Minister for Immigration and Citizenship v SZJSS

• Jurisdiction: Australia Federal only
• Judge: French CJ,Gummow,Hayne,Heydon,Crennan,Kiefel,Bell JJ
• Judgment Date: 15 December 2010
• Neutral Citation: 2010-1215 HCA C,[2010] HCA 48
• Court: High Court
• Docket Number: S147/2010
• Date: 15 December 2010

Minister For Immigration And Citizenship

Appellant

and

Szjss And Ors

Respondents

[2010] HCA 48

French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ

S147/2010

HIGH COURT OF AUSTRALIA

Minister for Immigration and Citizenship v SZJSS

Immigration — Refugees — Review by Refugee Review Tribunal (‘RRT’) — RRT gave ‘no weight’ to certain letters tendered in evidence by first respondent — RRT described the giving of certain oral evidence by first respondent as ‘baseless tactic’ — Whether RRT fell into jurisdictional error by failing to give ‘proper, genuine and realistic consideration’ to letters or by describing certain oral evidence of first respondent as ‘baseless tactic’ — Whether RRT's reasons, including use of expression ‘baseless tactic’, gave rise to reasonable apprehension of bias by reason of pre-judgment.

Words and phrases — ‘jurisdictional error’, ‘proper, genuine and realistic consideration’, ‘reasonable apprehension of bias’.

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 6.

Migration Act 1958 (Cth), s 474.

Representation

S J Gageler SC, Solicitor-General of the Commonwealth with G T Johnson for the appellant (instructed by DLA Phillips Fox Lawyers)

B W Walker SC with J R Young for the first and second respondents (instructed by Simon Diab & Associates Solicitors)

Submitting appearance for the third respondent

ORDER

1. Appeal allowed.

2. Set aside paragraphs 1 and 2(a) and (b) of the order of the Federal Court of Australia made on 24 November 2009 and, in lieu thereof, order that the appeal to that Court be dismissed.

3. Appellant to pay the costs of the first and second respondents in this Court.

1 French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. The first and second respondents, husband and wife and citizens of Nepal, arrived in Australia on 22 February 2006. Shortly afterwards, on 5 April 2006, each applied for a protection visa.

2 A criterion for a protection visa under the Migration Act 1958 (Cth) 1 is that the applicant is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol 2, or that the spouse or dependant of such an applicant is a non-citizen in Australia and the applicant holds a protection visa 3. The Refugees Convention includes in its definition of a refugee any person who ‘owing to well-founded fear of being persecuted for reasons of … membership of a particular social group or political opinion’ cannot or will not return to their home country 4.

3 Under Pt 7 of the Migration Act, the Refugee Review Tribunal (‘the Tribunal’) is under a duty to review ‘an RRT-reviewable decision’ of the delegate of the Minister 5 and in doing so the Tribunal is obliged to determine whether or not it is satisfied that the respondents meet the respective criteria referred to above.

4 A delegate of the appellant refused the first respondent's application on 3 July 2006 in accordance with s 65 of the MigrationAct. On 10 October 2006, the Tribunal affirmed that decision. The first and second respondents sought judicial review of that decision in the Federal Magistrates Court. On 15 August 2007, the Federal Magistrates Court set aside the decision and remitted the matter to the Tribunal to be determined according to law 6.

5 On 11 December 2007 the Tribunal, differently constituted, affirmed the delegate's decision for a second time. Again, the first and second respondents sought judicial review of that decision in the Federal Magistrates Court and on 8 July 2008, the second Tribunal decision was set aside and consent orders were made remitting the matter back to the Tribunal.

6 On 15 October 2008 the Tribunal, differently constituted again, affirmed the delegate's decision for a third time. The first and second respondents sought judicial review of this third Tribunal decision in the Federal Magistrates Court (Lloyd-Jones FM). The application was dismissed on 11 September 2009 7. The first and second respondents then appealed to the Federal Court of Australia (Rares J) which allowed the respondents' appeal and quashed the decision of the Tribunal 8.

7 The Federal Court found that the Tribunal had fallen into jurisdictional error in finding that the first and second respondents are not refugees because it failed to give ‘proper, genuine and realistic consideration’ to letters in evidence and because it described the giving of certain evidence by the first respondent as a ‘baseless tactic’ 9. The reasons of the Tribunal were also said by the Federal Court to give rise to a reasonable apprehension of bias 10, and the matter was remitted for hearing and determination according to law 11. It is against that decision that the Minister now appeals. The third respondent, the Tribunal, submits to any order this Court may make, save as to costs. Special leave to appeal to this Court was granted on the conditions that the Minister does not seek to disturb the costs orders below and that the Minister will pay the respondents' costs to the appeal, in any event.

The facts and procedural history

8 From 1996 until 2006, there was a civil war in Nepal. In November 2006, a Comprehensive Peace Agreement was signed between the Nepalese government and the Communist Party of Nepal — Maoist (the ‘Maoists’). The Comprehensive Peace Agreement gave the Maoists a role in government. However, in February 2006, when the first and second respondents left Nepal, the Nepalese civil war had not yet ended. Subsequently, in 2008 there were parliamentary elections in Nepal for the Constituent Assembly.

9 In his initial application and before both the first and second Tribunals, the first respondent claimed to fear harm from the Maoists, the Royal Nepalese Army and the police. Before arriving in Australia, he had been a school teacher and, as the owner of a shop, a businessman in the remote Turang village of Gulmi District, Nepal. The first respondent claimed consistently throughout each of the proceedings that the Maoists forced him, and other teachers, to pay compulsory donations out of their wages into Maoist coffers. Originally, the first respondent was forced to pay the equivalent of one day's wages per month, but this gradually increased until he was paying the equivalent of one week's wages each month. The first respondent claimed that he was forced to attend Maoist training camps with other teachers. Also, the first respondent claimed that the Maoists forced him to pay additional taxes in respect of a retail shop which he and his wife were running. The donations were referred to compendiously in the Tribunal's decision as ‘revolutionary taxes’.

10 The first respondent claimed that each of the then government of Nepal and the Maoists suspected he sympathised with the opposite side in the conflict. The donations to the Maoists were, he feared, interpreted by the local government authorities as support for the rebels, whereas the Maoists suspected that he was supplying the government with information and other assistance. He claimed that it would be unsafe and unreasonable for him to relocate to Kathmandu because the Maoists from whom he feared persecution had networks there. The first respondent's claim for protection was based both on his political opinions and his membership of particular social groups, as both a teacher and a businessman.

11 The Tribunal accepted that ‘school teachers’ and ‘business people’ or ‘shopkeepers’ were ‘particular social groups’ in the sense required by the Refugees Convention. The Tribunal accepted that the first respondent had been forced to participate in Maoist training camps for teachers but noted that in relation to ‘current-day Nepal’ the only evidence the first respondent provided of such practices were examples from remote rural areas and there was no evidence provided of those programs continuing in the bigger cities. Before coming to Australia the first respondent resided in Kathmandu with the second respondent. His brother and his three children currently reside there. The Tribunal rejected the proposition that ‘if the [first respondent] becomes a school teacher again in Nepal, now or in the reasonably foreseeable future, he would be subjected to [forced participation in Maoist training camps] irrespective of where he might take up a teaching role’.

12 This finding was anchored in the fact that, during the period in which the first respondent has been in Australia, the civil war in Nepal has ended and the social and political conditions have changed. The first respondent modified his claims before the Tribunal in the light of these changes. During the course of a hearing on 13 August 2008, at which the first respondent gave evidence and presented arguments, it was put to him that the Maoists now have a parliamentary majority in Nepal and are in a position to draw on State taxes and desist from raising donations as they did formerly. Addressing this and other changes, the first respondent gave evidence to the Tribunal to the effect that a lot of people who used to be in danger are no longer in danger and said a lot of people who used to be in hiding are no longer in hiding. He also said his children who currently remain in Nepal are not in danger but he maintained his claim that he would not be safe in Nepal. Importantly, for present purposes, the Tribunal decided to give ‘no weight’ to certain letters introduced into evidence which appeared to corroborate some of the first respondent's assertions.

Issues

13 The essential issues were whether the Tribunal fell into jurisdictional error by choosing to give no weight to the letters produced by the first respondent (‘letters issue’) and by describing the giving of certain evidence by him as a ‘baseless tactic’ (‘baseless tactic issue’), and whether the...