmandu. On either the Tribunal’s decision record, or either of the two transcripts before the Court, it is clear that the Tribunal put both issues to the applicant at the hearing, thereby enabling him to address those issues and provide explanations. In this regard, I am satisfied that the Tribunal fulfilled its obligations pursuant to s 425 of the Act, and its obligation in relation to procedural fairness.

Conclusion
[56] In all, I cannot discern jurisdictional error as it is said to arise from the grounds stated in the application, nor otherwise. For the applicant to succeed in this application before the Court, such error would have to be discerned. In these circumstances, the application is dismissed.

12. For the above reasons the appeal is dismissed. The Minister sought a fixed costs order in the sum of $3,452 based on the affidavit of Colin Thorpe, solicitor, sworn 9 February 2009. I consider that such an order should also be made.
    

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate:

Dated: 9 February 2009

Solicitors for the First Respondent:

Clayton Utz

Date of Hearing:	13 November 2008
Date of Judgment:	9 February 2009