NBLS v Minister for Immigration - [2006] FMCA 309

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBLS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 309

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Nepal – whether the RRT breached s.424A of the Migration Act considered – insufficient evidence of such a breach.

PRACTICE AND PROCEDURE – It is desirable that all relevant issues be identified in proceedings in the Federal Magistrates Court by both the applicant and the Minister, rather than to be left to be raised on appeal in the Federal Court.

Migration Act 1958 (Cth), ss.65, 424A, 430

Abebe v Commonwealth of Australia (1999) 162 ALR 1
Chan v Minister for Immigration (1989) 87 ALR 412
Gamaethige v Minister for Immigration (2001) 183 ALR 59
Minister for Immigration v Jia (2001) 178 ALR 421
MZWBW v Minister for Immigration [2005] FCAFC 94
NAYU v Minister for Immigration [2004] FCA 528
NACB v Minister for Immigration [2003] FCAFC 235
Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407
Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425
SJSB v Minister for Immigration [2004] FCAFC 215
SZAIX v Minister for Immigration [2006] FCA 3
WAGJ of 2002 v Minister for Immigration [2002] FCAFC 277

Applicant:

NBLS

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1657 of 2005

Judgment of:

Driver FM

Hearing date:

3 March 2006

Delivered at:

Sydney

Delivered on:

3 March 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

Mr A Cox
Phillips Fox

ORDERS

The Refugee Review Tribunal is joined as the second respondent to the application.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1657 of 2005

NBLS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was handed down on 24 May 2005. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Nepal and had made claims of political persecution. Relevant background facts are set out in the Minister's written submissions filed on 2 March 2006. I adopt as background for the purposes of this judgment paragraphs 4-11 of those written submissions:
The applicant is a male citizen of Nepal. He arrived in Australia on 13 December 2004. [court book, pages 14, 15 & 37]
The applicant applied for a protection visa on 10 January 2005. [court book, page 40.3] His claims were set out in a statement accompanying the application. [court book, pages 27-30] The application was refused on 20 January 2005. [court book, pages 40-41]
The applicant applied to the RRT for review of the original decision on 14 February 2005. [court book, page 48]
The applicant gave oral evidence before the RRT on 7 April 2005. [court book, page 97.1] The RRT handed down its decisions on 24 May 2005. [court book, page88]
The applicant's claims
The applicant's claims were set out in his protection visa application and accompanying statutory declaration of 4 pages. [court book, pages 1-37]
In summary, the applicant claimed that he feared persecution from Nepalese authorities as a result of his association with Maoists.
In addition, the applicant gave oral evidence to the RRT and supplied additional documents in support of his claims to the RRT.
The decision of the RRT
In rejecting the applicant's claims the RRT made the following findings:
a)The applicant was a citizen of Nepal and assessed his claims against Nepal as his country of nationality. [court book, page 102.5]
b)The applicant was not a credible witness and many of the key claims of his testimony were 'simply not plausible'. [court book, page 103.3]
c)That it was not satisfied that the applicant is, or was, a Maoist supporter or assisted the Maoists as he had claimed. [court book, page 103.5]
d)That it did not accept that the applicant was the subject of any risk of persecution as a Maoist supporter or that he was, or will be, imputed with any adverse political opinion by the authorities or be of adverse interest to them. Further, it was not satisfied that he faced a real chance of persecution by the authorities in the future. [court book, page 103.8]
e)It did not accept the claims made about the army posing as Maoists in June 2003. [court book, page 104.2] Nor, did it accept that the applicant had been assisting Maoists as claimed. [court book, page 104.3] Further, it did not accept that the applicant had been arrested by the Army. [court book, page 104.4]
f)That an attempted robbery did take place as claimed but that it was not satisfied that the police held a suspicion that the applicant was involved. [court book, page 104.9]
g)That it did not accept the claim that the police had seized the family farm for three hours while an attempt was made to locate the applicant in Kathmandu. [court book, page 105.3]
h)That it did not accept that the authorities in Nepal had an adverse interest in the applicant because of any Maoist connections.
i)That it was not satisfied that the applicant had a well founded fear of persecution for a Convention reason should he return to Nepal in the reasonably foreseeable future. [court book, page 105.5]
The applicant relies upon his amended application filed on 13 September 2005. That is a detailed document which dissects the decision of the RRT and asserts numerous faults in it. I also had before me as evidence the book of relevant documents filed on 6 July 2005. The applicant did not have the benefit of seeing the Minister's written submissions prior to today's hearing. In view of that, I adjourned temporarily while the submissions were read to the applicant by the Nepalese interpreter. I also required Mr Cox, for the Minister, to present his submissions first so that the applicant could better understand them. Mr Cox deals comprehensively with the issues raised in the applicant's amended application in paragraph 15-33. I agree with and adopt those paragraphs for the purposes of this judgment:
The amended application of 13 September 2005, is 10 pages in length and appears to obtain allegations that the RRT decision was infected with numerous errors including: a failure to conduct the hearing according to specified paragraphs of the UN Handbook; making findings based on no evidence; prejudgement; a failure to investigate and obtain evidence; a failure to refer to independent resources; a failure to consider the fear of people of the government and Maoists; a breach of s.430(1)(d); misstatement of the applicant's advisor's submission regarding a Maoist leader; a failure to give reasons for rejecting the applicant's evidence regarding his departure from Nepal; a failure to consider the applicant's friendship with Maoist activists; a failure to consider the applicant's claim that he had been tortured in custody; bias and unfairness; not taking reasonable steps to establish facts; and, abuse of power.
The respondent's submissions
Credibility
The crux of the RRT's decision was that the applicant was not accepted as a credible witness. The RRT found that many of the applicant's claims were 'simply not plausible'. [court book, page 103.3]
The applicant did not provide the RRT with any documents that could corroborate the claims made about his personal circumstances. The RRT noted that the applicant had stated that he could not provide documents to demonstrate his support of the Maoists or his arrest and search by Nepali Army and Police. [court book, page 95.9 with reference to material found at court book, page 8]
At hearing, three documents downloaded from the internet were handed up in support of the applicant's claims. Those documents related to a student named Raju Sharma Dhakal; a Maoist robbery attempt; and, a report of 700 schools being closed indefinitely due to action by Maoists students. The documents and the applicant's submissions in relation to them were described by the RRT at court book, pages 100.9 – 101.4. The information in those documents did not describe any circumstances personal to the applicant. [court book, pages 59 – 84]
In assessing the applicant's credibility, the RRT was in the position of having no documentary evidence corroborative of the personal circumstances of the applicant put to it. Having had the advantage of hearing and observing the applicant at hearing, the RRT was not satisfied as to the basic factual claims made by the applicant. That is, the RRT did not accept that the applicant is or was a Maoist supporter or assisted the Maoists as claimed. [court book, page 103.4]
The RRT's finding of adverse credibility, where such findings are reasonably open on the evidence before it, is properly the function of the decision-maker and generally not susceptible to judicial review by the Court. Further, according to McHugh J in Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at [67], detailed reasons are not required.
State of satisfaction
Further, the RRT was required by the Act to make a refusal decision as it did not have a positive state of satisfaction that protection obligations were owed to the applicant: s.65 of the Act; and see SJSB v Minister for Immigration [2004] FCAFC 215, at [15]-[16].
The RRT did accept that a person who fell into disfavour with the authorities because of their actual or imputed involvement with Maoists might face serious harm that was capable, depending on the circumstances, of amounting to a well founded fear of persecution. [court book, page 103.5]
However, the RRT was not persuaded that the applicant did fit such a profile, as on the evidence before it, the RRT was not satisfied that the Nepalese authorities had an adverse interest in the applicant. [court book, page 105.4]
The UN Handbook
The applicant relies on paragraphs 196 – 202 of the Handbook on Procedures and Criteria for Determining Refugee Status[1] ('the Handbook'). Those paragraphs relate to fact-finding in relation to refugee applicants. Importantly, the entirety of that section of the Handbook reveals that centrality of an assessment of credibility in relation to the claims made[2]^.
[1] Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, (1979, re-edited 1992).
[2] For example, at paragraphs 195 and 204.
The contents of the Handbook do not constitute a procedure binding on the RRT.[3] The Handbook itself only purports to be meant for the guidance of government officials concerned with the determination of refugee status.[4]
[3] In Chan v Minister for Immigration (1989) 87 ALR 412 Mason CJ said:
"I note in conclusion that I have not found the Handbook on Procedures and Criteria for Determining Refugee Status (1979) ("the Handbook") published by the Office of the United Nations High Commissioner for Refugees especially useful in the interpretation of the definition of "refugee". Without wishing to deny the usefulness or the admissibility of extrinsic materials of this kind in deciding questions as to the content of concepts of customary international law and as to the meaning of provisions of treaties (see, e.g., Fothergill v Monarch Airlines (39); O'Connell, International Law, 2nd ed (1970), vol, 1, pp 261-262), I regard the Handbook more as a practical guide for the use of those who are required to determine whether or not a person is a refugee than as a document purporting to interpret the meaning of the relevant parts of the Convention."
[4] Paragraph VII of the Foreward, Handbook on Procedures and Criteria for Determining Refugee Status, (1979, re-edited 1992).
Bias
The applicant has also claimed that the RRT was biased against him. No evidence has been provided to support that allegation. The respondent submits that there is no evidence of bias to be found on the face of the RRT reasons for decision. There is no evidence of any pre-judgement on the part of the RRT,[5] or anything to suggest that a fair minded, properly informed lay person would apprehend bias on the part of the RRT.[6]
[5] See Minister for Immigration v Jia (2001) 178 ALR 421, per Gleeson CJ and Gummow J at [72]).
[6] See Re Refugee Review Tribunal; ex Parte H (2001) 179 ALR 425 at [27] – [28].
Failure to make further enquiries
The applicant appears to make a general claim that the RRT failed to make enquiries to establish the facts, or 'true facts' of his case. However, the RRT was not required to make any further investigation over and above the material supplied by the applicant: NAYU v Minister for Immigration [2004] FCA 528 at [18]-[21]; WAGJ of 2002 v Minister for Immigration [2002] FCAFC 277 at [21], [24]-[25].
Section 430(1)(d)
The applicant alleges that the RRT breached s.430(1)(d) of the Act. However, the RRT's statement of reasons does refer to the evidence on which the RRT's findings of fact were based. The RRT noted that the applicant's advisor stated at hearing that the applicant had no documentary evidence [to support his claims] and was relying on his oral evidence [court book, pages 101.9 - 102.1].
Apart from that oral evidence, the RRT had before it only the record of claims made previously by the applicant, the appeal to the RRT itself, and the Departmental file.
Findings of fact and illogical reasoning
The applicant takes issue with the failure of the RRT to find facts as he claimed. However, on judicial review, the Court cannot engage in a merits review of the delegate's decision, and there is no error of law, let alone a jurisdictional error should the delegate have made wrong findings of fact: Abebe v Commonwealth of Australia (1999) 162 ALR 1. This is so even if the wrong finding of fact were affected by illogicality: Gamaethige v Minister for Immigration (2001) 183 ALR 59; NACB v Minister for Immigration [2003] FCAFC 235.
Failure to consider claims
The RRT stated that it had considered all the documentary evidence provided to the RRT by the applicant's adviser and his written and oral submissions: court book, page 105.4. The RRT also stated that it had before it the Department's file which included the applicant's protection visa application: court book, page 91.5.
The RRT extracted and reproduced a large portion of the statutory declaration which the applicant had lodged with his protection visa application: court book, page 92 -95.
The RRT was not required to refer to every piece of evidence and every contention made by the applicant: see MZWBW v Minister for Immigration [2005] FCAFC 94 at [25] - [38]. The RRT did refer to, and discuss, the claims made at hearing by the applicant. It also reproduced the claims made by the applicant before the delegate. This is a case where the RRT was aware of the claims made, and decided that those claims were 'simply not plausible': court book, page 103.3.
The applicant in his submissions made clear that he is concerned about the rejection of his credibility by the RRT. He told me that he had put before the RRT all documents that were available to him and answered all questions as best he could. He sincerely believes that the RRT has made the wrong decision. It is probably the case that circumstances in Nepal have deteriorated since the RRT made its decision. It is open to the applicant to seek Ministerial intervention, either by substituting a more favourable decision or by permitting the applicant to make a fresh application. That is a matter beyond the scope of these proceedings. The applicant is fundamentally challenging the merits of the RRT decision. That is not something I can review.
I raised with Mr Cox whether any issue arose in relation to compliance with s.424A of the Migration Act 1958 (Cth). The issue had not been raised either by the applicant in his amended application or by the Minister in her submissions. If proceedings in this Court are to be useful, they need to deal with all issues which are apparent to either an applicant or the Minister. It is undesirable for issues of significance to be left to be raised on appeal in the Federal Court[7]. My discussion with Mr Cox on this issue left the matter somewhat uncertain.
[7] SZAIX v Minister for Immigration [2006] FCA 3 at [11] and [68]
The RRT dealt with the applicant's credibility on a broad basis. Importantly, on page 103 of the court book, the presiding member found that the applicant was not a credible witness. The presiding member said that many of the key aspects of his testimony and his claims were simply not plausible. The reference to the applicant's testimony is almost certainly a reference to his evidence at the hearing conducted by the RRT. The reference to the applicant's claims might be a reference to material presented in support of his review application and it might equally be a reference to material presented in support of his protection visa application.
It is clear that the RRT rejected as not plausible the applicant's core claim of being a Maoist supporter. While a number of specific issues were also addressed by the presiding member in her reasons, she did not go through all of the applicant's subsidiary claims and neither did she have to. However, the level of generality with which the issues were dealt with by the presiding member leaves it uncertain to what extent, if at all, the adverse credibility finding turned upon material submitted by the applicant otherwise than for the purposes of his review application.
Mr Cox properly pointed out that the presiding member made a statement of interest in the final paragraph set out on page 103 of the court book. To the extent that the applicant's passport was treated as significant, it is not clear to me whether the passport relied upon was the copy provided with the applicant's protection visa application or the original that he probably brought with him to the RRT hearing. It is apparent from page 100 of the court book that the circumstances of the applicant's departure from Nepal were discussed with the applicant. To the extent that the determinative issue was those circumstances, it may well be that the presiding member's view was formed upon the questions asked and answers given at the hearing.
Overall, it does not appear to me that there is, on the balance of probability, an established breach of s.424A. Viewed as a whole, the RRT’s reasons appear to me to say that the documentary evidence and written submissions presented by the applicant and his adviser were not persuasive. More particularly, however, the applicant's oral testimony at the hearing led the presiding member to make an adverse credibility finding.
I find that there is no jurisdictional error in the decision of the RRT. The decision is therefore a privative clause decision and the application must be dismissed.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $3,300. The applicant did not wish to be heard on the question of costs. I accept that costs of not less than $3,300 have been reasonably and properly incurred on behalf of the Minister when assessed on a party party basis.
I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, fixed in the sum of $3,300. I will further order that the Refugee Review Tribunal be joined as the second respondent to the application.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 8 March 2006