SZEQB v Minister for Immigration
[2006] FMCA 411
•7 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEQB v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 411 |
| MIGRATION – Refugee – claims of fear of persecution based on political opinion – failure to address a relevant consideration – Tribunal’s consideration of documents provided by the applicant – credibility – Tribunal’s duty to make inquiries – bias – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.430, 422B, 424A, 424A(1), 424A(3)(a), 424A(3)(b) |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 WAID v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 220 |
| Applicant: | SZEQB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3187 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 13 February 2006 |
| Date of Last Submission: | 10 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 7 April 2006 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. Kennett |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3187 of 2004
| SZEQB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 27 October 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 9 September 2004 and handed down on 5 October 2004 to affirm the decision of a delegate of the respondent Minister made on 19 February 2004 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.
The applicant is a citizen of Nepal who arrived in Australia on
4 December 2003 and applied for a protection visa on 23 December 2003. His claims to protection as put to the first respondent’s Department are set out in his application for a protection visa reproduced at Court Book (“CB”) 1 to CB 35, and in particular in a statutory declaration at CB 30 to CB 35. The application to the Tribunal is reproduced at CB 47 to CB 50 and was received by the Tribunal on 12 March 2004. The applicant was advised by a migration agent (CB 48). His claims in the application for review were expressed as:“Submission will be sent in due course.”
This submission was received by the Tribunal on 19 August 2004 (CB 59). It was in the form of a letter from the applicant’s agent:
“In addition to the claims made by the applicant on his protection visa application in the form of Statutory Declaration, attached are further documents to support his claims.
The Department had made a decision without the attached documents because the documents arrived late from overseas.”
The documents are reproduced at CB 60 to CB 88.
The applicant attended a hearing with the Tribunal on 7 September 2004 and the Tribunal’s report of the hearing it conducted with the applicant is at CB 106.4 to CB 107.8 as part of its decision record.
The applicant claimed to be a member of the United Marxist Leninist (UML) Communist party of Nepal. He claimed that he was jailed for six months before the existence of a multiparty democracy in Nepal. He also claimed that during the period between 1984-1986 he was jailed and tortured because of his belief in a multiparty democracy and his active role as a “student union member supporting communist party of Nepal”. He claimed that it took years to recover from his wounds and he continued to have pain in his right leg and feet because of an electric shock. He further claimed that he joined the teaching profession in his local area (Parbat), and after 6 months was appointed “campus chief”, but was under political pressure as Maoist students were elected into the student union. He claimed that he resisted this pressure and was locked up by Maoists students for seven days on campus. He claimed that he took a period of leave from the college after that to recover. He also claimed that following this period the Maoists “were in the process of forming government in the village level”, and in this period he was asked to donate 50 000 Rupees to them. He was only able to give them 10 000 Rupees, and was subsequently asked to pay 50% of his wages. He was unable to do this and because of the continued ensuing threats was forced to relocate with his family. He claimed in 1999 he travelled to Kathmandu and accepted an offer as a lecturer where he worked until he came to Australia in December 2003. He claimed that in this period one of his houses was set on fire because he failed to “donate” to the Maoists. He claimed that the government was incapable of assisting him and that he was subject to continued threats and “forced donation for monies”. He claimed that he was pressured to teach the Maoist philosophy but was unable to do so because of his ideology and fear of retribution from the “security forces” (who were opposed to the Maoists). He claimed that in light of the circumstances, as a victim of the Maoist insurgency and as a member of a non-Maoist political party the “threat and harm created by the Maoists in my life” led him to seek asylum in Australia.
The Tribunal saw the applicant’s claims as centred around harm that he feared and had suffered from “Maoists” in Nepal, and that this fear continued even after he had moved from his home area of Parbat to Kathmandu and that the government of Nepal could not give him protection.
The Tribunal’s “Findings and Reasons” in its decision record are reproduced at CB 112.3 to CB 114.2. Relevantly the Tribunal:
1)Accepted that politics in Nepal is marked by violence and that the Maoists have committed human rights abuses in Nepal (CB 112.3).
2)Accepted that the applicant was a member of the Nepalese Communist Party (UML) and “suffered for his beliefs” (CB 112.7) and that he was harassed in Parbat and sought refuge in Kathmandu in 1999 where he worked until leaving for Australia (CB 112.8).
3)Noted and accepted the independent evidence that the authorities were actively pursuing the Maoists and that those who were in danger of being harmed or killed were offered protection by the authorities (CB 112.9).
4)Did not accept that the applicant continued to be harassed by Maoists after “he relocated” to Kathmandu (CB 113.1).
5)Found as “far-fetched”, and did not accept, that the profile of the applicant (which was local to Parbat) was such as to lead Maoists to Kathmandu in order to harm him (CB 113.2). The Tribunal further found that had he been sought in Kathmandu in the manner he claimed he would have been easily found (CB 113.2). Moreover he would have been able to enlist the assistance of the authorities (CB 113.3).
6)Found that the applicant had skills that would mean it would be “appropriate” for the applicant to work in Kathmandu, and any hardship he would experience in Kathmandu would “not be such as to make it unreasonable in the circumstances of his case to relocate there” (CB 113.4).
7)Noted that although it did not accept that the applicant had a real chance of serious harm should he continue to live in Kathmandu, accepted independent country evidence that indicated the applicant could safely “relocate” to India where he could live and work (CB 113.5).
8)Found as “far-fetched”, and did not accept, that given the “local” profile of the applicant, that Maoists would pursue him to India (CB 113.6).
9)Did not accept the claim that Indian Maoists might also seek to harm him in India (CB 113.7).
10)Found that given the applicant’s education and work skills, any hardship experienced in India “would not be an unreasonable sacrifice” in order to avoid the harm feared in Nepal (CB 113.8).
In light of the above findings the Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Convention reason and affirmed the decision of the respondent Minister’s delegate.
The applicant filed an amended application in this Court on 31 January 2005. This document not only contained claimed grounds of review, but was in the nature of submissions and legal argument. To some extent this document contains criticisms of the Tribunal’s findings of fact and invites impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). However, the following complaints may be discerned from this material.
That the Tribunal:
1)Failed to consider all aspects of claims put forward by the applicant.
2)Failed to consider the documents that the applicant provided.
3)Failed to look at information available to it on the Internet.
4)Failed to address a reason that the applicant put forward as to why he could not relocate to India.
5)Was biased.
6)Was in breach of s.430 of the Migration Act 1958 (“the Act”) in that:
a)It failed to set out “material fact of findings” (presumably meaning findings of fact)
b)It failed to provide reasons as to why it did not accept the “police documents” that were presented to it.
7)Had said that it would contact the Australian Embassy in Nepal to investigate the credibility of the police document provided to it, and failed to do so.
8)Did not give the applicant an opportunity to comment on adverse materials and that this was a breach of “natural justice”.
The applicant was unrepresented before me. He was assisted by an interpreter in the Nepalese language, although for some part of the hearing the applicant attempted to engage directly in English. Mr. Kennett appeared for the respondents.
The applicant claimed that while he had received the respondent’s written submissions, he had only received them on the morning of the hearing. While the respondent was required by “order 10” of orders made by consent at the first Court date in this matter (on 8 November 2004) to file and serve written submissions seven days before the hearing, this did not occur. The applicant’s failure to receive the submissions in a timely manner was further compounded by the applicant having changed his address for service and not having notified the Court or the respondent. I gave the applicant an opportunity to state what he wished to do in these circumstances, and offered, at first, a short adjournment to enable the interpreter to translate the written submissions for the applicant (although noting that had attempted to conduct his appearance in the English language). The applicant indicated that he wished to proceed with the hearing but that I should not take the respondent’s written submissions into account. I took the view that having already read the submissions prior to the hearing that it would be preferable to provide time after the hearing for the applicant to make any written submissions that he may care to make, and particularly after being given the opportunity to consult with his friends (an issue which he raised with the Court). I took the view that this was an appropriate and sufficient course of action in circumstances where the applicant had already made substantial written submissions by way of his amended application and would also have had the benefit of listening to Mr. Kennett's oral submissions before the Court, submissions that covered the significant issues arising in the applicant's case. In all, the applicant indicated that he was content to proceed on that basis. No written submissions were received from the applicant subsequent to the hearing.
With his amended application, filed in this Court on 31 January 2005, the applicant also attached a bundle of documents. These comprise:
1)Printouts of media and other Internet source material relating to conditions in Nepal. Such information clearly goes to the issue before the Tribunal, but before the Court can only go to support a request for what is ultimately impermissible merits review.
2)A decision of another Tribunal member relating to circumstances of a Nepalese citizen being deported from India to Nepal. Ultimately this issue, that is the issue of “relocation” to India, is not relevant to the issue ultimately before me for consideration (see Mr. Kennett’s “concession” below).
3)A document which purports to be a part of a transcript of the hearing that the Tribunal conducted with the applicant. This document, as Mr. Kennett submitted in objecting to its being taken into evidence before me, is clearly not admissible as a transcript of the hearing conducted by the Tribunal with the applicant. However, even as evidence of the applicant’s understanding of what occurred at the hearing, and even if I were to allow the admission of the document on that basis, it would not as set out below, assist the applicant.
At the beginning of the hearing the applicant also indicated that he was relying on his amended application and the submissions made within that application and that he had nothing further to add. He emphasised some issues in reply to Mr. Kennett’s submissions and I will deal with those below.
Mr. Kennett submitted that the Tribunal had two substantial and separate reasons for rejecting the applicant’s claims. The first was that the Tribunal found that although it accepted that the applicant was harassed in his local area of Parbat, it did not accept that he continued to be harassed by the Maoists after he moved to Kathmandu. In any event he would have been able to enlist the assistance of authorities in Kathmandu in dealing with any Maoist threats, if any were to occur.
The second basis for the Tribunal's finding, in Mr Kennett's submission, was the finding by the Tribunal that in any event, the applicant had a right to go and live in India. Mr. Kennett submitted that this was a separate and distinct basis on which the Tribunal affirmed the delegate’s decision, but that the respondent did not rely on that separate basis. He indicated that this was because the line of reasoning in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 was no longer available in light of the decision of the High Court in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6.
The respondent therefore relied on the Tribunal’s separate finding that in looking at the situation in Nepal as a whole the applicant was harassed in Parbat, but lived for some years in Kathmandu and it did not accept that there was a real chance of serious harm should he return there, and in any event he could enlist the assistance of the authorities. To the extent therefore that the applicant seeks to complain that the Tribunal’s decision was infected with jurisdictional error by reason of a failure to comply with “natural justice” or a failure to put material to the applicant for comment, then to the extent that s.422B applies to these matters to make s.424A the relevant exhaustive statement in this regard I note VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 per North J. at [33]:
“As referred to earlier in these reasons, there were four independent bases for the decision of the Tribunal in this application. There was no challenge to the second basis of the Tribunal’s decision and I have rejected the challenges to two of the other bases. SAAP does not stand for the proposition that if there be a breach of s 424A in relation to one ground upon which a decision is made, and there exists one or more other grounds upon which the decision is not or cannot be impeached, the decision nonetheless falls. SAAP was itself a case in which the only ground relied upon was a ground on which jurisdictional error was established. There was therefore no other basis upon which the decision in that case could be upheld. In the present case there are three other bases upon which the decision may be supported.”
This was followed and applied by Hely J., in SZDXC vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 at [12] and [17], and Heerey J., in MZWPK vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256 at [13] and cited with approval by one member of a Full Court in VCAD vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 at [22].
It is also relevant to note the Full Federal Court decision in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 (“SZEEU”) where at [233] Allsop J., stated:
“If it can be shown that there was a basis for the Tribunal’s decision which can be seen to be entirely independent of the failure to follow s 424A, in my view, that is sufficiently analogous to the first of the alternatives referred to in [58] of Aala to warrant withholding of relief.”
And at and [255]:
“For this reason I conclude that s 424A was not complied with. No submission was put that notwithstanding any found failure to comply with s 424A, relief should be refused because of an independent and separate basis for the conclusion of the Tribunal. In these circumstances the appeal should be allowed and orders made pursuant to s 39B(1) of the Judiciary Act.”
The critical issue therefore, given a breach by the Tribunal in relation to one basis upon which it made its finding (relevant to India), is whether there is one other grounds on which the decision was based, which cannot, or is not, impeached. That is, was there another separate basis upon which the decision may be supported.
On the material before me and in particular in looking at the Tribunal's “Findings and Reasons”, it is clear that the Tribunal made a distinction between the situation in Nepal in relation to the applicant's fears, and the right to reside in India. While the Minister does not seek to rely on the Tribunal's findings in relation to India, there is nothing to show that its findings as they relate only to Nepal were dependent on, or affected by, its second finding in relation to India. On this basis therefore, I accept Mr. Kennett's submission that the Court should concern itself to determine whether there is jurisdictional error with how the Tribunal dealt with the applicant’s situation as it related to Nepal, and only if there is some legal error attendant in that line of reasoning, would the applicant succeed.
The applicant's first complaint as set out in his amended application is that the Tribunal failed to consider all aspects of his claims, and in particular states that it failed to “provide required attention to the oral evidence I had provided”, and that it failed to address all the issues that were raised in the applicant’s original application and statutory declaration (to the extent that this is meant to encompass the documents submitted by the applicant, this is dealt with separately below). For the remainder, the applicant's complaint in this regard appears to centre on the Tribunal’s discussion with him during the hearing and its focus on his profile as being local to Parbat and the suggestion that the Maoists would not have had any interest in him in Kathmandu. His complaint is that this is an example of addressing the issue “in Australian context but not in a Nepali context”. Throughout his “amended application” the applicant returns to his complaint of the Tribunal's view of his profile as being local (see for example towards the middle of the page 5, and at the end of page 5 and over on page 6). An examination of the applicant’s document does not reveal that his complaint in this regard rises above anything more than a disagreement with the Tribunal’s finding as to his “profile”, and does not rise above a request for impermissible merits review.
I should also note at this stage that in so far as this complaint relies on what may or may not have occurred at the hearing before the Tribunal, I do not have before me any evidence, in any properly admissible form, as to what actually occurred at the hearing with the Tribunal (other than the Tribunal's own account). I have already said that I agreed with Mr. Kennett that the document attached by the applicant to his amended application, and purporting to be a “Transcript of the hearing” (partial) is clearly not admissible. But even if it were, and even on the basis of the applicant’s understanding of what occurred at the hearing,
I cannot see that on the issue of the applicant’s profile and the finding made by the Tribunal in this regard (and in particular as it applies to Parbat and Kathmandu) that there is anything in this document that would assist the applicant in showing jurisdictional error on the part of the Tribunal in terms of an assertion that it failed to consider an important aspect of his claims. The applicant’s claims (excluding any reliance on the documents (at CB 61 to CB 88) with which I will deal with below) were essentially that he feared harm from Maoists in Nepal, that the authorities could not protect him, and that his fears and suffering and the lack of protection continued even when he moved from Parbat to Kathmandu. This was essentially the focus of discussion at the hearing (with the additional, now not relevant, elements of the right to reside in India). The Tribunal’s account of what occurred at the hearing is not contradicted by the applicant’s written (as in the purported partial transcript) account of what occurred. The Tribunal’s account shows the essential elements of his claims were discussed at the hearing with the Tribunal. On what was before it, it was certainly open (leaving aside the issue of the documents) for the Tribunal to form the understanding that it did of the applicant’s claims and to find that it did not accept the claim of harassment in Kathmandu, and that in any event protection was available to the applicant from the authorities. There is no obligation on the Tribunal to set out in its “Findings and Reasons” each and every minute point raised by an applicant. The critical element is that the Tribunal understood and addressed each of the applicant’s claims as they relate to whether there is a real chance of persecution for a Convention related ground. Leaving aside the issue of the documents there is nothing before me to show that the Tribunal failed to do this. The applicant may have claimed to have a “high profile” and to “have link to higher political personality” and even that he was “in position to stand for parliamentary election”. The Tribunal however, found that whatever the level of the applicant’s profile, it was local to “Parbat” and was not such as to lead the Maoists to pursue him to Kathmandu in order to harm him. The Tribunal further found that given the applicant’s own evidence that he worked at the one location in Kathmandu for over three years before coming to Australia it would have been easy for the Maoists to have been able to find him. But in any event, even if this had happened, he would have been able to enlist the assistance of the authorities. In all the circumstances the applicant’s claim that the Tribunal failed to “provide required attention” to his “oral evidence” is not made out. The Tribunal simply took, for the reasons that it gave, a different view of the relevant circumstances in Kathmandu to that put forward by the applicant. There is nothing to show that it was not entitled to do so.The applicant's second complaint arising from his amended application is that the Tribunal did not consider documents that the applicant had put forward in support of his claims, and in particular failed to outline why it did not accept the “police document”, which is reproduced at CB 64. The applicant's migration adviser, on 19 August 2004, submitted on the applicant's behalf a number of documents for the Tribunal's consideration. The adviser’s covering letter is at CB 59 to CB 60 and the documents are reproduced at CB 61 to CB 88. The Tribunal's decision record under the heading of “Claims and Evidence” makes reference to this submission, and the documents at CB 105 to CB 106.4. The Tribunal’s record lists each of these documents. The Tribunal's “Findings and Reasons” however makes no reference to these documents. The applicant now relies on this absence in the “Findings and Reasons” to show error on the part of the Tribunal. He claims that the Tribunal failed to properly consider the documents that he had put in support of his case, and in particular the document at CB 64.
Mr. Kennett for the respondents submitted the following in relation to this complaint:
1)It cannot be inferred that the Tribunal failed to have regard to these documents in circumstances where the Tribunal's reasons include a detailed list of the documents submitted by the applicant's adviser.
2)Even if the Tribunal had overlooked pieces of evidence, or failed to understand their significance, this would, without more, amount to no more than an error of fact, and not a failure to deal with all of the integers of the applicant’s claims.
3)That no legal error lies in the Tribunal's failure to set out why it did not accept any of the documents. He argued that s.430 of the Act requires the Tribunal to set out the reasons for its decision and to refer to evidence or other material upon which its findings were based, and that it was not required to give a line by line refutation of the evidence which it did not accept (Minister for Immigration and Multicultural Affairs Ex parte Durairajasingham (2000) 168 ALR 407 at 742-423).
4)That the Tribunal did not express a conclusion that any of the documents submitted by the applicant were not genuine, and given that it did not discuss the documents in its “Findings and Reasons” that the Tribunal must be understood to have concluded that it accepted all of the documents to be genuine, (that is, that they were not forgeries), but that those which purported to describe the applicant’s circumstances in Kathmandu were not sufficiently convincing to change its view about the credibility of the applicant’s account.
5)Mr. Kennett submits that there is nothing unusual or illogical about such a conclusion in that corroborating evidence may properly be rejected if the account which it supports has been rejected as implausible: Re Minister for Immigration and Multicultural Affairs Ex parte Applicant S20/2002 (2003) 198 ALR 59 (“S20”), 63 [12], 70 [49]. Further that in the present case each of the documents which bore upon the circumstances in Kathmandu was by its nature a document whose contents might have been influenced by the applicant himself and in particular he points to the documents reproduced at CB 64, 66, 70 (and even 71).
I agree with Mr. Kennett's submissions to the extent that the Tribunal is not required to give a line by line refutation of the evidence which it did not accept, and further that the Tribunal does not express a conclusion that any of the documents submitted by the applicant were not genuine. I also agree that even if a Tribunal overlooks pieces of evidence, or fails to understand their significance, that in the absence of anything else, this would not necessarily constitute a failure to deal with all of the integers of an applicant's claims. In its “Findings and Reasons” the Tribunal clearly accepted that the applicant was involved with the UML, had suffered for his beliefs, and that he had worked as a university lecturer first in Parbat, and then in Kathmandu. It also accepted that he had been harassed in Parbat before seeking refuge in Kathmandu in 1999. Its failure to specifically refer to these documents therefore which were provided by the applicant to support his claims in relation to these matters, to not show jurisdictional error on the part of the Tribunal.
For ease of reference I have assigned consecutive numbers (1 to 12) to each of the documents as they appear as listed and described at CB 59 to CB 60, and CB 105 in the Tribunal's decision record and have referred to the relevant Court Book pages:
“1.Membership of CPN-UML Communist Party of Nepal (CB 61 to CB 62).
2. Translation of the membership (CB 63).
3. Letter from the police Department stating that the applicant has been threatened by the Maoist (CB 64).
4. Letter from the University stating the applicant’s position (CB 70).
5. A letter from the Campus Chief of the Parbat Multiple College indicating that the applicant’s relocation to Kathmandu was due to the fear in the lands of Maoist and it also mentions that the applicant sought protection from the CDO office (CB 65).
6. A reference letter from his current Campus Chief stating that the applicant had to leave due to his security and Maoist issue, and the letter also confirms that the applicant’s return to Nepal is not safe (CB 66).
7. A recommendation letter from Lunkhu Deuralia Village Development Committee stating that the applicant is a victim of Maoists (CB 67).
8. An appeal letter written by the wife of the applicant (CB 71).
9. A letter from ANNFSU (R) demanding that the applicant should pay the amount of 30,000.00 Rupees (CB 68).
10.A letter from Maoist demanding 500k Rupees with the threatening of punishment (CB 69).
11.All educational Certificate of the applicant (CB 72 to CB 82).
12.Current and past news relevant to the situation of the applicant (CB 83 to CB 88).”
Documents 1, 2, 5, 7, 8, 9, 10 (these demands for money are specifically addressed to the applicant in Parbat) and 11 relate to the situation in Parbat, the applicant's involvement with the UML, the applicant's educational qualifications and his professional appointments. The applicant’s claims, as supported by these documents, were not rejected by the Tribunal. In fact, it accepted the applicant’s claims in this regard, and any failure to specifically mention these documents in the “Findings and Reasons” would therefore not be seen to constitute any error on the part of the Tribunal.
Copied at CB 83 to CB 88 (document number 12), are general media reports relating to the situation of violence involving Nepalese Maoists. All consistent with the findings by the Tribunal, based on other independent evidence before it, that politics in Nepal is marked by violence, and that the Maoists have committed human rights abuses and have targeted those whom they considered to be their enemies (see CB 112.5 of the Tribunal’s decision record).
At the hearing before me, and in relation specifically to the remaining documents, the applicant submitted that he disagreed with the Tribunal's finding that there was “no serious harm” and harassment in relation to Kathmandu. He specifically pointed to evidence that he had provided being the letter from the police Department in Kathmandu (CB 64), (document number 3) and letters from the university in Kathmandu which I took to be a reference to documents at CB 66 (6) and CB 70 (4). The police document (3) that the applicant stresses was the critical document that the Tribunal failed to properly consider is at CB 64. The letters from the university are at CB 70 and CB 66 respectively.
There is strength in Mr. Kennett's submission that the Tribunal formed an adverse view as to the credibility of the applicant's claim that he continued to be harassed by the Maoists after he moved to Kathmandu. The Tribunal described these claims as “far-fetched”, in that the profile of the applicant was “local to Parbat”. In the circumstances before it, the Tribunal could not accept that Maoists would pursue him to Kathmandu in order to harm him. Further, it found that given that he had worked at the one location for the university for the three years prior to his coming to Australia, that the Maoists could have easily been able to find him at his fixed place of employment. The applicant's complaint now, put forward in his amended application, is that he could have escaped the notice of the Maoists because as a University lecturer his hours were irregular insofar as he “came and went” from the University. This does not detract from the Tribunal's finding that he still could have been easily located.
The Tribunal, as Mr. Kennett submits, formed a very clear view about the credibility of the applicant's claims. They were “far-fetched”. I accept Mr. Kennett’s submissions that:
1)Contrary to the applicant’s assertion now, the police document was not rejected as a forgery. In this regard I also note that the applicant's own partial account of what he says occurred at the hearing seems to support Mr. Kennett's submission that there was no definite finding or implied finding that the document was a forgery. In the purported partial transcript (using the numbers allocated by the applicant himself from page 16 to page 17) the following is revealed:
“Now, as you know that the tribunal have a lot of information that the false documents are easy to get in Nepal. I don't know if it is false document or genuine document. I could get the embassy in Kathmandu to check. May be they may say yes, this is a genuine document.”
Even on the applicant's own account (at least at the hearing conducted with the applicant) the Tribunal had not made up its mind one way or the other as to the authenticity, or otherwise, of these documents.
2)I note that the situation before me is similar to that envisaged by the High Court in S20, where the Tribunal in that case had already formed a clear adverse view as to the applicant's credibility, and the “well” had been:
“… well and truly poisoned.”
3)I also note that in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, a case before the Full Federal Court involving a person of Sabian Mandaean origin who claimed that his son's marriage to a Muslim woman would have repercussions for him if he were to return to Iran. The Court found that the material put before the Tribunal in relation to the son's “intermarriage” went directly to the criterion for the grant of a protection visa. The Tribunal’s failure to consider this evidence, and the resulting contention, led to the conclusion that it had failed to address this issue even in circumstances where the Tribunal recounted these claims earlier in its decision record. At [47] the Court said:
“The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
It is clear that the failure to deal with a claim raised by an applicant is an error going to jurisdiction. There is however a distinction to be drawn between a claim or issue as such, and a piece of corroborating evidence (in this case the documents at CB 64, CB 66 and CB 70), which goes to support the claim or issue advanced. In the case before me the claim or issue advanced by the applicant was relevantly, that even after he had left Parbat, and had moved to Kathmandu, he continued to be harassed by the Maoists and that state protection was not available.
While the Tribunal accepted the applicant’s claims as they related to Parbat, the Tribunal's decision record reveals that it rejected the applicant’s claims of continuing harassment by the Maoists in Kathmandu in a clear and unambiguous way. The claims were found to be “far-fetched” and it gave reasons for this. I accept Mr. Kennett's submission that the Tribunal's finding in this regard is such that no amount of corroborating evidence by way of the relevant documents referred to, would have caused it to have come to a different conclusion.
I am further of the view that this is a fair reading of the Tribunal's decision record given that the Tribunal did more than just simply list the applicant's claims in this regard, and did more than just list the documents. The Tribunal's decision record in the case before me can be distinguished from a situation where the Tribunal initially lists claims and evidence and then makes no further reference whatsoever to the claim, or piece of evidence, including no reference in the “Findings and Reasons”. However it is clear in this case, that the Tribunal did more than just list the documents. At CB 106.4 the Tribunal recounts what occurred at the hearing it conducted with the applicant. It is clear that in looking at that part of the Tribunal's decision record (CB 106.4 to CB 106.8) that a plain reading of the Tribunal's account of what it discussed with the applicant at the hearing shows that in relation to Kathmandu, the Tribunal focused on the issue of the applicant's claim that he had kept moving residence during his time in Kathmandu. The applicant in reply said that he was harassed by Maoists who kept “phoning” him and demanding he meet them, and that they would leave notes on his motorbike. The Tribunal specifically noted the issue of his being asked to make “donations” to the Maoists (to the extent that the documents at CB 68 and CB 69 while addressed to the applicant at Parbat may have had reference to Kathmandu) and that in Kathmandu the “college” itself levied academic salaries and paid this to the Maoists. The Tribunal reports that it specifically put to the applicant that independent evidence available to the Tribunal indicated that people are generally safe in Kathmandu. The applicant disputed this by saying that the government could not give him protection and that he had submitted a letter indicating that he had approached the police reporting harassment from the Maoists (CB 106.8) (this is a clear reference to the “police” document at CB 64). When read in context therefore, the Tribunal's findings at CB 113 (given the language used) directly relate to these claims made by the applicant, and as put by the applicant at the hearing conducted with the Tribunal. When read in this contextual way, in my view, it is clear that the Tribunal rejected the applicant's claims including specifically, as they related to the police report that he submitted. When viewed in this way therefore, the Tribunal did take into account the specific claims of the applicant, did take into account that he had put forward a letter from the police in Kathmandu, but rejected the totality of this claim for reasons that it gave. Similarly, the remaining documents from various academics supporting the applicant's claims of harassment by Maoists can be seen to have been treated in the same way by the Tribunal.
Therefore, in the absence of a finding that the documents were forgeries, the Tribunal’s failure to refer specifically to these documents in its “Findings and Reasons” can be seen and understood in the context that even on the basis that these documents were genuine, they were taken into consideration, and in any event would still not have affected the clear finding in rejecting the claims as put by the applicant that it made in relation to his claims about Maoists pursuing him in Kathmandu. Further, the Tribunal found that even if he had been easily found he would have been able to enlist the assistance of the authorities and to have the government arrest those who wished to harm him. This finding, based on independent country information available to the Tribunal, was open to it in all the circumstances before it. In a very real sense this finding by the Tribunal as to the availability of police assistance is also supported by the very document (the police letter at CB 64) that the applicant claims that the Tribunal ignored. It is certainly consistent with the Tribunal's finding in relation to available assistance from the authorities. The relevant police officer who provided this document certified that the applicant “has been given application for the protection of life from the Maoist threat” and the issuing of this document in itself, supports the view of the Tribunal that he would be able to enlist the assistance of the authorities.
The applicant also complains that the Tribunal undertook to check the authenticity of the “police document” with the Australian Embassy in Nepal and failed to do so (see page 3 of his amended application). In context, the applicant's claim is that the Tribunal made this promise at the hearing that it conducted with him. The Tribunal's account of what occurred at the hearing contains no such promise or undertaking on the part of the Tribunal. As I have already set out the only reference to the police document in the Tribunal's account of the hearing is set out at CB 106.8 where the applicant is reported as raising the issue that he had submitted to the Tribunal a letter indicating that he had approached the police to report harassment from the Maoists. Further, there is nothing in the Tribunal's decision record to show that in relation to this document the Tribunal made any specific finding one way or the other as to its authenticity. I have already set out above how I viewed the Tribunal's approach in relation to the applicant's claims of harassment in Kathmandu, and the Tribunal’s dealing with this claim (which as I have set out above subsumed the issue of this document).
The applicant has not attempted to put any admissible evidence before me of what occurred at the hearing with the Tribunal, apart, of course, from the purported “transcript of the hearing”. To the extent that this document purports to be the applicant's understanding of what occurred at the hearing with the Tribunal then again this document does not assist the applicant. The extract from the document that I have already noted (at 26.1 above) reveals that while the Tribunal is said to have raised the issue about false documentation and the ease with which they can be obtained in Nepal, the Tribunal is also clearly reported by the applicant as saying it did not know if this document was false or genuine. While the Tribunal is reported as saying that it could get the Embassy in Kathmandu to check, and that the Embassy may indeed confirm that it is a genuine document, there is nothing in the applicant's own document to say that the Tribunal gave an undertaking that it would in fact do so. The applicant's complaint in this regard is not made out.
In any event, even if the Tribunal had found the applicant's document to be genuine or otherwise, for the reasons set out above this would not have altered the Tribunal's view of the applicant's central claim as it related to Kathmandu.
The applicant also complains that the Tribunal failed to conduct a search of the “Internet”, and if it had, it would have found “evidences” (see page 14 of the amended application) in the form of Media reports (copies of which the applicant attaches to the application before this Court). I agree with Mr. Kennett that the substance of this complaint is that the Tribunal has failed to undertake inquiries which the applicant says that it should have undertaken. I accept submissions made by Mr. Kennett that the Tribunal is not under any duty to pursue its own investigations, and in this regard note the authorities put in support of that proposition: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 [21]-[22] see also SZEGT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1514 at [14]-[20] and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73.
To the extent that the applicant puts forward this material now to show that he could not safely relocate to India, then of course this is no more than a request for the Court to conduct impermissible merits review. In any event I have already dealt with the issue of relocation to India above. I note further, that the applicant was represented by a migration agent throughout the time of the review before the Tribunal. It would have been open to him or his adviser at any time, to have put forward to the Tribunal material that he has now collected. As indeed, as set out above, other material had been put forward. Nor in his letter to the Tribunal, following the hearing, sent on, and received by the Tribunal on, 14 September 2004 (CB 91), does the applicant indicate that he wished to put additional documents before the Tribunal. In relation to the situation in Kathmandu the applicant sought instead a further “interview” before the Tribunal so that he could better explain “the whole story”. But he makes no mention of any further documentary material that he wanted to put before the Tribunal. In any event, the Tribunal considered this post-hearing approach from the applicant, and decided not to take any further action on the basis that the matters raised by the applicant in his letter had already been raised by him at the hearing, and had been dealt with (CB 92). I cannot see any error in how the Tribunal has approached this aspect of its task.
The applicant also complains that the Tribunal's decision was made with bias. The relevant test, for the benefit of the applicant, is that allegations of bias, whether actual bias, or the apprehension of bias, are very serious and must be supported by evidence. When such allegations are made by an applicant it implies that the Tribunal member by their attitude and conduct can be shown to have preset in their mind the ultimate outcome in the matter. Allegations of actual bias carry with them an onus that it must be distinctly made and clearly proved. Actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he/she is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17, [69], [71]-[72], [127]). The real question is whether the mind of the decision maker is open to persuasion. The applicant would need to present more that just the conclusion reached by the Tribunal to support this claim. Allegations of alleged apprehension of bias must be reasonable to succeed. The standards of reasonableness are determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes (Re Refugee Review Tribunal Ex parte H [2001] HCA 28, [27]-[32]). The applicant appears to be arguing that the Tribunal’s bias is shown by the fact that it ignored the material evidence provided to it by him. This in part appears to relate to the Tribunal's alleged failure to deal with each and every item raised by the applicant and also by the alleged failure to refer to the documents provided by the applicant. This is not sufficient to show bias as it is understood by the relevant authorities, and clearly there is, as Mr. Kennett submits, no evidence to support such a complaint. Nor does the purported transcript of the hearing put forward by the applicant himself show any such bias in the way that the Tribunal dealt with the applicant at the hearing.
The applicant also specifically complains that the Tribunal was in breach of s.430 of the Act in that it did not set out the material findings of fact as required. However his particular complaint in support of this is that it did not set out in its “Findings and Reasons” any reference to the applicant's documents which he provided in support of his claims that the Maoists targeted him (in Kathmandu). The applicant’s complaint in this regard as set out at page 3 and 4 of his amended application appears to be that the failure to set out these findings in relation to these documents in the decision record is an indicator that the Tribunal did not make such findings as it was required to make in relation to those documents. I have already dealt with this issue above. I also note the respondent’s submission that the findings to which s.430(1)(c) of the Act refers and requires to be set out, are the findings that the Tribunal has actually made: Minister for Immigration and Multicultural Affairsv Yusuf (2001) 206 CLR 323, 331 [10], 338 [34], 346 [68]. The section does not impose a statutory duty to make findings on question of fact that are not material. It imposes an obligation to set out those findings once they have been made. The applicant's complaint which may be seen as being based on the Tribunal’s failure to have regard to this material does not succeed as I have set out above as it relates to the Tribunal’s findings on Kathmandu.
The applicant also complains that the Tribunal did not give him an opportunity to comment on “adverse material”. I have already dealt with the one particular that the applicant puts forward at page four of the amended application, and that is that he asserts that the Tribunal had given an undertaking that it would contact the Australian Embassy in Nepal and had not done this. Mr. Kennett also submitted in response that more generally, as a result of s.422B of the Act, the Tribunal's duty to bring adverse material to the applicant's attention is to be found exclusively on s.424A of the Act: WAID vMinister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 220 at [57]. In addition to what I have set out at paragraphs 14 and 15 above. I agree with his submission that s.424A of the Act does not impose a duty on the Tribunal to draw to an applicant's attention either of the two bases for the Tribunal’s critical finding in the case before me. Mr. Kennett has referred me to:
1)In relation to country information: VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178. I also refer to Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92.
2)In relation to its impression that the applicant's claims lack credibility: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471, 477.
The independent information before the Tribunal, on which it relied, clearly falls within the exception contained in s.424A(3)(a) from the requirement to put such information to the applicant pursuant to s.424A(1). Nor is the Tribunal’s critical thinking required to be put to the applicant. Section 424A(1) provides that the Tribunal must give to the applicant information that would be the reason, or part of the reason, for affirming the decision under review. But clearly s.424A is concerned with knowledge of a fact or circumstance communicated to, or received by, the Tribunal. It is not concerned with the thought processes of the Tribunal which appears to be the applicant's real complaint before me. In the case of Tin v Minister for Immigration Multicultural and Indigenous Affairs [2000] FCA 1109 Sackville, J. said at [54]:
“It follows that a subjective determination by the Tribunal that the applicant's account is or may not be credible does not enliven the obligation imposed by s.424A(1). Thus, even if the Tribunal had not alerted the applicant to the possibility that her evidence might not be accepted at face value, its failure to do so would not have contravened s.424A(1).”
Therefore s.424A does not require the disclosure to an applicant of the Tribunal's view of the material before it, including its view that the material he has put forward is insufficient or implausible.
Nor is there in this Tribunal's decision any such problem as set out in the recent Full Court decision of SZEEU. This is not a situation where a Tribunal has relied on the information provided in an application for a protection visa, and where there has been reliance on inconsistencies or gaps or defects in different versions that may be provided by an applicant as between an application for a protection visa and the application for review. In this case the applicant's claims (to which the Tribunal made specific reference in its “Findings and Reasons”) were claims put by the applicant to the Tribunal at the hearing. The Tribunal did not accept those claims as put. There was no comparison with any previous version of claims and nor did the Tribunal rely on any inconsistencies, as such, in different versions of the applicant's claims. Further, as set out above, to the extent that the Tribunal had before it documents provided by the applicant, these clearly were submitted to the Tribunal by the applicant and would fall within the exception contained in s.424A(3)(b) from the requirement to put any such information to the applicant pursuant to s.424A(1).
Given that the applicant was unrepresented before me, I did consider all of the material before me to see if any jurisdictional error or any other ground could be discerned from the material before me. In this regard, I particularly looked at the issue of the applicant's complaint to the Tribunal, received by the Tribunal on 14 September 2004 (after the decision was made but before it was handed down), reproduced at CB 91, where the applicant claims to have not been satisfied with the hearing conducted before the Tribunal on 7 September 2004. He raised as the points of dissatisfaction the issues of:
1)His relocation from his home area (Parbat) to Kathmandu.
2)His complaint that he could not go to India because he felt he would be in danger, and that many Maoists are campaigning to assist the Maoist movement in Nepal.
3)That a “one hour interview” was not sufficient time for him to explain the “whole story”, and that he should be examined further because he was the only person applying for protection from his profession as a college lecturer.
The Tribunal’s record reproduced at CB 92 shows that the Tribunal did turn its mind to the applicant’s complaints as raised in his letter reproduced at CB 91, particularly as they related to “relocation” to Kathmandu and India. The applicant was assisted by a migration adviser throughout the period of processing of the application for review before the Tribunal. While he clearly may have been dissatisfied with aspects of the hearing there is nothing in his complaint of 14 September 2004 which in my view should have caused the Tribunal to have taken any further action upon its receipt. In relation to the first two points of dissatisfaction (I and II in the letter) clearly these were issues and matters that were discussed at the hearing. In relation to “II” (India) given the respondent’s “concession” and the view I have taken of the separate finding in relation to Kathmandu, in any event, this does not assist the applicant now. In relation to the third complaint (the insufficiency of the one hour interview) it is difficult to see how the fact that the applicant was the only person applying for protection as a college lecturer meant that he should be given any further opportunity for another “interview”. Nor does he give any indication as to why a one hour’s interview was insufficient for him to explain “the whole story”. In the absence of anything else it was open to the Tribunal to take the view that all relevant matters had been dealt with and that there was nothing further to oblige it to provide a further opportunity to the applicant. Nor does the applicant now (remembering that he was assisted by an agent) say why if he had further matters to put, say what those matters were, or why he did not do so initially.
The Tribunal accepted and found that the applicant faced some difficulties in his local area of Parbat. But it made a very clear (and separate) finding that the applicant could live safely in Kathmandu, and that it was reasonable for him to do so, and further that he had done so with safety in the past. Further, that assistance would be available to him from the authorities if required. This finding, as I have set out above, is not affected by any jurisdictional error. The application is dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate: Wagma Aziza
Date: 7 April 2006
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