SZGNY v Minister for Immigration & Anor

[2006] FMCA 1142

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGNY v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1142

MIGRATION – RRT decision – Nepali student feared return – claim that family extorted by Maoists and persecuted by Government – disbelieved by Tribunal – no jurisdictional error found.

Migration Act 1958 (Cth), ss.414, 415, 417, 420(2)(a), 422, 422(2), 424(1), 424A, 424A(3)(b), 427, 428, 429(1), 474, 474(1), 476(1)

Applicants S1527 of 2003 v Minister for Immigration & Anor [2005] FMCA 1846
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162, [2005] HCA 24
SZCJD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 609
SZDPY v Minister for Immigration & Multicultural Affairs [2006] FCA 627
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214, [2006] FCAFC 2
SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107
SZEPZ v Minister for Immigration & Anor [2005] FMCA 1614
SZGGT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 435
SZHIB v Minister for Immigration & Multicultural Affairs [2006] FCA 611
WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188, (2003) 76 ALD 597
WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74

Applicant: SZGNY

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG830 of 2006

Judgment of: Smith FM

Hearing date: 14 July 2006

Delivered at: Sydney

Delivered on: 21 August 2006

REPRESENTATION

Counsel for the Applicant: Mr R Turner

Solicitors for the Applicant: Ray Turner Solicitor

Counsel for the First Respondent: Mr J A C Potts

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG830 of 2006

SZGNY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed on 21 March 2006 under s.476(1) of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated and handed down on 24 February 2006. The Tribunal affirmed a decision of a delegate made on 26 April 2005 which refused to grant a protection visa to the applicant.  An earlier decision of the Tribunal dated 6 June 2005 was quashed by consent order in this Court on 9 November 2005. 

2. Under s.476(1) the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474(1) if the Tribunal’s decision is a “privative clause decision”. It is such a decision unless I am satisfied that it was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476). I do not have power myself to decide whether the applicant’s claims should be believed, nor whether he qualifies for a refugee visa.

3. The applicant is a national of Nepal who came to Australia for study in 2001, and continued in that activity until 2004.  He then stopped attending classes, and his student visa was cancelled.  In early 2005, he was taken into immigration detention.  He then wrote to the Minister a letter dated 24 February 2005, seeking release from detention and the reinstatement of his student visa.  His letter referred both to his family circumstances and to the situation in Nepal: 

   I am a student from one of the poorest Nation i.e. Nepal.  I had been studying Information Technology and had completed my Diploma in IT successfully.  My parents had been supporting my study financially.  But, then circumstances changed and they couldn’t afford it any more.  I understand their position fully because it is very hard to support someone to study in Australia from one of the poorest nation of the world.  Especially the currency exchange rate is so high.  I had been a good student and was taking my study very seriously.  I enjoyed studying here and indeed learnt many things regarding my field IT.  I really wanted to succeed.  Due to financial problems I had to discontinue my study. 

   I didn’t know what to do and was very frustrated.  It was too hard for me to take that I couldn’t study just because of financial difficulties.  Then I overstayed my visa for seven months since the date it was cancelled.  I want to reassure you that it was so because I didn’t know what to do.  I had no intention of working and sending money and haven’t sent any.  I was still studying at home also reading various books on finance & self‑motivation.  I was working because I had to live.  I chose to work in sales so that I could upgrade my skills, get some more confidence and work experience.  I certainly didn’t want to my time on mourning and doing nothing.  I had to move on.  I worked and studied on my own so that I would not lost touch and still update my knowledge. 

   Furthermore, my country Nepal right now is in even worse situation than when I had left.  On one side there are Maoists rebels who go to distant villages and brainwash the poor and illiterate people into fighting and killing people to satisfy the ego of their leaders.  All they have in their eyes is revenge and bloodshed. 

   On the otherside there is a government which is monarchist.  It was only couple of days ago the King of Nepal overthrew the democracy and replaced it with monarchist government.  According to the media or what was told to the media is that King took this action because the political parties were inefficient and corrupted.  They couldn’t suppress the rebels and were unable to held election during the specified time.  I cannot also deny these facts as well.  But still monarchy is monarchy.  Government is ruled by military.  Especially in a country that is already poor and closed‑minded monarchy will destroy it even more.  Cities and villages of Nepal are frequently being closed and is constantly been placed on curfew.  Things have gone from bad to worse.  It is highly unlikely that I would be able to study because of the political & economic conditions of my country. 

4. The applicant received a reply, advising him that he should apply to the Migration Review Tribunal before he could request the Minister to intervene.  He followed this advice, but withdrew his application for review before it was decided. 

5. He then, on 1 April 2005, lodged an application for a protection visa, assisted by a migration agent.  This was supported by a lengthy handwritten history, which for present purposes was sufficiently summarised in a submission sent to the Tribunal by his agent on 16 December 2005: 

   The Applicant stated his claims in a statement attached to his Protection Visa Application. 

   In this statement the Applicant explains that he came to Australia on a student Visa, stating “My sole purpose to come here was just to study and had no any other intentions in my mind.”  (P1). 

   The Applicant states that he received a message from his parents stating that they were not able to pay for his studies because “the maoists rebels in my country had demanded money from my parents and because my parents because they were afraid of the maoists rebels had handed the money to them.”  (P1). 

   The Applicant was not able to pay the course fees and remained illegally in Australia until detained. 

   The Applicant claims that whilst in detention he became aware of the overthrow of the government by the King and that he received a message from his family not to return because his family, himself included, was in great danger because of his brother’s involvement in politics. 

   The Applicant claims that his brother “… was and still is heavily involved in the politics of Nepal” stating that “while the Democratic Government was in the authority he used to give speech and run different political campaigns representing his party.  During election times he used to get heavily involved.”  (P3). 

   The Applicant claims that his family has been a “victim” of the Maoists who have demanded money and physically attacked and wounded both his father and brother and that the police have not been able to protect them because the police itself was under attack and unable to protect itself from the Maoists. 

   The Applicant claims that the Maoists are still giving death threat to his family because of his brother’s political involvement. 

   The Applicant claims that since the government was overthrown by the King the situation for his family has worsened because now it is not only the Maoists but the new government that is persecuting his brother and his family. 

   The Applicant claims that the local police have issued a warrant for his brother’s arrest and is looking for him because he is now actively involved in protesting against the government established by the King. 

   The Applicant states that “The police come frequently in my home and search for any sort of evidence against the government.  Before however powerless police and government was on our side now they have instead turned against us and are pursuing my family.  My family because of fear of persecution have been on hiding since then.”  (P5) 

   Although the Applicant has not been involved in political activities against the government or the CPN (Maoist) when he lived in Nepal, his brother’s political views have been/are imputed to the Applicant and his family. 

   The Applicant has provided two documents (copies attached) to support his claims: 

   i)A letter from the President, Nepali Congress, [District], [Municipality], Nepal. 

   ii)A copy of a document which the Applicant states is a Police Warrant for his brother’s arrest. 

6. A delegate refused the application on 26 April 2005, and the applicant lodged an application for review on 4 May 2005.  His review application was accompanied by a further handwritten statement, a letter in English certifying that the applicant’s brother “has been an active member of Nepali Congress Party since October 1997”, two press clippings concerning political unrest in Nepal, and some untranslated documents which the applicant said were “a warrant against my brother and threat against our family members not to get involved in any protest against the government” and “a letter from Maoist party of Nepal demanding money from our father”.  

7. On 27 May 2005 the applicant attended a hearing held by the Tribunal constituted by Prof Samuel Blay, and it handed down a decision dated 6 June 2005.  On 9 November 2005, this Court ordered by consent that the decision be quashed and that the matter be redetermined by the Tribunal.  The basis upon which these orders was made does not appear in the material before me.

8. After the remitter, the Tribunal was reconstituted with Ms Ann O’Toole, who made the decision now under review.  The applicant continued to be represented by his previous migration agent, who made the further written submission referred to above.  The applicant was invited to a second hearing on 20 December 2005, and attended with his agent. 

9. He appears to have requested a copy of the tapes of his first hearing, but was told by a Registry officer by letter dated 12 December 2005:  

   I went to make a copy of your hearing of 27 May 2005 but as the previous copy sent to you was blank I checked the original tapes.  Unfortunately the original tapes are blank.  I will try to find out why the tapes are blank if possible. 

10. In her decision handed down on 24 February 2006, Ms O’Toole set out a lengthy description of the proceedings in the Department and Tribunal under the heading “Claims and Evidence”.  This part of her statement of reasons is introduced: 

    The Tribunal has before it the Department’s file, which includes the protection visa application and the delegate’s decision record and the first RRT file (number N05/51183).  The Tribunal also has had regard to other material available to it from a range of sources. 

11. She then described the material before her, under relevant sub‑headings “Departmental file CLF2005/25909”, “Review application”, “Applicant’s evidence before the Tribunal” – which narrates the course of the hearing conducted by Prof Blay, “Submissions by the Applicant’s Advisor”, “Tribunal Hearing (20 December 2005)”, “Adviser’s Oral Submissions to the Tribunal”, and “Advisor’s Written Submissions (5 January 2006)”.  It was common ground that the passage describing the hearing before Prof Blay was a “cut and paste” from his earlier statement of reasons. 

12. Ms O’Toole discussed some of this material and arrived at conclusions under the next major heading: “Findings and Reasons”.  Notwithstanding the bulky file, and the Tribunal’s lengthy description of the material found on it, her reasoning was relatively brief.  An adverse general conclusion was stated at the beginning: 

    The Tribunal finds that the Applicant is not a credible witness.  Many of the key aspects of his testimony and his claims were simply not plausible. 

    In summary, the Applicant claims that his family has been the target of Maoist attacks; the government authorities have an adverse interest in his brother because of involvement with the Nepalese Congress Party and the Applicant fears that if he returns to Nepal the authorities and / or the Maoists would find him and subject him to persecution in an effort to locate his family members. 

    The Tribunal accepts that the political situation in Nepal is marked by violence and Maoists have threatened harmed and committed acts of violence and human rights abuses and targeted persons considered to be their enemies.  The Tribunal accepts that persons who fall into disfavour with the authorities because of their actual or imputed political opinion may face serious harm which, dependent upon the facts, may give rise to well‑founded fear of persecution within the meaning of the Convention.  However, for the reasons that follow, I am not satisfied on the evidence before me, that the Applicant’s family was targeted by the Maoists as claimed or that the Applicant will be imputed with an adverse political opinion by the authorities.  I do not accept there is real chance he will suffer serious harm should he return to Nepal. 

13. In summary, these reasons were: 

    i)The Tribunal disbelieved the applicant’s evidence that the reason why his parents ceased to send money was Maoist extortion, and that he neither asked them for a reason, nor was told this reason.  It said: “I am not satisfied that had the family been targeted financially by the Maoists they would have not informed their son of the facts”. 

    ii)It found “it implausible that had the Applicant’s parents been suffering as claimed at the hands of the Maoists in Nepal he would not have mentioned that matter in his letter to the Minister”. 

    iii)It did not accept “that the Applicant’s parents and family members are in hiding in Nepal”, nor that “the Applicant is unaware of his family’s whereabouts in Nepal”, nor that “the family has gone into hiding to avoid contact with the Maoists and the adverse attention of the Nepalese authorities”. 

    iv)It found that “the Applicant fabricated his claims for protection in Australia because he found himself in a very difficult situation having exhausted all other avenues in seeking a visa to remain in Australia”. 

    v)It referred to the documents submitted by the applicant, and said “given the degree of the credibility problems with the evidence of the Applicant, I cannot give any weight to the statements provided in these documents”. 

    vi)It concluded: “On the material before me I find that there is no credible evidence that the Applicant is a person whom the Maoists or the authorities would make the subject of persecution.  I do not accept there is a real chance that he will suffer serious harm should he return to Nepal”. 

14. Some of this reasoning was the subject of the grounds of review in a further amended application filed at the hearing, and it will be necessary for me to examine it more closely.  I shall deal with these grounds in the sequence in which they were addressed orally by the applicant’s solicitor. 

Ground 2(a)

1. This ground contended that the Tribunal took into account legally irrelevant material because it “relied upon the findings of the first Tribunal the decision of which was subject to a Writ of Certiorari”.  This was argued to have occurred in the following passages, in which the Tribunal explained its first and second reasons for rejecting the credibility of the applicant’s claims: 

   The Applicant arrived in Australia in October 2001.  He graduated from Martin College in Sydney in 2003 and subsequently sought enrolment in Charles Sturt University in July 2003.  His parents were funding the cost of his studies.  It was the Applicant’s evidence that because of financial difficulty he was unable to complete his degree.  As a result his student visa was cancelled.  The Applicant claimed that he was unaware of ongoing Maoist extortion of his parents until after he had been detained by the Department.  He stated that he did not ask his parents why they had not sent him money for fees during the time he was facing difficulty because he thought his family would pay the money.  When asked by the Tribunal if he had asked why they could not pay the money, he stated that he did ask them initially and later when he spoke to his mother about fees he was told they could not afford to pay any more as the finance situation in Nepal was not good because they were paying for his sister to study engineering and there was trouble in Nepal.  He also stated that his mother said his father had not been making as much money because the non‑government organisations were suffering at that time.  I am not satisfied that had the family been targeted financially by the Maoists they would have not informed their son of the facts. 

   In the Applicant’s letter seeking Ministerial intervention and dated 24 February 2005 the Applicant made no mention of his family’s financial suffering at the hands of the Maoists.  In his oral evidence during both hearings before this Tribunal about this particular matter, he stated that he did not think it was necessary to mention the fact.  I find it implausible that had the Applicant’s parents been suffering as claimed at the hands of the Maoists in Nepal he would not have mentioned that matter in his letter to the Minister. 

2. The applicant’s solicitor sought to persuade me that the Tribunal’s references to the applicant’s statements to the Tribunal were references to Prof Blay’s description of the first hearing.  This submission faced difficulties, since the Tribunal members at both hearings discussed with the applicant what he had been told by his family as to their financial difficulties.  It appears difficult to distil any particular aspect of his evidence which was taken only from the first hearing.  However, I accept that it is likely that the Tribunal was aware that the applicant made similar statements about this, which it did not accept, at both hearings. 

3. It is clear also that it did take into account his explanation, which it also rejected, given at both hearings as to why he omitted to tell the Minister about his parents’ extortion by Maoists.  This is because in the second paragraph in the extract above, it refers to “his oral evidence during both hearings before this Tribunal about this particular matter”. 

4. It is not necessary for me to extract and closely compare the relevant evidence given by the applicant at both hearings, since I am prepared to find that the Tribunal did take into account the whole of Prof Blay’s description of the first hearing, which the Tribunal extracted and reproduced in its earlier description of the “Claims and Evidence” in the matter.

1. However, by doing so, in my opinion the Tribunal made no jurisdictional error, whether this might be characterised as taking into account irrelevant material or some other label of judicial review.  In my opinion, the Tribunal was entitled to take into account all the evidentiary material collected by the Tribunal as previously constituted, including the applicant’s evidence given at the first hearing. 

2. This is expressly provided for in s.422(2), which applies where the Principal Member has reconstituted the Tribunal under s.422. It states:

   422(2)If a direction is given, the Tribunal as constituted in accordance with the direction is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted. 

3. In SZEPZ v Minister for Immigration & Anor [2005] FMCA 1614 at [16]‑[20], I inferred in a situation such as the present that the Tribunal had been reconstituted under s.422, and that the record which could be addressed by the reconstituted Tribunal included a s.424A notice and the applicant’s response given before the setting aside of a previous decision. On appeal, the Full Court did not find it necessary to reach a conclusion whether I was correct in this reasoning, but it accepted my reasoning that the “review” which was being conducted by the reconstituted Tribunal was the review originally initiated by the application for review (see SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107). At [39] their Honours said:

   Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s 414, it has a duty to perform that particular review.  An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid.  The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made.  

4. On both lines of reasoning, in my opinion, it was open to the Tribunal to take into account the evidence given by the applicant at the hearing conducted by Prof Blay, notwithstanding that his decision was subsequently quashed. Once this is accepted, I can see no reason why the Tribunal could not identify that evidence by reading Prof Blay’s summary of the hearing and giving it appropriate evidentiary weight. Since it appears that the Tribunal did not have a recording of that hearing, Prof Blay’s description provided what was probably the best evidence available of what the applicant had said. The Tribunal was not bound by rules of evidence (see s.420(2)(a)), and could inform itself about relevant evidence in any suitable manner (c.f. ss.429(1), 424(1), 427, 428). I therefore reject the contention that the Tribunal was debarred from considering Prof Blay’s description of the hearing conducted by him on 27 May 2005, by reason of the fact that his decision which had addressed that evidence was subsequently quashed.

5. I also reject any suggestion that the Tribunal as reconstituted by Ms O’Toole gave legally impermissible weight to the description of the 27 May 2005 hearing, or that it failed to consider the appropriateness of accepting that description and repeating it as part of the narrative of its own.  I do not consider that there is evidence establishing either of these errors. 

6. I discussed in Applicants S1527 of 2003 v Minister for Immigration & Anor [2005] FMCA 1846 at [17]‑[20] authorities which have considered “cutting and pasting” from previous decisions, and I concluded:

   I consider that the adoption by a Tribunal member of phrases taken from previous Tribunal decisions, whether written by a different member or by himself or herself, cannot of itself amount to jurisdictional error. Jurisdictional error might be found where the adoption of findings appears to the court to have led to a failure by the member constituting the Tribunal to address the particular review with an unbiased and open mind, or a failure actually to perform the Tribunal’s review duty in relation to the particular application for review which is required by ss.414 and 415 of the Migration Act.

7. In relation to the present decision, I consider that the reasoning followed by the present Tribunal under the heading “Findings and Reasons” provides no support for any of these concerns, arising from the fact that the Tribunal chose to refer to and take into account the first Tribunal’s description of the first hearing. 

Ground 2(b)

1. This ground contended that the Tribunal also took into account irrelevant material in the passage extracted above, because “the letter to the Minister was not relevant to his protection visa application because it was written before his protection visa application was made and was in respect of his student visa”. 

2. I do not accept this contention, since in my opinion it was clearly open to the Tribunal to consider and give significance to the contents of the applicant’s letter to the Minister.  In particular, I consider that it was rational, and permissible, for the Tribunal to draw an adverse inference from the omission from the letter of any reference to the events in Nepal which he later claimed established his refugee status.  The letter, which I have set out above at [3], clearly was written in an effort to excite the Minister’s compassion and understanding of the applicant’s plight.  In this context, it was relevant and open to the Tribunal to wonder why the applicant made no mention of his family’s oppression by Maoists and government authorities.  The applicant, himself, “provided a copy of the said letter to the Tribunal” (see Court Book p.523) and was questioned upon its contents. 

Ground 1

1. This ground referred to the Tribunal’s statement that it “has before it the Department’s file” relating to his protection visa application.  It was contended that, by reason of this statement and the Tribunal’s description of the contents of the applicant’s written claims to the Department, it had used information from that source as “the reason, or a part of the reason, for affirming the decision that is under review” without serving a notice under s.424A(1). The decision was therefore affected by the jurisdictional error discussed in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162, [2005] HCA 24 and SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214, [2006] FCAFC 2 (“SZEEU”). 

2. However, as Allsop J explains in SZEEU (supra) at [216]: 

   That said, it is necessary to recognise the guidance that one nevertheless receives from aspects of [33] in VAF.  One always needs to analyse and interpret the reasons of the Tribunal in order to understand the reason for the ultimate reason or conclusion of the lack of satisfaction of the existence of protection obligations. Merely because something is contained in the text of the reasons of the Tribunal which involves “information” does not conclude the question whether it was (and, in the relevant sense, would be) a part of the reason for affirming the decision. The whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did (and so, in the relevant sense, to assess what would be, prior to making the decision, the reason or a part of the reason). Having thus ascertained the reason or reasons (if there be more than one) why the Tribunal was not relevantly satisfied, any information that was (and thus, in the relevant sense, would be) a part of the reasoning process to explain such reason engages the operation of s 424A, without any additional requirement (for which Paul and VAF appear to call) that the relative importance of the information to the reasoning process be assessed to form a judgment as to whether fairness requires the engagement of s 424A. The above tasks of assessment or interpretation of the Tribunal’s reasons, of ascertaining what was any reasoning process and of assessing the relevance of any information thereto may not be straightforward and may lead to conclusions about which minds may differ. [emphasis in original] 

3. In my opinion, the applicant’s solicitor was unable to point to any part of the reasoning of the Tribunal which I summarised above which reveals “prior” information taken from the Department’s file as “a reason” for affirming the delegate’s decision.  The Tribunal’s reference to the Department’s file was, in my opinion, no more than part of its narrative of the history of the applicant’s claims and its identification of the material which was in evidence (c.f. SZCJD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 609 at [39]).

4. I also accept the submissions of the Minister’s counsel that all information relied upon by the Tribunal was information which the applicant “gave for the purpose of the [review] application” within the exclusion in s.424A(3)(b). The Tribunal’s adverse findings all derived from its rejection of the credibility of significant elements in the evidence and explanations given to it by the applicant at the hearings held by the Tribunal. It is irrelevant whether any of this information was also given in the protection visa application.

5. I therefore do not need to address whether, if some information was taken from the applicant’s original written statement accompanying his visa application, this was information “re‑published” to the Tribunal by reason of references to it in the submissions of the applicant’s advisor (counsel for the Minister cited SZHIB v Minister for Immigration & Multicultural Affairs [2006] FCA 611 at [8] and [23], and SZGGT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 435 at [36] and [42]).

6. A further contention was made by the applicant’s solicitor that the Tribunal’s reasoning revealed reliance upon information which was not given by the applicant to the Tribunal, in a finding where the Tribunal referred to “the Applicant admitted in evidence that he felt shame about not completing his degree”.  This finding occurs in the following passage: 

   I am of the view that the Applicant fabricated his claims for protection in Australia because he found himself in a very difficult situation having exhausted all other avenues in seeking a visa to remain in Australia.  His evidence before the Tribunal indicated that he was told by other Nepalese detainees that it was very hard to apply for a protection visa and he knew it was the last option available.  The Applicant claimed that lack of funds from his family prohibited him from continuing his education in Australia.  I am not convinced by that evidence.  The Applicant admitted in evidence that he felt shame about not completing his degree, especially since his parents had worked so hard to fund his education in Australia.  I am of the view that the Applicant applied for a protection visa as a last resort to remain in Australia.  

7. The Tribunal had raised this topic at the hearing, by referring the Applicant to a statement which it apparently found in a bridging visa application: 

   In January 2005 the Applicant applied to the Department for a bridging visa (see file CLF2005/1516).  I referred the Applicant to question 15 of that document which asks “why did you not depart Australia before the expiry of your visa or after your application was refused?” to which the Applicant replied “I was ashamed to go home without my degree”.  I asked the Applicant if that was his recollection and if that was the answer he supplied.  He replied that it was.  I asked the Applicant what it was he felt shame about.  He stated that his parents had worked hard to send him to study in Australia.  Because of the money pressures he found that the pressure was too much.  I asked why he had not asked his family for money early on in the second term.  He replied that he thought his family would pay the money.  I asked if he asked his family why they could not pay the money.  He replied that he did ask them initially in the second term and he spoke to his mother about fees, but she said they could not afford to pay the fees any more as finances were not good because they were paying for his sister to study engineering and there was trouble in Nepal.  I asked what his mother meant by that.  He stated that there were too many problems as the city was closed and supplies were not getting through.  His father was not making as much money because the non‑government organisations were also suffering.  His father had saved a lot of money previously. 

   The Applicant’s mother told the Applicant to find a job and try to pay for himself.  As a result the Applicant stated that the pressure built up because he was working at least 40 hours per week and he missed many lectures.  I asked if he had received a letter from the university about his decrease in attendance at lectures.  He stated he received a verbal warning from the university.  He still sat his exams at the end of the semester and did not receive the results as he had moved.  By this time he knew his immigration status was not good.  So from about April 2004 until his detention in January 2005 he worked. 

8. The significant difficulty facing the applicant’s contention that the Tribunal relied upon the applicant’s statement in his bridging visa application, and not upon his evidence given to the Tribunal at the hearing, is that it is impossible, in the absence of a transcript, for me to determine that he did not repeat his feelings of shame in his evidence to the Tribunal.  The Tribunal’s reference to “the Applicant admitted in evidence” tends to suggest that it relied upon his statements to it at the hearing, rather than the converse.  I therefore am not satisfied that the situation does not come within Kenny J’s discussion of SZEEU in SZDPY v Minister for Immigration & Multicultural Affairs [2006] FCA 627 at [30]‑[36].

9. For the above reasons, I am not satisfied that any failure to follow the procedure required by s.424A(1) occurred in this case.

Ground 3

1. This ground contended that “the Tribunal’s decision was based on an unwarranted assumption”, because “there was no warrant for the Tribunal’s assumption that the Applicant’s application for a protection visa was ‘a last resort to remain in Australia’”. The challenged finding occurred in the passage of the Tribunal’s reasoning which I have set out above at [33]. In support of this ground, the applicant’s solicitor argued, in effect, that it was not open to the Tribunal to find that the protection visa application would have appeared to be a “last resort”, because the applicant would always have available as a “last resort” a right to apply to the Minister for discretionary intervention under s.417.

2. However, in my opinion, this argument is misconceived. The Tribunal’s finding was one of fact about the applicant’s motives when applying for the protection visa. In my opinion it was clearly open to it to draw that inference. Moreover, even if there were evidence that the applicant ultimately intended to apply under s.417 after losing before the Tribunal, this would not render the Tribunal’s finding one based upon an “unwarranted assumption”. Indeed, this would have tended to confirm the Tribunal’s finding, since it might suggest that the applicant made false refugee claims for the purpose of gaining access to the s.417 procedure.

3. I consider that this ground does not raise a jurisdictional error, and, moreover, that it is misconceived in its evidentiary premises.  In this respect, I also note that the applicant said to the Tribunal that he had been “told by other Nepalese detainees that it was very hard to apply for a protection visa and he knew it was the last option available”. 

Ground 4

1. This ground contends that “the Tribunal failed to take account of relevant material” because “the Tribunal failed to take any, or any real account of the documents tendered by the Applicant in support of his Application for Review”. 

2. The Tribunal’s discussion of these documents occurred at the end of its reasoning, and was: 

   In making the above findings I have had regard to the various submissions received from the Applicant and his adviser as well as the evidence provided in the documents listed and referred  to above (see p.7 of decision) and in particular: 

   ·A letter from local Congress Party warning all members of the Applicant’s family to exercise caution. 

   ·A warrant for the arrest of the Applicant’s brother, and a threat against his family members not to get involved in any protests against the government. 

   ·A letter from the Maoist Party of Nepal demanding money. 

   ·A copy of a document proving his brother’s association with the Congress Party. 

   However, given the degree of the credibility problems with the evidence of the Applicant, I cannot give any weight to the statements provided in these documents.  The Applicant’s evidence is that the letter from the Nepali Congress Party (dated 7 March 2005) was sent to Australia from Nepal.  I find it implausible that in the current unsettled environment in Nepal that any person from the Party would send such a document which could lead to serious and nasty consequences.  I do not accept that the Applicant’s brother is of adverse interest to the Maoists or the Nepalese authorities.  In light of the fundamental lack of credibility within the Applicant’s evidence I am not satisfied that the statements relating to the Applicant’s material claims in the documents are true. 

   On the material before me I find that there is no credible evidence that the Applicant is a person whom the Maoists or the authorities would make the subject of persecution.  I do not accept there is a real chance that he will suffer serious harm should [he] return to Nepal. 

3. The applicant’s solicitor argued that the sequence of the Tribunal’s reasoning showed that it put to one side any consideration of the evidentiary weight to be given to these documents until after it had made its adverse credibility finding.  It therefore failed to give proper consideration to the corroborative weight they gave to the applicant’s oral evidence, and made an error such as was suggested by French J in WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912 at [34]:

   [34]It may well be the case that where a Tribunal has made findings adverse to the credibility of an applicant before it, those findings may form a basis for rejecting the authenticity of documentary evidence tendered to the Tribunal by the applicant.  There is a danger in so proceeding because it may be that documentary material itself should be taken into account in assessing credibility.  To proceed otherwise risks putting the cart before the horse.  But to complain of such an approach is perhaps to complain about want of logic or inferior modes of reasoning rather than to identify jurisdictional error.  

4. Although French J did not find jurisdictional error arising from the Tribunal’s reasoning in that case, error of a similar kind was found by Lee and Moore JJ in relation to a Tribunal’s “disregard” of corroborative documents in WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 at [26]‑[27], [52] (and c.f. WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 597 at [52]).

5. However, I do not read the Tribunal’s reasons as failing to take the documents into its consideration at the time when it arrived at the adverse opinion on the applicant’s credibility which it stated at the commencement of its “Findings and Reasons”.  The Tribunal expressly said that it did have regard to them “in making the above findings”, and I am not prepared to disbelieve this statement.  As was said by Gleeson CJ in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [14]:

   [14]Decision‑makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others.  Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything.  Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole.  I do not think that the tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him. 

1. The Tribunal’s discussion of the documents shows that, in fact, it did assess their reliability and weight, both intrinsically and in the light of the concerns it had about the applicant’s credibility.  I consider that its statement that “I cannot give any weight to the statements provided in these documents” should be understood as meaning that it had arrived at the conclusion that the documents did not cause it to accept the applicant’s credibility. 

2. I therefore reject this ground of appeal. 

3. Since I have been unable to find jurisdictional error affecting the Tribunal’s decision, it is a privative clause decision for which relief is barred under s.474, and I must dismiss the application. A consequential costs order has been agreed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  21 August 2006