SZART v Minister for Immigration
[2004] FMCA 487
•29 July 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZART v MINISTER FOR IMMIGRATION | [2004] FMCA 487 |
| MIGRATION – Review of RRT decision – where applicant claims to have a well-founded fear of persecution for convention reason of religion – where applicant converted to Christianity – where applicant claims he would proselytise if returned to Nepal – where Tribunal found that any adverse attention the applicant may receive as a result of his actions would not constitute persecution – whether findings and reasons of Tribunal evidence jurisdictional error or failure to provide procedural fairness. |
WAJS v MIMIA [2004] FCFCA 139
NARE v MIMIA [2003] FCA 554
| Applicant: | SZART |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 973 of 2004 |
| Delivered on: | 29 July 2004 |
| Delivered at: | Sydney |
| Hearing date: | 29 July 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in Person |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $3,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 973 of 2004
| SZART |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Nepal. He arrived in Australia on 19 April 1996. On 22 October 1997 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 21 November 1997 a delegate of the Minister refused to grant a protection visa and on 12 December 1997 the applicant sought review of that decision. The applicant gave oral evidence to the Tribunal on
4 September 1998. The Tribunal made its decision to affirm the original decision of the delegate on 8 September 1998. On 30 May 2003 the applicant sought review of that decision.
The applicant's claim to have a well founded fear of persecution for the Convention reason of religion is based upon his evidence that he became a Christian in about 1990 in Nepal and began to preach to others there. According to his evidence he would have been about 13 at the time. The applicant told the Tribunal that he attracted adverse attention from the Hindu community as a result of his activities and he left his home village to live for a short period in Kathmandu. He says that in Kathmandu he attended a church some four hours out of town but when he completed his studies in that city in March 1996 he almost immediately left for Australia. He claimed to the Tribunal that he had continued telling people about Jesus in Kathmandu and used to go up to Hindus and try and convert them.
When the applicant arrived in Australia he joined the Cabramatta Jesus Church which the Tribunal found was an Evangelical branch of the Christian religion. The applicant told the Tribunal that if he was to return to Nepal he would continue to go and tell people about the word of Jesus. He said he would do this by standing in front of a Hindu temple and trying to tell people about Jesus. He said that if they did not want to listen he would pray to God for them but he would not try to make them listen forcibly because he could not tell them how to live their own lives.
The decision of the Tribunal indicates that during the course of the hearing a body of independent country information was provided to the applicant and his adviser for them to consider. It is not disputed by the applicant that this included some independent country information concerning forged documents. This is important because the applicant had submitted a document said to be from his village which the Tribunal found it was not satisfied that it was genuine. The Tribunal gave a number of reasons for this finding, including that of the prevalence of document fraud in Nepal.
The Tribunal gave thorough consideration to the question of whether the applicant's adherence to the Cabramatta Jesus Church would have the effect that if he returned to Nepal he would suffer persecution as a result of his attempts at proselytisation. The Tribunal concluded from the information that was before it that there was some tolerance of evangelism in Nepal and of Christian worship and as a result, it was unlikely that the type of activity which the applicant had told the Tribunal he would indulge in would get him into a situation where he was likely to be persecuted as that word is understood in migration matters, and in particular in relation to section 91R of the Migration Act.
The Tribunal also came to conclusions adverse to the applicant in relation to certain other matters he had told it concerning his situation. These included a claim that he had killed a cow, which is an offence in Nepal. Because of the way in which this claim was raised the Tribunal did not accept it as credible.
The application filed in this court makes a number of claims concerning the situation of the applicant and sets out eight grounds for the application. These are that a breach of the rules of natural justice occurred, that the decision was otherwise contrary to law, that there was no evidence or material to justify the making of the decision, that the decision exceeded the constitutional limits of legislative power imposed by the Constitution, that the procedures were not observed well, that the decision involved an error of law and was not made in good faith. Finally, it was suggested that “The decision was not made by reference to the subject matter, escape [sic] and objects of the Migration Act”.
When the matter came before me today the applicant submitted a further written document which consisted of a refutation of some of the findings made by the Tribunal. The difficulty with this document, so far as this court is concerned, is that it does not address alleged jurisdictional errors on the part of the Tribunal but only the Tribunal's interpretation of the evidence that was before it.
The fifth matter raised by the applicant in this document "although Nepal is crippled by Maoist problem and they have no security forces to control Maoists they are still killing innocent Christians" seems to me to be a matter not raised specifically with the Tribunal.
In regard to the grounds of application which I have set out above I would say that insofar as the allegation of a breach of natural justice is concerned this could have been said to arise out of the manner in which the Tribunal dealt with the independent country information concerning document fraud. However I am satisfied from a reading of the decision and from the fact that the applicant has not raised the matter in any document provided to the court or in his oral submissions that the Tribunal had told him that document fraud was a matter of concern.
The other allegations against the Tribunal made in the application seemed to me to be vague, unsupported by particulars, and require me to postulate as to what parts of the Tribunal decision they may refer.
I do not think this is a task with which a court should be burdened.
To the extent that there is a suggestion that the decision of the Tribunal was wrong because it made findings about the applicant's claims that they were implausible I would note that in WAJS v MIMIA [2004] FCFCA 139 at [13] a full bench comprising of Wilcox, Marshall and Jacobson JJ approved of a statement in the court below made by Driver FM:
“In his reasons for judgment Driver FM said at [18] "If an applicant presents evidence and it is rationally rejected by the decision maker, the applicant can hardly complain that there was no evidence supporting the rejection. There plainly was evidence, being the evidence presented by the applicant himself. Provided that the presiding member approached the consideration of the applicant's evidence in a rational and logical manner, which in my view he did, the applicant cannot found a judicial review application on a no evidence ground, or on the third limb of the rules of procedural fairness, if it exists in Australia.”
At [17] and [18] the court said:
“Determination of the facts of the case was the responsibility of the Tribunal member. Whatever our personal views may have been, and we have not reached any conclusion about them, it cannot be said that the Tribunal member's view was perverse or illogical. Whether rightly or wrongly he regarded a critical portion of the appellant's evidence as inherently improbably and, for that reason, was unable to accept its accuracy. This is not a finding for which positive evidence was required; it was simply a matter of disbelief of evidence because of surrounding circumstances. We do not think the "no evidence" ground has application to such a situation. 18. A Tribunal of fact is entitled to reject the evidence even of an impressive witness if it rationally considers that that evidence to be implausible; for example, where the evidence is inherently unlikely or at odds with established facts.”
It seems to me that the manner in which the Tribunal reached its conclusions in this case follows closely those matters referred to in the extract from the judgement of WAJS set out above. I explained to the applicant that I was unable to accept from him certain further evidence that he believed would assist in his refutation of the Tribunal's views. The role of the court was articulated by Allsop J in NARE v MIMIA [2003] FCA 554 [10] after which his Honour said:
“That 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.”
For all these reasons, I am unable to find any grounds upon which the applicant could sustain an argument that the Tribunal reached its decision in his case in jurisdictional error. I dismiss the application.
I order that the applicant pay the respondent's costs which I assess in the sum of $3,000.00 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 August 2004
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