S345 of 2003 v Minister for Immigration
[2005] FMCA 985
•30 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S345 OF 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 985 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 |
| Applicant: | APPLICANT S345 OF 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG881 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 30 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr S. Lloyd |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the respondent’s costs fixed in the amount of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG881 of 2005
| APPLICANT S345 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 23 October 1998 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant, who is a citizen of Nepal, arrived in Australia on a student visa in 1995. He ceased being an enrolled student in mid-1996 and in February 1997 applied for a protection visa. The application was refused. The applicant sought review by the Tribunal and attended a Tribunal hearing. The Tribunal affirmed the delegate's decision.
The applicant claimed that he was a member of the Newar caste who lived in a small village in Nepal. He was a supporter of the Nepali Congress Party (NC). His grandfather was a prominent NC member. He claimed that in 1990 he was accused of killing a young supporter of the Congress Party's then opposition, the Communist Party of Nepal (CPN) and the United Marxist and Leninist Party (UML). He was 14 years old at that time. He claimed that there was a “face-off” between supporters of the two sides on a country road, that there was a clash and that the young supporter lost his balance and fell off the cliff. He claimed that the dead boy was a member of the Brahmin caste (a caste higher than and different to his own). He claimed he was accused by the dead boy's older brother of pushing the boy to his death and that the dead boy's brother vowed to kill him. His family moved to Kathmandu and remained there until his departure in 1995. He claimed that because of transport difficulties the dead boy's brother did not pursue him in Kathmandu. He claimed that he was mentally tortured by the brother's threats, regarded as a criminal in Brahmin eyes, and that he would be tried by a Brahmin tribal court if he returned to Nepal. He also claimed that there was a trial by a tribal court in 1993 and that he was acquitted. The applicant claimed that after his acquittal the brother of the dead boy approached him and attacked and threatened him.
The Tribunal recorded that in the Tribunal hearing (and this is the only record before the court of the Tribunal hearing) it put country information in relation to the situation in Nepal to the applicant.
In the findings and reasons part of its decision the Tribunal dealt with aspects of the applicant's claims. Initially it dealt with the applicant’s claims at “face value”. The Tribunal addressed first the applicant's claims about being before a “court” in the nature of a tribal court. It noted that it found no evidence of such courts in Nepal. Whether or not they were very informal courts, the applicant had “wavered” in his claims as to whether he had already been before such a court. The Tribunal found his evidence highly unreliable, and, more to the point, that there had been no consequences to the applicant while in Nepal in the five years before he left.
The Tribunal found in any event that the applicant’s evidence showed that his status as a member of the Newar caste was not the cause of his problems with the Brahmins in this matter. Rather the cause was the perceived act, however innocent he may have been of it, of allegedly killing the boy. It did not accept that there was a religious basis for the claimed fear.
It also addressed the applicant's claims about the motivations of the dead boy's family in respect of the applicant's status as a supporter of the NC. It was not satisfied that the applicant's status as such had anything to do with the claimed vendetta against him, having regard to the fact that the threats did not start until he was perceived to have committed a single act, entirely separate from the expression of a political opinion, which the family of the dead boy perceived to be a criminal act for which the applicant had avoided being punished under state law.
The Tribunal rejected the applicant's claim that the fear he had was by reason of political opinion. The Tribunal found that even it were accepted that the applicant had been accused but found not guilty of a murder in relation to the death of a member or supporter of a different political party and even if he had been threatened by members of the deceased boy's family, any fear he had would not be for reason of his political opinion but rather by reason of his perceived commission of a single act and if anything else the state’s failure to recognize his individual responsibility.
The Tribunal also had regard to independent evidence which showed that the applicant had been able to obtain a passport and leave Nepal while the CPN-UML coalition governed Nepal and that at the time of the Tribunal decision, the NC and CPN were pragmatic political allies. The Tribunal was satisfied that the matter had nothing to do with political opinion.
The Tribunal went on to provide alternate reasons for its conclusions. It found, for reasons which it gave, that it did not believe the applicant's account of the murder, prosecution and acquittal and related threats for reasons of credibility problems having regard to matters such as the lack of consistency in his accounts, the lack of a satisfactory explanation for what he did for a period of time in Australia before applying for a protection visa, the fact that a particular threat had not been mentioned in the initial claims, inconsistencies and changes in the applicant's account, the fact that he did not table actual court rulings and that the dates of documents he submitted were all later than the date on his refugee status application.
The Tribunal also took into account the fact that documents submitted by the applicant were handwritten on pages torn from a pad. It found the documents to be self-serving fabrications. It went on to state that, even if the documents were to be accepted at face value, it would conclude from their content that they indicated the competence, willingness and ability of the state through its courts and police force to protect the applicant from the allegations and, it seemed, the actions of the claimed antagonists. (In other words the applicant could access state protection).
The Tribunal concluded that whether his claims were taken at face value (to the extent possible) or in terms of their lack of credibility, there was a lack of a Convention nexus. It could not be satisfied that the applicant faced a real chance of Convention-related persecution in Nepal.
After the Tribunal made its decision the applicant joined a class action. His application was dismissed by the Federal Court in April 2004. He commenced these proceedings on 9 February 2005, not long after being taken into detention. In his application he complained generally of bad faith and that the Tribunal did not consider the gravity of the situation in Nepal relating to the Communists.
The applicant now relies on an amended application (also described as a “submission”) filed on 21 June 20005. It contains 15 (numbered as 16) consecutive paragraphs taking issue with the Tribunal's findings in particular respects. The applicant also filed a lengthy written submission. He sent to the court and also produced today a number of documents relating to events in Nepal since the time of the Tribunal decision. In his written submissions and in what he said to the court he addressed those grounds which relate to changes in Nepal in the seven years since the Tribunal decision.
I will deal first with all that he has said or put before the court in relation to the events that have occurred after the Tribunal decision. Objection was taken to the supporting material by counsel for the respondent. The material postdates the Tribunal decision. Strictly speaking it is not admissible as it is not relevant to the determination of whether the Tribunal erred on the material before it at the time of the decision. Insofar as the applicant’s grounds raise matters based on subsequent events they do not establish jurisdictional error. Nor is merits review, as sought by the applicant in a number of respects, available in this court. I note that counsel for the respondent quite properly drew the applicant's attention to this fact and to the fact that if he claimed that the situation in Nepal had changed such that he now had a fear, it was open to him to seek permission from the Minister (not from the court) to make a fresh application for a protection visa. As counsel for the respondent pointed out, that is not a form of relief that the court can provide.
In relation to the other claims made by the applicant it is important to bear in mind that, as I indicated above, the Tribunal dealt with the applicant’s claims on two alternative bases. First it was not satisfied that there was a Convention nexus. Hence, even if everything that the applicant had said was true and all the documents he provided were accepted by the Tribunal, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. This conclusion was open to it on the material before it for the reasons that it gives.
The only issue that the applicant takes with the Tribunal findings about the lack of a Convention nexus is, as raised in oral submissions, the fact that he had put before the Department and the Tribunal his political connection and more specifically, that of his father and grandfather. However it is clear that the Tribunal was aware of and took into account that claimed connection. It set out this claim in the claims and evidence part of its reasons. It then addressed the applicant's claimed fear on the basis of political opinion. It has not been established that the Tribunal failed to take into account that aspect of the applicant's claims or otherwise erred in reaching this basis for its conclusion.
Strictly speaking, that means that the applicant's other claims, addressed as they are to the alternative basis for the Tribunal findings, do not establish any jurisdictional error such as to warrant the relief sought by the applicant. Even if errors of fact have been made as contended by the applicant or if errors of law had been made, they are not material errors.
I will, however, address the applicant’s main claim (in paragraph 8 of the amended application) which he indicated was his concern that the Tribunal had rejected the documents which he submitted as self-serving fabrications for a number of reasons, in particular because they were torn from a pad and handwritten. The applicant contended that that was the normal way in which documents were presented in Nepal. The applicant takes issue with the Tribunal conclusion but does not contend that the Tribunal failed to raise with him in the Tribunal hearing its concerns about the credibility of the documents (and if he did mean to do so there is no factual basis for such a claim in the absence of the transcript of the Tribunal hearing). No lack of procedural fairness is established on the material before the court.
Moreover, as pointed out above, the Tribunal findings in relation to fabrication of the documents were part of the alternative basis for its findings. Hence while no error is established, any error in its findings or in the manner in which it approached such issue would not establish a jurisdictional error such as to enable the applicant to succeed in these proceedings.
The same may be said about the factual errors that he identifies (paragraph 13 of the amended application). For example, he claims that the Tribunal erred in referring to “non-payment” rather than “late payment” of fees. However such claims do not establish any jurisdictional error on the part of the Tribunal. Nor does his claim that his migration agent failed to mention an aspect of his claims establish error by the Tribunal.
The applicant also claimed that the Tribunal should reconsider his application in light of the current situation in Nepal and the gravity of the present situation. This does not establish that the Tribunal erred in the decision that it made in 1998 on the material before it. It should also be mentioned that the Tribunal decision was made before the introduction of the present s.424A of the Migration Act 1958 and no issue arises from the recent High Court decision in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24.
The applicant's complaints otherwise seek merits review which is not available in this court. The critical Tribunal finding that it was not satisfied that there was a Convention nexus to the applicant's claims has not been shown to involve any jurisdictional error. In those circumstances the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful. The respondent seeks costs in the sum of $4000. The applicant points out that he is in detention and cannot pay that amount of money at the moment. However, the applicant's impecuniosity or inability to pay the costs sought at present is not a reason for not awarding costs, although it may well be a matter to be taken into account by the respondent in determining whether and when to seek to recover any costs. There is nothing in the circumstances of this case to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 19 July 2005
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