SZHYN v Minister for Immigration
[2007] FMCA 872
•24 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHYN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 872 |
| MIGRATION – Review of RRT decision – where the Tribunal made finding as to credibility of applicant – whether reviewable decision. |
| Ex parte Durairajasingham (2000) 168 ALR 407 SZAKF v Minister for Immigration [2004] FCA 1719 Kamal v Minister for Immigration [2002] FCA 818 WAJS v Minister for Immigration [2004] FCAFC 139 |
| Applicant: | SZHYN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3820 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 24 May 2007 |
| Date of last submission: | 24 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 24 May 2007 |
REPRESENTATION
| Applicant in person |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant shall pay the Respondent’s costs assessed in the sum of $4,000.00.
The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3820 of 2005
| SZHYN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Nepal. He arrived in Australia on 9 July 2005. On 5 August 2005 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 27 August 2005 a delegate of the Minister refused to grant the protection visa and on 20 September 2005 the applicant applied for a review of that decision. On 10 November 2005 the Tribunal held a hearing at which the applicant was present and was represented by his Migration agent. Following that hearing the Migration agent made submissions to the Tribunal. On 21 November 2005 the Tribunal determined to affirm the decision under review and handed that decision down on 8 December 2005.
The grounds upon which the applicant claims the protection of Australia arise out of his association with, and deemed support of, the Maoist insurgency in his home country. He claimed that in the area in which he lived the Maoists were a dominant force. On 30 August 2004 a group of Maoists came to his home and were fed and given beds by the applicant and his family. The next day the police came and searched the home and accused the applicant of direct involvement with Maoists. They arrested him and tortured, beat and threatened him. He was detained until 29 September 2004 when he was released on bail. He was made to report regularly to the police but ceased to do so. On 18 May 2005 the police came to his parents’ home, gave the father an arrest warrant for the applicant, and told the father to hand him over. They made threats that the applicant would be killed if they found him. The applicant had meanwhile gone into hiding in Kathmandu from where he secured passage for Australia with the assistance of an agent.
The applicant provided to the Tribunal a quantity of independent country information and also a letter written in Nepalese from Amnesty International which was later translated and can be found at [CB62]. He also gave a letter purporting to come from the District Police Officer confirming that he had been released from prison on the condition that he present himself to the police office every Monday at 10.00 am, as a further investigation was being carried out as to his association with the Maoists. The Tribunal questioned the applicant about his story and about the documents, and indicated to the applicant at the hearing that it had doubts about the veracity of both. In its findings and reasons for its decision at [CB197] the Tribunal states:
“The Tribunal accepts that the applicant is a citizen of Nepal and is who he says he is. The Tribunal does not accept that the applicant and his family provided food and shelter to the Maoists when they were approached by Maoists to do so. Also the Tribunal does not accept, on the evidence before it, that the applicant suffered the threats, acts of violence and persecution that he claims; specifically the Tribunal does not accept that there is a warrant to arrest the applicant in Nepal because he did not report to the police and because it is considered by the authorities he has joined the Maoists.”
The Tribunal continued that paragraph with a recitation of all the other facts put by the applicant; none of which it had accepted, before (in the second paragraph on that page) explaining why:
“The Tribunal does not accept the applicant as a witness of truth. In the Tribunal’s view it is not plausible that the applicant was able to remain in Nepal from the end of September2004 until he left for Australia in July 2005 if the authorities were searching for him to arrest/kill him as he claims and there was a warrant for his arrest because he had not reported to police/authorities. Although he says that after he was released from gaol he moved around and lived in one place for 15 to 20 days and in another for 10 to 12 days, his evidence is that he lived in Kathmandu with a friend in rented accommodation for the remainder of the period, about 7 months or more prior to coming to Australia on 9 July 2005. The Tribunal does not accept that he was able to avoid authorities during this time because he remained inside the house for all of this time.
The Tribunal does not accept that the applicant was detained for supporting the Maoists and then released as he claims in August/September 2004. In the Tribunal’s view his explanation for his release, namely that he was released because of “community pressure”, is not plausible given the political climate and the violence and abuses which have taken place between Maoists and their supporters in Government authorities. It follows that the Tribunal does not accept that the “letter pertaining to release. . .” is reliable evidence of the facts therein. The Tribunal notes that the letter refers to the applicant’s “involvement with Maoists terrorists”. Given the political climate, in the Tribunal’s view it is implausible that the applicant will be released as he claims in the circumstances set out in the letter.
The Tribunal does not consider that the documents which the applicant has produced to the Tribunal to support his claims assist him. The Tribunal does not accept these documents as reliable evidence of the facts contained in them. There is no plausible explanation as to why the warrant document (“To arrest and hand over” the applicant) which is expressed to be issued because there was information that the applicant had rejoined the Maoists and because he did not report after his release on 29 September 2004, would be issued in May 2005, some eight months after his failure to report. Further, the Tribunal does not accept, given the wording of the document, that the Amnesty International document is a genuine document based on independent inquiries by that organisation. The Tribunal considers that this document and the other two documents were obtained for the purposes of giving credibility to the applicant’s claims and in the Tribunal’s view they do not provide reliable evidence to support the applicant’s claims.”
Now, it may be that another Tribunal would have taken a different view of the documents produced by the applicant. It may have felt that the document found at [CB64] in translation appeared a genuine form of advice as to release on a reporting condition and that accepting this letter meant that the applicant had indeed been detained for alleged Maoists activities as he had said. But this Tribunal did not take that view. The Tribunal in these matters is the arbiter of fact and in cases such as Ex parte Durairajasingham (2000) 168 ALR 407 at [67]; SZAKF v Minister for Immigration [2004] FCA 1719 at [26] per Hely J; Kamal v Minister for Immigration [2002] FCA 818 at [36] per Mansfield J, the question of the applicant’s credibility has been held to be one for the Tribunal alone. In WAJS v Minister for Immigration [2004] FCAFC 139 the Full Bench, Wilcox, Marshall and Jacobson JJ said at [17]:
“[17] Determination of the facts of the case was the responsibility of the Tribunal. Whatever our personal views may have been, and we have not reached any conclusion about them, it cannot be said that the Tribunal’s member’s view was perverse or illogical. Whether rightly or wrongly he regarded a critical portion of the appellant’s evidence as inherently improbable and, for that reason, was unable to accept its accuracy. This was not a finding for which positive evidence was required; it was simply a matter of disbelief of evidence because of surrounding circumstances. ...
[18] A Tribunal of fact is entitled to reject evidence even of an impressive witness, if it rationally considers that evidence to be implausible”.
In the instant case the Tribunal has explained why it believes that the evidence of the applicant was implausible. Another Tribunal may not have felt the same, but this Court is not a court of appeal: it is exercising the power of the High Court to provide judicial review. Any disagreement it may have with the conclusions reached by the Tribunal should be kept private. The Tribunal appears on the face of the document provided to this Court to have exercised its powers properly and in the circumstances I am unable to accede to the applicant’s request for the issue of constitutional writs. Before me today the applicant said that he believed justice had been denied him; he believed that the findings of Amnesty International in the letter set out at [CB62] had not been taken into account, but it is clear from the extract of the Tribunal’s decision that is found in these reasons that it was taken into account but not accepted.
The application is dismissed. The applicant is ordered to pay the respondent’s costs which I assess in the sum of $4,000.00.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 24 May 2007
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