SZAMU v Minister for Immigration
[2004] FMCA 350
•27 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAMU v MINISTER FOR IMMIGRATION | [2004] FMCA 350 |
| MIGRATION – Review of RRT decision – where applicant claimed to have a well-founded fear of persecution for convention reason of political opinion – where, having regard to inconsistencies in applicant’s evidence and country information, the Tribunal did not find him to be a credible witness – whether the findings and reasons of the Tribunal evidences jurisdictional error or a denial of procedural fairness. |
NAHR v MIMIA [2004] FCAFC 10
| Applicant: | SZAMU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 720 of 2003 |
| Delivered on: | 27 May 2004 |
| Delivered at: | Sydney |
| Hearing date: | 27 May 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in Person |
| Counsel for the Respondent: | Mr M Wigney |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the respondent's costs assessed in the sum of $3,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ720 of 2003
| SZAMU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Nepal who arrived in Australia on
22 October 2000. On 17 November 2000 he lodged an application for a protection (class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 10 January 2001 a delegate of the Minister refused to grant a protection visa and on 5 February 2001 the applicant applied for review of that decision.
The Tribunal held a hearing, which the applicant attended, on 25 July 2002. It came to its decision to affirm the decision of the delegate on
5 August 2002 and handed it down on 26 August 2002.
The applicant claims to have a well-founded fear of persecution for the convention reason of political opinion. He says that he is a member of the Maoist Party in Nepal. He says that he joined that party in about April 2000 which was six months before he left for Australia. He claims that he worked as a campaigner and activist and that he was persecuted and assaulted by the police and opposition parties. He stated that when the Maoists came to his village his job was to distribute pamphlets, paste up posters and gather people from the village. The applicant told the Tribunal that the police had found out about his activities approximately four months before he left Nepal and then started looking for him. He said that he was required to hide in the jungle when the police came.
The Tribunal asked the applicant a number of questions concerning his association with the Maoist Party and his activities in Nepal. The applicant was unable to give very clear evidence about the Maoist Party and seemed to have a somewhat limited knowledge of its aims and activities. There was also some discrepancy between the story that the applicant was telling about being wanted by the police and the time he spent in his home village. He had told the Tribunal that he left for Kathmandu about two months before he left for Australia.
There were two specific matters which the Tribunal took up with the applicant. Firstly, he was asked about the form of his Maoist Party membership document. The document which the applicant described did not correspond to information provided to the Tribunal which the Tribunal had as part of some DFAT circular.
The inconsistencies were put to the applicant [CB 91]. The second point raised directly by the Tribunal was that the applicant's home village was not in an area of Maoist activity until very recently and certainly not at the time that he was living there. This was something which the applicant did not accept.
The Tribunal also noted that the applicant had difficulty in describing what the Maoist Party stood for and claimed that he had never heard of the People's War which was a fundamental tenet of the Maoist Party in Nepal. The Tribunal explained to the applicant [CB 92] that it did not understand why the police had not arrested him if they were looking for him. There was debate between the applicant and the Tribunal as to whether or not the police could have surrounded his house and thus prevented him from fleeing to the woods which he said he did. The Tribunal also noted that the police could have arrested him at the school where he taught but had not done so.
In its findings and reasons [CB 97] – [CB 98] the Tribunal concludes that it is unable to be satisfied that the applicant was a member of the Maoist Party and therefore it did not accept that he was wanted by the police because of his political opinions. The Tribunal concluded:
“For the above reasons I'm not satisfied and do not accept that the applicant was a member of a political movement "the Maoists" or the CPN-Maoist, before leaving Nepal and do not accept he was wanted by the police because of any political opinions held by him. The chance was remote that he would be subjected to convention based persecution when he left Nepal in October 2000. In the absence of evidence that this situation might have changed subsequently, I find that the applicant does not have a well-founded fear of convention related persecution in Nepal.”
In his application to this court dated 1 May 2003 the applicant states:
“I don't agree with the decision made on my application by the RRT and DIMIA, please consider my application very sympathetically. I wasn't informed of my country information very clear which is very important to my individual circumstances.
I would like to request that the Federal Court makes a fair decision on my application. I'm a genuine refugee and I want to be recognised as a refugee by the Australian Government under UN definition. I'm here to be protected not to be deported and be killed or jailed in Nepal.”
At the hearing today the applicant told me that he was involved in Nepal with the Maoists and if he goes back he will be persecuted. He then went on to say that it was very difficult for him to go back because of the fact that he was involved with the Maoists and it was very sad that the Tribunal did not believe what he had told it.
It is clear that the matters raised by the applicant do not constitute allegations of jurisdictional error in the manner in which the Tribunal came to its conclusion. The Tribunal made findings as to the credibility of the applicant's claim based upon facts which it elicited from the applicant and on independent country information which was properly put to the applicant for his response. The findings of the Tribunal were cogent, logical and open to it on the material that was before it. As the Full Bench said in NAHR v MIMIA [2004] FCAFC 10 at [10]:
“To engage in fact finding about the merits of the appellant's case is no part of the function of the court whether at first instance or on appeal ... 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.”
I am satisfied that the applicant was provided with every opportunity to comment upon information that was in any way material to the Tribunal's decision and that in this regard there was no denial of procedural fairness. In those circumstances I am unable to grant review of this decision. I dismiss the application, I order that the applicant pay the respondent's costs which I assess in the sum of $3,500.00 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 June 2004
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