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SZOTC v Minister for Immigration & Anor [2011] FMCA 53 (3 February 2011)

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SZOTC v Minister for Immigration & Anor [2011] FMCA 53 (3 February 2011)

Last Updated: 4 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOTC v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether or not the Refugee Review Tribunal’s findings were open to it on the evidence and material before it – whether the Refugee Review Tribunal was obliged to make further investigations about the Applicant’s claims – whether the Refugee Review Tribunal was obliged to consider whether effective state protection was available to the Applicant.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 474; pt.8 div.2

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36] per Keane CJ and at [49] per Emmett J
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ
Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 at 53-54
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ

Applicant:
SZOTC

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
SYG 2386 of 2010

Judgment of:
Emmett FM

Hearing date:
3 February 2010

Date of Last Submission:
3 February 2011

Delivered at:
Sydney

Delivered on:
3 February 2011

REPRESENTATION

The Applicant appeared in person, assisted by a Nepalese interpreter

Solicitors for the Respondent:
Mr G Johnson (DLA Phillips Fox)

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2386 of 2010

SZOTC

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent


REFUGEE REVIEW TRIBUNAL

Second Respondent


EX TEMPORE

REASONS FOR JUDGMENT

Introduction

  1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 6 October 2010 and handed down on 7 October 2010.
  2. The applicant claims to be a citizen of Nepal and to have been a member of the Maoist (Young Communist League) (“YCL”) (“the Applicant”).
  3. The issues in this case are whether or not the Tribunal’s findings were open to it on the evidence and material before it; whether the Tribunal was obliged to make further investigations about the YCL; and, whether the Tribunal was obliged to consider whether effective state protection was available to the Applicant. These issues are considered below in the context of considering whether the Tribunal’s decision is affected by jurisdictional error.
  4. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.

Background

  1. The Applicant arrived in Australia on 25 December 2009 having departed illegally from Nepal on a passport issued in a false name.
  2. On 10 February 2010, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
  3. On 11 June 2010, the Delegate refused the Applicant’s application for a protection visa.
  4. On 5 July 2010, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
  5. On 6 October 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
  6. On 3 November 2010, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

  1. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.
  2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
  3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:
  4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

  1. The Applicant provided a statutory declaration dated 10 February 2010, in support of his protection visa application. The statutory declaration claimed that the Applicant:
    1. entered Australia from Nepal on a false passport for safety reasons;
    2. joined the YCL in 2007, although he claims not to have been aware of the political activities at that time;
    1. was forced to do criminal activities in July 2009 by the YCL, however, ultimately refused to engage in such activities;
    1. fears persecution as a result of his refusal to be dedicated to YCL and his renouncement of YCL;
    2. could not relocate safely to another part of Nepal and that internal protection would not provide him with effective protection;
    3. decided to leave the YCL in September 2009, as a result of which, the Applicant claimed YCL members would target him with impunity because he was no longer a member;
    4. was denied his request to renounce the party and,
    5. feared harm in Nepal from YCL members and the authorities.

The Delegate’s decision

  1. On 26 May 2010, the Applicant attended an interview with the Delegate. At that interview the Applicant gave further evidence about his claims. He claimed to have become a general member of the YCL in November 2007; that general membership is the lowest rung in the YCL hierarchy; his membership was year to year; and he renewed his membership on 2 other occasions, the last being 7 February 2009. The Applicant stated that he did not receive any threats from YCL but renewed his membership knowing of their violence and because he felt he may be harmed if he did not do so.
  2. The Delegate identified with particularity, country information to which he had regard in considering the Applicant’s claims. The Delegate noted that the Applicant claimed to have feared harm from the YCL for failing to participate in their activities if he was to return to Nepal.
  3. Ultimately, the Delegate was not satisfied that the Applicant would be targeted by the YCL. The Delegate noted that country information suggested that important political figures may be at some risk, but that otherwise the state is willing to protect its citizens in their expression of political opinion.
  4. On 10 June 2010, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.

The Tribunal’s review and decision

  1. On 5 July 2010, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
  2. The Applicant provided further documents in support of his review application.
  3. On 2 August 2010 the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 9 September 2010 to give oral evidence and present arguments.
  4. On 9 September 2010, the Applicant attended the Tribunal hearing and gave evidence.
  5. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
  6. The decision of the Tribunal is accurately summarised by the solicitor for the First Respondent in his written submissions as follows:

The proceeding before this Court

  1. The Applicant was unrepresented before this Court, although had the assistance of a Nepalese interpreter.
  2. On 22 November 2010, the Applicant attended a directions hearing before me. The Applicant confirmed that he wished to continue with the application. The Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, and to file submissions in support of his application.
  3. At the directions hearing, the Applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The Applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
  4. At the commencement of the hearing, the Applicant confirmed that he had not filed any amended application, evidence or submissions in support of his application and that he had no further documents to present to the Court this morning in support of his application.
  5. The Applicant confirmed that he relied on the grounds contained in an application filed on 3 November 2010 as follows:
  6. Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

Ground 1- “I disagree with the purported decision given by the Tribunal member because I believe the member did not use all the means at her disposal to produce the substantial evidence in terms of my fear on return to Nepal as I believe the Tribunal member did not act in good faith in my case.”

  1. In support of Ground 1, the Applicant stated that he disagreed with the Tribunal’s decision that YCL members would not harm him. He said that the Tribunal should have looked into his claims more deeply and done its “homework” on what the YCL was doing in Nepal.
  2. To the extent that the Applicant complains that the Tribunal should have looked more deeply into what the YCL was doing in Nepal, such a complaint is misconceived. The Tribunal accepted that the YCL has been responsible for inflicting serious harm on many individuals.
  3. However, the Tribunal found that, had the Applicant been threatened by YCL members as alleged, they would not have delayed in carrying out such threats. The Tribunal noted that the Applicant made his decision to leave Nepal in July 2009, yet remained in his home until 20 December 2009. The Tribunal put to the Applicant why he had waited 5 months to do something about leaving Nepal given he claimed to fear for his life. The Tribunal noted the Applicant’s response that he was thinking about finding a means to leave and took sometime to arrange anything. The Tribunal found that if the Applicant had been seriously threatened in July 2009, he would not have remained in his hometown. The Tribunal was not satisfied that the Applicant was targeted by the YCL as claimed and did not accept that he departed Nepal because he feared serious harm.
  4. The Tribunal found the Applicant’s claims of renouncing his membership of the YCL to be inconsistent. The Tribunal noted that the Applicant gave evidence to the Tribunal that he never made any request to leave the YCL.
  5. Yet in support of his protection visa application, the Applicant stated that his request to leave had been denied. The Tribunal noted that it raised this issue with the Applicant who stated that YCL had refused his request to leave. However, the Tribunal did not accept that the Applicant had sought to leave the YCL as claimed and noted that his membership was renewed in February 2009. The Tribunal did not accept that the YCL intended to harm him should he return to Nepal.
  6. Moreover, the Tribunal noted that it put to the Applicant that the Tribunal was unable to locate any country information which indicated that people were punished for not continuing with the party. The Tribunal also noted that it put to the Applicant, that it was not persuaded that the YCL was seeking to harm him, given that he had remained at his home for 5 months and nothing had happened.
  7. The Tribunal then noted that the Applicant stated that he had become a target for YCL members because he had not carried out the duties imposed on him or done what he was told. The Tribunal noted that the Applicant said that in June or July 2009, he was told to collect money from 10 or 12 businessmen in the city centre, and that his refusal to do so made him a target for harm by YCL members. The Tribunal found those claims to be implausible and unpersuasive.
  8. Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
  9. In circumstances where the Tribunal accepted that the YCL was a violent organisation, there was no further obligation on the Tribunal to have further regard to country information about YCL activities.
  10. It is well established that a tribunal is not obliged to investigate or conduct an inquiry to discover whether a visa applicant’s case might be better put or supported by other evidence (Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36] per Keane CJ and at [49] per Emmett J; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]).
  11. The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire. There was no obvious failure by the Tribunal in the case before this Court to make an obvious enquiry about a critical fact, the existence of which was easily ascertained and none was identified by the Applicant (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
  12. Accordingly the Applicant’s complaints in Ground 1 that the Tribunal should have conducted further investigations in respect of the Applicant’s claims, is not made out.
  13. Otherwise the Applicant’s complaint in Ground 1 is no more than a disagreement with the findings and conclusions of the Tribunal. Such complaints invite merits review which this court cannot undertake (Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
  14. To the extent that Ground 1 alleges hat the Tribunal member “did not act in good faith”, no further submissions or particulars were made in support of that allegation. A fair reading of the Tribunal’s decision record makes clear that the Tribunal conducted its review in accordance with the statutory regime. The Tribunal explored the Applicant’s claims with him at the hearing and put to him matters of concern it had arising out of those claims. The Tribunal’s findings and conclusions were open to it on the material and evidence before it and for the reasons it gave. In the circumstances, the Applicant’s allegation that the Tribunal member did not act in good faith is without foundation.
  15. Accordingly, Ground 1 is not made out.

Ground 2- “The Tribunal member intentionally expressed reluctances in considering my case to be valued for the purpose of Convention reason and failed to recognise the necessity in applying the definition of “refugee”. I argue that it is more than illogical to think that my renouncement with the Maoist YCL would not put me at risk of being seriously harmed or even killed by the Maoist YCL is an irrelevant consideration, and taking an irrelevant consideration into account to cast a shadow on my credibility was a jurisdictional error.”

  1. In support of Ground 2, the Applicant asserted that the Tribunal had incorrectly found him not to be a refugee. As stated above, the Tribunal conducted its review in accordance with the statutory regime. The Tribunal’s decision record makes clear that it had regard to the relevant law in considering whether or not the Applicant satisfied the criteria for being a refugee.
  2. Ultimately, the Tribunal was not satisfied that the Applicant met the criteria for being a refugee. Pursuant to s.65(1) of the Act, if the Tribunal is not satisfied that the Applicant meets the criteria for being a refugee, then a protection visa must be refused.
  3. To the extent that Ground 2 alleges that the Tribunal illogically found that the Applicant’s renouncement of the YCL did not put him at serious risk, such an allegation is misconceived. The Tribunal did not accept that the Applicant had renounced or left the YCL.
  4. Otherwise Ground 2 again seeks merits review which this court cannot undertake.
  5. Accordingly, Ground 2 is not made out.

Ground 3- “The Tribunal failed to exercise its jurisdiction by failing to consider and make findings in respect of my claims as it did not address the question of whether a person in my position was able to obtain effective protection from the authorities in my country.”

  1. In support of Ground 3 the Applicant contended that the Tribunal had failed to consider whether effective state protection was available to the Applicant. However, in light of the Tribunal’s rejection of the Applicant’s claim to fear harm from the YCL because he had renounced the YCL and not carried out its bidding, there was no obligation on the Tribunal to consider whether state protection was otherwise available to the Applicant.
  2. Moreover, the Tribunal, did not accept that the Tribunal had a subjective fear of harm from members of the YCL. As stated above, the Tribunal put that concern to the Applicant at the hearing and noted his response.
  3. As stated above, the Tribunal’s rejection of the Applicant’s claims to be targeted by the YCL was open to it on the material and evidence before it and for the reasons it gave. That finding was made in the context of the Tribunal accepting that the YCL has been responsible for inflicting serious harm on many individuals.
  4. Accordingly Ground 3 is not made out.

Ground 4- “The Tribunal accepted that I was a member of the Maoist YCL whereas the Maoist YCL had a policy of attacking their opponents and I am no longer with the Maoist YCL as I renounced my membership which attracted an adverse interest on me by the Maoist YCL. The fact is that Maoist YCL is very influential in Nepal and they persecute their opponents. The Tribunal failed itself the right question and failed to deal with my claims.”

  1. In support of Ground 4, the Applicant repeated his complaint that the Tribunal’s decision was superficial and that it was incorrect to find that people who had left the YCL would not be harmed. Again, such complaint is misconceived. The Tribunal did not accept that the Applicant had in fact left the YCL. As stated above, that finding is open to the Tribunal on the material and evidence before it and for the reasons it gave.
  2. Accordingly, Ground 4 is not made out.

Ground 5- “I fear persecution from the Maoist YCL as I renounced my membership and I no longer support them. My evidence before the Tribunal was inferentially adversely construed against my claims. This is injustice.”

  1. Ground 5, again, is predicated on the Applicant’s misunderstanding that the Tribunal had not rejected his claim to have renounced his membership of the YCL. As stated above, the Tribunal did not accept that the Applicant renounced or left the YCL and that finding was open to it on the evidence and material before it and for the reasons it gave.
  2. Ground 5 is no more than a disagreement with the findings and conclusions of the Tribunal. As stated above, such complaint invites merits review which this court cannot undertake.
  3. Accordingly Ground 5 is not made out.

Conclusion

  1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal accepted country information that disclosed that the YCL was a violent group that was responsible for inflicting serious harm on many individuals. The Tribunal made findings based on the evidence and material before it rejecting the Applicant’s claims to fear harm from the YCL because it had renounced or left the YCL or refused to do its bidding. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
  2. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
  3. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
  4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Emmett FM


Date: 3 February 2011

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