SZANL v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1091

FEDERAL COURT OF AUSTRALIA

SZANL v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1091

MIGRATION – no point of principle

Migration Act 1958 (Cth)

SZANL v MINISTER FOR IMMIGRATION & MULTICULTURAL &
INDIGENOUS AFFAIRS
N 828 OF 2004

MOORE J
31 AUGUST 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 828 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZANL APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	31 AUGUST 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 828 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZANL APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	31 AUGUST 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a decision of a Federal Magistrate of 11 May 2004 dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal").  On 28 March 2003, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") of 2 July 2002 refusing an application for a protection visa lodged on 12 March 2002.

   Background

2. The following is a summary of the claims of the appellant before and in the course of the Tribunal hearing.  The appellant is a citizen of Nepal and lived at the same address since his birth in 1961.  In March 1999 he made contact with members of the Communist Party of Nepal (Unified Marxist-Leninist) ("CPN(UML)") which he joined in June 2000.  Since joining the CPN(UML) and until January 2002 he worked as a campaign activist with the CPN(UML) in Parbat and his role was to attend informal meetings and spread awareness about the party.  He visited many villages and distributed books, pamphlets and information. 

3. He had been questioned about his activities and why he joined the CPN(UML) by members of opposition parties, the Nepali Congress ("NC") and the National Democratic Party ("RPP") (together "the opposition parties").  He ignored what they had said to him and refused to join them.  As a result, the opposition parties treated him as a Maoist.  On one occasion, after joining the CPN(UML) and while distributing pamphlets, people unknown to him and who were connected with the opposition parties took his pamphlets from him and replaced them with Maoist pamphlets.  The members of the opposition parties set him up so that the police suspected him of being a Maoist.  People, including children began to call him a Maoist.

4. On 21 October 2001, five police went to his home and told his wife and mother they wanted to arrest him because he was a Maoist.  On 21 October 2001, an "Order for Arrest" dated 16 October 2001 was left at the house.  He escaped by the back door and fled to Kathmandu disguised as a woman.  He stayed in Kathmandu with a relative.  He never saw his family again.  He is not able to avail himself of the protection of his country because of his fear and is unable to relocate within Nepal because of the importance of his family in Nepal as well as the on-going violations of his rights and the unstable political situation in Nepal.

5. After the declaration of the state of emergency in November 2001, the appellant claimed that the government views Maoists as terrorists, and people are being imprisoned and tortured on suspicion of being a Maoist.  He claims that if he were to return to Nepal he would be persecuted by government authorities who suspect him of being Maoist.  He has never had any direct contact with Maoists and is not a Maoist.  Under a legal agreement between the Nepalese and Indian governments, he could not reside in India because the NC has links there.  The appellant's cousin paid contacts at the airport to allow the appellant to leave the country.  He arrived in Australia on 14 February 2002.

   The decision of the Tribunal

6. The Tribunal accepted that the appellant is a national of Nepal.  The Tribunal accepted the appellant's accounts of his personal, educational and employment background and that he was born and raised in a small village in Nepal.  The Tribunal accepted that the appellant joined the CPN(UML) in June 2000, that before that time the appellant was not politically active other than through private discussions, and that the appellant, after joining, went to villages to distribute books, pamphlets and information on behalf of the CPN(UML). 

7. The Tribunal accepted that members of the opposition parties questioned the appellant on occasions, however the Tribunal noted that there was no evidence that such problems amounted to persecution within the meaning of the Convention.  The Tribunal found that the questioning of the appellant by members of the opposition parties did not amount to persecution and the appellant did not claim that the questioning or harassment in itself was of a very serious nature.

8. The Tribunal found that the appellant did not have a well-founded fear of being persecuted by the authorities.  The Tribunal doubted the truthfulness of the appellant's evidence and did not accept the appellant's claim that because the opposition parties had 'set-up' the appellant as being a Maoist, the authorities in Nepal now suspected him of being a Maoist and therefore a clear target for the authorities. 

9. The Tribunal did not accept the claim by the appellant that he had fled to Kathmandu because of the 21 October 2001 incident. 

10. The Tribunal did not accept that the police had issued an "Order of Arrest".  The Tribunal was not satisfied that the police in Nepal had a serious adverse interest in the appellant.  The Tribunal stated that it did not accept that:

    … the police have issued an "Order of  Arrest" against [the appellant].  The existence of an order on 16 October 2001 is not supported by the fact that [the appellant] was so easily able to evade the police on 21 October 2001, and that on his own evidence he had no further problems with the police over the following four months.  I have found above that [the appellant] did not flee to Kathmandu but remained with his family in the village, and in those circumstances the fact that he had no further problems is entirely inconsistent with the existence of an "Order of Arrest".  However even if I were to accept [the appellant's] assertion that he fled to Kathmandu, on his own evidence he stayed with the same relative throughout the four months.  In such circumstances it is reasonable to expect that, if the Nepali police had a real interest in [the appellant] as suggested by an "Order of Arrest", they would have pursued him and located him at some stage over those four months.  I am therefore not satisfied that the document provided by [the appellant] as an "Order of Arrest" is genuine, and I give it no weight.

    The decision of the Federal Magistrate

11. The Federal Magistrate set out at [1] the background facts as set out in the written submissions of counsel for the Minister.  His Honour then set out the ground for review as set out in the application for judicial review:

    I am not content with the decisions made on my application for a protection visa by [the Tribunal] and [the Department].  I would like to lodge this application at this Court for review of decision.  Please consider my application.

12. As is apparent, the appellant did not assert any legal error or jurisdictional error in his application for review before the Federal Magistrate.  In oral submissions, the appellant claimed that the Tribunal did not look properly at his documents, in particular the "Order of Arrest".  His Honour considered that the Tribunal had adequately considered that document and held that the appellant had not identified any jurisdictional error on the part of the Tribunal.  His Honour dismissed the application and ordered that the appellant pay the Minister's costs.

    The grounds of the appeal

13. The appellant identified the following grounds of appeal:

    I disagree with the judgment of Raphael FM in my case.  The decision involved an error of law whether or not the error appear on the record at the time of the decision.  I am a genuine refugee because I have a well founded fear of persecution for reasons of my political opinion.  Therefore I am seeking justice to be recognised as a refugee.  Now I am a victim of injustice.  The decision maker has not studied human rights violations and its consequences in Nepal.

    I believe that I am at risk of serious harm if I return to live in Nepal.  The decision maker seemed to lack that understanding of the real situation.  It is quite inapplicable to the life and circumstances of a particular person such as myself and acting on it can result in injustice and tragedy.  It is my appeal that the Federal Court review decisions where there has been jurisdictional error.  I would like the Federal Court to recognise a jurisdictional error in my case and review the decision that the decision maker made a jurisdictional error when it refused my visa application.

    The respondent's written submissions

14. The respondent submits that the grounds of appeal concern the merits of the Tribunal's decision.  The submissions deal with the ground that the decision-maker has not studied human rights violations, possibly amounting to a failure to take a relevant consideration into account.  Counsel for the Minister submitted that as this was not raised at first instance, the appellant should not be permitted to raise it on appeal.  Alternatively, the Minister submitted that the Tribunal was not required to consider the human rights situation in a general sense.

    The appeal and its disposition

15. The appellant was unrepresented at the hearing.  The submissions he made were directed to factual issues concerning the question of whether he was a refugee.  He identified no error on the part of the Federal Magistrate or on the part of the Tribunal.  I have read the decision of the Tribunal and the judgement of the Federal Magistrate.  It is not apparent to me that jurisdictional error attends the decision of the Tribunal or that the Federal Magistrate erred in dismissing the appellant's application.

16. The appeal should be dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:            31 August 2004

The Appellant appeared in person.

Counsel for the Respondent:	G R Kennett
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	23 August 2004
Date of Judgment:	31 August 2004