FEDERAL COURT OF AUSTRALIA

SZLEW v Minister for Immigration and Citizenship [2008] FCA 1460

MIGRATION – whether the Refugee Review Tribunal misconstrued the word "systematic" in s 91R(1)(c) of the Migration Act 1958 (Cth) – whether the Tribunal failed to ask the appellant to address issues that it considered might be important  

Migration Act 1958 (Cth), ss 91R, 425

VSAI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1602

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

SZLEW and SZLEX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 648 of 2008

MOORE J

26 september 2008

SYDNEY

THE COURT ORDERS THAT:

1.  The appeal be dismissed.

2.  The appellants pay the first respondent's costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

INTRODUCTION

1                     This is an appeal against a judgment of a Federal Magistrate of 18 April 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal of 19 July 2007: SZLEW & Anor v Minister for Immigration & Anor [2008] FMCA 479.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellants.

BACKGROUND

2                     The appellants are citizens of Nepal who arrived in Australia on 12 October 2006.  On 21 November 2006 the appellants lodged an application for protection visas with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for protection visas on 30 November 2006.  On 28 December 2006 the appellants applied to the Tribunal for a review of that decision.

3                     The appellants are a husband and wife from Nepal, the appellant wife making her claims as a member of the family unit of her husband (hereafter "the appellant"). 

4                     The Federal Magistrate summarised the appellant's claims at [7] of his Honour's judgment.  The appellant asserted that he feared persecution in Nepal from Maoist insurgents, the Nepalese authorities and Hindu fundamentalists due to his Christianity and from Maoist insurgents because he had been accused of collecting information from them.  The appellant also claimed that whilst he was a hotel manager in Kathmandu, he had come to the adverse attention of Maoists after he dismissed workers affiliated with a Maoist-dominated union.

THE TRIBUNAL DECISION

5                     The Tribunal did not accept that the appellant held a well-founded fear of Convention-related persecution in Nepal.  Its findings were encapsulated in the following paragraphs:

On the basis of comprehensive country information the Tribunal finds that the applicant is able to return to Nepal and continue to practice his Christian faith in the manner in which he currently does so in Australia; this includes attendance at church and private prayer. In so doing the Tribunal finds that the chance is remote that he will be targeted for serious harm by Maoists or government authorities.  The Tribunal is mindful of report of increased Hindu extremism in recent years, particularly the local affiliates of the India-based Hindu political party known Shiva Sena… Whilst some Hindu converts to Christianity reportedly can face social ostracism and occasionally face isolated incidents of hostility and discrimination from Hindu extremist groups this prejudice is not systematic, although at times it has been vehement and occasionally violent.  The applicant has lived in Kathmandu since 1989. The Tribunal finds that the chance is remote that he would be targeted and seriously harmed by Hindu extremist groups in Kathmandu for reason of his religion as a Christian.

THE FEDERAL MAGISTRATE'S DECSION

6                     Before the Federal Magistrate, the appellants pressed two grounds of review.  These were, in substance, identical to those that are now raised on appeal, and argued:

1.      The second respondent (the Tribunal) committed jurisdictional error by failing to disclose and invite evidence on the following issues that arose in relation to the decision under review, as required by s 425 of the Migration Act.

…..

(c) Whether the applicant, as "assistant manager (front of office)" in a hotel in Kathmandu, would have been responsible for making decisions about terminating the employment of staff during a period of union activism.

2.      The Tribunal misinterpreted the word, "systematic" in s 91R(1)(c) of the Migration Act in connection with the harm that Christians in Nepal may face from Hindu fundamentalists.

7                     In relation to the first ground, the appellant pointed to the following aspect of the Tribunal's reasons:

Whilst some Hindu converts to Christianity reportedly can face social ostracism and occasionally face isolated incidents of hostility and discrimination from Hindu extremist groups this prejudice is not systematic, although at times it has been vehement and occasionally violent.

8                     The appellant contended that this passage demonstrated that the Tribunal had misconceived the requirement in s 91R(1)(c) that the persecution involves "systematic and discriminatory conduct".  The appellant contended that whereas VSAI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1602 at [53] required only that conduct be "deliberate or pre-meditated, that is motivated" for the purposes of s 91R(1)(c), the Tribunal had required that the conduct be "premeditated, motivated, deliberate and habitual".

9                     The Federal Magistrate did not accept the appellant's contention and concluded that the appellant had misconceived the Tribunal's use of the term "systematic" in the context in which it arose.  Noting that the Tribunal had separately rejected the appellant's claimed fear of persecution from Maoists and Hindu fundamentalists on the basis that the concerns were not well-founded, his Honour said at [21]:

Contrary to the applicant's submission, too much significance should not be given to the word "systematic" in the context in which it is used in this Tribunal decision. I accept that the Tribunal used that word in the sense which the applicant asserts. However, the question to be determined is whether the Tribunal applied the s.91R(1) test correctly, not whether it used the right words when applying the test. The factual findings of the Tribunal are sufficient to understand it to have concluded … that the conduct in question was "systematic" as that word is properly understood in the context of s.91R(1)(c). The fact that the Tribunal then went on to say later in that paragraph, as quoted above at, that the conduct in question was not systematic, in the sense of not habitual, does not mean that the test was misapplied. As already noted, the passage in question is, in fact, a quotation from independent country information. It does not purport to be a recitation of the s.91R(1) test. The Tribunal was not saying that the s.91R(1) test was not satisfied because the conduct in question was not "systematic". It was simply saying that the conduct in question was not habitual.

10                  Addressing the ground relating to s 425 of the Act, the appellant had referred to the following passage in the delegate's decision:

I also note that with the peace agreement in place, the applicant will no longer be in danger of being harassed by the members of the hotel union who were supported by the Maoists. Any harassment coming from the unionists will be a breach of the peace agreement.

11                  The appellant contended that by contrast, the Tribunal found that it did not believe the appellant's claim that he would have been in a position to terminate the employment of the union members.  The appellant contended that there was nothing in the delegate's decision that would have put the appellant on notice of this state of disbelief.

12                  In this context, his Honour noted the following passage of the delegate's decision:

According to the applicant's application form, he and his family left Nepal on 11 October 2006. On the basis of the information he provided regarding his employment history, the applicant worked as a front office assistant manager of the Hyatt Regency Kathmandu Hotel from April 2000 until he left Nepal. This made me conclude that when he stayed in Kathmandu together with his wife and two children (including the new born one) from 3 July 2005 until 11 October 2006, he was working in the hotel's front desk. For more than [one] year, although he claimed that he was moving residence, he went to work in a position which involved extensive public contact. As he maintained his position as an assistant manager according to the information he provided, it is reasonable to assume that he reported for work regularly. This behaviour does not appear to be consistent with that of a person who is concerned for his safety because of fear of being harmed by the Maoists and the government agents.

13                  His Honour was satisfied that it was clear from this passage of the delegate's decision "that he had problems believing the applicant in relation to his claim that he feared being persecuted by Maoists in his workplace" (at [28]).  The passage cited by the appellant was simply a "gloss" on this principal reason for the Tribunal making the decision - that the appellant's conduct in Kathmandu was inconsistent with his claims.  Moreover, the Federal Magistrate was satisfied that the issue had been raised with the appellant at the hearing in any event, and cited passages of the Tribunal decision record in support.

CONSIDERATION

14                  As noted earlier, the grounds of appeal repeat, in substance, the grounds before the Federal Magistrate.

15                  The first ground addressed in the oral submissions of the appellant concerned the Tribunal's alleged misconstruction or misunderstanding of the word "systematic" in s 91R(1)(c), which was said to be apparent from the passage in the Tribunal's decision when it referred to the prejudice arising from the conduct of Hindu extremist groups was not "systematic".  In my opinion, the Federal Magistrate was correct in indicating that the real question was whether the Tribunal misapprehended the nature of the legal test that had to be applied having regard to the terms of s 91R and that that is best assessed by the reasoning adopted by the Tribunal rather than the way in which the Tribunal may have used a word appearing in the section, in a sentence in what is demonstrably a finding of fact.  Indeed it is a finding of fact based on (and repeating) material in independent country information.  I also agree with the Federal Magistrate that the Tribunal's reasons, read without an eye attuned to error, disclosed that it concluded that there was no real chance the appellant would suffer harm on his return to Nepal by reason of his religion.  That finding meant that the occasion did not arise for the Tribunal to determine whether harm, which might otherwise constitute persecution, was persecution as that concept is illuminated by s 91R, which raises for consideration whether the conduct is systematic and discriminatory.  The first ground of the appeal is not made out.

16                  The other ground advanced in the oral submissions concerns the alleged failure of the Tribunal to raise with the appellant an issue of importance to its decision if it was not apparent that it was a dispositive issue having regard to the approach that had been adopted by the delegate, a matter addressed by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 especially at [35], [36] and [47].  The issue that is said to be analogous to the issue in SZBEL was whether the account of the appellant that he had been responsible for making decisions about the possible termination of staff at the hotel at which he had been working in Kathmandu should be accepted.

17                  However, the passages in SZBEL which speak of "issues" ([35] and [36]) and "aspects of an applicant's account" ([47]) are not intended to be a reference to every factual issue raised by an applicant before the delegate in support of the application for a protection visa.  As is apparent from the consideration of this argument by the Federal Magistrate, the "issue" or the "aspect of [the appellant's] account" was whether there was a real risk the appellant would, as he contended, suffer harm as a result of his interaction with union members associated with Maoists.  It is clear that the delegate did not accept the appellant's claim that there was such a risk.  It is true that the delegate reached that conclusion because of the peace agreement that had been reached in November 2006 and the Tribunal reached a similar conclusion, in part, because it did not accept that the appellant had been responsible for making decisions about terminations, which was a conclusion not reached by the delegate.  However, the appellant was on notice, having regard to the delegate's decision, that his claim, based on a risk of persecution because of what he had done in his position with the hotel, might not be accepted by the Tribunal.  In those circumstances, he knew that it might be necessary to persuade the Tribunal that there was such a risk.  It follows, in my opinion, that the Tribunal's decision was not infected by error of the type discussed in SZBEL.  The Federal Magistrate did not err in reaching the same conclusion.

18                  The appeal should be dismissed with costs.

Associate:

Dated:         26 September 2008