SZALL v Minister for Immigration - [2004] FMCA 286

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZALL v MINISTER FOR IMMIGRATION

[2004] FMCA 286

MIGRATION – Review of decision of RRT – where applicant is concerned that Tribunal did not see certain critical documents – where no such documents produced – where applicant seeks to challenge Tribunal’s findings of fact.

Federal Magistrates Court Rules 2001, Pt 21, r 21.02(2)(a)
Migration Act 1958 (Cth), s.91R

Applicant:

SZALL

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 686 of 2003

Delivered on:

28 April 2004

Delivered at:

Sydney

Hearing date:

28 April 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in person

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay respondent’s costs in the sum of $3,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 686 of 2003

SZALL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant in this matter is a citizen of Nepal. He arrived in Australia on 25 March 2000. On 20 April 2000 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 9 May 2000 a delegate of the Minister refused to grant the protection visa and on 23 May 2000 the applicant applied for a review of that decision. The Tribunal wrote to the applicant on 24 April 2002 advising him that it had looked at all the material relating to his application but was not prepared to make a favourable decision on that information alone.
The applicant was invited to a hearing which took place on 9 July 2002. The Tribunal made its decision on 30 September 2002 which was to affirm the delegate's decision not to grant a protection visa. The decision was handed down on 23 October 2002. The applicant's claim to have a well founded fear of persecution for the Convention reason of political opinion arises out of his claimed membership of the Maoist faction in Nepal. He stated that he had joined that party in 1996 after his uncle had influenced him. He told the Tribunal about two incidents which occurred in December 1998 and September 1999 whilst putting up posters spreading Maoist propaganda.
On both these occasions the police arrived brandishing sticks and batons and attacked him and the group who were putting up the posters. He claimed that in the second incident several colleagues were killed. The applicant claimed that he continued to be persecuted because of his membership and activities for the Maoists. He claimed that he was unable to remain in his home and had to run away and stay underground in order to avoid injury and death.
The applicant had obtained a passport in February 1999 but he did not depart Nepal until late March 2000. He did this on a business visa indicating that he was a director of a trekking company in Kathmandu. The applicant denied this. He says this was a company being run by his brother and it was used by him for the purposes of obtaining a visa to Australia. The applicant claimed that for a considerable period after the 1999 incident he had to remain out of his home village in order to avoid the police and whilst he organised his escape.
The Tribunal questioned the applicant closely about his association with the Maoist Party and about the constitution and aims of the party itself. It put to the applicant certain independent evidence concerning the activities of the Maoists within Nepal. At [CB 80] the Tribunal sets out its reasons for coming to the conclusions that the applicant did not have a well founded fear of persecution for a Convention reason. It said:
“ I am mindful that care must be taken not to require an unreasonable level of knowledge or sophistication from the applicant about the aims and objectives of the Maoist Party or its history and formation. However, in the circumstances of this case the applicant had sought to portray himself as a person who campaigned on behalf of the party and who explained the aims and objectives of the Party to villagers. In my view if the applicant had been involved at the level he sought to portray himself then it is surprising that he was not more forthcoming and more detailed in his evidence about the objectives of the Maoists, their policies and how they proposed to bring about change.
Further, overall the applicant did not impress me as a frank witness. At pages 7-8, 9-10, and 12-13 of this decision I have set out in some detail the manner in which the applicant gave his oral evidence and the substance of that evidence as it related to his employment history, where he was living in Nepal before he came to Australia, the circumstances surrounding his departure from Nepal, when his family went to Kathmandu and his claims of being assaulted by other villagers in his village. There were a number of discrepancies between accounts provided by him in his written statement to that given in his oral evidence.
The Tribunal then goes on to set out a number of instances where it was not satisfied of the evidence of the applicant and at [CB 81] concludes:
For these reasons I am not satisfied on the evidence before me that the applicant has given a reliable account of his experiences or activities in Nepal. I do not accept that he was involved in the Maoist Party and I do not accept that he engaged in any of the activities he has described in support of the Party. Nor do I accept that he was threatened in the way he has described or that he was attacked by the police in the circumstances he has described. I do not accept that he had any difficulties leaving Nepal such that he needed assistance at the airport as he has asserted, or that his family has been harassed or that the police are looking for him. I do not accept that the police held an adverse interest in him arising from his claimed activities in the Maoist Party. Accordingly, I am not satisfied that the applicant has a well-founded fear of persecution on the basis of his claimed involvement in the Maoists.”
The applicant had also made some reference to his membership of the Magar caste, which is a low caste and which he claimed to have suffered endemic discrimination for being a member of. The Tribunal noted that no details were provided in support of this claim and because there was no information regarding the nature and extent of the discrimination claim it was unable to conclude that the applicant may have suffered Convention related persecution as a result of his membership of it.
The applicant filed an amended application of some 11 paragraphs. The amendment stated in paragraph 1 his citizenship and that he was seeking refugee status and gave the reason therefore. Paragraph 2 is silent. Paragraph 3 says that in the applicant's opinion the Tribunal failed to recognise the necessity in (sic) applying the definition of refugee circumstances of and independent country information. It continued that the Tribunal expressed a reluctance to take into account his oral evidence.
To the extent that this articulates a ground of review, it seems to me that it is merely an application for a different construction to be placed upon the applicant's evidence from that which the Tribunal accepted. Paragraph 4 is in the following form:
“It is quite true that the Tribunal took the view that in the absence of an executive certificate, it should not examine the evidence of the executive's attitude to sovereignty over Nepal.”
I regret that I am unable to construe this claim. It was not referred to by the applicant in his oral submissions. The fifth, sixth and seventh claims seem to me to be standard complaints that there was no evidence to justify the making of the decision and that otherwise the decision was not made by reference to the Migration Act 1958 (Cth) (the “Act”) I am quite satisfied that none of these complaints have been made out. Paragraphs 8, 9, 10 and 11 deal with factual matters and seem to complain that the applicant is not accepted as a truthful witness.
When the matter came before me today the applicant appeared on his own behalf. He told me that his main complaint was that he did not have any documents with him to prove that he was a member of the Maoist Party. He had the documents in Nepal but he was unable to bring them to this country. He told me that he had tried to convince the Tribunal verbally about his membership but it did not believe him. There is no evidence in the Tribunal's decision that the applicant ever said to it that he had certain documents which he could produce or that he asked the Tribunal for further time so that those documents could be produced. They have not been produced yet.
If the Tribunal did not know there were any documents then it can hardly be an error in law in not dealing with them. It was quite clear from the authorities that the applicant has the responsibility not of proving his case to some standard but of satisfying the Tribunal that he is a person who falls within the Conventional definition in s 91R of the Act. It is necessary for him to produce such evidence as he can that would enable the Tribunal to reach that state of satisfaction.
The real complaint of the applicant was that the Tribunal had not reached that state of satisfaction. The Tribunal came to that view having heard what he had to say but, for the reasons it gave, not accepting those statements. These are matters which are clearly within the power of the Tribunal. They are factual matters and factual matters are the Tribunal's raison d'etre.
I am unable from my reading of the court book or from what I have heard from the applicant himself to find any grounds upon which I could review this decision. I must therefore dismiss his application, which I do, and order that the applicant pay the respondent's costs which I assess in the sum of $3,000 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: