SZGMI v Minister for Immigration and Citizenship

[2008] FCA 606

FEDERAL COURT OF AUSTRALIA

SZGMI v Minister for Immigration & Citizenship [2008] FCA 606

SZGMI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2514 OF 2007

GILMOUR J
6 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2514 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGMI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GILMOUR J
DATE OF ORDER:	6 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs to be taxed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2514 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGMI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GILMOUR J
DATE:	6 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal against a judgment of a Federal Magistrate of 4 December 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 3 January 2006 and handed down 11 January 2006.  The Tribunal had affirmed a decision of a delegate for the Minister for Immigration and Citizenship not to grant a protection visa to the appellant.

   BACKGROUND

2. The appellant is a citizen of Nepal who arrived in Australia on 14 October 2004.  On 11 November 2004 the appellant lodged an application for a protection visa with the first respondent.  A delegate of the first respondent refused the application for a protection visa on 25 November 2004.  On 13 December 2004 the appellant applied to the Tribunal for a review of that decision.

3. On 19 May 2005, the Tribunal handed down its decision which affirmed the delegate’s decision.  The Federal Magistrates Court, on 30 June 2006, remitted the matter to the Tribunal for re-determination.  It is the latter decision of the Tribunal which is the subject of this appeal.

   THE APPELLANT’S CLAIMS AND THE PROCEEDINGS BEFORE THE CURRENTLY CONSTITUTED TRIBUNAL

4. The appellant’s claims of a well-founded fear of persecution relate to his involvement in the Nepalese Maoist insurgency.  He gave a long history to the Tribunal of being an active member, from the age of at least 13 and cited at least one incident during his student years of being arrested for three days without charge, beaten and interrogated.

5. He claimed that in 1991 he went to Kathmandu to study. While studying, he claimed he was involved with the student union and met prominent Maoists from the Nepal Trade Union.

6. In July 1995 he allegedly became a production supervisor at the Tilgena Eye Centre, a non-government organisation linked to the Fred Hollows Foundation.  The appellant claimed that as an NGO employee, he was not permitted to join the Nepal Communist Party “NCP” but he did sympathise with them and was involved in literacy and social programs organised by the Maoists.  He also claimed he attended demonstrations and taught poor rural workers how to organise and collectively fight for their land rights.

7. He claimed that a friend, who was an area commander in the NCP was murdered and that a Maoist journalist he knew was captured by the government and disappeared.  The appellant claimed that he made deliveries and transported things for the Maoist movement; in particular, two deliveries made in April and August 2004.  In November 2004 he was selected to go to Australia to train with the Fred Hollows Foundation. 

8. The appellant claimed to fear returning to Nepal as he would be detained, beaten and tortured by the authorities because of his anti-government activities.  He also claimed that Maoists would consider him wealthy because he has been overseas and would target him for extortion.  The appellant also claimed that he had become an evangelistic Christian and would suffer harm because of his religion from Hindu extremists or Maoists due to his proselytising.  He stated that he no longer considered the cow to be sacred and could be targeted by the authorities for bovicide, that is, either the killing or eating of cows. 

   PROCEEDINGS IN THE TRIBUNAL

9. The appellant had appeared before the first Tribunal at a hearing and was also invited to a hearing before the re-constituted Tribunal.  Lengthy written submissions were prepared for the second hearing.  The appellant submitted various documents, including a letter apparently from the Red Cross and from the pastor of a church in Cabramatta.

10. It is convenient to set out a passage from the Decision Record of the second, differently constituted, Tribunal which refers to certain important claims made by the appellant in evidence before it: 

    The applicant stated that he had to flee Nepal because the police were seeking him.  He said that his friend, a bus driver, had been arrested on a Saturday and the following Tuesday, 29 August 2004 at 11.30 pm his home had been raided.  He said he left Nepal on 12 October 2004.  He said he had been working for the Fred Hollows Foundation for some 9 years.  He said he was selected to go to Australia in September.  The Tribunal asked how he could have evaded the police if he had worked for the foundation for a further 6 weeks after the police raid and had then departed from the Kathmandu airport using his own passport.  He said that when the raid took place it came to be known to Ravindra Kumar Shrestha, the general manager of the office.  He said that he could no longer stay at his house and he consulted with the general manager of the office and he said he could not stay in Nepal because he could be killed by the security forces and so the general manager said that as the foundation has an offer of two traineeships, they could name the applicant as a participant in the training program.  The applicant stated that the government was aware that there were no political activities in the Foundation because staff had to promise not to participate in political activities.  He said the general manager accompanied him to the airport and facilitated his departure.  The applicant stated this person was still the manager and the Tribunal was free to contact him about the applicant’s claims. 

11. The Tribunal, to the appellant’s knowledge, then obtained evidence concerning those claims, from Mr Ravindra Kumar Shrestha, the general manager of the Fred Hollows Foundation in Nepal for which the appellant had previously worked. 

12. The following further passage in the Decision Record sets out that evidence:

    On 7 December, the Tribunal spoke to Mr Ravindra Kumar Shrestha by phone.  The Tribunal asked him about the circumstances surrounding the applicant coming to Australia.  Mr Shrestha said that the applicant had been sent to Australia for training and he did not return though he had undertaken to come back.  He said that he had asked about the applicant and tried to ascertain any reason he was not returning but he had given no reason.  The Tribunal put to Mr Shrestha the evidence the applicant had given that his house had been raided some six weeks before he came to Australia, that he was being sought as a Maoist supporter, that he had not been able to come to the office but had had to meet with Mr Shrestha secretly and that Mr Shrestha had accompanied him to the airport to facilitate his departure.  Mr Shrestha said that these were all “false statements”.  He said the applicant had had no problem, had attended the office as normal, had never been sought as a Maoist supporter and that he had not accompanied the applicant to the airport but had farewelled him at the office.

    Mr Shrestha also stated that he had been phoned by the appellant following the Tribunal hearing and that the applicant had asked him to fabricate evidence for him but that he was unwilling to act in that way.

13. On 8 December 2006, the Tribunal sent a letter pursuant to s 424A of the Migration Act 1958 (Cth) outlining the evidence given by Mr Shrestha and advising him that this evidence could lead the Tribunal to conclude that the appellant had fabricated his claims referred to at para [10] above. On 21 December 2006, submissions were sent by the appellant in response to that letter which, amongst other things, suggested that the Foundation did not want to be involved in politics and did not want its involvement in this matter known. They also made the point that it was the appellant who had provided the contact details for Mr Shrestha to the Tribunal and had not hesitated or objected when, on several occasions, the Tribunal had asked him whether it could contact him.

14. However the Tribunal concluded that the appellant had fabricated his claims to have been politically involved in Nepal.  It accepted the evidence of Mr Shrestha as thoroughly credible.  The Tribunal found that at the time he left Nepal he was not actively pursued as a Maoist by the government authorities but rather he worked safely and openly in Kathmandu for the Fred Hollows Foundation.  In support of these findings, it noted the appellant was able to obtain a passport and leave Nepal safely. 

15. As to the appellant’s claims that as a Christian he would, on his return to Nepal, be accused of bovicide, the Tribunal considered that, as eating beef was not a necessary part of Christianity, any harm from not being able to eat beef would not amount to persecution, and that any harm to him by Hindu extremists, in this respect, was speculative.

16. The Tribunal considered the letter purporting to be from a representative of the Red Cross but found that either it was from an acquaintance or was a fabricated document.  The Tribunal was concerned about the presentation by the appellant of fabricated evidence after having sworn on the bible to be truthful.  It accordingly had doubts about his conversion to Christianity although it did not doubt the sincerity of Pastor David Boyd and the other Christians who attested to the sincerity of the appellant’s conversion.  However, the Tribunal found that even if the appellant were a genuine Christian and would proselytise in Nepal, upon his return, there was no real chance that he would suffer serious harm for those reasons.  The Tribunal considered independent country information in relation to harm against Christians in Nepal but found that whilst there were reports of sporadic, isolated cases of harm predominantly in rural areas, they were not sufficiently systematic as to convince the Tribunal that there was a real chance of such harm befalling a Christian Nepalese such that the provisions of the Convention were engaged.  Moreover, it considered that as there were a relatively large number of evangelical Christians living safely in Kathmandu, the appellant could settle there.

    PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT

17. The appellant’s grounds before the Federal Magistrates Court were that:

    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 difficultly 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.

    2.And my second disagreement is questioning 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.

    (Transcribed without alteration)

18. The Federal Magistrate concluded that these grounds amounted to a impermissible invitation for a merits review and dismissed the application.

    GROUNDS OF APPEAL

19. On 21 December 2007 the appellant filed a notice of appeal in this Court which stated:

    1. I am not agreeing with the decision made by the Judge regarding me not being involved with Maoist.  I had proved the entire evidence how difficult, escape from my country to Australia to start new and safe life.  I found the decision completely based on personal point of view disregarding the law.

    2. My second disagreement is questioning in my Christianity.

    3. I am not agree with decision no. 9 and no. 13”

    (Transcribed without alteration)

20. In the appellants written and oral submissions, the appellant, in effect, took issue with the findings of the Tribunal based upon its acceptance of the evidence of Mr Shrestha.  He asserts that Mr Shrestha was jealous of him and his life in Australia which explains why he gave evidence which did not support the appellant’s claims.  He claims that he spoke to Mr Shrestha by telephone from Australia and told him about his prior involvement with the Maoists.  He claims that in order to preserve his job as well as his own safety he had not informed Mr Shrestha of this information previously.  The appellant states that he did not ask Mr Shrestha to give false statements about him to the Tribunal.

21. This Court has no jurisdiction to interfere with findings of fact which, as is the case here, were open to the Tribunal on the evidence before it: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 258 at 272.

22. The appellant also contends that he has converted to Christianity and claims that for this reason, it is not safe for him to return to Nepal.

23. The Tribunal had doubts about the genuineness of the appellant’s conversion, as it found he had given false testimony on oath.  Nevertheless it proceeded to assess his claims on the basis that his conversion was genuine and that he would proselytise upon his return to Nepal.  In doing so, the Tribunal considered extensive independent country information concerning the treatment of Christians in Nepal and in particular those who proselytise there.  The Tribunal concluded that he did not face a real chance of persecution for that reason.  Again, this conclusion was open to the Tribunal on the evidence before it. 

24. The third ground, in effect, repeats the first two grounds. 

    CONCLUSION

25. No relevant error has been demonstrated in the court below which correctly concluded that there was no jurisdictional error by the Tribunal in reaching its decision.  The appeal should be dismissed and the appellant should pay the first respondent’s costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:        6 May 2008

The Appellant appeared in person:
Counsel for the Respondents:	Mr J Smith
Solicitor for the Respondents:	DLA Phillips Fox

Date of Hearing:	5 May 2008
Date of Judgment:	6 May 2008