SZALD v Minister for Immigration - [2004] FMCA 271

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZALD & ANOR v MINISTER FOR IMMIGRATION

[2004] FMCA 271

MIGRATION – Review of RRT decision – where applicants claimed to be members of the Maoist party in Nepal – where Tribunal did not find applicants account of their Maoist involvement as credible – whether Court should refuse to grant review of Tribunal’s decision because of delay in lodging review application – whether applicants essentially seeking merits review of RRT decision.

Migration Act 1958 (Cth), s.91R

Prahastono v MIMA (1997) 77 FCR 260
MIMIA v Kord (2002) 67 ALD 28

First Applicant:

SZALD

Second Applicant:

SZALE

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 667 of 2003

Delivered on:

23 April 2004

Delivered at:

Sydney

Hearing date:

23 April 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in Person

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicants to pay the respondent’s costs assessed in the sum of $4,750 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 667 of 2003

SZALD

First Applicant

SZALE

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicants in this matter are husband and wife. They are citizens of Nepal. The husband arrived in Australia on 26 April 2000, the wife arrived on 15 July 2001. The husband applied for a protection visa on 18 May 2000, the wife applied for a protection visa on 28 August 2001. A delegate of the Minister refused the husband's application on 13 June 2000 and another delegate refused the wife's application on 4 April 2002. They both applied for review of those decisions and the Tribunal held a hearing into their claims on 11 June 2002. On 15 July 2002, the Tribunal decided to affirm the decision of the delegates and handed down that decision on 6 August 2002.
Both applicants claim to have a well-founded fear of persecution for the Convention reason of political opinion. The husband claimed that he had joined the Maoist party in Nepal in late January 1999. He had married in 1998. His wife claimed that she also joined the Maoist party in 1999. Of the two, the husband was the more active but it is his claim that he was a low-level member. His duties included putting up posters and discussing Maoist political views with people in his area. His wife also put up posters but with less frequency than her husband. They told the Tribunal that they were influenced to join the party but because it claimed that it would overthrow the unfair caste system that exists in Nepal.
Neither the husband nor the wife claimed to have suffered physical persecution themselves but it is notorious that human rights abuses are prevalent in Nepal and that a person identified as an active Maoist could expect to be arrested and possibly tortured or killed. It is equally notorious that Maoists activists have conducted terrorist activities against persons and institutions connected with the Government.
The applicant claimed that after the police began to make investigations into Maoist activities within his local area he became less active and determined to leave the country as soon as possible. He had a passport which had been issued to him on 29 April 1998 but he did not leave the country until April 2000 a year after he had been caught in the act of pasting pro-Maoist posters and was almost arrested by the police. In respect of this matter and of other claims by the applicant, the Tribunal concluded at [CB 308] – [CB 309]:
“The Tribunal finds the fact that he remained in his district and in Nepal to be inconsistent with his claim that he had been identified by the authorities as a Maoist. There is a large amount of evidence before the Tribunal that the Nepalese authorities and the police in particular have, since 1996, conducted a virile and ruthless anti-Maoist campaign committing numerous human rights abuses and they have arrested thousands of people aimed at locating Maoist members. Given this background, it is implausible that the applicant would have remained in the same place of residence as before the incident for over one year, continuing with his pro-Maoist activities, if he were afraid of being caught by the police as he has claimed.”
The Tribunal also disbelieved certain other claims by the applicant concerning his association with the Maoists and his knowledge of their activities. After making these points it said at [CB 309]:
“The Tribunal has reached a state of positive disbelief with regard to the applicant's husband's claims and finds that he did not join the Maoists, that he was not involved in any activities on behalf of Maoists and did not come to the adverse attention of the Nepal authorities in March 1999 or at any other time because of his Maoist activities.”
The Tribunal then turned to the wife's claims. It said at [CB 310]:
“The Tribunal accepts that the applicant wife used a false passport to travel to Australia. However, it does not follow from that she did so because she had come to the adverse attention of the Nepalese authorities for being a Maoist activist/member or because there was any chance she would have been caught for that reason. Indeed the applicant's wife's own evidence at the hearing was that when the police came looking for her husband they were not interested in her "because she was an ordinary member". Moreover, according to her own evidence, at no time did the police or other Nepalese authorities harass her for her own activities.”
The Tribunal concluded that the fact that the wife did not come to the adverse attention of authorities is strong evidence that she was not involved in any Maoist activities at the time.
The applicant filed his application to this court on 29 April 2003, about nine months after the decision. Mr Reilly argues that even if I should come to the view that the Tribunal erred in the jurisdictional sense, I should not grant review because of this time delay. This is not a submission that I would accept. The situation in Nepal is so notoriously devoid of human rights that to deliberately refuse a review when jurisdictional error has been found and thus sentence the applicant possibly to death would be, in itself, an almost criminal act.
But that is not the matter with which I need concern myself. The applicant, in his application, said:
“ We disagree with the decisions made on our application by the RRT and the DIMIA. We would like to lodge an application for a fair decision at the Federal Court. Please accept our applications for a fair decision to be made by this Court.”
It is clear from this wording and from the representations made by the applicant to me today, that what he and his wife were seeking was reconsideration of the Tribunal's reason for decision so that they could be considered true refugees. The applicant sought to explain to me why he was delayed in leaving Nepal. He sought to explain his position as a low profile activist. He did make reference to the obligations found in s.91R of the Migration Act 1958. In this regard, I imagine that he was referring to s.91R(2). He suggested that the Tribunal did not take these matters into account. I cannot agree that that is the case. The Tribunal was quite clearly aware of the human rights situation in Nepal and the danger to a person who might be identified as a Maoist. But the Tribunal came to the conclusion, as a matter of fact, that neither the applicant nor his wife were Maoists, to the extent that they may have been official members of the party and could be identified as such. The findings of fact are the very essence of the Tribunal's responsibilities and whether the Tribunal decides that discrimination amounts to serious persecution within the confines of s.91R(1)(b) of the Act is a factual matter for it alone; Prahastono v MIMA (1997) 77 FCR 260 at [268]; MIMIA v Kord (2002) 67 ALD 28 at [3] per Heerey J, [53]-[56] per Marshall and Dowsett JJ.
The arguments put by the Tribunal for making the findings that it made are not devoid of logic. They are not founded on non-existent facts. They are conclusions that can be fairly drawn from the information provided by the applicant and the known country information that was discussed with him. Another Tribunal may have taken a different view but that, in itself, would not allow this court to give review of the decision.
In all the circumstances I must dismiss this application. I order that the applicants pay the respondent's costs, which I assess in the sum of $4,750 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 4 May 2004