SZAQC v Minister for Immigration
[2004] FMCA 549
•13 August 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAQC v MINISTER FOR IMMIGRATION | [2004] FMCA 549 |
| MIGRATION – Review of RRT decision – where Tribunal utilised country information to provide it with a background of the situation in Nepal – where applicant complains that the information did not relate to his personal circumstances – where Tribunal did not consider the applicant to be a credible witness – whether circumstances which applicant claims gives rise to a well-founded fear of persecution has the requisite convention nexus – whether the findings and reasons of the Tribunal evidence a denial of procedural fairness or jurisdictional error. |
NARE v MIMIA [2003] FCA 554
NAZZ v The Minister [2004] FCA 278
Ex parte Durairajasingham (2000) 168 ALR 407
| Applicant: | SZAQC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 870 of 2003 |
| Delivered on: | 13 August 2004 |
| Delivered at: | Sydney |
| Hearing date: | 13 August 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in Person |
| Counsel for the Respondent: | Mr R Bromwich |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant pay the respondent's costs assessed in the sum of $4,750 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 870 of 2003
| SZAQC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Nepal. He arrived in Australia on 9 May 1998. On 5 June 1998 he lodged an application for a protection (class AZ) visa with the Department of Immigration and Multicultural Affairs. On 13 June 1998 a delegate of the Minister refused to grant a protection visa and on 9 July 1998 the applicant applied for a review of that decision. The Tribunal offered the applicant an opportunity to be heard on his application, which he took, and on 20 April 2001 it determined to affirm the decision not to grant a protection visa. That decision was handed down on 10 May 2001. Two years and one month later on 20 May 2003 the applicant had still not been removed from Australia and was able to make an application to this court seeking review of the decision.
In his grounds for the application he stated:
“I am not content with the RRT decision in my case concerning its use of the country study information. 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.”
The applicant claimed to have a well-founded fear of persecution for the convention reason of political opinion. He told the Tribunal that he had joined the United People’s Front at a young age and had undertaken work for them in spreading the communist message. He also told the Tribunal, as he had told the delegate, that he had become involved in a fight with some police during the course of which a policeman had been killed. He believed that he was under suspicion in relation to this killing and that if he returned to Nepal he would be arrested and incarcerated. He told the Tribunal that he had already been called in for questioning by the police although he had been let go.
In the course of the Tribunal's reasons for decision it states at [CB 89]:
“The Tribunal considered a range of publications on the situation in Nepal.”
Certain information is then set out between [CB 90] and [CB 96]. It is not clear whether that information was provided to the applicant or put to him but the Tribunal did accept that the situation so far as human rights was concerned in Nepal was not a happy one. The information which is contained in the extracts referred to was not utilised by the Tribunal to disprove allegations of the applicant, it was used to provide the Tribunal with general background information on the situation in the country which it was considering.
The applicant failed before the Tribunal because he was not believed upon his evidence. The story which the applicant had told was found by the Tribunal to be almost identical to a similar statement made by another applicant. Although the applicant denied that he had copied this first statement the Tribunal said at [CB 101]:
“The Tribunal notes that these claims are identical in substance and in the language used to describe specific incidents with an application that is also before this Tribunal from an applicant who is from a different village in Nepal.”
Later in the same paragraph the Tribunal sets out those parts of the two applications which were identical. At [CB 102] the Tribunal says:
“The Tribunal further notes that the adviser, who is a registered migration agent, stated that the submission had been lodged after he had taken instructions from his client. The Tribunal therefore considered whether the applicant's claims might have been copied by the other applicant.”
The Tribunal then goes on to explain why it does not accept that this occurred.
The Tribunal utilises its findings on credibility to indicate that it is not satisfied that the applicant had a well-founded fear of persecution because it did not accept that the events described by him occurred. The Tribunal went further and it noted that the type of activity which resulted in the alleged fear, the killing of a policeman, was a criminal matter which the police in Nepal would be entitled to investigate and which did not fall within the definition of a Convention related activity.
Before me today the applicant stated that under the present circumstances he could not return to Nepal and that was why he was not happy with the decision. He states that he had told the Tribunal about his problems with the police and the Maoists and stressed that his life was in danger. He told me that he had appealed to this court for his own safety.
In NARE v MIMIA [2003] FCA 554 Allsop J explained the role of the courts on review when he said at [10]:
“What the applicant may not well appreciate, your Honour, not being a lawyer, is that the process of purposive 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 lack thereof is such as to betray a failure to undertake properly the required task.”
The court understands that the applicant is not in agreement with the Tribunal's views. But as the Federal Court said in NAZZ v The Minister [2004] FCA 278 at [18]:
“The fact that the applicant emphatically disagrees with the RRT’s findings is not a basis for concluding that the decision was affected by jurisdictional error: see S20/2002 (2003) 198 ALR 59 at [5] per Gleeson CJ.”
It is also clear that to the extent that this decision was made having regard to the credibility of the applicant there is no power in the court to interfere. In Ex parte Durairajasingham (2000) 168 ALR 407 McHugh J said at [67]:
“A finding on credibility ... is the function of the primary decision maker par excellence.”
Although his Honour in that case went on to relieve a decision-maker from giving reasons for why he disbelieved an applicant, this Tribunal made it quite clear. Therefore I cannot find any reason to review the decision on those grounds.
The matters discussed above make it impossible for me to accede to the request of the applicant to review this decision and to send the matter back to the Tribunal for re-hearing. I dismiss his application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,750 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 30 August 2004
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