1748/2008 SZLYD v Minister for Immigration and Citizenship
[2008] FCA 1748
•21 November 2008
FEDERAL COURT OF AUSTRALIA
SZLYD v Minister for Immigration and Citizenship [2008] FCA 1748
SZLYD v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1035 of 2008
SIOPIS J
21 NOVEMBER 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1035 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZLYD
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
21 NOVEMBER 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the costs of the first respondent in the sum of $2,400.00.
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 eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1035 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZLYD
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE:
21 NOVEMBER 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant is a citizen of Nepal who arrived in Australia on 26 April 2007. On 28 May 2007, the appellant lodged an application for a protection visa. In support of his application for a protection visa the appellant provided a written statement in which he claimed that he feared persecution on the basis of his political opinion and because of his membership of a social group.
A delegate of the first respondent refused the application for a protection visa on 23 August 2007. On 20 September 2007, the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision.
THE TRIBUNAL
Before the Tribunal, the appellant claimed to fear persecution on the basis of his political opinion as he is a former member of, at different times, the All Nepal National Free Student Union, the Gorkha‑National Liberation Front (GNLF) and the Communist Party of Nepal (United Marxist‑Leninist) (CPN‑UML). He also claimed that his fear of persecution was based on his membership of a particular social group, which was that of a teacher‑trainer who provided technical training to health workers in Nepal.
The appellant said that after having a number of arrest warrants relating to his political involvement issued against him, he sought political asylum in India.
The appellant said that in India he joined and became actively involved in the GNLF which, according to the appellant, is a political party for Nepalese people who live in West Bengal. The appellant claimed that whilst in India, the police issued several warrants for his arrest, because he is Nepalese. He further claimed that he was arrested for the murder of a member of the Indian Communist Party. He claimed that with the help of some friends he was released on bail and subsequently returned to Nepal to avoid continuous harassment from the Indian Government.
The appellant said that in Nepal in 1995 the People’s War was initiated by the Nepal Communist Party (Maoists). He claimed that after unsuccessfully trying to convince him to become a member, the Maoists demanded donations from a technical school established by the appellant and tried to kidnap him. He claimed he was threatened with death if he did not donate, and that he reported the matter to the police who did not help him.
The appellant said that he went to Kathmandu and lived “half underground”; however, he was continually harassed by Maoists seeking donations. After the 2006 revolution in Nepal he returned to his area, but he received another threat of death. The appellant also claimed that in 2007 he was expelled from the CPN‑UML for expressing pro‑monarchy views and was “completely surrounded” by danger because both the Maoists and the CPN‑UML were in Government.
The appellant decided to leave Nepal and, not being able to go to India, he came to Australia.
The Tribunal rejected the appellant’s version of events on credibility grounds. In a series of dot‑point paragraphs occupying four pages of its reasons, the Tribunal set out the grounds for rejecting the appellant’s claims. In essence the Tribunal found that there were inconsistencies between the appellant’s written statement and his oral statement. He had failed to mention a number of significant events in the written statement. Further, the Tribunal found the appellant’s account of events was vague in a number of respects and that the cumulative effect of his vagueness reflected adversely on his credibility.
Because the Tribunal found that the appellant was not a credible witness and rejected his evidence, it was not satisfied that the appellant had suffered any of the harm that he claimed to have suffered.
The Tribunal, therefore, found that there was no real chance that the appellant would suffer serious harm if he were to return to Nepal.
THE FEDERAL MAGISTRATE
Before the Federal Magistrate the appellant contended that the Tribunal had used information which the appellant had provided to the Department in his visa application, namely, his written statement, without first writing to him about the information pursuant to s 424A of the Migration Act 1958 (Cth) (the Act). He contended further that s 424A(3)(ba), which permitted the Tribunal to make use of that information without writing to a visa applicant for comment, had no application to his case. This, so the appellant contended, was because the appellant’s written statement supporting his visa application had been lodged with the Department before the amendments introducing s 424A(3)(ba) became effective. The amendments were introduced by the Migration Amendment (Review Provisions) Act 2007 (Cth).
The appellant also contended that the Tribunal made a jurisdictional error by failing to give a proper, genuine and realistic consideration to the appellant’s claims and evidence.
The Federal Magistrate rejected the claims made by the appellant and dismissed the application.
THE APPEAL
The notice of appeal raised the following grounds:
1.The Federal Magistrate erred in finding that s 424A(3)(ba) of the Act applied in this case.
2.The Federal Magistrate erred in not finding that the Tribunal made a jurisdictional error by failing to give a proper, genuine and realistic consideration to the appellant’s claims and evidence.
As to the first ground of appeal, it was the case that the Tribunal used the written statement provided by the appellant as part of his visa application, in questioning the appellant as to the claims that he made. Further, in making adverse credibility findings against the appellant, the Tribunal relied upon inconsistencies between the statements made as part of his visa application and the evidence which he gave at the Tribunal hearing. At the hearing, the Tribunal gave the appellant an opportunity to explain the inconsistencies and provided him with an opportunity to place further information before the Tribunal. The Tribunal did not, however, write a letter to the appellant requesting that the appellant comment on the information in his written statement.
In my view, the Federal Magistrate did not err in rejecting the appellant’s contention that the Tribunal had failed to comply with s 424A of the Act by failing to write to the appellant in respect of his written statement. The Federal Magistrate correctly held that the legislative amendment which introduced s 424A(3)(ba) applied to this case, and that section had dispensed with the requirement on the part of the Tribunal to write to the appellant under s 424A.
Paragraph 33(b) of Sch 1 of the Migration Amendment (Review Provisions) Act provides that amendments made by the schedule were to apply to all applications for review which commenced after the relevant commencement date. Section 424A(3)(ba) came into effect on 29 June 2007. The appellant lodged the application for review with the Tribunal on 20 September 2007. In my view, it did not avail the appellant that his written statement had been lodged on 28 May 2007 – being a time before the amendment to the Act had become effective. Accordingly, I dismiss this ground of appeal.
In relation to the second ground of appeal, the Federal Magistrate found that there were no critical flaws in the Tribunal’s reasoning process. The Federal Magistrate noted that one of the grounds that the Tribunal had relied upon to reject the appellant’s version of events was the cumulative effect of the appellant’s vague answers in respect of a number of different aspects of the appellant’s version of events. On the facts of this case, it was open to the Tribunal to come to that view, and it was not, as contended by the appellant, a case of the Tribunal seeking unfairly to find fault. The Federal Magistrate found that the Tribunal considered each of the appellant’s claims and his evidence before reaching its adverse conclusion as to the appellant’s credibility. The Federal Magistrate found that the Tribunal had not failed to undertake a proper, genuine and realistic consideration of the appellant’s claims. In my view, the Federal Magistrate carefully analysed the Tribunal’s reasons and the appellant’s contentions and did not err in coming to that view. The second ground of appeal is also dismissed.
The appeal is dismissed.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 21 November 2008
Counsel for the Appellant: The Appellant appeared in person. Counsel for the First Respondent: Mr D Godwin Solicitor for the First Respondent: Sparke Helmore
Date of Hearing: 19 August 2008 Date of Judgment: 21 November 2008
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