SZANK v Minister for Immigration - [2004] FMCA 363

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZANK v MINISTER FOR IMMIGRATION

[2004] FMCA 363

MIGRATION – Review of RRT decision – where applicant claims to have a well-founded fear of persecution for convention ground of political opinion – whether it was open to the Tribunal to make a decision using generalised information or whether it was required to make specific direct enquires – whether Tribunal decision evidences bias.

Federal Magistrates Court Rules Part 21, Rule 21.02(2)(a)

NARE v Minister for Immigration [2003] FCA 554
Dranichnikov v Minister for Immigration [2003] 197 ALR
SBBA v Minister for Immigration [2003] FCAFC 90
Applicant S70 of 2003 v Minister for Immigration [2004] FCA 84
SCAA v Minister for Immigration [2002] FCA 668

Applicant:

SZANK

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 750 of 2003

Delivered on:

2 June 2004

Delivered at:

Sydney

Hearing date:

2 June 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in Person

Counsel for the Respondent:

Ms S Kaur-Bains

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,500

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 750 of 2003

SZANK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant in this matter is a citizen of Nepal, who arrived in Australia on 14 March 2002. On 23 April 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 24 June 2002 a delegate of the Minister refused to grant a protection visa, and on 15 July 2002 the applicant applied for review of that decision. The Tribunal arranged for a hearing to take place on 28 November 2002, and made its decision on 28 March 2003. The decision was handed down on 16 April 2003.
The applicant’s claim to have a well-founded fear of persecution for the convention reason of political opinion is based upon his membership of the Communist Party of Nepal (Unified Marxist-Leninist) group which he claims to have joined in January 2000. He told the delegate and the Tribunal that he had worked as a campaigner and activist with the party. His role was to attend informal meetings and spread awareness about the party.
The applicant claimed that he feared harm from the police and the army, that a friend who had introduced him to the CPN (UML) was killed by the authorities a short time before the hearing, and that any person who is a member of the Communist Party of Nepal is linked with the Maoists against whom harsh action is being taken by the Government. The applicant claimed that he had been detained for three days in March 2000 whilst he was putting up posters and again for one day in May 2000 following a party meeting.
The Tribunal's conclusions about the claims made by the applicant are contained between [CB 76] and [77]. Essentially, the Tribunal accepted that the applicant had connection with the CPNs (UML) from about 1997 onwards and that he left his home village in 1999. The Tribunal was prepared to accept that the applicant might have engaged in the type of activities referred to after 1999. But the Tribunal did not accept the applicant's evidence of when he actually joined the party or that he was detained on the two occasions, in March 2000 and May 2000. The Tribunal came to the conclusion that the applicant's evidence in this regard was contradictory as he had at first stated that he did not join the party until late 2000.
The Tribunal was also concerned that the applicant did not refer to the alleged detentions in his first written statement. At [CB 76], the Tribunal says:
“ Moreover, even if I were to accept the applicant joined the party in late January 2000 rather than late 2000, I do not accept that he was detained on two occasions in March 2000 and May 2000 because of his involvement with the CPN (UML). It is simply not plausible that the applicant would fail to refer to such detentions in his written statement to the Department and yet provide details of lesser police interest (see discussion at page 10). In addition it is highly unlikely that the police in Nepal could have mistaken him for a Maoist given the nature of the party activities he claims to have been involved with when detained. (See discussion at page 9 above.) [The Tribunal's reasoning in this regard was that if the applicant was putting up posters for CPN(UML) he was unlikely to have been considered to be a Maoist.]
More generally, and as put to the applicant at hearing, there is no independent evidence before the Tribunal to suggest that members of the CPN (UML) are targeted by the authorities in Nepal. The CPN (UML) is a major, legal and mainstream political party that participates in the democratic process in Nepal. Although currently in opposition, it has been part of coalition governments in the past. The applicant accepted this evidence, but claimed in essence that because it is a Communist party its members are suspected by the authorities to be Maoists. I do not accept this generalised claim, which finds no support in the independent evidence before me. Nor was the applicant able to offer any documentary evidence to support his claim.”
The Tribunal came to the conclusion that, having considered all the evidence before it, it could not be satisfied that the applicant had a well founded fear of persecution in Nepal because of his political activity or because of any other conventional reason.
On 5 May 2003, the applicant filed an application for judicial review with this Court. He said in his claim:
“I don't agree with the decisions made on my application by the RRT and DIMIA. Please consider my application for review of decision.
I would like to request that a fair decision to be made by this Court. I'm not satisfied with the way that I was asked questions at the RRT.”
Insofar as these grounds for review are still pressed by the applicant I would point to the helpful comments of Allsop J, in NARE vMinister for Immigration [2003] FCA 554 at [10]:
“ What the applicant may well not appreciate not being a lawyer, is that the process and purpose of review to this Court does not, and cannot, involve simple re-finding of facts found by the Tribunal. Rather, the review is, broadly speaking, to ensure that the Tribunal has made the decision lawfully - for instance asking itself the right question, affording procedural fairness, dealing with all matters which the Migration Act (1958) says must be dealt with, not dealing with matters extraneous to its task and correctly understanding the law to apply. It is not the Court's job to review the factual findings of the Tribunal unless their quality or the lack thereof is such as to betray a failure to undertake properly the required task. This is why it is not open to the primary Judge to receive fresh evidence going to factual matters decided by the Tribunal in an attempt to demonstrate factual error in those conclusions by the Tribunal.”
Before me today the applicant was more specific in his complaints. He argued that the decision was unfair because the Tribunal had not gone into any detail as to what was happening in Nepal and in particular had not considered his claims in the context of what was happening in his home village as opposed to what was happening in Nepal generally.
The respondent accepted that the information which the Tribunal utilised to obtain its views as to what was occurring in Nepal was of a general nature. It seems to me that the difficulty which the applicant faces in making this complaint is that he runs up against the requirement of an applicant to advance his own case as best he can: Dranichnikov v Minister for Immigration [2003] 197 ALR at 389; SBBA v Minister for Immigration [2003] FCAFC 90. It is not for the Tribunal to make direct inquiries regarding a particular area unless the applicant can point to some good reason why this should be done and provide at least some prima facie evidence that things are different there than they might be in general.
In this case the applicant accepted his responsibility for providing further information. He did that at the time of his interview with the delegate. Yet no information was forthcoming by the time the Tribunal had handed down its decision for some years later. In regard to the complaints about the country information that the Tribunal used I note that in Applicant S70 of 2003 v Minister for Immigration [2004] FCA 84, Hely J said at [27]:
“There can be no objection in principle to the RRT relying on "country information." The weight that it gives to such information is a matter for the RRT as a part of its fact‑finding function. The question of the accuracy of the country information is one for the RRT, not the Court: NAHI v MIMIA [2004] FCAFC 10.”
To the extent that the applicant's complaints suggest some lack of bona fides on the part of the Tribunal I do not believe that its articulation satisfies the tests suggested by Von Doussa J in SCAA v Minister for Immigration [2002] FCA 668 where his Honour said at [37] :
“A finding of actual bias against the decision‑maker is a grave condemnation of the ability of the decision‑maker to discharge his or her functions with impartiality. If demonstration of factual errors, faulty reasoning, and wrong‑headedness in published reasons for decision are, without more, to be translated into a finding of actual bias, the result, as Wilcox J observed in Sun Zahn Qui at 122, will be to substitute for an inquiry into the decision an inquiry into the character of the decision‑maker.
In my opinion, it would be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision ... The mere fact of adverse findings at the end of a matter give rise to no inference as to the state of mind of the decision‑maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision.”
Having considered the decision in this case as a whole, the Tribunal gave the applicant every opportunity to establish the matters which he sought to prove made him fall within the definition of a person to whom Australia held protection obligations. The Tribunal expressed the view that it could not be so satisfied, and that is the Tribunal's very function. In coming to that conclusion, I am satisfied the Tribunal did not stray into jurisdictional error, either in the manner suggested by the applicant or in any other manner.
In those circumstances, I must dismiss this application which I do. I order that the applicant pay the respondent's costs which I assess in the sum of $4,500 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court rules.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 10 June 2004