SZEAW v Minister for Immigration - [2006] FMCA 251

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEAW v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 251

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa.

Migration Act 1958 (Cth), ss.54, 91X, 474, 483A
Judiciary Act 1903 (Cth), s.39B

Commissioner for the Australian Capital Territory of Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

Craig v State of South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Kioa v West (1985) 159 CLR 550
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24

Applicant:

SZEAW

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File No:

SYG 2304 of 2004

Delivered on:

24 February 2006

Delivered at:

Sydney

Hearing date:

19 September 2005

Judgment of:

Lloyd-Jones FM

REPRESENTATION

Counsel for the Applicant:

Mr D Burwood

Counsel for the Respondent:

Mr J Smith

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Refugee Review Tribunal is joined as second respondent.
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2304 of 2004

SZEAW

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 22 July 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on

16 June 2004 and handed down on 24 June 2004. It affirmed the decision of the delegate of the respondent (“the delegate”) made on

18 December 2003 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “SZEAW”.

Background

The applicant, who claims to be a citizen of Nepal, arrived in Australia on 13 November 2003. On 12 December 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-35) (“CB”). On 18 December 2003 the delegate refused to grant a protection visa (CB pp.36-44) and on 14 January 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.45-48).
In his original visa application, the applicant claimed he was born in 1973 in Chitwan, Nepal. He stated that he speaks, reads and writes Nepalese and English and is a Brahmin Hindu. The applicant claimed he married in 1993 and that his wife resides in Nepal. He travelled to Australia on a business visa issued in October 2003. The applicant claimed he was educated for fourteen years and lived at the one address in Chitwan from birth until his departure to Australia. From 1995 the applicant claimed he was a farmer (CB p.97).
The applicant claimed he was an active member of the Nepali Congress Party and its youth and student wings. He claimed that, through his organisational skills, the Maoist insurgency in his area was hampered. He was threatened as a result. The applicant stated he was not deterred by these threats and continued his work. In October 1999 he claimed he was caught and beaten by a group of people but managed to get away while the attackers fled into the jungle. The applicant stated he was afraid and went to Kathmandu for two weeks to hide. During a student union election campaign in 2002 the applicant claimed he was attacked by Maoist student supporters and his right hand was fractured. In 1998 the applicant claimed a friend was killed by Maoists and he learned that he was on the top of a list of “threatened young leaders”. He claimed he was threatened by telephone, that his life was in danger and that was the main reason why he left his district, hid in Kathmandu for a few weeks and then departed for Australia (CB p.97).

The Tribunal’s findings and reasons

A convenient summary of the Tribunal’s findings and reasons was contained in the applicant’s written submissions prepared by Mr Burwood, counsel for the applicant, and I adopt paragraphs 16-23, 25-28 and 29-32 for the purpose of this judgment:
[16]At the hearing the applicant produced documents in support of his claim.
[17]The Tribunal noted that some of the documents were dated on the same day, all have the same President stamp and two misspell Chitwan (to “Chittwan”) in the letterhead.
[18]The Tribunal records that it discussed the documents that the applicant had submitted and raised the inconsistencies with him (CB 99).
[19]The following documents were ‘received at the hearing’:
(a)Examination and treatment notes dated 12.1.2002 (CB 81);
(b)Discharge Slip dated 15.1.2002 (CB 82);
(c)‘To Whom it May Concern’ letter dated 29.3.04 from Birendra Multiple Campus, Chitwan (CB 83);
(d)‘To Whom it May Concern’ letter dated 30.11.03 from Nepali Congress, District Executive Committee, Chitwan (CB 84);
(e)‘To Whom it May Concern’ letter dated 30.11.03 from Nepal Tarun Dal, District Office, Chitwan (CB 85);
(f)‘To Whom it May Concern’ letter dated 30.11.05 from Nepal Student Union, District Committee, ‘Chittwan’ (CB 86);
(g)‘To Whom it May Concern’ letter dated 30.11.03 from Nepal Student Union, Bharatpur, ‘Chittwan’, Nepal (CB 87).
[20]In the findings and reasons the Tribunal expresses doubts about the bona fides of the applicant’s documents. The Tribunal accepted the medical evidence as to the hand injury in January 2002 (CB 110).
[21]The Tribunal doubted the authenticity of the “Nepali Congress documents” due to the misspelling of Chitwan and the use of the same President stamp. The Tribunal is referring to documents (f) and (g) above at CB 86, 87.
[22]The Tribunal refers to document (c) at CB 83, a letter dated 29 March 2004. The Tribunal doubts its authenticity as “it follows the same paragraphing and much of the same wording as one of his Nepali Congress letters – the one said to be from the District Executive Committee”.
[23]The Tribunal found that the paragraphing and wording were similar in the two letters and concluded that they had been fabricated to advance the applicant’s claims.
[25]The Tribunal found that the applicant had manufactured his claims, except for the January 2002 injury, based on the finding that the applicant’s documents were false. The applicant was found to be a witness lacking credibility.
[26]The Tribunal found that he did not have a well founded fear of persecution for a Convention reason in the face of the applicant’s case that he feared persecution on the grounds of his political beliefs.
[27]Additionally the Tribunal found that the applicant was able to reside in India on the grounds that he would enjoy residency rights there, that he was well educated, came from a wealthy family, had work skills and was resourceful.
[28]The Tribunal’s reasons and findings are prefaced by the applicant’s background, the relevant legislation, definition of refugee, ‘protection obligations’, the qualifications under ss 36(3), (4) and (5) of the Migration Act 1958 and the definition of ‘effective protection’ for the purpose of s.36(2).
[29]The Tribunal found that the applicant did not have a well founded fear of persecution for reasons of a Convention ground in Nepal and went on to note that the applicant had residency rights in India (CB 111).
[30]The Tribunal found that the applicant did not have a well founded fear of persecution in India for any reason.
[31]The Tribunal found that if the applicant had concerns about living in Nepal that it was reasonable for him to live in India.

Application for review of the Tribunal’s decision

On 22 July 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). A supporting affidavit was filed on the same date which contained the following grounds:
3.The Tribunal in its Findings and Reasons was not satisfied that I had a well founded fear of being persecuted within the meaning of the Refugees Convention if I were to return to Nepal.
4.The Tribunal found that even if I did face some risk of harm if I returned to Nepal it was satisfied that I would have effective protection in India.
5.I maintain that the Tribunal’s decision (RRT Reference N04/48220) is flawed through an error of law.
6.I disagree with the Refugee Review Tribunal’s decision and seek the orders listed in the application.
7.The grounds for judicial review of the Tribunal’s decision of 16 June 2004 will be the subject of written submissions once I have obtained the departmental papers.
On 12 January 2005 the applicant filed an amended application, again supported by an affidavit of the same date, which set out the following grounds:
2.I have received the Court Book and audio tape of the hearing before the Refugee Review Tribunal. The grounds of my application are that there has been an error of law in the decision making process of the Tribunal as detailed in Attachment ‘B’ which follows.
Attachment ‘B’ to the Affidavit of [applicant]
3.On page 110 of the Court Book the Tribunal records that I produced at the hearing on 21 April 2004 a letter from the Birendra Multiple Campus dated 29 March 2004. This letter is reproduced at page 83. On page 110 the Tribunal comments that having examined the letter it doubted whether the document was genuine.
4.The Tribunal member had the opportunity to put this to me at the hearing but did not do so. I was unable to address this issue. The Tribunal did raise with me other documents whose authenticity it doubted but not the letter from Birendra Multiple Campus.
5.I believe that under the principles of natural justice I should have been given the opportunity to deal with material about which the Tribunal were to make a finding adverse to my case.

The law

The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in a way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26.

Reasons

The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 at [43], [91], [153] and [180].
The applicant confirmed that his amended application relied upon an argument of natural justice. However in his submissions, counsel for the applicant indicated he has increased the ambit of his argument, that the Tribunal decision was flawed by errors of law in more than one instance.
I accept the submission of Mr Smith, counsel for the respondent, that there was one ground in the amended application. The ground being that the applicant was denied procedural fairness because the Tribunal did not give him an opportunity to deal with the issue of authenticity of a letter produced by the applicant, identified as a letter from the Birendra Multiple Campus. The submissions filed by the applicant raised two further matters. They were the Tribunal’s failure to comply with s.54 of the Act; and the failure to raise with the applicant an inference that arose from his evidence, that his wife and child remained in his home village.
These contentions in respect of the pleaded ground were set out in the applicant’s written submissions and I adopt paragraphs 33-45 for the purpose of this judgment:
33. The Tribunal considered its own independent country information commencing at CB 100 but made no comment or reference to the following materials that the applicant brought to the hearing:
(a)1999 Country Reports on Human Rights practices (CB 55-73);
(b)A series of articles concerning Maoist attacks, kidnappings, abductions, murders etc (CB 74-78);
(c)Emails dated 15 April 2004 and 16 April 2004 (CB 79-80).
34. It is submitted that the failure to consider these documents is in breach of the Migration Act 1958 section 54 where the Minister must have regard to “all of the information in the application”.
35. The Tribunal in its summary of claims and evidence refers to asking the applicant how he injured his arm (CB 99). The applicant claimed that he was injured making a speech at an election program when Maoist students attacked. The Tribunal records:
“They were pelted with sticks and stones and he had a cut on his forehead (requiring 3-4 stitches) and hurt his right elbow. It is noted that one of the documents produced by [the applicant], a medical certificate, refers to this injury (dated 12 January 2001).”
36. This latter statement is incorrect. The medical certificate is dated 12 January 2002. The Tribunal in its reasons accepted the medical evidence which was that the applicant was admitted for open reduction and fixation of his arm following an X-ray which showed a fracture. He was place on a range of medications and discharged from hospital three days later on medication (CB 81, 82).
37. The Tribunal commented “I also accept the medical evidence which indicates that his hand was injured in a physical assault in January 2002.”
38. The Tribunal did not accept the history of the circumstances claimed by the applicant as the cause of injury – that is the claimed attack by Maoists while the applicant was speaking at an election program.
39. The Tribunal did not put to the application that his story was implausible or indicate its scepticism at the time, according to the record, but refers to the medical certificate dated “12 January 2001” and the Tribunal’s mistaken view, corrected post hearing, that the applicant’s claims included being “shot”.
40. Whereas the decision records that the applicant had an interpreter for the hearing the applicant represented himself before the Tribunal.
41. The mistaken claim of being shot was raised at the hearing with the applicant (CB 110). The applicant denied that he had claimed he had been shot, did not know anything about such a claim and could not say why it had been claimed (CB 99). On reviewing the file post hearing the Tribunal noted that this was not part of the evidence and that the Tribunal was mistaken in this (CB 110).
42. The Tribunal considered the applicant’s claim of harm in his local village (CB 111). The Tribunal noted that the applicant’s wife remained there and that he obtained his passport in his home district in June 2003. These factors “in combination with the production of false documents” lead the Tribunal to reject the applicant’s claims of fearing harm from the Maoist insurgents. The history of his January 2002 injury was not accepted.
43. The Tribunal records that in relation to his passport the applicant claimed he had been able to obtain his passport in Chitwan in June 2003 (CB 99). His passport details are contained in his application (CB 14). The RRT records that “he had been able to obtain it in Chitwan as he was a leader and was able to return to get it”. Whereas it appears that the question of the applicant’s ability to obtain his passport in his home town was put to him the question of his wife remaining in the village was apparently not put to him to address.
44. It is submitted that the inference the Tribunal might draw from the wife’s location was an important element in its decision to not accept the applicant’s claims of fearing harm from the Maoists and should have been put to the applicant for him to have the opportunity to make oral or written submissions as to the significance of the inference and the way it might be reconciled with his claims: Re MIMIA; ex parte Miah (2001).
45. The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol “therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa”.
In his oral submissions before the Court, Mr J Smith of counsel, appearing for the respondent, contended that the ground of lack of natural justice should be considered globally. It should consider the course of the Tribunal’s decision-making process during the hearing and its written decision.
In respect of the five documents submitted by the applicant, the Tribunal addressed four of these and identified them in its decision by folio numbers from the Department file. Those four documents are identified as testimonials provided by the Nepali Congress Offices in Chitwan and are all dated 30 November 2003 (CB pp.84-87). The fifth letter, from Birendra Multiple Campus dated 29 March 2004 (CB p.83), was the document that the applicant’s counsel claimed the Tribunal failed to discuss with the applicant.
Mr Smith submitted that:
4. Procedural fairness requires that the decision-maker bring, to the attention of a person who may be affected by the decision, the critical issue or factor on which the decision may turn so that the person has the opportunity to deal with it: Kioa v West (1985) per Gibbs CJ at 557:
…the delegate was required to observe the rules of natural justice and that he failed to do so, in that he did not give the applicants a fair opportunity to answer prejudicial statements affecting them.
5.However, there is no obligation to warn of a risk of a finding if that risk necessarily inheres in the issue to be decided: Re Refugee Review Tribunal; Ex parte AALA per McHugh J at [101]. A decision-maker does not have to put to a person its thoughts or processes unless they are not an obvious and natural evaluation of the material: Commissioner of Australian Capital Territory of Revenue v Alphaone Pty Ltd per Northrop, Miles and French JJ at 591.
6.In the context of a finding of fabrication of documents in WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] per Lee, Hill and Carr JJ at [54] said:
Where the finding of fact made did not turn on the credibility of the applicant and there was nothing on the face of the documents themselves to alert the decision-maker that they were forgeries, it was likewise inherently unfair that the decision-maker conclude that they were not genuine without affording the person affected by that conclusion the opportunity to deal with it.

Mr Smith submits that in this case, the applicant produced a number of documents to support his claims which included five letters (CB 83-87). At the hearing, the Tribunal raised with the applicant its doubts in respect of four of them (CB 99). However, it did not specifically raise with the applicant its doubts about the authenticity of the letter from the Birendra Multiple Campus. Mr Smith submits that it was not required to do so for two reasons. First, the Tribunal’s doubts about the authenticity of the other documents raised the issue of the authenticity of all of the documents because all of them were produced by the applicant. Secondly, the Tribunal’s doubts about the Birendra document were natural and obvious because its contents were almost identical to another document from a completely different source (CB 84). Consequently, the applicant was or ought to have been aware that there was a real issue about the reliability of these documents. He was afforded an opportunity to address that issue.
On 13 September 2005 the solicitors for the respondent filed an Affidavit of Judith Pownall affirmed on that date. The affidavit of Ms Pownall stated as follows:
I believe that on 21 April 2004 the applicant attended a hearing before the Refugee Review Tribunal which was recorded. Annexed to this affidavit and marked “A” is a copy of an acknowledgment receipt of a hearing tape in those proceedings.
On 12 January 2005 the applicant’s legal representative sent to the Australian Government Solicitor (AGS) an audio tape. I caused a copy to be made of that tape. Exhibited to me at the time of affirming this affidavit and marked “JP1” is a copy of the tape made by the AGS.
I caused the applicant’s tape to be returned to his legal representative.
I listened to the hearing tape referred to as Exhibit “JP1” and, to the best of my ability, I prepared a transcript of that tape. Annexed to this affidavit and marked “B” is a copy of a transcript prepared by me from Exhibit “JP1”.
Page four of the transcript discloses that the Tribunal member put to the applicant its doubts in relation to aspects of the preparation of the documents. In particular, the spelling of the word “Chitwan”, which in two of the documents appeared to be misspelt as “Chittwan”.
In the Tribunal’s “Findings and Reasons” (CB 110), the Tribunal member indicated the letters were considered carefully and conclusions were drawn from their content and preparation. The applicant argued that because a significant decision had been made regarding the letters’ contents, that the fifth letter should have been discussed with him and an invitation to comment afforded to him. Mr Burwood argued that the Tribunal’s failure to do both was a failure by the Tribunal in its duty to act fairly: Kioa v West (1985) 159 CLR 550 per Mason J at 557.
A review of the transcript of the Tribunal hearing clearly demonstrates how the 5 documents were treated as a group and the authenticity of all of the documents comes into question.
TM:How do you spell Chitwan?
Applicant:C H I T W A N. Chitwan.
TM:Can you spell it with two “tts”?
Applicant:C H I T W A N.
TM:Yes, I know that but I am asking you.
Applicant:No, I haven’t seen it.
TM:Well I’ve never seen it either but some of your documents you have submitted have two “tts” in Chitwan. It is not the official spelling and I have never seen anyone spell it like that.
Applicant:Maybe a typing mistake.
TM:Yes, but it is a typing mistake in their letter head which makes me wonder that it maybe isn’t true.
Applicant:I don’t think it is the original paper.
TM:Yes, it is. It’s this one, the Nepal Student Union. Bharatpur, Chitwan. They spell it with two “tts”. C H I T T W A N.
Applicant:This is not in the original. I have given the other original, you should have it.
TM:It is a copy of the original and either which way you look at it, it’s got two “tts” in it. There is a clearer copy for you. You can see I have circled it with a blue pen. It’s spelt with two “tts” in it. I wonder why it would have that spelling.
Applicant:I think the “I” must be looking like “t”.
TM:No, no, have a look what I am talking about it. It is quite clear what I am talking about. Some one has put two “tts” in it. I wonder why it would have that spelling.
Applicant:“i t t”. It shouldn’t be.
TM:I know it shouldn’t be but it is on letter heads of two different organisations of documents that you have submitted.
Applicant:It is not in my original. It is not like that. I just submitted that original, it is not in that spelling.
TM:You have a look at it. It also makes me concerned about the documents you have submitted. Each has a stamp on it that …”President” and they are supposed to be from all sorts of different organisations and yet they have exactly the same stamp “President” on them.
Applicant:All the organisations are in one office. The stamp … (indistinct). then (indistinct)… The President puts the stamp on.
TM:So these four letters you have got are all in (indistinct) from the same office. The one person writes them and…
Applicant:Not one person…they are different, the … (indistinct) is different, the (indistinct)…
TM:Does the one person type all of them?
Applicant:No, different people. But stamp and signing is one person. Signing whoever is…(indistinct) sign, stamp is one person. There is a mistake here. The others are from the college…(indistinct).
TM:See the original paper. That’s wrong, it has two “tts” on it. Chitwan. This also has two “tts” in Chitwan.
Applicant:That’s a mistake. Because the campus publishes and gives it to the district and so if there is one mistake there is a mistake in all of them. But the party (indistinct) different (indistinct).
TM:These copies you have submitted to me. Why do they have a fax sending thing on the top? What’s that about?
Applicant:When I had to submit I hadn’t received the original papers, so I asked them to fax and they faxed it to me. And, I received the original papers later on. (Affidavit of Ms Pownall, Annexure B, pp.4-5)
I accept the submissions of Mr Smith with respect of the question of procedural fairness. The Tribunal did bring the critical issue to the applicant’s attention in that he raised a series of questions as to the authenticity of the documents. Those doubts were raised by the spelling of Chitwan in the letterheads on a number of the documents. Also the title of the signatory was the same for all five documents but signed by five separate individuals. The applicant offered an explanation for these apparent inconsistencies or errors which have failed to satisfy the Tribunal member. The applicant did not make any particular reference to the document from Birendra Multiple Campus that in any way distinguished it from the other four documents. In the circumstances I am not satisfied that the submission made on behalf of the applicant that he had been denied procedural fairness because of the handling of this specific matter can be sustained.
The second part of the applicant’s argument concerns the other group of documents provided to the Tribunal during the hearing, which relates to country information. These documents are noted at paragraph 14 above. The applicant contended that the Tribunal considered its own independent country information but made no reference to the material provided by the applicant. The Tribunal member acknowledged the receipt of the applicant’s material at the end of the hearing and this was recorded at page 9 of the transcript in the last two questions:
Tribunal:And these documents are all for me?
Applicant:Yes.
Tribunal:I will be considering carefully what you said about what occurred to you in Nepal. But I have to also take into account that the independent information says Nepalese citizens can go and live in India. I will be thinking carefully about that and what it means in your situation and I will be making a decision in your application in probably one to two weeks.
Mr Burwood contends that the Tribunal, in its decision, refers to a number of items containing independent country information but does not refer to the documents supplied by the applicant. These contentions are in support of the submission that s.54 of the Act has not been complied with as the respondent “must have regard to all of the information in the application”.
In response, Mr Smith submits that the Tribunal is obliged under s.430(1) of the Act, to prepare a statement in which it sets out its decision, the reasons for the decision, its material findings of fact and evidence upon which those fact findings are made. However, it is not required to set out all the evidence before it or to give a line by line refutation of materials submitted by the applicant, nor indeed to give its reasons for the rejection of that material: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405. Mr Smith argues that the Tribunal prepared a concise statement that complies with s.430(1). Given that the Tribunal was obliged to go no further than it did in order to comply with s.430(1), it cannot be inferred from the absence of any reference to some of the material produced by the applicant that the Tribunal failed to consider that material. Mr Smith contends that that material was not the basis for any of the Tribunal’s findings and therefore the reasons for the Tribunal decision did not include those documents.
The Tribunal member in the findings and reasons of its decision found that the applicant had manufactured his claim and was not a credible witness. The further finding was that the applicant has residency rights in India due to the treaty between Nepal and India which entitles the applicant to enter, re-enter, live, work and enjoy virtually all the rights of an Indian citizen. This opportunity is further enhanced because of his education, family wealth, work skills and his demonstration of resourcefulness by being able to arrange his travel and application for protection in Australia. That view has been formed on the material placed before the Tribunal member and which is identified and considered in some detail within the body of the decision. The material supplied by the applicant which is the subject of this ground of complaint was not considered by the Tribunal member to be evidence of sufficient value or weight to alter the member’s view. Consequently, it is not required to be set out in the decision why it was not accepted. I accept that Mr Smith’s submission that this ground cannot be sustained.
Mr Burwood for the applicant submitted that the Tribunal in its summary of “Claims and Evidence” refers to the questions addressed to the applicant as to how he injured his arm (CB 99). The applicant claimed that he was injured making a speech at an election program when Maoist students attacked him. The Tribunal records that (CB 99.6):
They were pelted with sticks and stones and he had a cut on his forearm (requiring 3-4 stitches) and hurt his right elbow. It is noted that one of the documents produced by the applicant a medical certificate referred to this injury (dated 12 January 2001).
Mr Burwood submits that this latter statement by the Tribunal is incorrect in that the medical certificate is dated 12 January 2002. The Tribunal in its reasons accepts the medical evidence that the applicant was admitted for “open reduction and fixation” on his arm following an x-ray which showed a fracture. He was placed on a range of medication and discharged from hospital three days later on medication (CB 81 and 82). The Tribunal commented:
I also accept the medical evidence which indicates that his hand was injured in a physical assault in January 2002.
However, the Tribunal did not accept the history of the circumstances claimed by the applicant as the cause of the injury. The applicant’s claim was that he was attacked by Maoists when speaking at an election meeting.
Mr Burwood contends that the Tribunal did not put to the applicant at the time that his story was implausible or indicate its scepticism. Instead it referred to the medical certificate dated 12 January 2001 and held the view that the applicant’s claim included being shot. That view was corrected post-hearing. The mistaken claim of being shot was raised at the hearing with the applicant (CB 110). The applicant denied that he claimed he had been shot. He said he did not know anything about such a claim and could not say why it had been claimed (CB 99). On reviewing the file, post-hearing, the Tribunal noted that it was not part of the evidence and that the Tribunal had been mistaken (CB 110).
A review of the transcript of the Tribunal hearing indicates that the issue of the applicant’s injury was raised with him twice. In the first exchange the following series of questions occurred:
TM:And I see you provided some documentation here about an injury in early 2002.
Applicant:Yes, I have.
TM:And, you broke your elbow?
Applicant:Yes, I did. That is other friends also got injured too. That was election time and the Maoists were campaigning. Other friends got injured too and my right elbow got hurt.
TM:Was it after that incident that you left Bharatpur?
Applicant:No after that (indistinct) also they beat me up once and the last incident was when I broke…I got hurt.
TM:That was the last incident, when your arm got broken?
Applicant:Yes, that was the last.
TM:Ok, well, that is in January 2002. That is nearly two years or a year and a half before you came to Australia. ) (Affidavit of Ms Pownall, Annexure B, pp.6-7)
The Tribunal then continued on to discuss with the applicant what happened in the period after the accident prior to coming to Australia, which covers approximately 2 years. At the end of that exchange, the Tribunal member returned to the question of the injury to the applicant’s arm and raised the following sequence of questions:
TM:How did you actually injure the right elbow?
Applicant:I had a program…(indistinct) election time. And I was making a speech in that program and suddenly the Maoists (indistinct) and they started to beat us with sticks and throw stones and so, in that, I broke my arm and I got a cut in the forehead too, but I have not mentioned that because it was a minor cut in the forehead. I had 3 or 4 stitches there, and one of our friends received 15-16 stitches in the head and one of them got hurt badly in the eye and he had to be flown by helicopter to the hospital.
TM:So, your injury to your arm was from being hit with a stick or something?
Applicant:I do not know. They came suddenly and (indistinct)…beat with sticks (indistinct) I just fell down and don’t recall what it was. Later when I came back to campus the…(indistinct). So I went to hospital. They x-rayed and said it was broken. For three days they kept me there and they plastered it and sent me back.
TM:I ask you because one letter from one of the people you put says you were shot.
Applicant: Not I don’t know if it was the crack of a gun or what, but I was suddenly attacked from the back, not shot, but maybe the crack of the gun.
TM:Why would they say in this letter that you were shot and injured in the hand?
Applicant:I don’t know. I don’t remember. I don’t know.

I know I got (indistinct)…(Affidavit of Ms Pownall, Annexure B, p.8)
The error made by the Tribunal member during the Tribunal hearing with respect to the shooting was clarified in the decision record in the following way:
I note that at hearing I raised with the applicant that one of his documents indicated that he had been shot. On review of the file post-hearing, it is noted that this not part of the evidence and the Tribunal was mistaken in this. [CB 110.5].
In its findings and reasons, this aspect is not considered further and there is no indication that the Tribunal did not that the applicant was injured. The Tribunal finds that the applicant is not a credible witness, however there is no statement indicating that the circumstances surrounding the injury of the applicant led to that finding. The credibility finding is attributed to other issues. I do not believe there is any evidence to support the argument that the circumstances of the injury led to the finding in respect of credibility.
The next issue raised by Mr Burwood was the Tribunal’s consideration of the applicant’s claim of harm in his local village (CB 111). Mr Burwood referred to the Tribunal noting that the applicant’s wife remained in the village and the applicant obtained his passport in his home district in June 2003. These factors “in combination with the production of false documents” led the Tribunal to reject the applicant’s claim of fearing harm from Maoist insurgents.
The Tribunal recorded that in relation to his passport, the applicant claimed he had been able to obtain this at Chitwan in June 2003 (CB 99). His passport details are contained in his protection visa application (CB 4). The Tribunal records that “he had been able to obtain it at Chitwan as he was a leader and he was able to return to get it” (CB 99). Whereas it appears that the question of the applicant’s ability to obtain his passport in his home town was put to him, the question of his wife remaining in the village was apparently not raised with the applicant.
Mr Burwood submits that the inference the Tribunal might draw from the wife’s location was an important element in the decision not to accept the applicant’s claim of fearing harm from the Maoists. This should have been put to the applicant, providing him an opportunity to make oral or written submissions as to the significance of the inference and the way it might be reconciled with his claims.
Mr Smith submits that the Tribunal was not obliged to expressly raise with the applicant the inference that he would not suffer harm in his village because his wife was still there. The applicant claimed that he had been attacked in his home village and that, as a result, his wife and his parents were afraid (CB 27.6). At the hearing he told the Tribunal that he came from a well-off family, but had to come to Australia for the protection of his family (Affidavit of Ms Pownall, Schedule B, p.9.2). The applicant then told the Tribunal that his wife and two children were still in the village and that he returned to get his passport. It is submitted that the Tribunal considered that the fact that the applicant’s wife was still in the village was irrelevant to his claim of fear of persecution. Particularly given that the applicant claimed that his wife was also afraid because of the attacks on the applicant. The submission is that this was an obvious inference to be drawn from the material. The consequence of that inference is that there is no obligation on the Tribunal to raise with the applicant the risk. Based on the principles set out above, it would be obvious that this inference would be drawn and the Tribunal is not required to specifically draw it to his attention that this would occur.
Mr Burwood in his written submissions refers to the Tribunal decision record that the applicant had an interpreter for the hearing. Mr Burwood suggests that was incorrect – that the applicant represented himself before the Tribunal. The affidavit of Ms Pownall states that she prepared a transcript from the hearing tape. That transcript records as the first entry the following statement:
Opening and formalities (including swearing of interpreter and applicant not transcribed).
To clarify this issue I have listened to the tape of the Tribunal hearing which has been tendered as Exhibit “JP1”. In the opening sequences of the Tribunal tape, it is clear that an interpreter is present and the Tribunal member requests that the interpreter be sworn prior to formally commencing the hearing.

The third element of the applicant’s argument was a paragraph from the Tribunal’s “Findings and Reasons”:
“I have also carefully considered his claim of harm in his local village. I note that he has left [his] wife behind in [their] village. He also obtained his passport in his home district in June 2003. I have carefully considered these factors in combination with the production of false documents and do not accept his claims of fearing harm from Maoist insurgents. I find that he has manufactured his claims. Whilst I accept that he has been injured in 2002 I do not accept that the history as given by him as to how this happened is true.” (CB 111)
The applicant’s argument was that he should have been provided with the opportunity to discuss these issues during the Tribunal hearing to explain why his wife remained in their village and how he was able to obtain a passport in his home district.
Mr Burwood submitted that the Tribunal considered the applicant’s claim of harm in his local village (CB 111). In this context the Tribunal noted that the applicant’s wife remained in the village and that the applicant obtained his passport in his home district in June 2003. Mr Burwood contends that these factors, “in combination with the production of false documents”, led the Tribunal to reject the applicant’s claim for fearing harm from Maoist insurgents. The Tribunal in its decision records that in relation to the applicant’s passport claims he was able to obtain his passport in Chitwan in June 2003 (CB 99). The Tribunal records that “he was able to obtain it in Chitwan as he was a leader and was able to return to get it”. Whereas it appears that the question of the applicant’s ability to obtain his passport in his home town was put to him the question of his wife remaining in the village was not. Mr Burwood submits the inference the Tribunal may draw from the wife’s location was an important element of its decision not to accept the applicant’s claim of fearing harm from Maoist insurgents. It should have been put to the applicant for him to have the opportunity to make oral or written submissions as to the significance of the inference and the way it might be reconciled with his claims: Re MIMIA; Ex parte Miah (2001).
Mr Smith contends that the applicant was or ought to have been aware that there was a real issue about the presence of his wife in the local village in which the applicant claims that he was attacked and continued to be at risk of attack by the Maoist rebels. The Tribunal was not obliged to expressly raise with the applicant the inference that he would not suffer harm in his village because his wife was still there. The applicant claimed that he had been attacked in his own village and that as a result his wife and parents were afraid (CB 27.6). At the hearing he told the Tribunal that he came from a well-off family, but had to come to Australia for the protection of his family (Transcript p.9.2). The applicant then told the Tribunal that his family and two children were still in the village and that he went back there to get his passport. The Tribunal considered that the fact that the applicant’s wife was still in the village was relevant to his claimed fear. Particularly given that the applicant claimed that his wife, too, was afraid as a result of the attacks on him. Mr Smith argued once it is accepted that this was an obvious inference to be drawn from the material, it must be concluded that there was no obligation on the Tribunal to raise with the applicant the risk that the inference would be made by it.
Mr Smith submits that the decision maker does not have to put to a person its thoughts processes unless they are not an obvious and natural evaluation of the material: Commissioner for the Australian Capital Territory of Revenue v Alphaone Pty Ltd (1994) 49 FCR 576.
The documents contained in the Court Book indicate that the applicant is from Bharatpur Municipality, Ward No.9, Saradpur, Chitwan District, Narayani Zone, Nepal. The applicant indicates that this is the village in which he was born and remained a resident of the majority of his life. The applicant’s wife and two sons remain in the village. In the applicant’s statement of claim filed with his protection visa application makes no reference to his wife and children. The only protection claims made were made in respect of himself. The delegate of the Minister also makes no reference to the applicant’s wife and children in his decision. The first reference to them appears in the transcript of the Tribunal hearing in the following question and answer exchange between the Tribunal member and the applicant:
TM:Anything you would like to tell me that you think hasn’t been covered by anything I have asked you?
Applicant:I am from a well off family and it would be better fro me to be there rather than the hard life here but I had to come here because of the protection of my family. Here I have to clean dishes which I did not want to do. I have got two sons and my wife is there. For the protection of my life I am here and my wife and family also tells me not to come there. (Hearing Transcript p.9)
The Tribunal member makes reference to this material in two places in his decision. It is noted in the section claimed “Claims and Evidence” in the following brief passage:
In conclusion the applicant said that he is “from a well-off family and it would have been better to stay there…I have two sons and a wife and here I clean dishes…my family tells me not to return.” (CB 99).
The other references in the findings and reasons:
I have also carefully considered his claim of harm in his local village. I note that he has left wife behind in village. He also obtained his passport in his home district in June 2003. I have carefully considered these factors in combination with the production of false documents and do not accept his claims of fearing harm from Maoist insurgents. I find that he has manufactured his claims. Whilst I accept that he has been injured in 2002 I do not accept that the history as given by him as to how this happened is true.
The Tribunal member has in effect clearly repeated the statement made by the applicant, with no further examination or extrapolation from that statement. The Tribunal member did not indicate that he placed any emphasis or significance on the statement or drew any conclusions from it. (CB 27.6).

Conclusion

I am satisfied that the grounds set out for the applicant in his written and oral submissions cannot be sustained. The applicant’s claim should be dismissed.
I am satisfied the order for costs should be made in this matter and order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 23 February 2006