SZGMI v Minister for Immigration
[2007] FMCA 2017
•4 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGMI v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 2017 |
| MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZGMI”. |
| Migration Act 1958 (Cth), ss.91R, 91X, 424A |
| SZDFO v the Minister for Immigration [2004] FCA 1192 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NARE v the Minister for Immigration [2003] FCA 554 NWAH v the Minister for Immigration [2002] FCAFC 354 |
| Applicant: | SZGMI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 487 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 27 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 4 December 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Nepalese interpreter |
| Counsel for the Respondents: | Mr S Lloyd |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application filed on 14 February 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 487 of 2007
| SZGMI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
The applicant is a Nepalese male from the village of Madi Gardi, Noragani, Nepal which is near the Indian border. He claims that while at school he joined the All Nepalese Independent Students Union (Masal) which later merged with the Communist Party of Nepal (Maoists).
The applicant claims that he has become an evangelistic Christian and there is a real chance that he will suffer serious harm because of his religion if he returns to Nepal. He also feared extortion from Maoists as a person returning from the West.
The applicant arrived in Australia on 14 October 2004 and made an application for a Protection (Class XA) visa on 11 November 2004. A delegate of the first respondent refused to grant the visa on 25 November 2004 and the applicant applied to the Refugee Review Tribunal (“Tribunal”) for review of the delegate’s decision. The Tribunal affirmed the delegate’s decision and the applicant applied to the Federal Magistrates Court for judicial review. On 30 June 2006, Driver FM ordered that the decision of the Tribunal be quashed and the matter remitted to the Tribunal to be redetermined.
The applicant was invited to a second Tribunal hearing which he attended with his migration agent. Oral evidence was also given by a Pastor Boyd. Lengthy written submissions were prepared by the applicant with the assistance of his adviser. After the hearing, the applicant was invited to provide written comments on adverse information that was before the Tribunal, which he did through his adviser.
The second Tribunal rejected the applicant’s claims and the current application before the Court seeks judicial review of that decision made on 3 January 2006.
A Court Book (“CB”) prepared and filed by the first respondent's solicitors is marked Exhibit “A”. This document was read into evidence.
In support of his claim the applicant filed a letter prepared by Pastor Boyd of the Jesus Family Centre, Cabramatta. Attached to that letter is a letter prepared by Thomas Crees, a long time resident of Kathmandu, with observations about the citizens of the Kathmandu Valley.
Consideration
Ground one – applicant’s involvement with the Maoists
1. I am not agreeing with the decision made by the judge regarding me not being involved with Maoist. I had provided the entire evident how difficulty I escape from my country to Australia to start new and safe life. I found the decision completely base on personal point of view disregarding the law.
This claim is not particularised however, in oral evidence, the applicant referred to a telephone discussion on 7 December 2006 with Mr Ravindra Kumar Shresta, the general manager of the Fred Hollows Foundation in Nepal. The applicant indicated that he trusted Mr Shresta as they had a long association working with that organisation. He stated that he believed Mr Shresta was jealous when he heard of the applicant’s wage and employment conditions in Australia. As a consequence, Mr Shresta gave the Tribunal adverse information about the applicant. The applicant also stated that he had provided the Tribunal with contact information for Mr Shresta as he believed him to be a long time and loyal friend. The applicant said that he had been betrayed by Mr Shresta who gave the Tribunal his incorrect and prejudiced views. The applicant indicated that if one worked as he did with a Non-Government Organization in Nepal such as the Fred Hollows Foundation, one could not be associated with the Maoists.
Mr Lloyd submits in his written submissions that in the s.424A letter dated 8 December 2006, the Tribunal informed the applicant that it had received evidence from Mr Shresta by telephone and a tape recording of that discussion was enclosed with the letter. The Tribunal put to the applicant that Mr Shresta had described the applicant’s claims as a complete fabrication. Mr Shresta also told the Tribunal that the applicant had contacted him and asked him to make false statements to the Tribunal in respect of his circumstances in Nepal. Mr Lloyd submits that the Tribunal had to determine whether the applicant was involved with the Maoists in Nepal. The critical issue for the Tribunal was the credibility of the conflicting evidence given by the applicant and Mr Shresta. The Tribunal preferred the evidence of Mr Shresta on the basis that it found it to be thoroughly credible. This finding was strengthened by the fact that the applicant was able to procure a passport and safely depart Nepal using his own name. The Tribunal formed the view that the applicant was not involved with the Maoists in Nepal. I agree with the submissions made by Mr Lloyd, that the Tribunal’s assessment of the evidence in relation to the applicant’s involvement with the Maoists discloses no error. The applicant was unsuccessful because of the view the Tribunal took on the facts before it. I am satisfied that this ground of review cannot be sustained.
Ground two – applicant’s conversion to Christianity
2. And my second disagreement is questioning in my Christianity. I had changed my religion because I believe in this religion and I know what is Christianity and what should one Christian do and not to do. I think it is disrespect of Christianity itself not believing me as true Christian.
This ground is also not particularised. The applicant did make oral submissions indicating that he believed in Christianity and had been a member of the Cabramatta Family Centre for one and a half years. He claims that he attends prayer meetings twice a week and was issued with a certificate stating that he had been a member of that church. The applicant also stated that he relied upon the letter sent by the senior pastor of that centre, Pastor Boyd.
Pastor Boyd’s letter, which has been admitted as evidence, indicates that he has been “involved with Nepalese” for over 15 years and in that time he travelled five times to Nepal. As a consequence, he developed a detailed understanding of Nepalese culture, particularly how Nepalese people respond when asked to provide information about someone else. Pastor Boyd emphasised that a stranger contacting a Nepalese citizen by telephone and asking for detailed confidential information about a fellow citizen was a special circumstance. He indicated that the circumstances under which the Tribunal telephoned Mr Shresta demonstrated a lack of cultural understanding. He supported this view by attaching a letter from Mr Thomas Crees who was born in Nepal and practised as an architect in the Kathmandu Valley for approximately 20 years before moving to Australia. Mr Crees’ letter contained a paper entitled “Kathmandu Valley Mindset”.
Mr Lloyd submits that the s.424A letter of 8 December 2006 indicated that the Tribunal found that the applicant had given false evidence after swearing an oath on the bible. Consequently, this action may lead the Tribunal to conclude that the applicant was not sincere in his conversion to Christianity. The Tribunal indicated that s.91R(3)(b) of the Act may apply. The section states:
91R(3) for the purposes of the application of this Act and the regulations to a particular person:
(a) ………
Disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening a person’s claim to be a refugee within the meaning of the refugee convention as amended by the refugees protocol. The question of genuineness of the applicant’s conversion to Christianity was one of fact for the Tribunal to determine.
Mr Lloyd submits that it was of “considerable concern” to the Tribunal that the applicant had fabricated evidence under oath (CB 367.7). Mr Lloyd noted that the Tribunal found that, even if the applicant was an evangelical Christian, there was no real chance that he would suffer harm on return to Nepal by the reason of his religion (CB 367.8). Mr Lloyd submits, and I agree with the submission, that no error is disclosed in the Tribunal’s assessment of the evidence in relation to the applicant’s conversion to Christianity or to the consequence that the applicant may experience on his return to Nepal. I’m satisfied that this ground cannot be sustained.
Conclusion
The applicant is a self represented litigant who participated in the scheme to give unrepresented applicants in refugee matters independent legal advice. However, the applicant has relied upon his original application containing two basic grounds which, in effect, invites the Court to engage in a merits review: SZDFO v the Minister for Immigration [2004] FCA 1192; NARE v the Minister for Immigration [2003] FCA 554; NWAH v the Minister for Immigration [2002] FCAFC 354; Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. In respect of the two grounds that the applicant has pleaded, I agree with the submissions of Mr Lloyd that these grounds cannot be sustained. Nor is it apparent from the contents of Court Book or on the face of the Tribunal decision that any jurisdictional error has been made in the Tribunal’s decision-making process. Consequently, the application should be dismissed with costs.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 4 December 2007
0
4
0