SZDVO v Minister for Immigration
[2008] FMCA 58
•22 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDVO v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 58 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZDVO”. |
| Migration Act 1958 (Cth), ss.91R, 91X |
| Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1536 S v Minister for Immigration & Multicultural Affairs [2004] HCA 25 SZHDR v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 344 |
| Applicant: | SZDVO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 820 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 12 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 January 2008 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Nepalese interpreter. |
| Solicitors for the Respondents: | Australian Government Solicitor |
| Counsel for the Respondents: | Mr S Free |
ORDERS
The application filed on 12 March 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 820 of 2007
| SZDVO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant is a citizen of Nepal and was born in 1971. He claims that he reads, speaks and writes Nepalese, English and Hindi and that his is Christian. He claims that he underwent 11 years of education from 1977 to 1990 at Gangapati Secondary School. He did not provide details of employment history but claims that he was an actor.
The applicant claims to be a member of the Communist Party in Nepal and that he has been targeted by the Nepalese government and police. Furthermore, he claims that the authorities in Nepal kill between 15 and 100 people per day. The applicant claims that his life is in danger and consequently seeks protection in Australia.
The applicant arrived in Australia on 24 September 2003 and applied for a Protection (Class XA) visa on 16 October 2003. A delegate of the first respondent refused to grant the visa on 3 November 2003 and the applicant sought review of the delegate’s decision by the Refugee Review Tribunal (“Tribunal”). The Tribunal affirmed the delegate’s decision. The Federal Magistrates Court affirmed the Tribunal’s decision. However on 8 March 2006, the Federal Court remitted the matter to the Tribunal to be determined according to law.
The second Tribunal rejected the applicant’s claim on 2 February 2006 (reference number 060458150), which is the decision the subject of these proceedings.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”. This document was read into evidence.
The amended application filed in this Court on 26 June 2007 contains three grounds of review:
1. The Tribunal made its decision on assumption without considering any fact related to my case and the information available.
2. RRT failed to consider Nepal is NOT SAFE for any human being especially for Maoist, government and Security forces are killing hundreds of innocent people each day.
3. The Tribunal fail to consider there is no real religious freedom in Nepal.
Consideration
The applicant is self-represented and appeared with an interpreter. At the first Court date, the applicant indicated that he wished to participate in the scheme to give unrepresented applicants in refugee matters an opportunity to receive independent legal advice on the prospects of their success. The Court file indicates that the applicant was allocated a panel adviser and received advice. The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon by 27 June 2007. The applicant complied with that order.
The applicant was also required to file brief submissions and a list of authorities 14 days prior to the final hearing. At the commencement of the hearing, the applicant sought leave to hand up a document titled “Submission” which contains five grounds stating that the Tribunal made the following errors:
(I) The Tribunal made its decision on assumption without considering any fact related to my case and the information available.
(II) The Tribunal fail to consider the evidence that young man & women are subject to persecution by Security forces in Nepal regardless of their political belief. They are constituted as a particular social group.
(III) RRT fail to consider Nepal is not safe for any human being especially for Maoist, government & Security forces are killing hundreds of innocent people each day.
(IV) The Tribunal fail to consider there is no real religious freedom in Nepal.
(V) The Tribunal fail to consider that I am a Christian convert and my life will be in danger in Nepal.
Ground II repeats the ground in the original application but is not referred to in the amended application. Grounds III and IV effectively repeat grounds two and three of the amended application, while ground V is a new ground and does not appear in the original or amended applications.
Also contained in that document under the heading “Orders Sought” is the following statement:
4. Due to financial difficulties I couldn’t organise any legal [representative] until now. I got some savings now and try to find a legal [representative] for me. I would like to request this Court to allow me some more time to submit my submissions through my lawyer.
I am satisfied that the applicant seeks an adjournment of the hearing. I note that this application was filed on 12 March 2007 and came before this Court for the first time on 3 April 2007 for directions. On that date, orders were made setting out a timetable together with arrangements for the applicant to participate in the Court-sponsored legal advice scheme. The matter was listed for further directions on 19 July 2007 and a final hearing date was set for 12 December 2007. The issue of an adjournment was not raised at either the directions hearings or prior to the scheduled final hearing. I acknowledge the difficulties the applicant faces as a self represented litigant with little knowledge of Court procedures or how he should present his case. However, prior to this application, the applicant had participated in two Tribunal hearings and two Court proceedings.
Before the second Tribunal, the applicant was represented by a registered migration agent who is also a member of the New South Wales Bar and regularly appears in migration matters before this Court and the Federal Court. In the circumstances, I do not believe it appropriate to grant an adjournment at this late date for the applicant to now seek legal representation. The applicant’s own Tribunal and Court experience has provided him with the knowledge that these timetables are established to allow for the effective operation of the Court. He was given adequate notice of key dates he was required to comply with.
No attempt has been made by the applicant to retain a legal practitioner to attend at the hearing, seek an adjournment and provide a clear estimate of time required to prepare the case. This appears to be a strategy to further delay the resolution of this protection visa application. I am not prepared to grant an adjournment of the hearing.
Ground one
The Tribunal made its decision on assumption without considering any fact related to my case and the information available.
This is the first ground as appears in the original and amended applications and the applicant’s written submissions. None of the documents contains particulars for this ground. Nor has the applicant provided affidavit evidence or written or oral submissions in support. Mr Free, for the first respondent, contends in written submissions that the second Tribunal decision makes clear that the Tribunal did consider the applicant’s claims and gave close consideration to the evidence before it from various sources. The Tribunal formed the view that the applicant was not a credible witness and did not believe his claims. Those findings were open to it on the facts and there is nothing in the reasons to indicate that the Tribunal made any error in reaching that conclusion. Ground one cannot be sustained and should be rejected.
Ground two
The Tribunal fail to consider the evidence that young man and women are subject to persecution by Security forces in Nepal regardless of their political belief. They are constituted as a particular social group.
This ground appears in original application and written submissions but is omitted from the amended application. There are no particulars, affidavit evidence or oral submissions in support of this ground.
S v Minister for Immigration & Multicultural Affairs [2004] HCA 25 at [36] per Gleeson CJ, McHugh, Gummow and Callinan JJ states:
Therefore, the determination of whether a group falls within the definition of "particular social group" in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A[1997] HCA 4, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". As this Court has repeatedly emphasised, identifying accurately the "particular social group" alleged is vital for the accurate application of the applicable law to the case in hand [citations omitted].
Based on the manner in which this ground is pleaded and in the complete absence of any particulars, I am not satisfied that this ground can be sustained.
Ground three
RRT fail to consider Nepal is not safe for any human being especially for Maoist, government and security forces are killing hundreds of innocent people each day.
Particulars
Nepal’s decade – long war between Maoist rebels and government forces has claimed 10,000 lives and devastated the families of hundreds more who have “disappeared”. Human rights and the rule of law are among the casualties in the government’s counter-insurgency.
By Deepak Thapa
Deepak Thapa is the author of A Kingdom Under Siege: Nepal’s Maoist Insurgency, 1996-2003, and the editor of Understanding the Maoist Movement of Nepal. He has worked as a journalist for Himal South Asia and the Nepali Times and is currently a book editor for the Kathmandu – based Himal books.
The village of Jogimara, just west of Kathmandu, lost many of its husbands, fathers, sons and brothers to a single episode of violence three years ago. One winter morning 20 able-bodied men from the impoverished village set off on a two-week journey, first by bus through the hills and later by foot on steep Himalayan trails, to work at an airport construction site in the remote western district of Kalikot. Authorities had just declared a nationwide state of emergency due to a resumption of hostilities between Maoist rebels and government forces after a fourmonth ceasefire. But the poor of Jogimara had no choice but to brave the dangers in search of employment.
It was to be a fateful decision. A couple of months later, government soldiers, in hot pursuit of Maoist fighters who had ransacked the administrative headquarters of a neighbouring district, killed 17 of the Jogimara men in a mass execution of 35 workers from the construction site. Their families only learned of the deaths a month later from news reports. Although the men’s relatives initially hoped the reports were mistaken, they were too poor, and too scared, to make the journey to the site of the incident to verify it themselves. In the end they had no choice but to perform the funeral rites without the bodies – a devastating break from tradition for Hindus. Some resorted to using miniature straw figures to stand in for the bodies of their loved ones.
“They were just working hard to make some money to send back to their families”, lamented Dambar Bahadur Thapa, who lost his 17-year old son.
The dead left behind 10 widows, 18 orphans and 14 elderly parents – all of whom depended heavily on the men for survival in the austere economy of the mountains. Authorities have not opened an investigation into the killings, a process that could pave the way for compensation claims by the bereaved.
February 13, 2005, marked the beginning of the tenth year of the “Peoples War” that has engulfed the Himalayan kingdom of Nepal. By the end of 2004 more than 10,000 people had lost their lives in a conflict that has spread to towns and remote villages all over the country, according to a January report by Amnesty. “Serious abuses”, said U.N. High Commissioner for Human Rights Louise Arbour when she visited Nepal in January.
Reports of human rights abuses have also forced the United States, which has given about $22 million in military aid to Nepal to crush the Maoist threat, to tighten its purse strings. In December 2004, it made further support of Nepal’s military effort contingent on improvement in the government’s human rights record.
There is a general consensus that a military solution to the bloody conflict is not possible. Both sides have been talking about negotiations for months, but there has been no break in the fighting, and the death toll continues to rise with no tangible gains toward real dialogue. Yet each day lost is the unfolding of yet another tragedy in some corner of Nepal.
All Responds to Crisis in Nepal
Amnesty International sent a high-level mission, led by Secretary General Irene Khan to Nepal in late February after King Gyanendra sacked the democratically elected government and declared a state of emergency in Feb 1.
The Al delegation met with King Gyanendra, the Commander of the Army, the Chief Justice, ministers and senior officials, and the National Human Rights Commission.
As expressed its serious concern over mass arrests of political party leaders and activists, the shutdown of communications and censorship of media and increased threats to human rights defenders, including activist and former Al Nepal president Krishna Pahadi, who was arrested on Feb 9.
The high-level A1 mission follows September 2004 research mission that published its findings in the January report Nepal: Killing with Immunity. The report details extensive human rights violations by both Nepali forces enlisted in the government’s counter-insurgency and the Maoist rebels.
This ground appears in the original application and written submissions as ground three and in the amended application as ground two. Mr Free contends that the Tribunal’s role is to determine whether the applicant has a well-founded fear of persecution for a particular reason, being one of the recognised Convention reasons, based on the claims articulated. The applicant claims to have a well-founded fear of persecution because of a previous political opinion and his association with Maoists. Since arriving in Australia, he claims to have converted to evangelical Christianity which would also lead to persecution in Nepal should he return. Each of these claims was considered in detail by the Tribunal. The Tribunal found that the applicant was not a credible witness and had fabricated his claim of being a Maoist activist. Mr Free argues that the Tribunal, having made that conclusion, was not required to consider whether Maoists have a well-founded fear of persecution in Nepal.
The Tribunal’s adverse credibility finding and consequent rejection of the applicant’s claims is a matter for it par excellence, see Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J:
67… a finding on credibility which is a function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision not as a subset of reasons why it accepted or rejected individual pieces of evidence. In the event, the reason for the disbelief is apparent in this case from the use of the word “implausible”.
The Tribunal summarised its findings as follows:
The Tribunal did not find the applicant to be credible witness in his giving of oral evidence to the Tribunal in several key aspects, which are discussed below. As such the Tribunal is not satisfied that the applicant left Nepal because of the circumstances he has described or that he genuinely fears harm on his return to Nepal as he so claims.
At the hearing before the previous Tribunal the applicant was put on notice as to concerns about his credibility. Indeed in its decision record the previous Tribunal indicated that it found the applicant’s claim that he was a Maoist activist to be implausible and his claims untrue. (CB 207)
I am satisfied that the Tribunal finding in this respect was open to it on rational grounds and on the material before it. It discloses no error in its treatment of the applicant’s credibility: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547. The Tribunal decision, which is the only evidence before the Court in relation to the conduct of the hearing, indicates the concerns it had about aspects of the applicant’s evidence which were raised with him during the hearing. The applicant was unsuccessful because of the view the Tribunal took of the facts and, in particular, that he was not credible. In the circumstances ground three cannot be sustained and should be rejected.
Ground four
The Tribunal fail to consider there is no real religious freedom in Nepal.
Particulars
Christian Aid Missions reports these persecution incidents. Nepal:
Three believers wrongly jailed.
A gospel worker and two local believers were arrested and jailed on proselytism charges in western Nepal last month. Details of the arrest were made known to Christian Aid just last week.
The three included a gospel worker (34) from a church in Pokhara District, his assistant (26), and a retired soldier from the Royal Nepal Army (46). The three were on their way to visit a Christian family in Pyuthan District when they were stopped and interrogated by police in Arlabang village. The names of the accused are being kept confidential.
In response to the police questions, they answered, “We are Christians and are going to meet one of our Christian brothers in the next village, and then we are going to Pokhara to participate in a Christian program.”
The police checked their bags and found Bibles and other Christian literature, placed them under arrest and charged them with “carrying Christian literature, preaching Christianity, and attempting to convert others into Christianity”. On that basis they were detained 15 days.
A hearing took place on February 28 in the District Court of Pyuthan. When questioned by the judge, the brothers said, “We are Christians, but have never forced anyone to convert from their own religion to Christianity”. The defendant’s lawyer tried to convince the judge that the 1990 constitution of Nepal, while barring conversions, still granted everyone freedom to practice his or her own religion.
Despite these arguments, the judge said, “For now they seem to be attempting to preach Christianity. According to the civil code it is illegal to convert another person from one religion to another, or to preach in such a way as to disturb other religions. So they need to be sent to jail”.
Whereas it is not illegal to carry Christian literature, any attempt to influence others to change their religion is still illegal. An appeal is being made, but if the appeal loses, the brothers could be incarcerated for three to six years.
The Tribunal fail to consider the evidence that young man and women are subject to persecution by Security forces in Nepal regardless of their political belief. They are constituted as a particular social group. A weekend clash between Maoists rebels and Nepalese security forces has left 14 rebels, five soldiers and one police officer dead, the army said on Sunday.
“Security forces recovered at least 14 Maoist corpses with weapons, and six security personnel were also killed”, said an official from army headquarters who spoke on condition of anonymity.
The fighting took place on Saturday in the Faparbari area of Makwanpur district, some 180 kilometres west of Nepal’s capital Kathmandu.
“The Maoists attacked patrolling troops, and a gunfight ensued”, the army official said.
He declined to give any further details of the clash which came a week after Maoists attacks on a number of targets around the capital left 12 police officers dead.
On Saturday, an alliance of seven political parties who are opposed to King Gyanendra led a demonstration in the capital that ended with hundreds of arrests.
Police arrested 236 people, an officer said. Journalists and other eyewitnesses reported seeing some 300 demonstrators rounded up and bundled into police vans.
Security
Security in the capital remained tight on Sunday ahead of a nationwide strike call by the parties for Thursday.
The parties have also called for a boycott of local elections planned for February 8 by King Gyanendra, who seized total power a year ago.
Citing the threat of Maoist violence, the government last week banned street protests, cut mobile telephone services, imposed a daytime curfew and arrested hundreds of activists.
Maoist rebels – who have fought a decade – long “people’s war” that has left more than 12,000 people dead in the impoverished Himalayan kingdom – have so far not joined the protests.
They ended a four-month unilateral ceasefire in early January that has led to a spike in violence.
Last November, the seven political parties entered a loose alliance with the rebels, asking them to refrain from violence.
This is ground three of the amended application and ground four of the submissions. Mr Free submits that the Tribunal in applying s.91R(3) of the Migration Act 1958 (Cth) (“the Act”) found that it could not have regard to the applicant’s evidence about his Christian activities in Australia. The Tribunal did not accept that the applicant would involve himself in Christian activities in Nepal as there was no evidentiary basis for such a claim. The question of whether people who have converted to Christianity face a real chance of persecution in Nepal did not arise. Section 91R(3) requires the Tribunal to disregard evidence of an applicant’s conduct in Australia unless it is satisfied that the conduct was engaged in otherwise than for the purpose of strengthening the applicant’s refugee claim.
The applicant therefore carries the burden of showing for the purposes of s.91R(3) of the Act that the evidence in question should not be disregarded as was noted in NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1536 at [26] per Wilcox J:
The effect of s 91R(3) is that an applicant has an onus of proof in relation to activities in Australia. The person must satisfy the Minister or the Tribunal, as the case may be, that the relevant conduct was engaged in "otherwise than for the purpose of strengthening the person's claim to be a refugee". The onus of proof is, no doubt, to the civil standard; but it is an onus borne by the applicant. It is a change from the usual position faced by the Tribunal, where the benefit of doubtful facts must be given to an applicant for refugee status.
Mr Free further submits that the applicant’s claim that he feared persecution in Nepal because of his conversion to Christianity was built upon his activities as a Christian in Australia. The applicant gave evidence about such activities. He was not able to satisfy the Tribunal that his conduct in Australia was other than to strengthen his refugee claim. It is submitted that the Tribunal’s finding in this regard is a finding of fact and it is not part of the Court’s function to determine whether or not that finding is justified: SZHDR v Minister for Immigration [2006] FCA 344 at [6]. The Tribunal reached its conclusion after considering the applicant’s evidence, the supporting testimonials and the Tribunal’s findings regarding the applicant’s credibility. The conclusion that the applicant had not satisfied it of the genuineness of his Christian activities was a finding of fact open to the Tribunal.
Ground five
Ground five a new ground raised in the submissions but not contained in the original or amended applications. This ground is not supported by any particulars, evidence or submissions. It appears to be a further extension of ground four above, but does not raise a new issue in respect to the applicant’s conversion to evangelical Christianity. I am satisfied that grounds four and five cannot be sustained and should be rejected.
Conclusion
The applicant in these proceedings is a self-represented litigant and appears with the assistance of a Nepalese interpreter. Although the applicant has appeared before the Tribunal on two separate occasions and this is his second application for judicial review, he did not have a clear understanding of the issues he challenges in the Tribunal decision. He has made no attempt to argue his case before the Court. He has relied entirely on documents which appear to have been prepared by other people on his behalf. These people have only very limited knowledge of protection visa applications and any associated challenges to those decisions. The result here is an inconsistency between the original application, the amended application and the submissions, and the applicant’s inability to articulate which grounds he finally relied upon. The submissions introduced a ground not contained in the amended application.
Consequently, I have considered all of the grounds that are referred to in these three documents to ensure that all the claims of alleged error have been addressed. Mr Free, appearing for the first respondent, assisted with written submissions. I am satisfied that all the issues have been satisfactorily addressed in those submissions. This places an obligation on the Court to independently consider whether any argument based on the material that has been raised by the applicant or contained in the Court Book can support a claim of jurisdictional error. It is not apparent that any ground of review exists which would suggest that the Tribunal made a jurisdictional error in its decision making process. Consequently, the applicant’s claim should be dismissed with costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 22 January 2008
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