SZDXW v Minister for Immigration - [2004] FMCA 791

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDXW v MINISTER FOR IMMIGRATION

[2004] FMCA 791

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Minister for Immigration & Multicultural & Indigenous Affairs, Re; Durairajasingham (2000) 168 ALR 407

Applicant:

SZDXW

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1953 of 2004

Delivered on:

29 October 2004

Delivered at:

Sydney

Hearing date:

29 October 2004

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the objection to competency is upheld.
That the application is dismissed.
That the applicant pay the respondent's costs set in the amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1953 of 2004

SZDXW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal handed down on 31 October 2002 affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa. The applicant, a citizen of Nepal, claimed to fear persecution by reason of his political opinion. He claimed that he was an active member of the Nepal Congress Party and to fear harm from members of the Nepal Communist Party, (Maoist). He claimed that they had attacked him and destroyed his crops on a number of occasions in 2000.
The Tribunal reasons for decision detailed the claims made by the applicant in connection with his application for a protection visa and the claims that were made at the Tribunal hearing. The Tribunal accepted that he was a citizen of Nepal but found that the applicant was not a credible witness, having regard to a number of factors.
First, the Tribunal noted that the applicant had been put on notice by the delegate as to the broad and unsupported nature of his claims, but had made no effort to rectify those issues in his review application. Second, the claims made on review differed significantly and at times were inconsistent with the claims made by the applicant in connection with his protection visa application. The Tribunal gave as examples that in connection with his protection visa application the applicant had claimed that his opposition to the Maoists stemmed from his opposition to terrorist activities on their part whereas at the hearing the claim shifted to their opposition to him as a land owner. Further, in connection with his protection visa application he had claimed that his position as co-ordinator for the Congress Party obliged him to fight the CPN(M) but at the hearing he made no linkage between his claimed party position and the Maoist persecution. The Tribunal also found that the narration of his claims at the hearing and his attempts to explain apparent inconsistencies in his claims were often dealt with in an obfuscating manner which he explained as being due to poor memory on his part.
The Tribunal had regard to the absence of detail or supporting material in relation to the claims and to the absence of any plausible explanation as to why the applicant’s party activities caused him to be targeted by the Maoists. The Tribunal did accept that the applicant was an ordinary member of the Congress Party as claimed but having regard to independent evidence and the absence of any plausible explanation for why he would be targeted, did not accept that he was harmed because of his political activities with the party.
The Tribunal also had regard to the late nature of the claim that the applicant was targeted because he was a land owner opposing the demands of the Maoists, the absence of supporting material for this claim and the confused, inconsistent and chronologically flawed manner in which the claim was put. It was not satisfied that the applicant was threatened or harmed by the Maoists because he was a landowner as claimed. Moreover, while the Tribunal accepted that the applicant may have experienced a subjective fear of harm after the Maoists launched their people's war, it found that any such fears were not well founded having regard to independent evidence about the district from which the applicant came.
Nor did the Tribunal accept the claim that the Maoists had destroyed the applicant’s crops, such claim having been made at the eleventh hour in broad and speculative terms without supporting material. Having regard to the evidence before it the Tribunal was not satisfied that the applicant had been targeted by the CPN(M) nor that he was unable to secure state protection from harm from the Maoist insurgents.
The Tribunal concluded it was not satisfied that the applicant had suffered harm amounting to Convention persecution because of his political activities or because he was a land owner. Nor was it satisfied that the applicant faced a real chance of persecution from the CPN(M) activists if he was to return now or in the reasonably foreseeable future. Further it was satisfied that the applicant had access to effective protection in relation to any threats from the Maoists insurgents.
The applicant sought review of the Tribunal decision by application filed on 24 June 2004. In his application he referred to the fact that he had been in Australia for three years. He repeated his claim to fear persecution and asked the court to grant him a protection visa. The application does not contain any grounds suggesting possible jurisdictional error on the part of the Tribunal. The applicant has not filed any amended application or any other evidence as contemplated by the consent orders made at the directions hearing on 15 July 2004. Nor did he file any written submissions as ordered.
However at the hearing the applicant produced a short statement in the form of a submission in English stating that ‘the interpreter was inaccurate causing the Tribunal member to receive information that was incorrect which caused him to come to the view that the applicant was not truthful’. Specifically it was claimed that the interpreter, (and it appears that this is a reference to the interpreter in the Tribunal hearing), tended to summarise what the applicant had said rather than translate what he was saying and that a particular claim which the Tribunal said that he did not make was made but was not interpreted correctly.
There is no transcript of the Tribunal hearing before the court. The applicant's written submission handed up in court stated that ‘we have been informed from MIMIA’s solicitors that there was no recording of this interview so we have no way of showing this problem’. However, the solicitor for the respondent gave oral evidence that he caused to be sent to the panel adviser for the applicant two letters, the first containing the bundle of relevant documents sent on 30 July 2004 and the second sent on 27 August 2004 containing copies of the Tribunal hearing tapes.
I accept the evidence of the solicitor for the respondent that the hearing tapes were available and were sent to the panel adviser contrary to the submission from the applicant that he (or the panel adviser) was told that there was no recording of the Tribunal hearing. Given the nature of the applicant’s submission and the way in which it was raised, I see no purpose to be served by any delay in resolution of these proceedings. The claim that is now raised was not referred to in the applicant's application. Nor was any amended application filed or any other evidence, despite the applicant's participation in the Panel Advice Scheme. The factual basis for the applicant’s claims in relation to the Tribunal hearing is not established. Moreover there is nothing in the material before me, in particular in the Tribunal reasons for decision, to suggest that there is any basis for any claim of a lack of procedural fairness or that the Tribunal failed to take into account the integers of the applicant's claims.
The applicant failed because of the view the Tribunal took of the facts, in particular its finding that the applicant was not credible and his fears not well founded. The findings in relation to credibility are matters of fact for the Tribunal par excellence (see MIMIA, Re; Durairajasingham (2000) 168 ALR 407)and on the material before me, including the Tribunal's account of what was claimed at the hearing in contrast to the content of the protection visa application, the Tribunal's findings were open to it for the reasons which it gave including the country information to which it referred.
Insofar as the applicant seeks merits review, merits review is not available in this court. Despite the fact that the application raised no ground for review, as the applicant is self-represented I have considered the material before me. No jurisdictional error is apparent on that material and the application must be dismissed. As there is no jurisdictional error in the Tribunal's decision it follows the decision is a privative clause decision within section 474 of the Migration Act. Hence it is not necessary for me to consider the written submission of the respondent in relation to the applicant's delay in bringing the application, except insofar as the delay establishes, that as the application was not been lodged with 28 days of notification of the decision, the notice of objection to competency should be upheld.

RECORDED : NOT TRANSCRIBED

As the applicant has been unsuccessful, it is appropriate that he meet the respondent's costs. The amount of $4,000 sought is appropriate.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 19 November 2004