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SZONQ v Minister for Immigration & Anor [2011] FMCA 4 (14 February 2011)

Last Updated: 14 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZONQ v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Nepal – applicant disbelieved in relation to certain aspects of his claims of past harm – whether the Tribunal failed to give “proper, realistic and genuine” consideration to the applicant’s claims and evidence considered – whether the Tribunal considered irrelevant matters or failed to consider relevant matters considered – whether the Tribunal decision was irrational, illogical or unreasonable considered – whether the Tribunal breached s.425 of the Migration Act 1958 (Cth) considered.


Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110
Minster for Immigration v SZJSS [2010] HCA 48
Minister for Immigration v SZMDS (2010) 266 ALR 367; [2010] HCA 16
Parramatta City Council v Pestell (1972) 128 CLR 305
R v Australian Stevedoring Industry Board; Ex part Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100
R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407
SZBEL v Minister for Immigration [2006] HCA 63; (2006) 231 ALR 592
SZJSS v Minister for Immigration [2009] FCA 1577

Applicant:
SZONQ

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
SYG 1605 of 2010

Judgment of:
Driver FM

Hearing date:
2 December 2010

Date of last submissions:
2 December 2010

Delivered at:
Sydney

Delivered on:
14 February 2011

REPRESENTATION

Counsel for the Applicant:
Mr J R Young

Solicitors for the Applicant:
Simon Diab & Associates

Solicitors for the Respondents:
Mr A Markus
Australian Government Solicitor

ORDERS

(1) The application is dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1605 of 2010

SZONQ

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Introduction and background

  1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 29 June 2010. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant had made claims of political persecution in Nepal. The following statement of background facts is derived from the submissions of the parties.
  2. The applicant, a citizen of Nepal, arrived in Australia on 11 July 2009 and applied for a protection visa on 20 July 2009 (Relevant Documents "RD" 1, 3). The applicant claimed, in a statement annexed to his protection visa application, to have a well-founded fear of persecution in Nepal arising from being an activist of the Nepal Students Union, an organisation with ties to the Nepali Congress Party, and to have been attacked and threatened by members of the Young Communist League, a Maoist organisation, during student elections in March 2009. The applicant claimed that he then went into hiding in different parts of Nepal. The applicant had also worked in Nepal for UNESCO and came to Australia to attend a conference sponsored by UNESCO (RD 35-6).
  3. The applicant attended an interview with the Minister’s Department ("the Department") on 12 October 2009 and presented to the Department a number of documents in support of his application (RD 41-102, 116-7). On 2 March 2010, a delegate of the Minister refused the applicant's protection visa application (RD 108-132).
  4. On 26 March 2010, the applicant applied to the Tribunal for review of the delegate's decision (RD 133-137). The applicant was invited to, and attended, a hearing of the Tribunal on 10 May 2010 at which he gave evidence (RD 142, 145). After the hearing, the applicant's migration agent provided to the Tribunal a submission and further material in support of the applicant's claims (RD157-169).
  5. The applicant provided documentary evidence including letters from the Executive Director of UNESCO and Youth Nepal, Professor Hari Budhathoki, and letters from Nepal Student Union outlining the applicant’s role in the March 2009 elections and the events that occurred (RD 180 [25]).
  6. The supporting letters of Professor Budhathoki were checked with him by the delgate as outlined by the Tribunal (RD 181 [26]-[28]).
  7. In a decision dated 29 June 2010, the Tribunal affirmed the decision of the delegate (RD 175-191). A summary of the Tribunal's findings are:
    1. it accepted that the applicant was a member of the student wing of the Congress Party, was the Secretary of this group at his university, and worked for the party during student elections in March 2009. It also accepted that the applicant's family were supporters of the Congress Party, had been required by the Maoists to provide support and that his parents had been asked by the Maoists to ensure their children supported the Maoists (RD 187-8, at [68], [70]);
    2. it accepted that there were clashes between supporters of the Congress Party and the Maoists at the applicant's university from time to time and that the applicant had held a mainly administrative role in the university elections. It also accepted that a physical conflict broke out amongst students during those elections in which the applicant was injured (RD 188 at [70], [73]);
    1. the Tribunal, however, found that the applicant was not a reliable witness on the basis of his confused and unconvincing account of his activities during and after the student elections in March 2009 and that he had exaggerated the seriousness of an incident in which he was involved and fabricated claims of being pursued by Maoists following those elections (RD 187 at [67]). The Tribunal did not accept that the applicant was specifically targeted in the conflict during the elections and did not accept that the applicant or his family received threats from Maoists or their affiliates thereafter given the applicant's role, the fact that he lost the election to the Maoists, his inability to explain why they would continue to be interested in him or why they would not have been able to find him given his continued employment by UNESCO both in his home town and upon relocating to Kathmandu (RD 188-90 at [73]-[74], [77]);
    1. the Tribunal considered letters of support from the applicant's employer but gave little weight to them given the nature of the letters and the information contained in them (RD 187-8, at [68]-[69]);
    2. the Tribunal did not accept the applicant worked for the Congress Party prior to the 2008 elections nor that he sustained an injury while doing so given his knowledge of the election process and of his changing evidence regarding his injury (RD 188 at [72]);
    3. the Tribunal accepted that the political situation in Nepal is uncertain and remains volatile. However, it found that the Congress Party was the main party in the ruling coalition and while the Maoists continue to carry out attacks on people it was not satisfied the applicant would be specifically targeted even if he resumed active involvement in politics (RD 189 at [76]).
  8. The Tribunal was therefore not satisfied that the applicant was a person to whom Australia owed protection obligations and affirmed the decision under review.

The present application

  1. These proceedings began with a show cause application filed on 22 July 2010. On 21 October 2010, pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth) I ordered the Minister to show cause why relief should not be granted in relation to the grounds in an amended application filed on 15 October 2010. Those grounds were further refined in a further amended application filed by leave in court on 2 December 2010. Those grounds are:

The evidence and submissions

  1. I received as evidence the book of relevant documents filed on 23 August 2010. I provided the applicant with the opportunity to file and serve a transcript of the Tribunal hearing, together with any further written submissions, by 14 January 2011. I also gave the Minister the opportunity to file and serve further written submissions by 28 January 2011. No further submissions were filed by either party.
  2. The applicant’s submissions in relation to grounds 1 and 2 depend essentially upon the decision of the Federal Court in SZEJF v Minister for Immigration [2006] FCA 724 and SZJSS v Minister for Immigration [2009] FCA 1577 at [38]- [51]. In relation to ground 3, the applicant contends that:
  3. In relation to grounds 1 and 2 the Minister submits:
  4. The Minister formally submitted that the decision of the Federal Court in SZJSS was wrongly decided, noting that the High Court had reserved its judgment on an appeal from that decision. The Minister further submits that on the facts of the present case the Tribunal did not fail to consider the supporting letters in its decision.
  5. In relation to ground 3 the Minister submits:

Consideration

Grounds 1 and 2

  1. On 15 December 2010 the High Court overturned the decision of the Federal Court in SZJSS: Minster for Immigration v SZJSS [2010] HCA 48. Relevantly, the High Court stated at [23]-[37]:

In Khan v Minister for Immigration and Ethnic Affairs, Gummow J considered a migration appeal brought in 1987, when such appeals were decided under the ADJR Act. His Honour construed an improper exercise of power as including a reference to an exercise of a discretionary power in accordance with a rule or policy, without regard to the merits of a particular case. His Honour found that in considering all relevant material placed before him, the Minister's delegate was required to "give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy."

On 1 September 1994, Pt 8 of the Migration Act was introduced. The new Pt 8 scheme for judicial review differed significantly from the provisions of ss 5 and 6 of the ADJR Act; it contained provisions which sought to exclude judicial review of migration decisions on numerous grounds, which included the grounds of failing to take relevant considerations into account and a breach of the rules of natural justice. Whilst recognising that statutory limits were then prescribed which bore upon the construction of improper exercise of power, in Minister for Immigration and Multicultural Affairs v Yusuf, McHugh, Gummow and Hayne JJ observed that jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power.
It is sufficient for present purposes to note that from October 2001, Pt 8 as discussed above was repealed and replaced with the current Pt 8, including the privative clause provisions of s 474, which do not protect decisions involving jurisdictional error or oust the jurisdiction conferred by s 75(v) of the Constitution.
In NAIS v Minister for Immigration and Multicultural and Indigenous Affairs, the Minister accepted that a statutory provision requiring a Tribunal to give an applicant an opportunity to appear before it and give evidence implies that such evidence is to be given proper, genuine and realistic consideration. The Minister reiterated that position in this case.
In Swift v SAS Trustee Corporation, Basten JA (with whom Allsop P agreed) noted Khan's case and said of the language of "proper, genuine and realistic consideration":
The first and second respondents contended that the Tribunal's treatment of the facts, more particularly the letters, was arbitrary, capricious, irrational and unreasonable, and accordingly was inconsistent with the Tribunal's statutory duty to review. It was submitted that the Federal Court's findings of irrationality, unreasonableness (without describing it as such) and a constructive failure to exercise jurisdiction were wholly consistent with the accepted principles governing judicial review.
The Minister contended that the weight to be accorded to the letters, and the factual matters to which they gave rise, were entirely matters for the Tribunal as they concerned the merits of the application. It was submitted that the Federal Court employed the language of "proper, genuine and realistic consideration" to register the Court's response to a weighing of the evidence with which the Court disagreed. This, it was said, does not amount to jurisdictional error of the kind discussed by this Court in Minister for Immigration and Citizenship v SZMDS.
The Minister's submissions on the letters issue must be accepted as on a fair reading of the whole of the Tribunal's decision, when the Tribunal said that it gave the letters "no weight" it was referring to the fact that it did not accept the letters as evidencing that the first respondent was in some danger from the Maoists in Kathmandu. This was in large part because of social and political changes which had occurred since the letters were written. The evidence given by the first respondent, including his evidence about the effect of those changes, undermined his claim of political and social activism, thereby contradicting the support which the letters gave to his assertion that Maoists were continuing to pursue him in Kathmandu. The weighing of various pieces of evidence is a matter for the Tribunal.
It has been recognised that to describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with it. In referring to "any rational, reasonable approach to the evaluation" and the need for "a proper, genuine or realistic evaluation" of the letters, the Federal Court was registering emphatic disagreement with the Tribunal's assessment of the factual matters to which the letters were relevant. It appears the Federal Court would have weighed the letters differently which seems to suggest that, on the basis of the letters, the Federal Court would have been satisfied that Maoists were pursuing the first respondent in Kathmandu. When employing the formula "proper, genuine and realistic evaluation" in respect of the letters, the Federal Court did not appear to consider that one of the matters against which the Tribunal weighed the letters was the first respondent's evidence of the effects of social and political changes in Nepal.
Whether the letters were "highly supportive" or "powerfully corroborative" (as they appeared to the Federal Court) of the first respondent's claim that Maoists were pursuing him in Kathmandu was a question upon which reasonable minds might come to different conclusions. The Tribunal's preference for other evidence, including the first respondent's own evidence about numerous matters, including the effect of social and political changes from, and since, 2006, over the evidence of the letters written during the first half of 2006, could not be said to constitute a failure to take into account a relevant consideration as canvassed in Peko-Wallsend or Yusuf's case. Nor could it be said to be a failure to respond to a substantial argument thereby giving rise to the kind of error identified in Dranichnikov v Minister for Immigration and Multicultural Affairs.
The conclusion that the Tribunal erred in giving "no weight" to the letters, with the implication that it should have given different, presumably determinative, weight to them, depended on the Federal Court reviewing the factual findings of the Tribunal rather than the process by which it arrived at its conclusions.
Further, the Federal Court's conclusion that the Tribunal erred in this way did not, in the light of the whole of the evidence, require the further conclusion that the result in the Tribunal was manifestly irrational or unreasonable. Nor did it support a finding of any other failure which might be characterised as jurisdictional error. (footnotes omitted)
  1. The present case is indistinguishable from SZJSS. I am obviously bound by the decision of the High Court and, in consequence of that decision, I reject grounds 1 and 2 in the further amended application.

Ground 3

  1. I likewise reject the contention that the Tribunal’s decision was irrational, illogical or not based on findings or inferences of fact supported by logical grounds and/or manifestly unreasonable. The Tribunal’s relevant findings are set out at [69] of its decision (RD 187-188) where the Tribunal said:
  2. The question of irrationality, illogicality and unreasonableness was reconsidered last year by the High Court in Minister for Immigration v SZMDS[1]. Gummow A-CJ and Kiefel J held that there was illogicality by the Tribunal in making a critical inference, although warning the Court should not “lightly” come to such conclusions (at [23]-[24] and [40]–[42]); Heydon J held[2] that the Tribunal’s reasoning was not illogical (at [75], [77], [84] and [86]); Crennan and Bell JJ found no illogicality in the Tribunal’s decision and effectively held that the test was akin to Wednesbury unreasonableness (at [130]). The approach of Crennan and Bell JJ reflects that of Dixon CJ, Williams, Webb and Fullagar JJ in the Melbourne Stevedoring case,[3] as well as established statements of the scope for judicial review in cases such as the present one (which speak of an opinion that no reasonable decision maker could have formed)[4]. In my view, this is the correct approach.
  3. In my view, the Tribunal’s analysis of the letters in issue was a reasoned one and, while reasonable minds may differ, the Tribunal’s conclusions were open to it on the material before it.

Ground 4

  1. Finally, the applicant contends that the Tribunal breached s.425 of the Migration Act 1958 (Cth) by not putting the applicant on notice that the letter reproduced at RD 103, and apparently accepted by the delegate, might be treated by the Tribunal as a self serving document. In the absence of a transcript, there is an insufficient evidentiary basis to draw an inference that there was no discussion at the Tribunal hearing of what the Tribunal might make of the letter in question. Even accepting, therefore, that the Tribunal’s view of the letter could be regarded as an essential or significant issue upon which the review might turn[5] the available evidence does not establish a breach of s.425. I reject the fourth ground of review on the basis of insufficient evidence.
  2. I conclude that the applicant has failed to establish a case of jurisdictional error. The Tribunal decision is therefore a privative clause decision and the application must be dismissed.
  3. I will hear the parties as to costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Driver FM


Date: 14 February 2011

[1] (2010) 266 ALR 367; [2010] HCA 16
[2] without expressing a view on the issue of general principle

[3] R v Australian Stevedoring Industry Board; Ex part Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100, 117.5, 119.8-120.3, 121.7
[4] R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407, 430.7; Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110, 118.9; Parramatta City Council v Pestell [1972] HCA 59; (1972) 128 CLR 305, 314.5, 327.9, 332.5

[5] See SZBEL v Minister for Immigration [2006] HCA 63; (2006) 231 ALR 592

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