SZEAS v Minister for Immigration
[2008] FMCA 166
•21 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEAS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 166 |
| 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 “SZEAS”. |
| Migration Act 1958 (Cth), ss.91R, 91X, 424A |
| Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 SZEAS v Minister for Immigration & Anor [2005] FMCA 1776 |
| Applicant: | SZEAS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3650 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 30 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 21 February 2008 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Nepali interpreter |
| Counsel for the Respondents: | Mr G Kennett |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration & Citizenship”.
The application filed on 7 December 2006 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 3650 of 2006
| SZEAS |
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 1967. He claims that he was a field worker in human resource development and capacity building with the United Nations Development Project (UNDP) from 1987 to 1993. The applicant claims that from 1993 to 1996, he worked on similar community development projects and programs concentrating on mid and western Nepal. He claims that during this period, Maoists accused him of attracting aid away from them and so threatened him. As a result, he was transferred to the regional headquarters in Nepalganj but this was closed in 1996.
The applicant claims that he suffered “serious mental stress” as a result of being threatened and assaulted. He arrived in Australia on 13 November 2003, claiming to participate in a conference organised by “Plan Australia”.
The applicant applied for a Protection (Class XA) visa on 27 November 2003. A delegate of the first respondent refused to grant the visa on 17 February 2004 and the applicant applied to the Refugee Review Tribunal (“the Tribunal”) to review the delegate’s decision. The first Tribunal affirmed the delegate’s decision, so the applicant applied to the Federal Magistrates Court for judicial review of the first Tribunal’s decision: SZEAS v Minister for Immigration & Anor [2005] FMCA 1776 (18 November 2005). A writ of certiorari issued directed to the Tribunal, quashing the decision of the Tribunal handed down on 24 June 2004 in matter N04/48531. A writ of mandamus issued to the Tribunal, requiring it to determine according to law the application for review of the decision of the delegate of the first respondent.
The Minister appealed the decision to the Full Court of the Federal Court and on 4 May 2006 the matter was remitted by consent to the Tribunal for reconsideration according to law. The second Tribunal conducted a hearing on 21 August 2006. The applicant was accompanied by his advisor and Pastor David Boyd at the hearing. The Tribunal member, Ann O’Toole, signed the decision on 26 October 2006 (reference number 06045602). This is the decision that is now for review before this Court.
The applicant listed two grounds of judicial review:
i)Christianity
ii)Maoist victim
There is no particularisation of either of these claims. The applicant filed an affidavit on 20 June 2007 attaching a copy of the transcript of the Tribunal hearing. The applicant states in that affidavit:
That the Refugee Review Tribunal has erred in its decision by not dealing with evidence to my claim for refugee status as provided to the RRT.
The response filed by the first respondent states:
The application filed on 7 December 2006 only lists ‘Christianity’ and ‘Maoist victim’ as the grounds of the application. In the claims for interlocutory relief and an attached affidavit, it is also argued that the RRT was wrong in not accepting that the applicant was a genuine Christian. As theses are clear attempts to seek merits review, the First Respondent opposes the application on the basis that no reasonable cause of action is shown.
Consideration
At the first Court date, the applicant indicated that he wished to participate in the scheme to give unrepresented applicants in refugee matters independent legal advice. The applicant was allocated a panel advisor. He attended a conference with the advisor on 1 May 2007 and received written advice on 1 June 2007. The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon by 7 May 2007. The applicant was advised to file an amended application after he had consulted the panel advisor. At the time of the final hearing, the Court had not received an amended application, which the applicant confirmed.
The applicant did file an affidavit sworn on 20 June 2007, to which is attached a copy of the transcript of the Tribunal hearing held on 15 September 2006. The applicant was also required to file and serve a short written outline of submissions and list of authorities 14 days before the hearing. He also confirmed that he had not complied with this order.
When the applicant was invited to make oral submissions, he said that his circumstances had substantially changed due to his conversion to Christianity since arriving in Australia. He was originally Hindu, although he states he was not very religious as that faith was not necessarily demanding. He said that he developed an interest in Christianity in September 2005 after meeting a Mr Limbu in Ashfield. He stated that he began attending the Jesus Family Centre at Cabramatta in September 2005 and was subsequently baptised in March 2006. He made friends with people who also attended the Cabramatta church and he has been active in church activities since September 2005.
The applicant said that he was guided by the bible and had spent considerable time studying its contents. He had told the Tribunal member when questioned about his conversion to Christianity that he had not done so to enhance his chances of remaining in Australia or to blend into the community. He stated that if he were forced to return to Nepal, he would be persecuted because of his religious beliefs as more radical elements of Hinduism have tried to raise public opinion against Hindus who convert to Christianity. The applicant fears retaliation and persecution from members of Shiv Sena.
Mr Kennett, for the first respondent, submits in written submissions that the Tribunal received a considerable amount of further material filed on behalf of the applicant. Details of all this material are set out in the Tribunal decision under “Claims and Evidence” (CB 804-807, 812-814). The material is also reproduced in the Court Book (CB 161-164, 167-737, 755-790). The first Tribunal held a hearing on 30 April 2004 and the reconstituted second Tribunal held a hearing on 21 August 2006. The second Tribunal hearing completed on 15 September 2006.
Mr Kennett submits that the applicant claims that he had been involved in community development projects organised by Non-Government Organisations (NGOs) and that he was attacked by Maoists after he resisted their extortion attempts in 1997. His office had then moved to Kathmandu where, in July 2001, he was attacked again by Maoists to retaliate his reporting the early attacks to the police. He received further threats which resulted in him leaving Nepal and seeking protection in Australia.
Mr Kennett submits that in the applicant’s submissions in 2006 to the Tribunal, he claimed he converted to Christianity and became actively involved in a church in Australia. Material from pastors and fellow worshipers supported this claim. The applicant claimed that he feared social ostracism and death at the hands of Hindu extremists or Maoists as a result of his conversion.
Mr Kennett submits that in respect to the particular social group claim (the original claim), the Tribunal accepted that the applicant had been threatened by Maoists in 1995 and 1997 but otherwise did not accept the truth of his claims. It did not accept that Maoists had any interest in him after 1997, that he had a genuine fear of persecution or that there was a real chance that he would suffer persecution in the future as a result of his membership of a particular social group or for an actual or imputed political opinion.
The Tribunal under the heading “Membership of a Particular Social Group Claim” makes two separate findings in respect of the threats by Maoists. The first relates to the applicant’s occupation as a member of an NGO or as a human rights worker:
The Tribunal has accepted that the applicant suffered harm as claimed in 1995 and 1997 in Nepal. There has been a significant time lapse since those incidents and the question arises as to whether there is a real chance of persecution occurring to the applicant in the reasonably foreseeable future if he returns to Nepal in relation to his employment for non-government organisations. It is the applicant’s evidence since taking up his position in Kathmandu, as far as he was aware, no other staff member was threatened, targeted or harmed in any way. Having found that the applicant did not suffer any harm since 1997 in Nepal, I am satisfied that if the applicant returns to Nepal now or in the reasonably foreseeable future, there is a real chance that he would suffer any serious harm that would amount to persecution for the purposes of convention because of his membership of a particular social group, NGO, Human Rights Worker or for his actual or imputed political opinion. (CB 817.1)
The Tribunal made a second finding in respect of a different social group:
In relation to the applicant’s claim that Maoists target returnees from the West and or returnees from a wealthy country, the Tribunal finds there is no evidence to support the position that the Maoists are singling out Nepalese people returning from abroad as targets for persecution. The Tribunal is not satisfied that the applicant has a well founded fear of persecution for the reason that he is a returnee from the West and/or a wealthy country. (CB 817.3)
I am satisfied that the Tribunal has fulfilled its obligation to address the applicant’s position as a member of a group that he claimed to belong to, and to decide whether it supported his fear of returning to Nepal. I am satisfied that the Tribunal considered both the written and oral submissions made by the applicant and his witnesses concerning this issue. I am satisfied that the Tribunal considered the claim that the applicant belongs to more than one particular social group and this was fully explored and considered.
The applicant has not fully articulated this claim in the grounds for judicial review, however I believe that the “Maoists” claim is intended to identify this issue. In the complete absence of any particulars, the only material this Court has available to it is the Court Book and the Tribunal decision. Substantial parts of both of these point to the Tribunal addressing the membership of a particular social group claim. It is not apparent that any jurisdictional error is evident in this ground. In the circumstances, this ground cannot be sustained and should be dismissed.
A significant new claim that was before the second Tribunal is based on the applicant’s religious conversion to Christianity. Mr Kennett submits that the Tribunal accepted the evidence about the applicant’s church attendance and training and that fellow members of the congregation believed him to be a genuine convert. He submits, however, that the Tribunal did not accept that this was a genuine conversion in light of its adverse view of the applicant’s credibility and that it had difficulty accepting his account that he encouraged his wife, who remains in Nepal, to attend church.
The Tribunal concluded that the applicant would not practice Christianity upon his return to Nepal and would not face persecution on account of that newly adopted belief. It also concluded that the applicant’s church activities in Australia was conduct engaged in for the purpose of enhancing his refugee claims and was therefore to be disregarded under s.91R(3) of the Migration Act 1958 (Cth) (“the Act”). I note that the s.91R(3) finding was not the reason that the Tribunal did not accept the applicant’s claim and, in this respect, it was not necessary for the Tribunal to have pursued it further.
The Tribunal decision turned on its view of the applicant’s credibility. It gave coherent reasons for rejecting both of his claims and these conclusions were clearly open to it. With respect to the claim that in July 2001 when working in his office in Kathmandu, he was summoned outside by a woman and assaulted by five men, the Tribunal said:
I am not satisfied that the applicant was a victim of such an attack. It was the applicant’s evidence that he went outside his office to speak to a Maoist woman and once identified was attacked by five men. I do not accept that the Maoist wished to harm the applicant in relation to an event that took place many years previous to the alleged assault, that they would have delayed their action over such a period as claimed by the applicant. I do not accept that the applicant was targeted by the Maoists because of his membership of a particular social group. (CB 815.9)
The applicant claims that the attackers intended to kill him and he later he received several death threats by telephone. Despite these threats, he remained working for the same organisation and in the same office until he came to Australia for a conference in November 2003. The Tribunal made the following observation regarding that evidence:
I do not accept that the applicant would have continued working for the same organisation, attending his office and remaining in the Kathmandu area for a period of over 2 years after the alleged assault if he was in fear of serious harm, as claimed. The Tribunal is satisfied that these factors indicate that the applicant does not have a genuine fear of persecution in relation to his membership of a particular social group as claimed. (CB 816.2)
The Tribunal then continued:
Despite claiming to fear serious harm and death in Nepal the applicant returned to Nepal after attending a conference in Switzerland in May 2002. He stated that he returned because of his grandparent’s death and there was no other person who could arrange their funerals. I do not find this explanation convincing. I do not accept that had the applicant been in such fear as claimed he would have returned to Nepal at that time. (CB 816.4)
The applicant said that he requested a letter from the president of the organisation “HELP” because he would be seeking employment and not because he was applying for a protection visa. The Tribunal made the following finding:
I find this evidence unconvincing. I am of the view that had the applicant been a victim of such an assault in 2001, he would have contacted the President of his organisation directly and discussed the contents of any letter he might request as the corroboration of the claimed events. He claimed during his evidence that he had indicated to the president before leaving Nepal that he required a letter, yet made no further direct contact with him in relation to any letter. I do not accept the applicant’s account regarding how he received the letter from the president. The Tribunal does not accept the contents of the said letter as being corroborative of the applicant’s claim regarding his experiences with the Maoists in Nepal. I accord this letter no weight. (CB 816)
The Tribunal acknowledged that the applicant had suffered harm in Nepal as claimed in 1995 and 1997, but went on to make the following finding:
I am not satisfied that if the applicant returned to Nepal now or in the reasonably foreseeable future there is a real chance that he would suffer any serious harm that would amount to persecution for the purposes of the convention because of his membership of a particular social group, NGO, Human Rights Worker or for his actual or imputed political opinion. (CB 817.2)
The Tribunal then turned its attention to the issue of Maoists targeting returnees and found:
In relation to the applicant’s claim that Maoists target returnees from the West and/or returnees from a wealthy country, the Tribunal finds that there is no evidence to support the position that the Maoists are singling out Nepalese people returning from abroad as targets of persecution. The Tribunal is not satisfied that the applicant has a well founded fear of persecution for the reason that he is a returnee from the West and/or a wealthy country. (CB 817.3)
The Tribunal’s adverse credibility finding and consequent rejection of the applicant’s claims is a matter for the Tribunal par excellence: Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. The applicant was unsuccessful because of the view the Tribunal took of the facts and, in particular, its finding that he was not credible. Provided that the Tribunal’s credibility findings were open to it, no jurisdictional error is demonstrated.
The Tribunal’s assessment of the plausibility of the applicant’s claims was based partly on an understanding derived from country information. The Tribunal records the following comments concerning the discussion at the hearing when the applicant was accompanied by his advisor and assisted by an interpreter:
I mentioned to the applicant that country information available to the Tribunal indicated that the Maoists can be vicious in their treatment of citizens. I mentioned that the information indicated that they would not think twice about killing another human being. I mentioned to the applicant that it seemed that they could have killed him if they were serious about doing so. The applicant stated he could not say why they did not kill him but felt that they assaulted him with the intention of finishing him off. (CB 809)
The decision does not identify specifically which report it referred to. However, the independent country information contained in the Court Book contained a number of articles about Maoists abducting and kill Nepalese civilians (e.g. Amnesty International, April 2005).
As this information clearly falls within the exception in s.424A(3)(a) of the Act, there is no requirement for the Tribunal to specifically place these reports before the applicant.
I accept the submission made by Mr Kennett that s.425 of the Act has been complied with as demonstrated by the Tribunal’s detailed summary of the second Tribunal hearing conducted on 21 August 2006 and 15 September 2006. The decision record clearly indicates that the applicant was given every opportunity to address the issues upon which the decision turned. In the circumstances, I am satisfied that the Tribunal has conducted the hearing and decision making process in accordance with the provisions of the Act.
Conclusion
The applicant in these proceedings is a self-represented litigant who appeared with the assistance of a Nepali interpreter. At his Tribunal hearings, the applicant was assisted by an advisor but he appears to have embarked on this application without any identifiable help. His application for judicial review is limited to the identification of two subject areas but these were not developed or supported by any particulars.
It is clear that the applicant had no understanding of the issues before this Court or how to present his case. When invited, he made limited oral submissions which did not address the grounds of review and he only stated that it was not possible for him to return to Nepal. This places an obligation on the Court to independently consider whether any argument based on the material, that is, the Court Book and in particular the Tribunal decision, can support a claim of jurisdictional error. The applicant filed an affidavit attaching a transcript of the reconvened Tribunal hearing held on 15 September 2006. He did not address the contents of that transcript. When read, I believe the transcript does little more than confirm that the Tribunal member adequately recorded in its decision the nature of those proceedings.
Mr Kennett appeared for the first respondent and assisted with written and oral submissions in response to the application. Mr Kennett reviewed the Tribunal decision on a broader basis than the issues that the applicant has attempted to identify in his application. It is not apparent that any ground of review exists which suggests that the Tribunal made a jurisdictional error in its decision-making process. Consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 21 February 2008
0