SZALG v Minister for Immigration - [2004] FMCA 289

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZALG v MINISTER FOR IMMIGRATION

[2004] FMCA 289

MIGRATION – Review of RRT decision – where applicant claimed to be a member of the Maoist party in Nepal – where Tribunal did not find applicant to be a credible witness – whether it was open to the Tribunal on the evidence to determine that the applicant was not a member of the Maoist party and did not have a well-founded fear of persecution – whether the applicant essentially seeking merits review.

NAHR v MIMIA [2004] FCAFC 10
MIEA v Wu Shan Liang (1996) 185 CLR 259

Applicant:

SZALG

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 671 of 2003

Delivered on:

30 April 2004

Delivered at:

Sydney

Hearing date:

30 April 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in Person

Counsel for the Respondent:

Mr G Peek

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the respondent's costs assessed in the sum of $3000.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 671 of 2003

SZALG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Nepal, he arrived in Australia on 2 July 2001. On 8 August 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 13 November 2001 a Delegate of the Minister refused to grant a protection visa and on 4 December 2001 the applicant applied for a review of that decision from the Refugee Review Tribunal. The Tribunal conducted a hearing which the applicant attended on 13 November 2002. On 15 November 2002 the Tribunal determined to affirm the decision of the Delegate, it handed down that decision on 11 December 2002.
On 29 April 2003 the applicant filed an application in this court for a review of the decision of the Tribunal, he stated in his form that he disagreed with the decision made by the Tribunal and by the Delegate and would like to ask the Federal Court to consider his application relevantly and make a fair decision. He also stated that country information was not sought when he was at the Tribunal for a hearing, he was not informed clearly about the country information which was relevant to his circumstances.
The applicant claims to have a well-founded fear of persecution for the Convention reason of political opinion. He stated that he joined the Maoist Party in September 1999 and from then until June 2001 he worked as a full-time activist and campaigner within the party. His role was to inform students about the policies of the party, as well as to spread general awareness about the Maoist Party at communal gatherings. He was involved in distributing pamphlets and putting up posters about the party and its activities. He stated that he was paid approximately $A50 per month by the party and he subsisted with the benefit of some assistance from a relation and also, from a farm which he owned in the mountains.
The applicant told the Tribunal that as a result of his involvement with the party he experienced harassment from the authorities. In June 2000 he and about five or six other Maoists were pasting posters in a neighbouring village. The police were patrolling in the distance and would have arrested them but they managed to run away before they were caught. He also told of an incident where the police came to him and told him that unless he disappeared he would lose his life. This occurred in July 2000, thereafter he went underground, collected sufficient funds to enable him to escape to Australia, obtained a visa for Australia and left Nepal.
In its reasons for decision the Tribunal sets out in some detail country information concerning the situation in Nepal as it was at the time of the hearing, this included dissertations upon the origins of the Maoist Party within that country and reports about its activities and about the counter-activities of the government forces. This is information which is not particularly about the applicant but is just about a class of persons, of which the applicant is a member, namely, the Maoist Party: s.424A(3)(a) Migration Act .
The Tribunal did question the applicant about the situation in Nepal and in particular, the situation concerning persons who were members of the Maoist party. At [CB 111] it says:
“ The Tribunal put the independent evidence before it to the applicant stating that it was significantly different from what he had told the Tribunal.”
In the event the Tribunal did not accept that the applicant was involved in the Maoist Party, or that any specific adverse interest had been displayed towards him by the police or anyone else arising from his activities. The Tribunal reached those conclusions for the following reasons:
(a)The applicant's oral evidence about the Maoist Party, it's ideology and history was vague and expressed in general terms and he was unable to explain in any meaningful way how the Maoist party was different to other Communist parties in Nepal. In addition, the applicant did not know how the Maoist Party was formed. The Tribunal found that it was inconceivable that the applicant could be involved in the Maoist Party and yet, be unable to display some basic or tentative knowledge of these matters;
(b)The Tribunal noted that care must be taken not to require an unreasonable level of knowledge or sophistication from the applicant about the aims and history of the party however, in the circumstances of this case the applicant has sought to portray himself as an activist and campaigner who was trying to attract people to the party. The Tribunal noted that, in view of this, it was surprising that the applicant was not able to demonstrate a more detailed knowledge of the history of the Maoists and commitment to the ideology and objectives of that party;
(c)The Tribunal felt that the applicant's evidence about why he became involved with the party to be unconvincing. It noted that his own evidence was that he had not been a political activist of any kind before joining the Maoists and his readiness to joint the most radical and violent political group in Nepal appear inconsistent with a background devoid of political interest and knowledge.
(d)The Tribunal noted that there were inconsistencies between the applicant's original claims regarding the attention he received from police and the evidence he gave before the Tribunal. The Tribunal found that these inconsistencies would not necessarily be fatal to the applicant's claim but coupled with his lack of any real knowledge of the Maoists and his unconvincing reasons for joining the Maoists indicated that the applicant had fabricated his claims with respect to being a member of that party or being of any adverse interest to the Nepalese authorities.
Because the Tribunal had come to these conclusions it followed that it was not satisfied that the applicant had a well-founded fear of persecution on the basis of his claimed involvement with this political party.
In NAHR v MIMIA [2004] FCAFC 10 the Full court said:
“To engage in fact finding about the merits of the applicant's case is no part of the function of the court, whether at first instance or on appeal in dealing with an application for relief under section 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”
To the extent that the Tribunal came to its conclusions on the basis of its views about the appellant's credibility, I note that Kirby J said in MIEA v Wu Shan Liang (1996) 185 CLR 259 at 291-292:
“The decision maker will usually have advantages over the reviewing judge in evaluating evidence and submissions. Those advantages will include the conventional ones of seeing any parties and witnesses who are heard and having time to reflect upon all of the material. But there are additional reasons for restraint and resistance to any temptation to turn a case of traditional review into effectively a reconsideration of the merits. Often, the decision maker will have more experience in the consistent application of applicable administrative rules to accrue fairness for a wider range of people that typically come before the court.”
I am satisfied that this applicant has not been able to put before me any ground upon which I can find jurisdictional error in the decision of the Tribunal. In his own submissions he argued that the Tribunal had been wrong to find that low status members of the party were not liable to persecution. But in fact the Tribunal did not find that he was a low status member, it found that he was not a member at all. The applicant pointed out that the situation in Nepal was getting worse. I have absolutely no doubt of that. The newspapers are constantly reporting incidents of terrorism and abuse of civil rights in that unfortunate country. However, the situation today, the last of April 2004, is not the situation that existed when this matter was heard by the Tribunal. That is the date on which the situation must be judged.
I must dismiss the application, which I do. I order that the applicant pay the respondent's costs which I assess in the sum of $3000.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Rules.

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

Associate:

Date: 7 May 2004