SZDVN v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 992

FEDERAL COURT OF AUSTRALIA

SZDVN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 992

Migration Act 1958 (Cth) s 424A

SZDVN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 760 of 2005

SACKVILLE J
22 JULY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 760 OF 2005

BETWEEN:	SZDVN APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	22 JULY 20O5
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	NSD 760 OF 2005

BETWEEN:	SZDVN APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	22 JULY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court delivered on 29 April 2005.  The learned Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘RRT’) handed down on 25 May 2004.  The RRT affirmed a decision of a delegate of the respondent (‘the Minister’) made on 4 November 2003, refusing to grant the appellant a protection visa.

2. The appellant is a citizen of Nepal, who arrived in Australian on 24 September 2003.  He lodged an application for a protection visa on 20 October 2003.  The appellant claimed to be an active member of the Nepal Communist Party and that he had left Nepal because he feared that he would be killed Maoists in that country.  The appellant said that he had been harassed by Maoists, who had demanded money from him.  In consequence of his involuntary contact with the Maoists, he had been arrested by the police as a Maoist sympathiser.  That, however, had not saved him from having his shop burnt by the Maoists.  The appellant asserted that the authorities in Nepal would be unable to protect him from the harm that he feared. 

3. The RRT held two hearings, the first on 11 February 2004 and the second on 21 April 2004. After the first hearing, the appellant made written submissions to the RRT and provided a number of documents, including translations, in support of his case. This prompted the RRT, in compliance with s 424A of the Migration Act 1958 (Cth) (‘Migration Act’), to inform the appellant in writing of certain information it had which, subject to his comments, would be the reason or part of the reason for deciding that he was not entitled to a protection visa.  This information related to stamps on certain documents supplied by the appellant which were identical to stamps seized by customs officials and were said to be capable of use only for ‘fraudulent document manufacture’.  The RRT advised the appellant that the information suggested that he may have submitted manufactured documents in support of his claim.

4. Following the second RRT hearing the appellant sent a further letter to the RRT.  In that letter, he complained that the Nepalese interpreter at the second hearing was not good enough.  The appellant did not, however, provide particulars of his complaint.

5. The RRT rejected the appellant’s claims.  It found that:

   ·    the appellant had fabricated the story concerning his arrest in order to bolster his application for a protection visa;

   ·    the appellant had submitted false documents in support of his application;

   ·    although a fire had occurred at his mother’s shop, the appellant had embellished his account in order to suggest that Maoists were responsible when in fact the motive of the perpetrators was simply robbery;

   ·    the appellant’s account of what he did after leaving Nepal for India was not plausible;

   ·    the appellant had not suffered at the hands of the police and was not at risk of harassment or theft by Maoists; and

   ·    in any event, if the appellant were to be harassed, he would enjoy state protection in Nepal.

6. The appellant appeared unrepresented before the Federal Magistrates Court.  Most of the grounds in his application challenged only the merits of the RRT’s decision.  There were three other grounds addressed by the Court.

7. First, the appellant complained that he had experienced difficulties with the Nepalese interpreter at the second RRT hearing.  Given this complaint, it is a little unfortunate that the same Nepalese interpreter was engaged to assist the appellant at the hearing before the Magistrates Court.  (It appears that there are very few accredited Nepalese interpreters.)  The Magistrate, however, allowed the appellant (who speaks some English) to be assisted by a bilingual friend who had accompanied him to Court. 

8. The Magistrate noted that he did not have the benefit of an independent interpreter’s review of the tapes of the RRT hearing.  It might be thought that in these circumstances the short answer to the appellant’s complaint, in the absence of any attempt to adduce other evidence relating to the conduct of the second RRT hearing, was that it lacked an evidentiary foundation.

9. Be that as it may, the Magistrate went on to consider the complaint.  His Honour pointed out that the appellant had been unable, even with the assistant of his friend as an interpreter, to articulate the basis of his complaint about the quality of the interpreter services provided at the RRT hearing.  Moreover, his Honour considered that the accredited Nepalese interpreter (who had appeared in the Court on other occasions) had not been an impediment to the proper conduct of the judicial review proceedings.  In the result, the Magistrate was not satisfied that the appellant’s complaint about the quality of translation had substance. 

10. Secondly, the appellant argued that the RRT had failed to consider evidence suggesting that non-aligned young men and women in Nepal were a particular social group because they were subject to persecution by both Maoist and security forces in Nepal.  The Magistrate pointed out that the appellant’s case before the RRT was that he had become of interest to the Maoist rebels not because he was young man, but because the rebels were aware that he had spent time in the United Arab Emirates and, in consequence, had more money that his fellow citizens.  Accordingly, there was no occasion for the RRT to address the question of a ‘particular social group’ for the purposes of the application. 

11. Thirdly, the appellant contended that the RRT had accessed country information relating to Nepal without giving him an opportunity to comment on that information.  The Magistrate recorded that after exploring the ground at length with the appellant, the appellant did not pursue it.

12. The appellant’s notice of appeal simply repeats the grounds relied on before the Magistrate.  Although the appellant filed brief written submissions, they added nothing to the notice of appeal.

13. Insofar as the appellant complains to this Court about alleged factual errors made by the RRT, the complaint cannot establish any jurisdictional error on the part of the RRT or any error of law on the part of the Magistrate.

14. The appellant did not appear at the scheduled hearing of the appeal, but forwarded a medical certificate to the Court.  The matter was adjourned.  The appellant appeared at the adjourned hearing.  Despite the presence of a different Nepalese interpreter to assist him, he did not wish to add anything to his written submissions.

15. There is nothing to suggest that the Magistrate was incorrect in rejecting the appellant’s contention that he had been denied procedural fairness by reason of inadequate interpreting services.  There was no evidence before the Magistrate to support the contention.  Moreover, the appellant was unable to identify the particular difficulties he claimed to have experienced before the RRT and did not do so in this Court.

16. The appellant did not seek to make out a case before the RRT that young people in Nepal are a ‘particular social group’ for the purposes of the Convention.  The Magistrate correctly rejected the appellant’s argument that the RRT should have addressed such a case.

17. There is no merit in any other ground of appeal.  Accordingly, the appeal must be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:  22 July 2005

The appellant appeared in person.

Counsel for the respondent:	Mr Anthony McInerney
Solicitors for the respondent:	Sparke Helmore
Date of hearing:	21 July 2005
Date of judgment:	22 July 2005