Rimal v Minister for Immigration and Multicultural Affairs

[1999] FCA 704

FEDERAL COURT OF AUSTRALIA

Rimal v Minister for Immigration & Multicultural Affairs [1999] FCA 704

CHANDRA PRASAD RIMAL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1104 of 1998

LINDGREN J
21 MAY 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1104 OF 1998

BETWEEN:	CHANDRA PRASAD RIMAL Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	LINDGREN J
DATE OF ORDER:	21 MAY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

(1)The decision of the Refugee Review Tribunal given on 14 September 1998 (RRT reference N97/18747) be affirmed.

(2)The application for review be otherwise dismissed.

(3)       The applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1104 OF 1998

BETWEEN:	CHANDRA PRASAD RIMAL Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	LINDGREN J
DATE:	21 MAY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(ex tempore)

Introduction

1. The applicant applies under s 476(1) of the Migration Act 1958 (Cth) (“the Act”) for review of a decision of the Refugee Review Tribunal (“RRT”) dated 14 September 1998 affirming a decision of a delegate of the respondent (“the Minister”) not to grant a protection visa. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant be a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, “the Convention”).  Article 1A(2) of the Convention provides that a refugee is any person who:

   “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country: or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

2. The applicant’s case is that he is outside the country of his nationality which he says is Bhutan, and is unwilling to return to it because of a well founded fear of being persecuted for reasons of membership of a particular social group and for political opinion.

   Procedural background

3. The applicant arrived in Australia on 26 February 1996 on a Nepalese passport.  In April 1996 he applied for a protection visa (visa sub-class 866).  A delegate of the Minister refused the application on 8 July 1997.  On 8 August 1997, the applicant applied to the RRT for a review of that decision.  The RRT conducted a hearing on 14 August 1998.  As noted above, on 14 September 1998 the RRT affirmed the delegate’s decision.  The applicant filed his present application to this Court on 19 October 1998.

   The decision of the RRT 

4. The RRT commenced its Reasons for Decision by referring to the procedural background, the legislative framework and the law relating to the Convention definition of a “refugee”.  It then turned to consider the applicant’s evidence.  The applicant’s claims were set out in written submissions to the Department of Immigration and Multicultural Affairs (“the Department”), an interview with an officer of the Department and written and oral submissions to the RRT.

5. In his application for a visa, the applicant claimed to have been born on 25 February 1967 in Nepal, where, in 1993, he married Binu Rimal who had been born on 23 February 1973.  He stated he was a Bhutanese citizen who was stateless due to the actions of the Bhutanese Government.  He stated that he had never travelled outside his home country and had lived in Thimpu, Bhutan from 1967 to 1991.  He claimed, however, that from 1981 to 1985 he attended school in Madras, India, and that later, in 1992, he received a Bachelor of Arts degree.  He gave no information about his employment.

6. According to the Reasons for Decision, in his statement of claims the applicant claimed that he had been involved in opposing the Bhutanese King and that there was nothing for the Nepalese in Bhutan while the Bhutanese were free to do as they pleased and that his family had been forced to leave the country.

7. In an interview with a Departmental officer on 17 April 1997 the applicant claimed he was awaiting certificates from Nepal which would attest to his educational qualifications.  Expanding on the claims made in his original application, the applicant said that the name on his passport was incorrect.  He claimed that his correct name was “Rizan Krishna” and that he had had to use bribery to obtain his Nepalese passport.  According to the applicant, it was necessary for him to obtain a false passport as the Bhutanese government had set fire to all his possessions, including his Bhutanese passport.

8. The applicant claimed to have moved to Nepal on 22 March 1991.  His parents were allegedly born in Assam, India, yet were of Bhutanese nationality.  The applicant’s grandparents were Nepalese and had moved to India and then to Bhutan.  The applicant rejected a suggestion by the Departmental officer that he had Bhutanese citizenship which he still retained.  The applicant also claimed that his application for a protection visa had incorrectly given Nepal as his country of birth and that in fact he had been born in Bhutan.

9. As noted above, in 1993 the applicant married his present wife.  She continues to live in Nepal.  Only after the marriage did the applicant realise his wife was not a Nepalese citizen.  According to the applicant, people could live in Nepal for 20 years and still not receive citizenship.  The applicant claimed it was difficult for him to get a Nepalese passport.  He sought the assistance of a friend who found him a job with a firm called “Spinners”, which enabled him to get training in Australia.  The applicant claimed there was nothing for him in either Nepal or Bhutan and that he did not have Nepalese citizenship.  He was therefore eager to come to Australia and apply for refugee status.

10. In response to several inquiries as to his reasons for not returning to Nepal, the applicant replied that he had made speeches on behalf of his uncle, one of the leaders of the Bhutanese refugees who was in gaol, and had held peaceful processions.  “They” had tried to walk towards India, but were stopped.  He therefore claimed that his name was known in Nepal, that there was nothing for him there and that he was not generally well liked.

11. Further, he stated that refugees were poorly treated in Nepal.  The Government allegedly failed to administer aid properly and was opposed to people protesting over the treatment of refugees.  The applicant disputed that the United Nations High Commissioner for Refugees (“UNHCR”) was active in assisting refugees and claimed that such aid had not reached the people.

12. In relation to his education, the applicant claimed to have studied at high school in India from 1975 to 1985 and to have graduated from university in 1989.  When his father died in 1988, he went to Bhutan.

13. The applicant claimed he had collected money from friends in Nepal totalling about 125,000 rupees in order to buy a Nepalese passport and travel to Australia.  He claimed he had been registered with the UNHCR and had lived near but not in a refugee camp.  He initially worked as a rickshaw driver and on marrying helped his in-laws in their restaurant in a province near Kathmandu.

14. The Departmental officer told the applicant that he believed the Nepalese passport was genuine.  Further the officer said he found it difficult to understand how identity documents the applicant had lodged from a political party could attest to his nationality.  The officer’s view, which was put to the applicant, was that these documents from the political party and those from a human rights organisation were false.  The applicant maintained that the documents submitted were genuine while the passport was not.

15. The applicant was then asked why he did not return to Bhutan.  He responded that the houses where “they” used to live were bulldozed and that he was not popular due to his association with a popular leader who was now in gaol.  He said he had not been involved in any violence in Bhutan but believed he would certainly be killed were he to return.

16. On 12 June 1997 the applicant submitted a detailed statement together with a certificate purportedly issued by the UNHCR Representative in Kathmandu dated 20 April 1993.  This certificate was to assume considerable importance later.  According to his statement, his name was “Krishna Rizal” and he was born on 25 February 1967 in Koilakhani village in Bhutan.  His mother died in 1972.  He claimed to have received his primary education in the local village and then to have boarded at Mani Hari Bihar High School until 1985.  From 1986 to 1990 he studied at Patna University in Bihar, where he allegedly met a number of Nepalese.  In 1988 his father died.  The applicant worried about his parents’ wealth and gave his neighbour the responsibility of looking after his parents’ property in return for a half-share in the grain grown on the property.  In 1989 the applicant moved back to his birth place in Hastinapur.

17. The applicant stated that the Bhutanese passed a law ruling that everyone must wear Bhutanese dress and that all heads must be shaven.  Anyone not complying was not permitted to stay in Bhutan.  The Nepalese language was also prohibited.  In response, the Nepalese population began a revolution which was quelled by the Bhutanese Government by means of the police and the military.  According to the applicant there was trouble such as women being raped and people threatened.  On one particular Nepalese being captured and tortured, further revolution erupted.  During this period, the applicant claimed his house was burnt.  Late on the evening of 20 March 1991 the applicant ran from Hastinapur and made for Nepal.  He reached the border on 23 March 1991 and headed for Japha, where a relative gave him shelter.  As he could not find work in keeping with his qualifications, the applicant became a rickshaw driver and a labourer.  During this time he gave lessons to children and participated in revolution against the Bhutanese government.

18. The applicant claimed to have been married in 1993 to Miss Binu Mahat in Birtamorhe.  He had thought her family were Nepalese and had hoped to obtain Nepalese citizenship. 

19. On visiting a friend in Kathmandu, the applicant came into contact with a man who had promised to help him.  One day this man was approached by a group of men and asked to obtain a false passport which the man did.  As a joke, the applicant also asked for a false passport and on providing passport photographs he was given the passport on which he travelled to Australia.  In August the applicant returned to his home in Birtamorhe, where he visited his family and resumed the revolution against Bhutan.  During a peaceful protest march to Bhutan, the Indian authorities arrested some people at the Indian border.  The applicant then returned to his home. 

20. On 20 December 1995 the applicant travelled to Kathmandu where, on 2 January 1996, he was appointed a sales representative in Biratnagar.  On 20 February 1996 he was told to travel to Australia to be trained on a “snoring machine” with “Res Med Company”.  The applicant was able to obtain a visa for Australia.  On arrival in Sydney he discovered that the training course had been cancelled.  He then proceeded to an address in Marrickville where he stayed with other Nepalese people who advised him to apply for protection in Australia.

21. On 31 July 1997 the applicant, through his adviser, wrote to the RRT.  The applicant stated that he did not have access to Nepalese citizenship.  He claimed that he had entered Nepal illegally in March 1991 and that he could obtain a passport only by illicit means and under a false name.

22. The RRT consulted published information about Bhutan and Bhutanese refugees in Nepal.  According to these reports, when refugees initially started entering Nepal they were housed in “harsh overcrowded camps”.  However, in 1994 the Nepalese government provided new land for camps and conditions improved.  These camps are located in the Japha and Morang area of eastern Nepal.  In 1996 the Bhutanese refugees formed a group which organised peace marches involving hundreds of Bhutanese attempting to return to Bhutan via India.  The first such march was held on 14 January, 1996 during which the Indian authorities arrested the marchers near the Nepalese/Indian border.  The stated impetus for the marchers was frustration at years of detention and the desire to bring a resolution to the situation. 

23. Although initially unable to recall his place of birth, the applicant later said he was born in Hastinapur, a village about two hours from the capital.  It was noted by the RRT that the applicant’s application said “Thimpu”.  Initially, the applicant was unable to respond to inquiries as to his wife’s whereabouts.  However, he subsequently revealed to the RRT that he occasionally spoke to his wife on the telephone and sent her money.  He said she lived in a small village in the Birtamorhe area, 300 kilometres from Kathmandu. 

24. As the applicant’s original application provided so little information, the RRT asked the applicant for further details.  He said that until the age of eight, he had lived in the capital of Bhutan.  He claimed not to have received formal education in Bhutan.  He claimed to have a Bhutanese identity card.  In 1975 he allegedly went to a hostel in Bihar, India where he studied for ten years.  Every four or five years he returned home, but his father visited him every year.  In 1985 he returned to the small farm his father held in Hastinapur.  After a few months he returned to India where he studied humanities and arts at a university in Patna, Bihar from which he graduated in 1989.  The RRT pointed out to the applicant that his application form gave 1992 as the graduation year to which the applicant responded that he must have made a mistake and that he had not understood the need to give detail in the application.  He claimed that all his documents had been destroyed in Bhutan.  The RRT noted that according to the applicant’s claim, his house had been destroyed in 1991.  Despite this, the applicant had failed to contact the university to obtain proof of his qualifications.

25. As to his employment history, the applicant stated that after his marriage in 1993 he worked in his in-laws’ shop and provided tuition to children.  In 1996 he undertook training on a “snoring machine” and it was for the purpose of receiving further training that he came to Australia.  On the RRT’s noting that the applicant claimed to have received a false passport in August 1995, the applicant told the RRT that he had been setting up the sales position and training some time earlier.  The applicant was unable to explain to the RRT how the snoring apparatus worked. 

26. The applicant claimed not to have applied for Nepalese citizenship as that was not how he perceived the system to work.  He disputed the Nepalese citizenship law which stated that a person living in Nepal, as he was, could apply for Nepalese citizenship.

27. The RRT had severe doubts as to the authenticity of documents which the applicant had submitted from the Bhutanese People’s Party and the Bhutan Human Rights Organisation and had referred these documents to the Document Examination Unit.  It stated that similar documents had been intercepted by Customs and that in another case before the RRT, almost identical documents had been lodged.  The RRT questioned the applicant in relation to a certificate submitted by him which he said came from the UNHCR.  He claimed to have travelled from Bhutan to a refugee camp near Japha in Nepal in 1991.  However, after some deliberation he conceded that he had received the certificate some time in 1997 after arriving in Australia and on realising that he would need the certificate for his protection visa application.  The certificate was allegedly obtained by the applicant’s wife, whom the UNHCR allegedly looked after.

28. The RRT again referred to a case recently before it in which another person had produced an almost identical certificate.  That certificate also allegedly originated from the UNHCR, was issued on the same day in 1993, stated that the person had arrived in Nepal on the same day in 1991, was signed by the same person and had an issuing number immediately preceding that of the applicant’s certificate.  Although the RRT suggested that this was an amazing coincidence, the applicant continued to propound the document’s authenticity and suggested that someone may have copied his document.  He claimed that the certificate was issued by the UNHCR person in charge of the Japha camp.  Although he had registered in 1993 and had believed his life to be in danger, he had not received the certificate at that time.  In 1997, he asked his wife to go and get it for him. 

29. The RRT did not believe the applicant’s version of events.  It particularly noted the time lapse of four years, despite the professed urgency of the obtaining of the certificate, and the absence of any file marks on the certificate.  Furthermore, the applicant was unable to provide specific details about the registration procedure he experienced on arrival at the Japha UNHCR camp.

30. In justifying his decision to go to Nepal rather than India, the applicant stated he had no reason for going to India and that he had ancestral ties in Nepal.  A distant relative had been a key leader of the Nepalese in Bhutan.  The applicant allegedly supported this relative after he (the relative) was arrested and the applicant had attended a demonstration demanding the relative’s release.  On further questioning as to the timing of this demonstration, the applicant became confused and finally stated it had taken place some time in 1990.  He claimed he was warned by the authorities and that later his house was destroyed.  His village was allegedly surrounded, shots fired and the houses burnt down.  The applicant escaped into the jungle, walked to a main road and caught a bus to Nepal.  Before this, he had been to Nepal only once in 1985 or 1986. 

31. The applicant claimed that while in Nepal, he had been involved in the Bhutanese revolution by participating in peace marches.  The applicant claimed the continuation of the revolution to be the motivation for the march, however, on being read certain published information, the applicant said he had wanted to help his fellow refugees. 

32. The applicant then identified why he had left Nepal.  He stated he had no identity card and nothing to do there.  Furthermore, conditions were bad in the refugee camps and his aims could not be fulfilled there.  Responding to the RRT’s assertion that the applicant was not in danger in Nepal, he referred to other refugees having been arrested and warned for participating in the peace marches and that the Indian government had stopped and warned marchers.  He further claimed that he had been warned by the Nepalese, his name put on a list and a warrant for his arrest issued.  Since he had left Nepal, the police had allegedly visited his wife looking for him and he believed that were he to be arrested, he would be returned to Bhutan. 

33. As the applicant had already had numerous opportunities to raise the issue of an arrest warrant against him, the RRT did not accept this claim.  Further, the RRT had severe doubts as to the veracity of other aspects of his claim, foremost the documents lodged with his application.  It therefore awaited the report on the documents before making its decision. 

1. On 1 September 1998, subsequent to the hearing, a report was provided by the UNHCR Regional Office in Canberra.  Having consulted the UNHCR office in Kathmandu, the Canberra Regional Office confirmed that the certificate was a forgery.  The RRT accepted that it was.  This finding of forgery and the applicant’s inability to explain why his own claims and false documentation mirrored those of another refugee before the RRT strengthened the RRT’s existing doubts as to the applicant’s credibility.

2. In regard to the applicant’s nationality, the RRT found that he was from Nepal and a Nepalese citizen.  Although it was willing to accept that the applicant may have been educated in India it was not convinced by his account of his period of residence in Bhutan before and after receiving that education.  Further, the RRT was unable to accept that the applicant had participated in demonstrations in Bhutan merely on the basis that a man bearing the same name, and who he claimed was a relative, was a leader of the Nepalese in Bhutan.  Further, the RRT rejected the applicant’s claim that he left Bhutan in the aftermath of his participation in a demonstration.  The RRT found that the applicant’s account of the warning by the Bhutanese authorities, the destruction of the applicant’s house and the attack on his village was implausible.  In addition, the RRT concluded that even if the applicant were a Bhutanese refugee in Nepal, it could not accept that such a refugee wanted by the Bhutanese authorities would have organised fellow refugees who wanted to leave Nepal and return to Bhutan.  In this regard, the RRT also rejected the claim of a warrant having been issued for the applicant’s arrest.

3. Having found that the applicant was from Nepal and not a Bhutanese citizen, the RRT was not satisfied that the applicant had a well founded fear of persecution for a Convention reason, should he return to Nepal either now or in the foreseeable future.  The RRT affirmed the Minister’s decision not to grant a protection visa.

   Reasoning on the present application for review

4. The present application was filed on 19 October 1998 by S T Krishnar, solicitor. It raised grounds under paragraphs (a), (c), (d), (e), (g) of subs 476(1) of the Act, but the form of application provided no particulars of those grounds. I will refer shortly to the history of the proceeding before this Court, but the substance of the matter can, notwithstanding the lengthy account of the facts which I have given, be disposed of shortly. As is made clear by that lengthy account, the RRT simply rejected the applicant as a credible witness.

5. There were several respects in which the RRT found his account to contain inconsistencies and to be implausible.  I see no point in attempting to summarise them.  A major matter, however, concerned the certificate which the applicant claimed had been issued by the UNHCR.  The RRT confronted the applicant with its concerns as to the authenticity of this document. It put to the applicant that the certificate had been issued on the same day in 1993 as that of another person whose application had been before the RRT and who had allegedly arrived in Nepal on the same day in 1991 as the applicant.  The RRT put to the applicant that the two certificates were apparently signed by the same person and had issuing numbers in immediate sequence.  The applicant said that his document was genuine and that it was possible that someone had copied his document.  The applicant said, in response to a question, that the person who issued his certificate was the UNHCR person in charge of the Japha camp.

6. He said that he had registered in 1993 but had not obtained possession of the certificate at that time.  He said, however, that the reason why he sought the certificate in 1993 was that he thought his life was in danger.  He had not collected the certificate for some 4 years, so he said, until he requested his wife to collect it in 1997.  The RRT noted that the applicant appeared to be saying that although the certificate was needed urgently in 1993 and he applied for it then accordingly, he had left it in the UNHCR office in Japha for four years until he needed it in 1997 when he was in Australia and had telephoned his wife asking her to collect it.

7. There were other aspects of the applicant’s account which the RRT rejected.  For example, a point which is not perhaps a major one is that he first said that his wife had waited until a UNHCR official came to her restaurant and that she had, on that occasion, asked for the certificate, whereas later he said that she had gone to the UNHCR office in Japha, obtained the certificate and posted it to him.  The RRT noted that the certificate purported to have been issued by the UNHCR at Kathmandu and not by the UNHCR at Japha at all.

8. Because of its concerns, the RRT sought clarification from the UNHCR and this led to the issue of the letter by the UNHCR Regional Office in Canberra which gave reasons for its conclusion that the certificate was indeed a forgery.  I need not refer to all the reasons it gave but it may be noted that the officer who purported to have signed the certificate had left Kathmandu on 19 October 1992, well prior to the date of the certificate and there were other amateurish give-away problems with the certificate even to the spelling of “United Nations” as “United Nation” and the erroneous use of French accents (grave instead of acute) on the letterhead.

9. I think it is quite clear that the RRT was entitled to reject the application on the basis that it did not accept the applicant as a witness of truth.

10. This is sufficient to dispose of the present application but I should say something about the course of the proceeding in this Court. 

11. The application was returnable on 3 December 1998.  On that date, directions were given (I will not refer to the directions addressed to the respondent but only to those addressed to the applicant), when the applicant was directed to file and serve any amended application and his affidavits by 5 February 1999.  The proceeding was fixed for hearing on 9 and 10 March 1999 and was also fixed for a review of state of readiness and directions hearing on 8 February 1999.

12. On 8 February 1999 there was no appearance for the applicant and the matter was stood over to 17 February, the applicant was ordered to pay the respondent’s costs and the respondent was directed to notify the applicant of the orders made.  Subsequently, the 17 February date was vacated and 19 February was substituted.

13. On 19 February, Mr Krishnar appeared for and with the applicant.  The hearing dates of 9 and 10 March were, on the applicant’s application, vacated and the case was fixed for hearing on 26 and 27 April and the applicant was directed to file and serve an outline of his submissions by 16 April.

14. On 22 April Mr Krishnar contacted my Associate on the basis that he wished to cease to represent the applicant.  The matter was listed on 23 April when Mr Krishnar filed a notice of motion seeking leave to cease to act and a supporting affidavit.  On that day I granted leave to him under O 45 r 7 to file and serve a notice of change of solicitor.

15. On 27 April when the matter was listed for hearing, the applicant was not represented and I indicated that I would allow him the opportunity to make his submissions subsequently.  Written submissions had been provided on behalf of the Minister and I directed the applicant to provide any submissions by 18 May and stood the matter over to 21 May at 9.00 am for judgment.

16. On 19 May, that is two days ago, there was received in my chambers a facsimile transmission from the applicant stating that he needed another five weeks to provide “the original documents related in my case” [sic].  He said that he “hoped” that the documents would be “positive” for him.  On 20 May, that is yesterday, a further facsimile transmission was received stating that he had that very day received one document which was not in English and that he was waiting for others.  Again he requested a deferral of judgment for five weeks. 

17. When the matter was called on this morning the applicant confirmed his request that I defer delivering judgment.  I asked whether he had with him the one document which he claimed to have received yesterday and he said that he did.  He handed up that document, a photocopy of which will remain with the court papers.  He said that it was a birth certificate.  It is not in English.  However, it bears no indication that it comes from any authority and is totally in handwritten script.  Apart from any question as to the difficulty of the admission of further evidence in a proceeding of this nature, I am simply not persuaded that this piece of paper has any cogency whatever.  I think that it would be quite mistaken to defer delivering judgment in a case such as this where the applicant has relied on a forgery once before the RRT and now seeks to persuade me to defer judgment on the basis of another piece of paper.

18. For the above reasons the Court orders that:

    (1)The decision of the Refugee Review Tribunal given on 14 September 1998 (RRT reference N97/18747) be affirmed.

    (2)The application for review be otherwise dismissed.

    (3)       The applicant pay the respondent’s costs.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:            21 May 1999

The applicant appeared in person
Solicitor for the Respondent:	Mr Andras Markus of the Australian Government Solicitor
Date of Hearing:	21 May 1999
Date of Judgment:	21 May 1999