SZAMF v Minister for Immigration

[2004] FMCA 357

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAMF & ORS V MINISTER FOR IMMIGRATION [2004] FMCA 357

MIGRATION – Application for review of Refugee Review Tribunal decision – whether perceived rudeness of Tribunal member and alleged prejudgment in conduct of hearing constituted jurisdictional error.

Migration Act 1958

Welivita v Minister for Immigration & Ethnic Affairs, FCA Lindgren J NG958 of 1995, 18 November 1996 unreported
Kioa v West (1985) 159 CLR 550

Minister for Immigration & Multicultural Affairs; Ex parte AB (2000) 77 ALR 225

VFAB v Minister for Immigration & Multicultural & Indigenous Affairs  [2003] FCA 872

Jia Legeng v Minister for Immigration & Multicultural Affairs (1999) 93 FCR 556

Applicant: SZAMF & OTHERS

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ710 of 2003

Delivered on: 8 April 2004

Delivered at: Sydney

Hearing date: 8 April 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms R Francois

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the application be dismissed.

2. That the applicant pay the respondent’s costs set in the amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ710 of 2003

SZAMF & OTHERS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 30 July 2002 affirming a decision of a delegate of the respondent refusing to grant the applicant a protection visa.  The applicants are husband, wife and child who are nationals of Nepal.  Only the applicant husband made specific claims under the Refugees Convention.  I refer to him hereafter as the applicant. 

2. The applicant entered Australia on a student visa in April 1993.  He returned to Nepal in December 1995.  He came back to Australia in February 1996 and was followed by his wife, whom he had married in Nepal, in March 1996.  Their child was born in Australia in February 1997.  They lodged the application for protection visas on 13 June 2000.  The applicant claimed to have a well founded fear of persecution in Nepal.  He claimed first to have a fear of persecution based on his political opinion as a member of the Maoist United Peoples Front.  There was some initial confusion over whether he was referring to Maoists or Marxists that was clarified by the time the matter was before the Tribunal. 

3. In his statements and evidence before the Tribunal he claimed that as a youth he had opposed the Government and had been imprisoned for a week and forced to run away to India.  He attended University in India between 1989 and 1991.  He told the Tribunal that he joined the Maoists in December 1995 during his three month trip back to Nepal from Australia.  A Maoist insurgency or ‘People’s war’ was launched in 1996 which was repressed by the government.  He claimed that the police began killing suspected Maoists and that Nepalese citizens did not have the right to choose to belong to any party other than the ruling government.  He claimed that he feared that he would be harmed or killed in Nepal as a well known member of the movement and because his name would be on a hot list of Government targets. 

4. The applicant later claimed that he had resigned his membership of the Maoists after they abandoned peace talks in November 2001 and attacked civilians, and that as Maoists were now attacking those who had left the party he feared that he would be attacked by them if he returned to Nepal. 

5. The Tribunal wrote to the applicant on 6 May 2002 advising him that it was unable to make a decision in his favour on the basis of material before it and invited him to attend a hearing.  The material before the court indicates that he responded to the hearing invitation that he wished to attend the hearing and would be accompanied by his wife and daughter.  The hearing information form records that he attended a hearing on 8 July 2002 which commenced at 9.36am and concluded at 11.15am. 

6. The Tribunal did not accept that the applicant would face a real chance of persecution if he returned to Nepal.  It accepted that, as a teenager, the applicant had been active in the Maoist affiliated student union at his college for several months and that he was involved in some local campaigning for an election, that he was absent from Nepal for two years from 1989 to 1991, and that he resumed contact with the left in December 1995.  It also accepted that he became a member of the UPF (United Peoples Front) and undertook some propaganda work for them in villages for a few weeks before leaving Nepal in February 1996.  The Tribunal found that he had not since been engaged in political activities or had any other party involvement and that his only other relevant contact with the Maoists was the letter in which he disavowed them in late 2001. 

7. The Tribunal was satisfied on the basis of the material before it that the applicant did not claim to have been and was not of adverse interest to the Nepalese authorities because of his Maoist involvement at the time he left Nepal in February 1996.  It had regard to his limited previous involvement with the authorities and the fact that when he joined the UPF in December 1995 it had not moved to violence or been banned.  At the time he spoke to villagers it was legal to express opinions openly in public.  He left Nepal without difficulty. 

8. The Tribunal found that, given the applicant's total lack of any active involvement in the Maoist party during the next six and a half years, during which time he did not return to Nepal, it was difficult to see a basis on which he might have become of adverse interest to the Nepalese authorities or developed a profile as a ‘well known Maoist’ or as a ‘hot target’ on a hit list as claimed.  Although the Maoist insurgency had escalated thereafter the applicant had been overseas and was not involved in it. 

9. In addition to the low level of involvement of the applicant and the implausibility of the claim that the authorities would suspect him of being involved with the Maoist insurgency given his presence in Australia during this time, the Tribunal had regard to independent country information that indicated that people were not targeted in Nepal simply because they had Maoist or Communist political opinions but rather that the Maoists were banned by the Government because of their criminal terrorist activities.  The Tribunal was satisfied that if the applicant were of current adverse interest to the authorities that this would not be because of his political opinion but that the essential and significant reason would be suspected involvement or actions in support of armed and violent insurrection by the Maoists.  To the extent that the applicant may, on return, face any investigation or arrest on reasonable suspicion of involvement in criminal actions or armed insurrection, that did not of itself amount to persecution for a Convention reason (see Welivita v MIEA, FCA Lindgren J NG958 of 1995, 18 November 1996 unreported). 

10. However the Tribunal was not persuaded that the applicant was a significant figure in the Maoists, or a subject of adverse interest by the Nepalese authorities, having regard to his limited activities in the past and found that it was implausible that he would be suspected of being involved in the insurrection given his presence in Australia.  On this basis the Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Convention reason by the authorities. 

11. The Tribunal also considered the claim that the applicant would be targeted by the Maoists because he had deserted them and/or because he has applied for refugee status in Australia and would not fight for them on his return and/or because he had disappointed their high expectations of him as an influential and impressive figure who they regarded as of ‘leadership quality’.  However, the Tribunal found, in light of the applicant's history and circumstances, it was not satisfied that the applicant was or is as significant a figure for the Maoists as he perceived himself to be, given his limited involvement in the party in early 1996.  While the Tribunal stated that it may be that some former friends and political colleagues in the applicant’s village felt betrayed and motivated to harm him, it was not satisfied that he had a profile of significance which might plausibly lead the Maoists to seek and target him elsewhere in Nepal (in a situation where the Maoists were under considerable pressure from Government forces making effective efforts to protect the population from their attacks).  The Tribunal was not satisfied that the applicant faced a real chance of persecution for a Convention reason in Nepal.  His family members made no claims of their own accord.  The Tribunal concluded that it could not make a decision on the basis of humanitarian considerations raised by the applicant. 

12. In his application for review the applicant claimed that the decision of the Tribunal was based on ideological perception, negligence and misjudgment.  He was not satisfied with the manner in which the Tribunal member had handled the hearing.  He claimed that there was a presumption that he was not a refugee, that the Tribunal member did not listen to his arguments but was constantly looking at the clock hanging on the wall behind the applicant and that he (the applicant) was distracted throughout the hearing, particularly when the Tribunal member raised the issue of whether or not he could go and live in India.  The applicant claimed that he was somewhat stunned by this suggestion and had nothing to say thereafter. 

13. The applicant did not file any amended application or written submissions.  In the hearing today he made oral submissions expanding upon his complaints.  He submitted that the Tribunal had not conducted the hearing properly and that he felt that he had not been treated fairly.  According to the applicant, in addition to looking at the clock and referring to the possibility of a move to India, the Tribunal member had also raised doubts about whether or not he was a politician based on the fact that he was a cook.  There were also said to be difficulties with the body language of the Tribunal member.  The applicant claimed that the Tribunal did not extract the truth of independent country information before it, that the reasons were vague and that the Tribunal had not given him any assurance that his return to Nepal could be safe or a guarantee that if he moved to a particular place in Nepal that he would be safe. 

14. I have considered the material before me and the claims made by the applicant in determining whether there any jurisdictional error.  In relation to the conduct of the Tribunal hearing, the material before the court in this respect is the reasons for decision and the supporting documentation.  The applicant makes a number of claims, in particular in relation to the Tribunal Member looking at the clock and the questions raised, the issues put to him at the Tribunal hearing in relation to his occupation, whether or not he was a politician and whether or not he could either relocate in Nepal or move to another country, in particular the country of India. 

15. The applicant's claims may be seen as alleging bad faith, an absence of bona fides, apprehended bias or a lack of procedural fairness. I have considered each of these possibilities. First I note that the Tribunal is obliged to invite the applicant to a hearing and has done so in accordance with its obligations under Section 425 of the Migration Act 1958. It is obliged to put critical issues to the applicant and to give him an opportunity to comment (see Kioa v West (1985) 159 CLR 550). Tribunal proceedings are inquisitorial, it has necessarily to put to the applicant and raise with him matters of concern. The conduct of the hearing is to be seen in light of the obligations that The Tribunal has in that regard.

16. On the material before me and, indeed, even taking the applicant's allegations at their highest, there is nothing before me that establishes bad faith.  Proof of bad faith involves proof of extreme circumstances.  It is a serious allegation which should not be made lightly.  The allegations do not establish that there has been bad faith on the part of the Tribunal.  Nor is there anything in the material before me to suggest any prejudgment by the Tribunal in any sense constituting actual bias. 

17. Nor, even taking the applicant’s complaints at their highest, do such complaints establish apprehended bias.  Even if the applicant perceived what he saw to be looking at the clock as rudeness and understood comments which raised issues with him as rudeness, this would not be sufficient, without more, to ground an allegation of apprehended bias.  The complaints do not suggest sustained ill-temper.  As Kirby J indicated in MIMA; Ex parte AB (2000) 77 ALR 225 at [12] and [20] isolated incidents of anger, momentary outbursts or misunderstandings do not establish actual or apprehended bias or breach of the rules of natural justice or lack of procedural fairness. Moreover, it is proper for the Tribunal to put to the applicant issues of concern. It was also proper for the Tribunal to put to the applicant the possibility that he could move to another country such as India in the circumstances in this case. The conduct complained of by the applicant does not constitute apprehended bias (VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872). I am not satisfied on the material before me or the claims made by the applicant that the circumstances are such that a reasonable or fair minded lay person who understood the nature of the inquisitorial process that the Tribunal has might be led to believe that the Tribunal might not bring an impartial mind to the task. (See Jia Le Geng v MIMA (1999) 93 FCR 556). The Tribunal reasons for decision indicate that the Tribunal had regard to the claims made by the applicant and considered those claims. The disagreement by the applicant with the merits of the Tribunal decision and the conclusions that it reached in that regard does not establish a lack of bona fides or indeed a lack of procedural fairness in the manner in which the hearing was conducted.

18. As to the applicant's submissions in relation to the Tribunal treatment of the independent evidence, the weight to be given to any piece of independent evidence is a matter for the Tribunal.  The applicant's complaints in this respect are, to some extent, complaints which sought merits review.  Merits review is not available in this court.  The applicant submitted specifically that there was an acknowledgment by the Tribunal of the harsh treatment of the Maoists yet it concluded that he had no real chance of persecution.  However the Tribunal findings in this respect were based on the low profile that the Tribunal found the applicant to have and also the fact that he had not been engaged in any relevant activity since leaving Nepal in February 1996.  Given his total lack of any active involvement since that time the Tribunal did not accept that he might be of adverse interest to the authorities or that he had developed a profile or would be on a Government hit list.  This does not involve any inconsistency with the material in relation to government treatment of the Maoists. 

19. In relation to his claim that he would be at risk from the Maoists, the applicant raised a concern that the Tribunal had stated that security forces would protect civilians when this was not the case.  However there is no such statement by the Tribunal in the findings and reasons part of the Tribunal reasons for conclusion.  There is independent evidence in relation to the current situation in Nepal.  The Tribunal does not suggest generally that Nepal is a safe country.  However in the context of considering whether the applicant had a well-founded fear on the basis of his claimed disavowal of Maoist association, the findings in relation to relocation were open to the Tribunal.  Contrary to the applicant’s submissions it was not necessary for the Tribunal to suggest a particular place for him to live other than outside his local village. 

20. The contentions made about the vague and contradictory nature of the Tribunal reasons for decision do not establish a jurisdictional error in the manner contended for by the applicant or indeed in any other manner.  The manner in which the Tribunal assessed the independent information was open to it on the material before it.  The findings that the Tribunal made were open to it on the material before it.  The fact that the applicant disagrees with the Tribunal conclusions or the Tribunal assessment of him and of his claims does not establish an absence of procedural fairness or that the Tribunal has fallen into jurisdictional error in any other way. 

21. As no jurisdictional error is apparent the application must be dismissed.

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful. It is appropriate that he meet the respondents costs. He indicates that he has two children to feed and raises, indirectly, his impecuniosity. Impecuniosity of itself is not a reason not to award costs against an unsuccessful applicant, although it is a matter that may be taken into account by the Minister in determining how and when to recover costs. The Minister seeks that the court set the costs in these proceedings. Having in mind the nature of this and other similar proceedings I consider that an appropriate amount is the sum of $4,000 and that costs should be fixed in accordance with the Federal Magistrates Court Rules.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  18 June 2004