SZORJ v Minister for Immigration and Citizenship

Federal Court of Australia|2011-03-23|Before: Cowdroy J

The Appeal be dismissed.
The Appellant pay the First Respondent's costs. 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 Federal Law Search on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1836 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT 1 SZORJ ('the appellant') appeals a decision of Driver FM delivered 6 December 2010 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 8 September 2010. The Tribunal's decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship ('the Minister') to refuse to grant a Protection (Class XA) visa ('protection visa') to the appellant.

BACKGROUND 2 The appellant is a citizen of Nepal who arrived in Australia on 1 December 2009. On 21 January 2010 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application on 17 June 2010. On 12 July 2010 the appellant applied to the Tribunal for a review of that decision. 3 The appellant claimed that he had been bought up in the village of Kuhun in the west of Nepal and that in March 2007 he had been taken from his home and forced to join the Youth Communist League ('YCL') which is the youth wing of the Communist party of Nepa-Maoist. The appellant claimed that at first he was doing 'good things' but that later on he had been told to do 'bad things', namely intimidating rich people into making donations to the party with threats of violence. The appellant did not want to do the 'bad things' and so decided to renounce the YCL and fled to Australia. The appellant allegedly feared that if he stayed he would be killed by YCL members.

TRIBUNAL'S DECISION 4 The Tribunal did not accept that the appellant had been involved with the YCL at any stage. In support of this finding the Tribunal observed that the appellant had no knowledge of the YCL's ideology or from which organisations the YCL drew most of its members. The Tribunal concluded that the appellant's evidence that he studied in Kathmandu was inconsistent with his claims to have been involved in YCL activities in Myagdi at the same time. 5 The Tribunal was not satisfied that the appellant was a person to whom Australia owed protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (together, 'the Convention') and affirmed the decision of the delegate.

APPLICATION TO THE FEDERAL MAGISTRATES COURT OF AUSTRALIA 6 By application dated 7 October 2010 the appellant applied to the Federal Magistrates Court of Australia for judicial review of the Tribunal's decision and on 30 November 2010 the appellant filed an amended application to such court. The amended application contained the following five grounds: 1. I argue that the Tribunal member has applied an arbitrary standard as to what an ordinary member of YCL would know. The Tribunal member established that an initial disbelief of my credibility on one matter and failed to look at my entire evidence in a new light. The substantial conclusion reached by the Tribunal member was poor [sic] justified. 2. There was no basis whatsoever for the Tribunal member that all persons involved with the YCL would know where YCL members came from. It is not my lack of knowledge about YCL but I have been undermined by the arbitrary view of the Tribunal member. My argument also is that how the Tribunal Member was able to make a decision in my case on the same day when the hearing was conducted. The Tribunal member did not consider my claims, problems and country information cautiously at the time of making or reaching the purported decision in my case as it is impossible to make a fair decision within a short period of time. This is absolutely unfair. 3. I argue that the Tribunal member's decision in my case has been vitiated by an error of law as the evidence that the Tribunal member relied upon is so unreasonable or so inadequate the only inference is that the Tribunal member failed to satisfy all its statutory requirements in dealing with my case. 4. The Tribunal member committed jurisdictional error by failing to consider a claim or misconstruing a claim made to it. The Tribunal rejected my claim on the basis that I was not a [sic] ... involved with YCL or I was not forced to be involved with the YCL activities without comprehending that my claim to fear persecution by reason of being forced to be involved with YCL or be seriously harmed by YCL if I disown my membership or disobey them which was a separate basis upon which I claimed to fear persecution. Rather, the Tribunal Member incorrectly construed my claim to be a member of YCL and a membership of particular social group as a forcefully recruited member as an [extension] of the claim that I belonged to the YCL. 5. The Tribunal failed to consider my claim in the sense of engaging in an active intellectual process in respect of separately dealing with my claims. 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 adequate protection. The essential contention in my claim was that the Tribunal failed to address and deal with the claim articulated by me that I had a well-founded fear of persecution based on my membership of a particular social group namely that I was a forcefully recruited member of the YCL. 7 Given the lack of particularisation of the above grounds, and after having regard to the Tribunal's decision, Driver FM was unable conclude that the Tribunal committed any jurisdictional errors. 8 Driver FM considered 'a number of difficulties and implausibilities with the applicant's claims' to which the Tribunal referred. Such apparent shortcomings included the limited knowledge held by the appellant of the YCL even though he had claimed to be a member of it for two years and to have had repeated contact with its members; contradictions in his oral evidence concerning the periods of time when he was in Kathmandu compared to visits to his village; and inconsistent claims regarding alleged harassment by the YCL. 9 Driver FM rejected the submission that the Tribunal member's demeanour during the Tribunal hearing was intimidatory and overbearing, and also that the appellant was disadvantaged by interpretation problems at the Tribunal hearing. His Honour observed that no evidence had been advanced to support such allegations and that the appellant chose not to address them. 10 As to the first ground of review before Driver FM, his Honour was not satisfied that the Tribunal applied an arbitrary standard of political knowledge and found that the Tribunal was entitled to test the appellant's claims. This was the issue for determination. His Honour noted that it was 'central to the applicant's claims that he had been involved with the YCL against his will and had been indoctrinated by them'. 11 His Honour also considered the second ground of review which he found to be an expansion of the first claim made by the appellant. His Honour also noted that the appellant alleged that it was unfair for the Tribunal to make its decision on the day of the hearing. However, his Honour found that there was no reason why the Tribunal should not do so if it reached a clear opinion concerning the merits of the application. 12 As to the third ground of review Driver FM noted that such ground would be treated as a Wednesbury unreasonableness ground (see Associated Provincial Picture Houses v Wednesbury Corporation [1947] 1 KB 223). However his Honour found that the Tribunal's conclusion that the appellant's claims of past involvement with the YCL were not truthful was a finding of fact (see Re Minister for Immigration and Multicultural Affairs and Others: Ex parte Durairajasingham (2000) 58 ALD 609 per McHugh J at [67]). His Honour further found that the Tribunal's findings were open to it for the reasons provided and that the Court had no power to review such decision even if the Tribunal made a wrong finding of fact or engaged in unsound reasoning (see Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 at [20]). His Honour concluded that there was nothing irrational concerning the Tribunal's expectation that a person who claimed to be a member of the YCL for two years and to have frequent contact with YCL members would know details of its ideology and from where it drew most of its members. 13 His Honour also observed that the Tribunal found that the lack of the appellant's knowledge of the YCL was only one of a number of matters which led it to conclude that the appellant had no involvement with the YCL. 14 His Honour referred to the fact that there may be differences of opinion as to whether it could be said that a conclusion is illogical or irrational, quoting Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at [84], [86] per Heydon J; [131], [135] per Crennan and Bell JJ; see also Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at [30]-[42] per Kenny J; MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441 at [42]-[45]. 15 There was one issue to which his Honour referred which caused him to question the Tribunal's finding. The Tribunal had found that the appellant's claim of not being able to attend classes at his college in Kathmandu ('the college') was inconsistent with the appellant having passed his examinations. His Honour said that the reasoning on such question was 'debatable'. However, since it was one of six grounds upon which the Tribunal determined that the appellant's claims lacked credibility it was considered cumulatively open to the Tribunal to reach such conclusion. 16 His Honour dismissed the fourth ground of review which alleged that the Tribunal had failed to deal with his claim that the appellant would be harmed if he disowned the YCL. His Honour found that the Tribunal was entitled to so conclude in view of its finding that it did not accept that the appellant had been engaged at all with the YCL. 17 The fifth ground of review alleges that the Tribunal failed to engage in an active intellectual process with regard to his claims. His Honour concluded that the Tribunal had determined that the appellant's claims of past harm were false. 18 Based upon the above his Honour found no merit in the application for review.

GROUNDS OF APPEAL 19 On 23 December 2010, a Notice of Appeal ('the appeal') was filed by the appellant in this Court. The grounds of appeal are set out, verbatim, below: 1. I do not agree with the purported judgment of the Federal Magistrates court in connection with the Tribunal's decision in my case that the learned Federal Magistrate erred by failing to find that the Tribunal had committed jurisdictional error by failing to consider a claim and/or misconstruing a claim made to it. I believe the learned Federal Magistrate expressed reluctances in discerning the error of law on the part of the Tribunal's decision in my case. 2. I contend that the Tribunal failed all its statutory requirements in dealing with my case and it did not refer to its duty to confer common law, natural justice in determining my application. 3. I argue that the Tribunal member failed to complete the exercise of jurisdiction embarked on as it made a decision without having considered all the claims. The use of evidence by the Tribunal member is so illogical in considering the circumstances of my safety in Nepal. I argue that the Tribunal member did not act in good faith in my case as the Tribunal member had not carefully addressed my claims. 4. I argue that the Tribunal member's decision in my case was vitiated by a failure of procedural fairness amounting to jurisdictional error. The evidence that the Tribunal relied upon was so unreasonable or so inadequate the only inference was that the Tribunal applied the wrong test or was not in reality satisfied in respect to the correct test. I am a true victim of the impulsive decision made by the Tribunal member in my case.

SUBMISSIONS 20 The appellant appeared before the hearing unrepresented but assisted by an interpreter. Through the interpreter, he indicated that he did no wish to make any submission with respect to grounds 1, 2 and 3 of his appeal. With regard to ground 4 the appellant maintained that he did not know the ideology of the YCL because he had been forced to become a member of the YCL against his will. The appellant submitted that his lack of knowledge of the YCL arose because of this fact and that he is a victim of the Tribunal's decision because he did not join the YCL willingly but was coerced into doing so. 21 The appellant also claimed that the Tribunal did not have regard to country information; did not consider his case carefully; the decision was based on general information; that it was wrong to reach such a decision when no inquiries were made why people became members of the YCL. 22 The appellant also challenged the finding by the Tribunal that he would not have graduated from the college in September 2008 if he had spent little time attending classes whilst being involved in YCL related activities from 2006 until September 2008.

Ground 1: Failure to consider the appellant's claims 23 No particulars have been provided of the claim which was allegedly not considered or misconstrued. If the claim is the same as that referred to in ground four of the amended application before Driver FM, the Tribunal rejected the appellant's claim of fear of harm because it did not accept that he was ever a member of the YCL. With such a factual finding being made it could not be said that the Tribunal misconstrued the appellant's claim.

Ground 2: Alleged failure to comply with statutory requirements and natural justice 24 No particulars are given of this claim. Since the transcript of the hearing before the Tribunal has not been provided to this Court, nor was it provided before Driver FM, the Court is unable to determine whether there is any possible basis for the appellant's allegation. Accordingly, this ground fails. 25 Section 422B of the Migration Act 1958 (Cth) ('the Act') establishes that the natural justice hearing rule is exhaustively enumerated in the Act. Compliance by a Tribunal with the procedural obligations contained in Divisions 4 and 7A discharges the Tribunal's obligations. It is the intention of the Act that no additional requirements are implied into the common law. 26 A reading of the Tribunal's decision shows that the Tribunal complied with the statutory duties. In the absence of particulars it is impossible to discern any basis upon which the Tribunal 'failed to satisfy all its statutory requirements in dealing with my case'.

Ground 3: Alleged failure to address the appellant's claims 27 The appellant claims that the Tribunal's decision was illogical. Such claim was rejected by Driver FM and the appellant fails to explain any basis of illogicality. If a decision based upon the evidence before a Tribunal is proven to be illogical, then a court, upon review, may consider whether the grounds of illogicality are so great as to render the decision unreasonable: see Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611. 28 The Tribunal decision does not suggest that its findings were 'irrational or illogical' in the sense referred to in SZLGP v Minister for Immigration Citizenship [2008] FCA 1198. They were not unreasonable in the sense of Wednesbury unreasonableness: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [30].

Ground 4: Was the Tribunal's decision unreasonable? 29 The Court now turns to the essential matters raised by the appellant during the hearing, and will firstly address the allegation that his lack of knowledge of the YCL was due to the circumstances in which he was recruited. 30 In the statutory declaration provided to the Department, the appellant claimed that he had been 'taken from his home and forced to join the YCL and to participate in their criminal activities'. The evidence before the Tribunal disclosed that the address provided by the appellant from 1990 to November 2009 was Kuhun, Myagdi. According to information before the Tribunal, the capital of Myagdi is the city of Beni, and is located approximately 290 km by road from Kathmandu. The activities in which he claimed he was involved in with the YCL were abductions, looting, vandalism, hostility across the country and destruction of monuments. 31 During the Departmental interview the appellant stated that he underwent a period of indoctrination over a period of six or seven months in Beni, after which he was allowed to return to his village to undertake YCL activities. He stated that he was associated with the YCL from mid-March 2007 until November 2009 and during this period attended meetings two or three times each month and was given instruction concerning his duties. 32 The appellant claimed he fled Nepal because of the 'constant harassment from the Maoists (YCL)' following his decision to 'renounce them'. 33 Inconsistently he stated at his interview with the delegate that he did not tell the YCL that he had left the YCL. He further told the delegate that a week elapsed between his leaving the YCL and his departure from Nepal. The appellant claimed that the YCL visited his family home asking his whereabouts and that his father told them that he did not know. The evidence does not establish when it was that such inquiries were allegedly made. 34 The appellant had stated that he was living in Kathmandu throughout 2007. The Tribunal questioned him concerning his claim that he had been forced to join the YCL in March 2007, having been taken from his village at Kuhun and been indoctrinated for six months before becoming involved in criminal activities. 35 The appellant responded that he was studying full time but in reality 'could not give it full time' that; he would visit his family from time to time; but the YCL told him to go back to study and from time to time told him to return. The appellant states that the YCL did not intend him to complete his studies but he had 'struggled and studied'. 36 The Tribunal member closely examined the appellant. Included in such examination were questions directed to the fact that the appellant claimed to have spent considerable time working for the YCL in Myagdi yet claimed to be in full time attendance at the college. The appellant responded that his study was full time but his attendance at the college had been poor. He claimed that it was through his hard work that he was able to graduate. 37 The appellant had claimed before the Tribunal that he remained in contact with the group until the 'last minute' before leaving Nepal and that had he not remained in contact with them they would have prevented his leaving. The Tribunal member put to the appellant that in his statutory declaration to the department he said that he faced 'constant harassment from the Mayoist (YCL)' when he decided to renounce the YCL. However, in his oral evidence he had not renounced them before his departure. The appellant told the Tribunal member that he was called from time to time by the YCL. 38 The Tribunal member then questioned closely the appellant concerning his knowledge of the YCL and noted the appellant correctly named the YCL president. The Tribunal member then referred to numerous sources of country information concerning the YCL. 39 After careful consideration the Tribunal member concluded that the appellant was not a member of the YCL, providing six reasons for her conclusion. 40 As to the appellant's knowledge of the organisation, the Tribunal member found that although the appellant could nominate the name of the president 'he knows nothing of its ideology and did not know from which organisation it drew most of its members. That is not consistent with his claim to have had repeated contact with YCL members'. Although not referred to, the appellant's lack of knowledge of the YCL would also appear to be inconsistent with his claim that he was indoctrinated for a period of six to seven months, but this is a question of fact which this Court cannot determine. 41 Secondly, the Tribunal member found that it was inconsistent that he was living in Kathmandu from 2006 until August 2008 and that while he was studying full time at a college there he was able to participate in the activities in his home town helping the YCL. The Tribunal member was satisfied that the appellant was a full time student living in Kathmandu. 42 Thirdly, the Tribunal member considered the country information which indicated that the background of the typical YCL membership did not include an apolitical student based in Kathmandu. 43 Fourthly, the Tribunal member observed whilst the appellant claimed he was facing continuous harassment in Nepal because he had renounced the YCL, the appellant had informed the Tribunal that he had not been harassed by the YCL for this reason in Nepal. Such evidence was inconsistent. 44 Fifthly, the Tribunal noted that he had been a full time student and graduated with a diploma and that his ability to graduate was inconsistent with his claim to have spent little time attending class. 45 Finally, the Tribunal found that the appellant made no attempt to move house or change his telephone number while in Kathmandu and returned to live in his village in September 2008 which was not consistent with his claimed fear of the YCL in Myagdi. 46 Of all the six reasons, the Court observes that the only reason which could possibly be open to question is the Tribunal's conclusion in relation to the fifth reason, namely that his study was inconsistent with his claimed activities. Had this been his only ground for finding against the appellant, the Court would have been concerned that such a reason needed further examination. However, since such reason was not critical to the determination and any of the other five reasons satisfied the Tribunal member that the appellant's claim of persecution by the YCL was implausible, the Court considers that the Tribunal's decision cannot be set aside on this ground alone. 47 As to the claim that the Court did not engage in an active intellectual process, the Court refers to the decision of the Court in Minister for Immigration and Citizenship v Shea [2011] FCA 37 where the Court said at [37]: In Deloitte Touche Tohmatsu (formerly known as Deloitte Haskins & Sells and Deloitte Ross Tohmatsu) v Australian Securities Commission (1996) 136 ALR 453 at 468, Lindgren J considered the meaning of 'take into account' (in respect of a relevant consideration) and stated the question before him as follows: The question before me is whether ASC "really", "genuinely", "properly" and "effectively" took into account the consideration referred to; cf Brelin v Minister for Immigration and Ethnic Affairs, (Fed C of A, Wilcox J, 14 May 1987, unreported) at 9-10; Khan v Minister for Immigration and Ethnic Affairs, (Gummow J, 11 December 1987, unreported) at 11-12; Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1; 91 ALR 586 (Sheppard J) at FCR 12-13; Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 455 at 472 (Fed C of A, Wilcox J); Teoh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 49 FCR 409; 121 ALR 435 (Fed C of A, Full Court) (Teoh) at FCR 412 per Black CJ; Pattanasri v Minister for Immigration, Local Government and Ethnic Affairs (1993) 34 ALD 169 at 178-180 (Fed C of A, Burchett J). 48 From the detailed analysis of the evidence in the Tribunal decision the Court is unable to discern any valid basis for the allegation that the Tribunal failed to take into account any circumstance concerning the appellant's claim to have been a member of the YCL.

Claim of illogicality 49 As to the appellant's claim that the decision is illogical, the Court cannot find any illogicality or irrationality in the decision of the Court in its ultimate conclusion. In Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113 the Court referred to such an assertion at [159]-[161] inclusive where it said: In Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 Crennan and Bell JJ at [94] considered whether an '"illogicality", "irrationality" or "lack of articulation" in a finding of jurisdictional fact could constitute jurisdictional error'. This concept was also considered by the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1 at [4]. At [104] in SZMDS, Crennan and Bell JJ referred to the observations of Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 in which his Honour said of a decision maker: If he does not address himself to the question which the [statute] formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review ... If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law. 50 The Court is satisfied that there is no basis upon which the claim of illogicality or irrationality can be sustained.

Alleged Breach of Procedural Fairness 51 This ground appears to be repetitious of the second ground referred to above. Nevertheless, in the absence of any particulars there is no basis upon which the Court could set the decision aside. The appellant submits that the decision was 'impulsive' which suggest that the speed with which the decision was made renders it invalid for some reason. However, Driver FM considered such a claim and found it to be unmeritorious. The Court also is unable to find any substance to such allegation. 52 If it is sought to be suggested by the appellant that there was no evidence to support the Tribunal's decision, such allegation cannot succeed in the absence of evidence: see "VAS" v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18]-[19]; see also WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 at [11]-[12]. Furthermore, the findings of fact made by the Tribunal cannot be challenged before this Court: see Re Minister for Immigration and Multicultural Affairs and Others: Ex parte Durairajasingham (2000) 58 ALD 609 per McHugh J at [67]. 53 If the appellant intended to assert that the Tribunal ought to have sought further evidence, such is not the role of the Tribunal. The Tribunal is under no obligation to investigate or conduct an inquiry to discover whether the appellant's case might be better put or even supported by their evidence: see Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [36] per Keane CJ and at [49] per Emmett J. See also Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 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]. 54 If the appellant impliedly sought to assert that the failure to act according 'to substantial justice and the merits of the case' amounted to a breach of s 420 of the Act, even if such a failure was proved, it would not constitute a jurisdictional error: see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611.

Conclusion 55 It follows therefore that all challenges to the decision of Driver FM fail, and that the appeal must be dismissed. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Migration Act 1958(Cth)ss 420, 422B

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