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[2007] FCA 1858
Federal Court of Australia
2007-11-28
Collier J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an appeal from the decision of Cameron FM dated 17 August 2007, dismissing an application seeking judicial review of a decision of the second respondent ("the Tribunal"). The Tribunal had affirmed a decision of the delegate of the first respondent to refuse to grant a protection visa to the appellant. 2 The appellant seeks the following orders: "1. an order that the appeal be allowed. 2. the orders of Federal Magistrate Cameron set aside. 3. The writ of certiorari quashing the decision of the second Respondent signed on 8 February 2007. 4. A writ of mandamus issue directing the Second Respondent to determine according to law the Appellant's application before it. 5. An order that the First Respondent pay the Appellant's costs of the appeal and the proceedings in the Federal Magistrates Court. 6. Such further or other orders as the Court thinks fit."
Background 3 The appellant is a citizen of Nepal who arrived in Australia on 26 August 2005. On 23 September 2005 the appellant lodged an application for a protection visa. On 31 October 2005 a delegate of the first respondent refused the application. A previously constituted Tribunal in a decision dated 30 January 2006 had earlier affirmed a decision of a delegate of the Minister refusing to grant a protection visa to the appellant. The Federal Magistrate's Court in a decision dated 19 September 2006 allowed an appeal against that decision and remitted the matter to the Tribunal for reconsideration. The matter before this Court concerns a subsequent decision of the Tribunal dated 8 February 2007, concerning the same appellant for a protection visa, where the Tribunal has again affirmed the decision of a delegate of the Minister to refuse to grant a protection visa to the appellant. 4 The appellant claimed to have well-founded fear of persecution because she belonged to a particular social group and because of her political opinion or imputed political opinion. The appellant claimed she was the wife of a Royal Nepalese army soldier and worked in the media. The appellant claimed that Maoist rebels constantly came into her home threatening her and her husband. The appellant claimed she was told by Maoists that she would be punished or killed if her husband did not leave the army. She claimed that her husband was unable to leave the army as he would face persecution from authorities if he did so. The appellant further claimed that she was involved in making a documentary that the Maoist rebels did not want made, and that as a result she had received threatening letters.
Decision of the Tribunal 5 The Tribunal accepted that the appellant was a wife of a Nepalese army soldier and that she worked in the media. The Tribunal also accepted that the appellant and her husband had been threatened by Maoist rebels prior to the implementation of the peace accord. However the Tribunal found that since the accord, neither the appellant nor her husband had suffered serious harm amounting to persecution for a Convention reason. The Tribunal noted that the appellant's husband had continued to work after the threats without anyone suffering any problems as a result, and the appellant did not leave Nepal for over two years after she was able to do so. 6 Having considered the evidence, the Tribunal found it could not be satisfied that the appellant was a member of a particular social group of internally displaced people or that she had a political or imputed political profile in Nepal due to her work in the media. The Tribunal did not accept that the appellant was under Maoist rebel surveillance or that they would try to kill her for leaving Nepal. 7 Finally the Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason.
Grounds before Cameron FM 8 On 19 March 2007 the appellant applied for judicial review of the decision of the Tribunal. There were seven grounds raised in the amended application filed on 26 June 2007 but only the following two grounds were pressed before the Federal Magistrate.
Decision of Cameron FM 9 The Federal Magistrate considered the grounds in light of the Tribunal's decision but found no jurisdictional error. In relation to the first ground, his Honour held that, notwithstanding occasional further incidents of persecution in Nepal, these incidents did not justify the applicant having a well-founded fear of persecution. The key findings of his Honour in relation to this ground were at [15]-[16] where his Honour said: 15. What the Tribunal was saying was that notwithstanding occasional further incidents of persecution in Nepal, these did not justify the applicant having a well-founded fear of persecution. It was not necessary for the Tribunal to "consider the nature of such further incidents and whether the applicant might be the recipient of further incidents" as alleged in the application, as this suggests that the Tribunal had an obligation either to speculate or to make inquiries when, in fact, it was the applicant's task to make out her claim. It was for the Tribunal to determine, based on the facts before it, whether there was a real chance of the claimed persecution occurring and thus whether the applicant's claimed fear was a well-founded one. 16. Based on the evidence before it, in a decision which was open to it, the Tribunal concluded that the peace accord would last, that the chance of harm from the Maoists was at that time extremely remote and it did not accept that the applicant had a well-founded fear of persecution in the changed circumstances in Nepal. The Tribunal applied the correct test and no jurisdictional error is demonstrated in relation to this asserted ground of review. 10 In relation to the second ground of appeal, the appellant submitted that the following passage from the Tribunal's decision relied on information which should have been supplied to the applicant in accordance with s 424A(1), but was not: "In short, the Tribunal is satisfied that if for any reason the Applicant had a well founded fear of serious harm from the Maoists or from any other source, she would have immediately left Nepal when she was issued with her passport and would have gone to another country such as India in order to seek international protection and either sought protection in that country or would have applied for a visa to a third country from this position of safety." 11 Cameron FM dismissed this claim. His Honour found in particular at [19] that: 19. There is more than one answer to this submission. First, information regarding Nepalese subjects not needing to obtain a visa to travel to India would be information falling within the s.424A(3)(a) exception to s.424A(1). Secondly, what the applicant characterises as information is, in reality, a conclusion of the Tribunal that had she really feared persecution she would have used her passport to escape even if she did not have a visa. The Tribunal's conclusions and thought processes are not "information" as that term is understood by s.424A: SZBYR v Minister for Immigration & Citizenship[2007] HCA 26. Thirdly, the information which underlay the conclusion, namely the dates of the passport and departure from Nepal, were put to the applicant in the Tribunal's s.424A letter dated 17 January 2007 (CB 178) and it was in her response to that letter, by way of her statutory declaration made 29 January 2007, that the applicant said she could not leave Nepal during that period as she lacked a visa (CB 190). 12 Accordingly, in his Honour's view no breach of s 424A was disclosed in respect of this issue. In addition to this, his Honour found that the information which underlay the Tribunal's conclusion, namely the dates of the passport and departure from Nepal, were put to the appellant in the Tribunal's s 424A letter dated 17 January 2007 and it was in her response to that letter, by way of her statutory declaration made 29 January 2007, that the appellant said she could not leave Nepal during that period as she lacked a visa (at [21]). 13 Finally, his Honour considered the submission of the first respondent that, in any event and notwithstanding matters raised by the appellant, the Tribunal's decision could be sustained on another ground, namely that the appellant was disbelieved. In finding for the first respondent in relation to this issue, his Honour said: 22. The first respondent submitted that, notwithstanding the matters raised by the applicant, the Tribunal's decision can be sustained on another ground, namely that the applicant was disbelieved. The first respondent pointed out that the Tribunal's decision could be divided into two separate parts, the first dealing with the claims which the applicant made to fear persecution on the basis of prior events, in respect of which the Tribunal concluded against the applicant at the end of the first paragraph at CB 244 and the second part which dealt with the changed circumstances in Nepal which led the Tribunal to the conclusion that the applicant had no well-founded fear of persecution in the new political environment. 23. The Tribunal's principal conclusion, which was based on the applicant's experiences prior to the change of political situation in Nepal, was that she had embellished her claim and had no well-founded fear of persecution. In essence, she was disbelieved. This was a conclusion which was open to the Tribunal on the material before it. This conclusion provides a basis for the Tribunal's decision independent of its second and logically secondary conclusion regarding the applicant's lack of a well-founded fear of persecution in Nepal in the new political environment. 14 His Honour was therefore unable to discern any jurisdictional error and dismissed the application.
Appeal to this Court 15 Both parties filed written submissions prior to the hearing, and both parties were represented by counsel at the hearing. 16 The notice of appeal to the Federal Court filed by the appellant on 6 September 2007 raises the following grounds: "1. The Federal Magistrate erred in not finding that the second respondent had failed to complete its jurisdictional task by considering whether the appellant was at risk in relation to incidents of violence which the second respondent found had occurred and by inference were likely to recur. 2. The Federal Magistrate erred in not finding that the second respondent breached s 424A of the Migration Act, 1958. 3. The Federal Magistrate erred by finding: i. that information that the appellant could have travelled to India immediately she was issued with a passport fell within the s 424A(3)(a) exception to s 424A(1) ii. that such information was the thought process of the second respondent and not information iii. that the underlying information had been put to the appellant in the s 424A letter." 17 Grounds of appeal 2 and 3 relate to the same issue, and I intend to consider them together. 18 At the hearing Mr Young for the appellant sought the leave of the Court to raise a fourth ground of appeal. This was not opposed by Ms Clegg for the first respondent. I gave the appellant leave to raise this fourth ground, and the appellant filed an amended notice of appeal on 16 November 2007 with an additional ground of appeal as follows: "4. The Federal Magistrate erred by finding at [22] and [23] that there was no independent basis of the decision of the Second Respondent, being 'in essence (the Appellant) was not believed'." 19 I shall now consider each of these grounds of appeal in turn.
Ground of appeal 1: The Federal Magistrate erred in not finding that the second respondent had failed to complete its jurisdictional task by considering whether the appellant was at risk in relation to incidents of violence which the second respondent found had occurred and by inference were likely to recur 20 Mr Young for the appellant submitted, in essence, that once it was accepted by the Tribunal that in a country where acts of persecution by the Maoists had been widespread, further incidents would occur notwithstanding the commencement of the peace accord, then the peace accord cannot be a complete answer to a claim of persecution at the hands of the Maoists. Counsel submitted further that where the Tribunal found that there were some occasional acts of persecution to occur, it was bound to consider whether these might affect the appellant. 21 In my view, however, the comments of Cameron FM in this respect at [15]-[16] of his Honour's judgment are correct. I agree with his Honour that it was not necessary for the Tribunal to consider the nature of such further incidents of violence and whether the appellant might be the recipient of further incidents as alleged, as this suggests that the Tribunal had an obligation either to speculate or to make inquiries when it was the appellant's task to make out her claim. In any event, in my view it is clear that the Tribunal had completed its task in considering whether, because of the accord, the appellant continued to have a well-founded fear of persecution. As Ms Clegg submitted, the majority of the High Court in Minister for Immigration and Multicultural Affairs v QAAH of 2004 (2006) 231 ALR 340, in particular at [43]-[50], held that it is open to the Tribunal to take into account changed country circumstances in order to conclude that the appellant was not a refugee at the time the Tribunal's decision was made. Further, as Gleeson CJ and Hayne and Heydon JJ observed in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at 11 in relation to relevant random and uncoordinated acts of violence in that case, "No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence. Day by day, Australian courts deal with criminal cases involving violent attacks on person or property. Some of them may occur for reasons of racial or religious intolerance..." 22 In this case, in considering the claims of the appellant and the independent country information before it, the Tribunal considered that the peace accord in Nepal was holding, and that both sides remained fully committed to it, and assessed the chance of harm from the Maoists at that time as extremely remote. Accordingly, the Tribunal did properly complete the task before it in relation to assessing whether the appellant had a well-founded fear of persecution. In my view, the first ground of appeal cannot be sustained.
Grounds of appeal 2 and 3: The Federal Magistrate erred in not finding that the second respondent breached section 424A of the Migration Act 1958, and by finding that information that the appellant could have travelled to India immediately she was issued with a passport fell within the section 424A(3)(a) exception to section 424A(1), that such information was the thought process of the second respondent and not information, and that the underlying information had been put to the appellant in the section 424A letter 23 These grounds of appeal require consideration of s 424A Migration Act, a provision which frequently arises for consideration in the context of review of decisions of the Tribunal. It is not in contention that breach of this section by the Tribunal constitutes jurisdictional error: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs(2005) 215 ALR 162. 24 Section 424A provides as follows: (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies--by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person. (2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant for review gave for the purpose of the application; or (ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or (c) that is non‑disclosable information. 25 In relation to these grounds of appeal, the submissions of the appellant can be summarised as follows: · the information relied on by the Tribunal was that the appellant could have gone to India immediately upon receiving her passport in 2003 without obtaining a visa. This appeared in response to the appellant's statement in a statutory declaration that she did not have a visa to depart Nepal. The information upon which the Tribunal relied, namely that she could leave Nepal without a visa, was not merely the conclusion or thought processes of the Tribunal · it is clear from the decision of the Tribunal that this information undermined the appellant's claim that Australia owed her protection obligations, and accordingly it was within s 424A as considered by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 as it was not information which fell within the exception in s 424A(3)(a) · information the Tribunal had with respect to Nepalese citizens entering India was limited to information the Tribunal had concerning whether it is possible to fly directly from Australia to India with a Nepalese passport. The relevant information upon which the Tribunal relied did not deal with circumstances in which a Nepalese person could enter India from Nepal. 26 In response, the respondent submitted in summary: · the statements of the Tribunal with respect to the ability of the appellant to leave Nepal with her passport was not "information" within the meaning of s 424A(1), but rather the subjective appraisals, thought processes or determinations of the Tribunal: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476, SZBYR 235 ALR at 616 · if these statements, including with respect to the ability of the appellant to go to India, were "information", it was information within s 424A(3)(a) · even if the statements were "information" within the meaning of s 424A(1) the Tribunal did not act in breach of the section in that it brought to the appellant's attention the fact that she could have left Nepal when she received her passport.
Did the Tribunal rely on "information" within the meaning of section 424A(1)? 27 The sequence of events upon which the appellant relies, and which is not in contention, is so far as relevant as follows:
Did the information upon which the Tribunal relied fall within the exception in section 424A(3)(a)? 33 The first respondent submitted that, if the findings of the Tribunal were based on "information", it was information falling within s 424A(3)(b) in that it was information not specifically about the applicant or another person, but was about a class of persons of which the applicant or other person was a member. 34 The background to the enactment of s 424A(3)(b) was considered at length by Merkel and Hely JJ in Minister for Immigration and Multicultural and Indigenous Affairsv NAMW (2004) 140 FCR 572. In that case their Honours stipulated that, in order for information to fall within s 424A(3)(a) and therefore be excluded from the application of s 424A(1), it must be information not specifically about the applicant or another person. The further reference to information that is "just about a class of persons of which the applicant or other person is a member" is not a second criterion to be met, but is designed to underline the specificity required by precluding any argument that reference to a class could be taken as reference to all individuals (including, for example, an applicant) falling in it (NAMW 140 FCR at 599-600). The reasoning in NAMW 140 FCR 572 was also adopted by the Full Court in WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330. 35 Accordingly, examples of information excluded by section 424A (3)(a) are: · country information: NAMW 140 FCR 572, SZBJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1346 and SZGQZ v Minister for Immigration and Citizenship[2007] FCA 1091 · information from a university website as to the content of a marketing degree course SZFLL v Minister for Immigration and Citizenship [2007] FCA 355 · information from Canadian source material, telephone interviews, DFAT and UK Home Office material that it would be difficult to leave the relevant country if one was wanted by the authorities: WAJW [2004] FCAFC 330. 36 Ms Clegg for the first respondent drew my attention to the Decision Record of the Tribunal, as first constituted to hear the appellant's claim, signed 30 January 2006. This Decision Record was included in the Appeal Book before me. In particular, the Tribunal found as part of that Decision Record: "Information from the US Library of Congress, Country Studies, states that Nepal and India have agreements which enables citizens of Nepal to live in India (The Library of Congress Country Studies, Nepal: Relations with India, at http://memory.loc.gov/cgi-bin/query accessed 27 March 2002; see also full text of the treaty at http://www.humanrights.de/n/nepal/treaty/31071950_Treaty_of_Peace_and_Friendship1950.htm, accessed 27 March 2002). A 2002 fact-finding mission to Nepal by the government of Belgium indicates that these arrangements continue (Kingdom of Belgium, Ministry of Interior Affairs, Office of the Commissioner General for Refugees and Stateless Persons (CEDOCA) documentation and research department, Mission to Nepal, VII. India: a safe third country 21 January-9 February 2002, published March 2002, publicly available 26 June 2002). ... According to sources consulted by the Tribunal, a Nepalese citizen can fly directly to India from Australia provided they are in possession of a valid Nepalese passport ('Immigration Regulations : Frequently asked questions' Undated, Airports in India website, sourced from the Bureau of Immigration, Government of India http://www.airportsindia.org.in/aai/kolkata/immigration/faq.htm - Accessed 10 March 2005); and legally reside in India under Article 7 of the India-Nepal Treaty of Peace and Friendship, 1950, which grants reciprocal rights "to the nationals of one country in the territories o(f) the other the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature' (Government of India & Government of Nepal 1950, 'Treaty of Peace and Friendship Between the Government of India and Government of Nepal', 31 July, Ministry of External Affairs India web site (http://meadev.nic.in/economy/ibta/volume1/chap38.htm - Accessed 4 March 2004). On 28 September 2005 the Department of Foreign Affairs & Trade provided the following responses (ref. NPL17528) to the following questions submitted by the Tribunal: 1. Is there any information to substantiate the claim that in order to enter and reside in India a Nepalese citizen would first have to return to Nepal? In what circumstances might this be the case? Other than in the case of deportation, the post is unaware of circumstances which would make it necessary for a Nepalese citizen to return to Nepal before entering and residing in India. 2. Information before the Tribunal appears to indicate that a Nepalese citizen can fly directly to India from Australia, and reside there, provided they are in possession of a valid Nepalese passport. Is this correct? Are there any other requirements? The post is unaware of any other requirements. Article 7 of the Nepal-India Treaty of 1950 gives Nepalese citizens the same privileges in relation to residence, property ownership, participation in trade and commence (sic) and movement in India as those enjoyed by Indian citizens. 3. Articles in Nepalese news sources report that Nepalese 'leaving their villages need letters from authorities [in Nepal] to prove to Nepali and Indian police that they are not Maoists'. Can the Post comment on this claim? If it is true, has the requirement affected the ability of Nepalese citizens to enter and reside in India? The Post is unaware of such a requirement nor of instances in which Nepalese citizens have been prevented from entering India due to such a requirement." 37 I do not accept the submission of Mr Young that the relevant information upon which the Tribunal was relying in its decision of 8 February 2007 pertained only to whether people could fly directly from Australia to India if they were in possession of a valid Nepalese passport. From the material I have set out above it is clear that there exists information in the public domain concerning the lack of restriction on persons holding Nepalese passports to enter India, and although not identified as such as it was in the decision of the Tribunal as first constituted, it was upon this information that the Tribunal was clearly relying in both its letter to the appellant and its decision of 8 February 2007. This was information not specifically about the appellant or another person. It concerned a class of persons, of which the appellant was a member, namely all Nepalese citizens with passports. Although not specifically identified as such, it was information akin to country information. It is at least analogous to the information the subject of the decision in WAJW 140 FCR 572. 38 Accordingly, this information fell within the exception to s 424A(1) in s 424A(3)(a). The second and third grounds of appeal of the appellant cannot be substantiated. In these circumstances it is unnecessary for me to consider the additional submission of Ms Clegg that even if the Tribunal had relied on information within the meaning of s 424A(1), the section was not breached because the Tribunal brought to the appellant's attention the fact that she could have left Nepal when she received her passport.
Ground of appeal 4: The Federal Magistrate erred by finding at [22] and [23] that there was no independent basis of the decision of the Second Respondent, being "in essence (the Appellant) was not believed" 39 In relation to this ground of appeal, I first observe that I consider there is a typographical error in the amended notice of appeal, and that the word "no" in the fourth ground of appeal should be read as "an". Otherwise, from the appellant's perspective the ground of appeal makes little sense. 40 On behalf of the appellant, Mr Young submitted in relation to this ground of appeal that the findings of the Tribunal as to the credibility of the appellant were inextricably linked with the finding of the Tribunal as to whether the appellant could have left Nepal for India in May 2003 without a visa, and that it was impossible to describe those findings as "independent" (TS p 11 ll 11-45). 41 In response, Ms Clegg submitted that: · while the Tribunal accepted some aspects of the appellant's factual claims, it found that she had "embellished her claims in order to enhance her claim for a protection visa". This finding is fatal to the appeal as it demonstrates that the appellant was not believed by the Tribunal. The issue of credit is a matter within the exclusive jurisdiction of the Tribunal · in relation to the second and third grounds of appeal, which were directed to his Honour's conclusions at [19], his Honour correctly concluded that there are a number of answers to the assertion that s 424A(1) obligations were invoked in this case · even if there were errors in the way the Tribunal dealt with s 424A, there is an independent basis for decision of the Tribunal, namely that the Tribunal considered events in Nepal at the time of the decision and the reasonably foreseeable future and decided, in substance, that not only the appellant but any person would not have any fear of harm in Nepal because of the peace agreement. 42 In the circumstances, the appellant cannot be successful on this ground of appeal. If the findings of the Tribunal are inextricably linked to the information upon which the Tribunal relied concerning the ability of the appellant to leave Nepal (as submitted by Mr Young) so as not to constitute an independent basis of the Tribunal's decision, I have found in any event that such information is exempted from the obligations of the Tribunal under s 424A(1) by s 424A(3)(a). If the findings do constitute an independent basis of the Tribunal's decision, I accept the submissions of Ms Clegg that issues of credit are matters for the Tribunal, and the correctness of the decision of his Honour at [22]-[23] of his Honour's judgment. 43 Accordingly, this ground of appeal also cannot be substantiated.
Associate: Dated: 28 November 2007 Counsel for the Appellant: JR Young
SZIOF
Minister for Immigration and Citizenship
(2006) 231 ALR 340
(2004) 222 CLR 1
(2004) 140 FCR 572
(2001) 113 FCR 396
(2005) 215 ALR 162
(2007) 235 ALR 609
(2004) 206 ALR 471
(2002) 124 FCR 276
(2001) 105 FCR 212