SKDB v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1283

FEDERAL COURT OF AUSTRALIA

SKDB v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1283

SKDB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 458 OF 2003

SELWAY J
7 NOVEMBER 2003
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 458 OF 2003

BETWEEN:	SKDB 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 be dismissed.

2.The applicant to pay the respondent’s costs to be taxed or agreed, save in relation to the 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 458 OF 2003

BETWEEN:	SKDB 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 of the Refugee Review Tribunal (‘the Tribunal’) given on 16 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, reasoning or decision of the Tribunal.

2. The applicant is a citizen of Nepal. He arrived in Australia on 24 March 2001. On 23 April 2001 he lodged an application for a protection visa. Under s 36(2) of the Migration Act1958 (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 being persecuted for a Convention reason. In this instance, the applicant claims to have a well-founded fear of persecution by reason of his political beliefs. He says that he is a journalist who has written pro-Maoist articles in Nepal and that he will be persecuted by the Nepalese authorities if he returns.

3. The application was initially considered by a delegate of the Minister who dismissed it, on the basis that the delegate was not satisfied that the applicant would be persecuted.  The applicant sought a review of that decision by the Refugee Review Tribunal.  The Tribunal accepted that the applicant was a journalist and that he was a communist.  It accepted that he wrote articles supportive of the communist position.  It accepted that journalists who wrote Maoist articles (in distinction to communist ones) were persecuted by the authorities.  However, it did not accept that the applicant had written Maoist articles.  The reasons given by the Tribunal for this were as follows:

   ‘There is abundant evidence before the Tribunal that states that since the armed insurgency began in February 1996, the Nepalese government, through its police, has waged an equally virulent and ruthless anti-Maoist campaign.  The police have arrested, detained and killed Maoists and those known to support or are suspected of supporting the Maoists.  There is abundant evidence before the Tribunal that journalists/reporters and editors who are suspected of being members or supporters of the Maoists or who have written articles supporting the Maoists have been arrested by the police.  As stated earlier in this decision, in April 1999 the editor and the publisher of the Jana Ahwan Weekly from Kupondole were arrested and the executive editor of the same newspaper was also arrested from a different office.  It was believed that the newspaper in question was a mouth-piece of the Maoists.  In the same month police raided the office of Jwala Weekly and arrested four more journalists.  The annual report of “Reporters Without Borders” (2002) stated that in April 1999 the editor in chief of the pro-Maoist weekly Janadesh was arrested and detained until March 2001.  The same report stated that a young pro-Maoist journalist has been missing since May 1999.  there (sic) are numerous other similar instances.  Neither the applicant nor his editor in chief were arrested or detained, despite having written pro-Maoist articles for a period of 5 or 6 years.  The applicant claims however that the police and members and supporters of the Nepali Congress Party harassed him constantly.  The Tribunal is of the view that if the applicant had indeed written pro-Maoist articles so persistently and for so long that he would have suffered the same fate as so many other pro-Maoist reporters had and that he would have been arrested and detained and the newspaper closed down.  This did not happen to either him or his editor in chief.  The Tribunal is of the view therefore that the applicant did not write pro-Maoist articles as he has claimed nor did the newspaper that he was employed by print pro-Maoist articles. 

   The Tribunal is fortified in this view by the applicant’s claim that in December 1999 when he wrote an article supporting the action by the All Nepal National Independent Student Union in burning down the administration office building, he was telephoned by the police and warned not to write articles in support of the Maoists.  He was not arrested or detained on this occasion despite the authorities being aware of it.  The Tribunal accepts that this incident occurred and it is of the view that the fact that police warned him but took no other action against him, the chief editor or the newspaper is a strong indication this was probably the first and only time that the applicant had written such an article.  If he had been writing pro-Maoist articles since 1995, this incident would have, in the Tribunal’s view, been altogether different.  His own evidence to the Tribunal was that if any newspaper fully supports the Maoists, the District Administrative Office and the police would put a stop to that newspaper. 

   The Tribunal is also fortified in its view by the fact that the applicant did not leave Nepal until about 16 months after this incident.  He claims he could not leave sooner because he had to his organise affairs and obtain a passport and visa.  However, there is an open border between Nepal and India which is not subject to any border controls.  If the applicant had indeed been fearful that he had been labelled a Maoist and would be persecuted, then it is implausible that he would wait sixteen months before trying to leave. 

   The Tribunal therefore finds that the applicant did not write pro-Maoist articles for the newspaper and was not labelled a Maoist by the Nepalese authorities.’

4. Only one alleged error of jurisdiction is identified by the applicant.  The applicant argues that the Tribunal required that the applicant prove that he had been arrested or detained in order to satisfy the Tribunal that he had a well-founded fear of persecution.  The applicant says that in doing so the Tribunal imposed a more substantive onus or lawful obligation upon the applicant than is required under the Migration Act 1958 (Cth).

5. In my view, this is an incorrect analysis of the reasoning of the Tribunal.  The question which the Tribunal was answering was not whether or not Maoists were persecuted.  It accepted that Maoists were persecuted.  The question was whether the applicant was a Maoist.  The Tribunal’s analysis of whether or not the applicant had been arrested or detained was simply to test the applicant’s own case that he was a Maoist journalist.  There is nothing whatever in the Migration Act 1958 (Cth) or in the common law that would suggest or infer that it is a jurisdictional error to make a credibility finding against a person. That is all that has occurred here.

6. There was plainly no error in the reasoning or approach of the Tribunal.  No jurisdictional error has been identified, and 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