SKCB v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1282

FEDERAL COURT OF AUSTRALIA

SKCB v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1282

SKCB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 457 OF 2003

SELWAY J
7 NOVEMBER 2003
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 457 OF 2003

BETWEEN:	SKCB APPLICANT
AND:	MINSTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SELWAY J
DATE OF ORDER:	7 NOVEMBER 2003
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant shall pay the respondent’s costs to be taxed or agreed, save only for the costs of the notice of objection to competency.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 457 OF 2003

BETWEEN:	SKCB APPLICANT
AND:	MINSTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SELWAY J
DATE:	7 NOVEMBER 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application for prohibition, mandamus and certiorari, made pursuant to s 75(v) of the Constitution, and s 39B of the Judiciary Act 1903 (Cth), in relation to a decision given by the Refugee Review Tribunal (‘the Tribunal’) on 23 July 2002. It is accepted by the parties that the applicant can only succeed in this application if he can show that there was some jurisdictional error in the process, reasons or decision of the Tribunal.

2. The applicant arrived in Australia on 1 July 2000. On 11 August 2000 he lodged an application for a protection visa under s 36(2) of the Migration Act 1958 (Cth). The applicant can only obtain such a visa if the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) is satisfied that Australia has protection obligations to the applicant by reason of the applicant having a well-founded fear of persecution for a Convention reason. The applicant claimed that he did have such a fear. He claimed to be a Nepalese citizen. He claimed to be a member of the Communist Party of Nepal. He claimed in particular to be a member of an organisation, the CPN Maoist, which had been carrying on an insurgency campaign in Nepal since 1996. He claimed that he had been persecuted by reason of his membership of that Maoist party.

3. On 24 November 2000, the applicant was advised that a delegate of the Minister had rejected his application.  The basis of that rejection was that the delegate was not satisfied that the claim made was true. 

4. The applicant sought a review by the Tribunal.  The Tribunal heard from the applicant.  The Tribunal found that:

   ‘For the reasons set out below I do not consider plausible [SKCB’s] claim that he was involved with the CPN Maoist before he left Nepal.  Firstly, I consider reliable the evidence that the CPN Maoist launched a People’s War in 1996.

   The fact that [SKCB] was unaware of this key development is not consistent with his claim to have been a longstanding member of the CPN Maoist. 

   Secondly, his description of the CPN-Maoist membership document is not consistent with the evidence from DFAT about its appearance.  I have taken into account the fact that DFAT obtained this information some two years after [SKCB] had left Nepal.  However, in my view the source of the information (Nepal Police Special Crime Branch) would have told DFAT, when asked to describe these documents, if they had significantly differed in appearance before 2000.  Therefore I infer that the description of the document by the Nepal police applied not just to the documents as they were in 2002 but to the period before 2000 in which [SKCB] claims to have been a member of the party.  [SKCB] claims that he was secretary of the Pokhara branch of the CPN Maoist for “5-6 years” before leaving Nepal in 2000.  If he had had a longstanding connection with the party as an office-bearer, it is difficult to believe, and indeed I cannot accept as plausible, that he would be unaware of the appearance of the standard membership document.  This remains the case even if for some reason there was a local variation in the appearance of the document as he would almost certainly have seen other members’ membership documents over the years. 

   Thirdly, his claim that he was Secretary of the Pokhara branch of the CPN Maoist for 5 to 6 years before coming to Australia would mean that he took up this position in 1994 or 1995.  That is not consistent with the independent evidence, which I consider reliable, that the movement was not formed, at least with any formal structure, until 1996.

   Given [SKCB’s] lack of familiarity with the CPN-Maoist, I have very strong doubts that he was a member of it or that he had any close connection with it. 

   I have also considered the following matters.

   [SKCB] initially gave oral evidence that he was in Kathmandu for five to six months before leaving Nepal for Australia.  He later claimed, when I reminded him of his assertion that he was detained in Pokhara in March 2000, that it was three months.  His vagueness on this point, coupled with the absence of any mention of his living in Kathmandu in his written submissions to the Department, leaves me unable to establish to my satisfaction how long, or even whether, he lived in Kathmandu.  I cannot be satisfied that he fled to Kathmandu in 2000 after failing to report to the police in Pokhara.  I also cannot be satisfied that he was detained on suspicion of supporting the Maoists. 

   Further, [SKCB’s] willingness to leave Nepal openly in June 2000 using his own passport is consistent with the level of confidence that he would not be arrested when he tried to depart.  His belated claim (not made until the Tribunal hearing) that he paid a bribe to ensure his departure is not plausible, given that it would have been unnecessary as he was not suspected of any anti-government activities nor regarded as a Maoist when he left.  His ability to depart legally is consistent with a view of him by Nepal’s army and police that he was an ordinary citizen legitimately departing from Nepal.  It is not consistent with a view that he was a Maoist.
   …

   It may be that [SKCB] has been detained by police at some stage.  However I am not satisfied that it was because of his actual links with the CPN Maoist, nor can I be satisfied that he was suspected of such links at any time. 

   For the above reasons I am satisfied, and find, that [SKCB] does not have a well-founded fear of Convention-related persecution in Nepal.’

5. The Tribunal affirmed the decision of the delegate.  Before me the applicant has argued, first, that the Tribunal did not ask itself the right questions; second, that it failed to apply the correct test; and, third, that it failed to take account of the material put before the Tribunal by the applicant.  None of these arguments are sustainable.  It is clear that the Tribunal found against the applicant because it found that his claim was not credible.  There is no obvious mistake in its reasons.

6. The only point identified that might be arguable is that the factual inference drawn by the Tribunal about the size of the membership card may have been in error.  Even if this were accepted, this is not a merit review.  The factual and credit findings by the Tribunal were clearly within its jurisdiction.  No jurisdictional error has been identified.  For these reasons the application must be dismissed.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Associate:

Dated:             3 December 2003

Counsel for the Applicant:	MW Clisby
Solicitor for the Applicant:	MW Clisby
Counsel for the Respondent:	L Leerdam
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	7 November 2003
Date of Judgment:	7 November 2003