SZJMH v Minister for Immigration and Citizenship

Federal Court of Australia|2008-03-07|Before: Lander J

Introduction 1 This is an appeal against an order of a Federal Magistrate of 2 October 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 5 September 2006 and handed down on 26 September 2006. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (as he was then known) to refuse grant of a Protection (Class XA) visa to the appellant. 2 The appellant is a citizen of Nepal who arrived in Australia on 31 December 2005. On 9 February 2006 the appellant lodged an application for a protection visa. On 8 May 2006 a delegate of the first respondent refused that application. On 24 May 2006 the appellant applied to the Tribunal for a review of that decision.

Background 3 The appellant claimed to fear persecution from the Nepalese authorities for his imputed political opinion as a Maoist because of his previous involvement with the Nepal Communist Party (United Marxist-Leninist). He was also, he claimed, an opponent of the monarchy and in particular King Gyanendra who ruled as an absolute monarch. The appellant claimed to have joined the Communist Party in January 1999 and that his role was to "act as a messenger for the active members in the party when they wanted to arrange meetings in the villages." The appellant claimed that in 2005 he was arrested and detained by police for three days after being caught putting up posters, subjected to both verbal and physical abuse and only released on the condition that he give up politics and support the monarchy. 4 The appellant also claimed to fear persecution from the Maoists because he refused to give them any donations. He claimed that the Maoists destroyed the shop that he owned and that he was forced to close the business out of fear that the Maoists might ask for donations. 5 The appellant claimed he felt "sandwiched" between the Maoists and the authorities and realised he had to flee. 6 The appellant further claimed that he would face persecution from Hindu extremists if he was returned to Nepal because since arriving in Australia he had converted from Hinduism to Christianity. 7 He claimed he could not go to India because the Indian police would send him back to Nepal. Further, he claimed the Nepalese police were corrupt. 8 He said that if he were returned to Nepal he could not practise his Christian religion, nor would he be able to proselytise and he would be likely to be harmed from Hindu extremists as a result of his adopting the Christian religion.

The Tribunal's Decision 9 The Tribunal accepted the appellant was once a low-ranking member of the Communist party but gave no weight to that finding because the appellant had indicated he quit the party several years earlier. Moreover, his claims indicated his problems related to him being perceived by the Maoists as a businessman. His claims further indicated that he was being targeted by security forces for apparently assisting the Maoists and opposing the absolute rule of the King. For those reasons, the Tribunal found that his membership of the Communist party was insignificant. 10 The Tribunal accepted the appellant was a businessman and that his account was consistent with being targeted for reasons of membership of a particular social group and for an imputed political opinion. However, the Tribunal held that on the inconsistent evidence before it, it could not accept he was forced to pay donations to the Maoists and dismissed that part of the appellant's claim as a complete concoction. 11 The Tribunal noted the appellant gave different versions as to his motivation for seeking protection and found the versions were quite inconsistent. The Tribunal did not give any weight to the documents attesting to the appellant's Convention related problems in Nepal. 12 The Tribunal found that it could not rely on the appellant's claims that he was perceived as opposing the King's rule because he claimed he quit politics in 2001 and could therefore not have been politically active during either of the King's periods of absolute rule. Further, there had been significant changes in the conditions in Nepal since the King relinquished absolute rule in April 2006 and the Tribunal found that the appellant would not face a real chance of being arrested by the authorities in Nepal for having opposed the King's absolute rule. 13 The Tribunal noted the appellant's claim to have converted to Christianity as being "already tainted to some extent by invention" because, although he claimed he went to the Church to tell the Pastor about his experiences with the Maoists, the Tribunal did not accept that he ever had those experiences. The Tribunal found the appellant's knowledge of Christianity was vague. It was confident his conversion to Christianity was not genuine. 14 The Tribunal considered the claim, however, in the event that the appellant was a genuine convert to Christianity. The Tribunal noted the Nepali Constitution did not forbid embracing a new religion. The Tribunal was not satisfied on the evidence before it that the appellant would face a real chance of persecution in Nepal for reasons of his Christian religion. 15 The Tribunal was not satisfied the appellant faced a real chance of Convention related persecution in Nepal and that his claimed fear of such persecution was not well founded.

Before the Federal Magistrate 16 On 6 October 2006 the appellant sought judicial review of the Tribunal's decision by filing an application in the Federal Magistrates Court. In an amended application which was not filed but presented to the Federal Magistrates Court on 22 December 2006, the appellant asserted 22 grounds for review which generally comprised the following grounds of review; denial of procedural fairness; lack of good faith or improper conduct during the hearing; failure to consider the claims and Convention grounds; failure to consider state protection; incorrectly finding the documents were fabricated; failure to consider the evidence; illogicality; failure to inquire; failure to provide a reasonable opportunity to deal with allegations; and a challenge to the Tribunal's credibility findings. The appellant filed an affidavit on 22 December 2006 in which he made submissions in support of the grounds referred to in his application and raised other grounds such as a failure by the Tribunal to address a sur place claim and a failure to address the question of his subjective fear of persecution. 17 The Federal Magistrate considered all the grounds raised by the appellant but found no jurisdictional error. His Honour stated, amongst other things, that s 422B of the Migration Act 1958 (Cth) (the Act) applied in relation to any grounds of denial of procedural fairness. The Federal Magistrate also held that there was no evidence of bad faith and that the Tribunal did consider the claims of political opinion, and found the appellant did not have a well founded fear. His Honour concluded that it was not necessary for the Tribunal to have considered the issue of state protection. The Federal Magistrate found the Tribunal had considered the appellant's religious claims and was confident his involvement was motivated out of a concern for his protection visa, and properly disregarded his conduct under s 91R(3) of the Act. There was no breach of procedural fairness and the Tribunal complied with the relevant sections of the Act. His Honour, accordingly, dismissed the application.

On Appeal 18 The notice of appeal filed in this Court on 22 October 2007 raises the following grounds of appeal, all of which are not particularised: a. the Federal Magistrate was reluctant to discern any error of law in the Tribunals' decision and the judgment was 'superficial'; b. the Tribunal failed to satisfy all its statutory and common law natural justice requirements in considering the appellant's case; c. the Tribunal failed to consider all of the appellant's claims; the decision of the Tribunal was illogical; the Tribunal did not act in good faith; and that d. the Tribunal did not accord the appellant procedural fairness; the evidence that the Tribunal relied upon was so unreasonable or so inadequate the only inference was that the Tribunal applied the wrong test.

Analysis 19 The appellant did not provide any written submissions prior to the hearing but appeared at the hearing when he made oral submissions in support of the appeal. His oral submissions were directed to the merits of the Tribunal's decision which are not matters for this Court: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 per Brennan J. The first respondent provided detailed written submissions. I shall deal with each ground of appeal as raised in the notice of appeal. 20 The first ground of appeal asserts that the Federal Magistrate's judgment was superficial. That is an unhelpful criticism unless the superficiality of the judgment has led the Federal Magistrate into error. 21 In any event, it is not appropriate to describe the Federal Magistrate's reasons as superficial. Indeed, the Federal Magistrate has written a lengthy and detailed judgment adverting to all of the issues which were raised by the appellant who was unrepresented before him. 22 If it is said that the superficiality of the judgment indicates bias or apprehended bias, that contention must be rejected. There is nothing in the reasons, or indeed in the way in which the proceedings were conducted before the Federal Magistrate, which would allow it to be said that any fair-minded lay observer might apprehend that the Federal Magistrate might not have brought an independent mind to the matter before him. 23 With respect to ground 2, there is no evidence before me that the Tribunal failed to comply with its statutory obligations. The Tribunal sent all relevant correspondence to the appellant's correct address for service, complied with all relevant statutory time frames and held a properly conducted hearing in accordance with s 425 of the Act, including providing the appellant with a Nepalese interpreter. As the learned Federal Magistrate also correctly noted, there was no enlivening on the facts of this case of any s 424A obligations on the part of the Tribunal. I accept the first respondent's submission that there was no error in the way in which the Federal Magistrate dealt with the appellant's complaint of a denial of natural justice by the Tribunal. Section 422B of the Act applies such that the common law rules of natural justice do not apply to the Tribunal's decision. The Tribunal was obliged to and did conform with its statutory obligations. This ground therefore fails. 24 There are essentially three grounds contained within ground 3 of the notice of appeal. The first aspect of the appellant's complaint is that the Tribunal did not consider all of the appellant's claims. I reject that contention. The Tribunal considered all of the appellant's claims but dismissed them because it rejected the appellant's evidence on grounds of adverse credibility. There is no error in the way in which the Federal Magistrate dealt with this ground. I accept that the Tribunal considered all of the appellant's claims. 25 It was complained that the decision of the Tribunal was illogical. There are no particulars provided in support of this ground. Before the Federal Magistrate in the appellant's amended application, this ground was particularised as being the Tribunal's reference to Nepal having the same security and justice system as Australia. I will therefore assume on appeal that this is the matter to which the appellant is again referring. The Federal Magistrate correctly addressed this complaint by holding that the Tribunal did not in fact make that finding of which the appellant complains. There is no error in the way this ground was dealt with at first instance and without more on appeal, this ground fails. 26 There is nothing to support the appellant's complaint of bad faith on the part of the Tribunal. An allegation of this kind should not be made lightly: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431. There is nothing in any of the papers which would support any allegation of bad faith on the part of the Tribunal. The third ground of appeal is dismissed. 27 Insofar as the final ground of appeal again complains of a lack of procedural fairness, that matter has been addressed. This ground further alleges that the approach of the Tribunal to the appellant's evidence was unreasonable or inadequate and that the Tribunal applied the wrong test. The Tribunal was entitled to reject the appellant's evidence as it did, and the appellant has not demonstrated that there was anything unreasonable in its approach. It was also entitled to place no weight on the documentary evidence submitted because of its adverse findings on the appellant's credibility. There was no error in the Federal Magistrate's approach to this ground of appeal. This ground is nothing more than an attempt by the appellant to re-agitate the merits of the case. 28 No error in the learned Federal Magistrate's decision has been shown. Accordingly, all of the grounds of appeal fail. The appeal must be dismissed and the appellant must pay the first respondent's costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate: Dated: 7 March 2008 Counsel for the Appellant: Appellant appeared in person

Solicitor for the First Respondent: Sparke Helmore

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