SZIBR v Minister for Immigration
[2007] FMCA 1631
•15 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIBR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1631 |
| MIGRATION – Whether applicant given notice under s.425 of issues arising. |
| Migration Act 1958 (Cth), ss.36(2), 424A, 425, 474 |
| Nagalingam v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 SZBEL v Minister for Immigration and Multicultural and IndigenousAffairs [2006] HCA 63 |
| Applicant: | SZIBR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 962 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 1 August 2007 |
| Date of last submission: | 1 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp |
| Counsel for the Respondents: | Mr J. Smith |
| Solicitors for the Respondents: | Ms T. Quinn of DLA Phillips Fox |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 962 of 2007
| SZIBR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 21 March 2007 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 13 February 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant has not filed an amended application.
The applicant was born on 15 December 1959 and claims to be from Nepal, of Newari caste, and Hindu faith.
The applicant’s wife and two daughters remain in Nepal.
The applicant arrived in Australia on 29 April 2005 and lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs on 7 June 2005. In this application he claimed to fear persecution from the Maoists, who “thought I had told the police information about their leader Rajendra”. The applicant claimed that the Maoists threatened to kill him after their leader (who had been renting a floor in the applicant’s house) was taken away by the authorities. The applicant claimed that he is regarded as a Maoist supporter by the police, even though he “did not know” the tenant was a Maoist leader at the time. The applicant claimed that he left Nepal without police permission and now fears punishment upon his return. The applicant stated that he would “provide more information in a detailed statement very soon” (Court Book “CB” 19-22).
On 25 July 2005 the Department received a signed statement from the applicant, both outlining his further claims and elaborating on those previously made in his protection visa application (CB 34-49). In this statement the applicant claimed to be an active member of the Nepali Congress Party, and, as a result of his political activities, the applicant claimed that he and his family were targeted by “Maoist rebels” (CB 36).
This application was refused by a delegate of the first respondent on 5 August 2005 (CB 57-62).
On 31 August 2005 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 74). On 24 November 2005 the Tribunal affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa (CB 129). The applicant then sought judicial review of the Tribunal’s decision with this Court, and on 11 October 2006, Scarlett FM set aside the decision and remitted the matter to the Tribunal to be determined according to law (CB 159).
The applicant attended a hearing before the second Tribunal on 19 January 2007 to give evidence and present oral arguments (CB 197). By decision signed on 13 February 2007, the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 269-274) (highlighting added):
The Tribunal accepts the difficulties of proof faced by applicants for refugee status. In particular there may be statements that are not susceptible of proof. It is rarely appropriate to speak in terms of onus of proof in relation to administrative decision making: see Nagalingam v MILGEA & Anor (1992) 38 FCR 191 and McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357; 6 ALD 6 at 10. The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraph 196‑197 and 203‑204 recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt. Given the particular problems of proof faced by applicants a liberal attitude on the part of the decision maker is called for in assessing refugee status. However, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. Moreover, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. In addition, the Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547. If the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true. (See MIMA v Rajalingam (1999) 93 FCR 220).
The applicant’s claims are based on the Convention ground of actual and imputed political opinion. His case is essentially that he was a member of the Nepali Congress Party and he fears the Maoists essentially because he refused to pay them donations and because he is perceived to have played a part in the apprehension of his former tenant, a Maoist leader. The applicant had also claimed a fear of persecution by the authorities, but has now expressly withdrawn this claim.
Having sighted the applicant’s passport at the hearing, the Tribunal is satisfied that he is a national of Nepal.
The Tribunal accepts that the applicant was an ordinary member of the Nepali Congress Party having joined in 1990. The Tribunal accepts that he became “active” 10 years later when he was appointed to the position of the Coordinator of the district while living in Okhaldhunga. The Tribunal accepts that he held that position until December 2001 when he moved to Kathmandu and that his responsibilities included keeping an eye on the political situation in the area and to evaluate and report any incidents of harm perpetrated by the Maoists on the local population. The Tribunal accepts that during this time he was asked for donations by the Maoists which he refused to pay. The Tribunal accepts that as a consequence he was threatened by the Maoists and on one occasion his house was attacked whereby the family’s possessions were robbed and the house was padlocked.
The applicant’s evidence does not suggest that the robbery had inflicted serious harm on him or members his family. Prior to the attack the applicant and his family had managed to leave the house. Nobody was injured and they had been able to move back into the house shortly after and remained there for 25 days before moving to Kathmandu without further incident. He did not claim to have suffered significant economic loss and the Tribunal is satisfied that this was the case. Apart from the attack on his house, the applicant did not claim and there was no evidence before the Tribunal to suggest that the Maoists in Okhaldhunga had taken any other steps to act upon the threats they had levelled against him.
Moreover, whilst the applicant stated at the first hearing that the Maoists particularly target people they suspect are spying on their activities, according to his evidence at the second hearing “everybody” in the village, mainly rich people, had been asked for or had paid donations. This suggests that the Maoists were not targeting the villagers, including the applicant, for the reason of their political affiliation. Rather, in extorting the villagers and retaliating in response to non-compliance by threatening and robbing houses, the Maoists appear to have been essentially motivated by self-interested financial gain and the perceptions of personal wealth. Whilst the applicant’s membership of and position in the Congress Party might have exacerbated the Maoists ire, it cannot be said and the Tribunal is not satisfied that the Maoists threats against the applicant and the attack on his house in Okhaldhunga were essentially and significantly motivated by his political opinion or activities.
In any event, as already indicated, the applicant, following the example of others, successfully relocated himself and his immediate family to Kathmandu in late 2001 as a safety measure. He did not experience any extortion attempts in Kathmandu and did not claim to have encountered any Maoist from Okhaldhunka and the old district while residing in Kathmandu. The applicant’s claimed problems in Kathmandu were of a different nature and related purely to the perception by the Maoists that he had somehow been responsible for the arrest of one of their leaders who was also the applicant’s tenant. The Tribunal does not accept these claims.
In the statement submitted to the Department in support of his protection visa application he had claimed that his ground floor tenant was arrested on 20 December 2004 following a police search. Subsequently, he was told by the police that the tenant’s real name was Rajendra Dhakal and that he was a Maoist leader and a lawyer by profession from Gorkha district. Four days later he was assaulted by two Maoists who believed that he was responsible for sending their leader to jail. However, according to a report by Amnesty International Rajendra Dhakal, a lawyer and former Maoist leader originally from Gorkha district, was arrested by police on 8 January 1999 and has not been seen since (see Amnesty International 2000, Nepal: Rajendra Dhakal, 1 February – Accessed 18 January 2007). When this information was put to the applicant at the hearing, he said that there are many people by that name in Nepal and that this could have been a coincidence. In his response to the Tribunal’s 424A notice he repeated this explanation and confirmed that, having sighted the photograph of Rajendra Dhakal in the Amnesty International report cited above, the person arrested at his house was not the person in the photograph. The Tribunal considers it far-fetched and highly unlikely that there was another Rajendra Dhakal from Gorkha, who also happened to be a lawyer, a Maoists leader and wanted by the authorities around the time the applicant claims his tenant was arrested. The Tribunal finds this explanation unpersuasive.
In his written response, the applicant also forwarded the explanation that it was the police who told him that his tenant was Rajendra Dhakal in order to impress upon the public that he was still alive until December 2004. He placed this somewhat bizarre scenario in the context of a conspiracy by the Police who had been unable to produce Dhakal before the Supreme Court despite the latter’s repeated requests. The logic of this argument completely fails the Tribunal. It would be absurd to assume that the police would claim to have found a person whom they were accused of being responsible for his disappearance five years earlier, only for this person to disappear again. The applicant’s evidence was to the effect that neither he nor anyone else knew what happened to his tenant, whom he claimed to be Rajendra Dhakal. Moreover, if this conspiracy was presumably designed to present Rajendra Dhakal, albeit falsely, before the Supreme Court in order to relieve the pressure upon the police, it would be reasonable to expect the matter to have been picked up and publicised by the media or the very organisations which had repeatedly pleaded with the authorities to produce Rajendra Dhakal. The absence of any such evidence casts doubt on the applicant’s explanations.
More importantly, even if the Tribunal were to accept, which it does not, that casting of the applicant’s tenant as Rajendra Dhakal was a police conspiracy designed to serve their purposes; it is unclear as to why when the applicant was assaulted in his factory in December 2004 the perpetrators had accused him of having sent Rajendra to jail, as he expressly claimed at the second hearing. The applicant cannot have it both ways. If the reincarnation of Rajendra Dhakal in 2004 was a sinister creation of the police imagination, the Maoist friends of Rajendra would not have known or believed that the person arrested at the applicant’s house 4 days earlier was Rajendra so that they would hold the applicant responsible for sending Rajendra to jail. The Tribunal finds the applicant’s explanation of a conspiracy unpersuasive.
Indeed, the applicant’s evidence in this regard not only renders his explanation of a police conspiracy untenable, but also casts serious doubt on his assertion that in 2004 he was assaulted by Maoists. At the second hearing, when the applicant was asked how he knew the perpetrators of the assault to be Maoists, he said because they confirmed his name and asked him if he was the one who had sent Rajendra to jail. This claim contradicts his earlier explanations and for the reasons outlined above the Tribunal does not accept that, if he was assaulted by Maoists, his assailants would have referred to the applicant being responsible for sending Rajendra to jail. The Tribunal therefore does not accept that the applicant was assaulted in 2004 by Maoists or for the reasons he has provided.
The independent evidence regarding the disappearance of Rajendra Dhakal in 1999 casts significant doubt regarding the credibility of the applicant’s claims relating to the events which he claims to have occurred in 2004. None of the applicant’s explanations at the hearing or subsequently were persuasive enough to alleviate the Tribunal’s concerns. In the Tribunal’s view the applicant’s evidence regarding the arrest of his tenant for the reasons he has provided and its consequences for him is a concoction designed to strengthen his case against his protection visa application. In reaching this view the Tribunal has had regard to the applicant’s delay of nearly 6 weeks before leaving Nepal when he was in possession of a valid passport and a visa to come to Australia. The Tribunal was not persuaded by the applicant’s reasons, submitted at the hearing and following the hearing, for this delay. While the reasons forwarded by the applicant could explain a short delay, they do not explain a delay of 6 weeks after he was already issued with his visa. Similarly, the Tribunal is not satisfied with the applicant’s explanations for having waited some five weeks before lodging his application for a protection visa. The Tribunal is of the view that if he had a genuine fear of persecution he would not have spent five weeks looking for “proper” advice or monitoring the situation in Nepal, instead of applying for asylum as soon as he arrived here.
The Tribunal, therefore, does not accept that the applicant’s tenant was arrested because he was a Maoist leader or that the police led him to believe that this person was Rajendra Dhakal. The Tribunal does not accept that he was assaulted by Maoists because they believed that he was responsible for sending Rajendra Dhakal or any other Maoist leader to jail. The Tribunal does not accept that he fears the Maoists for that reason or that there is a real chance that he would be harmed for that reason if he were to return to Nepal.
As mentioned earlier, the applicant did not experience any extortion attempts in Kathmandu and did not claim to have encountered any Maoist from Okhaldhunka and the old district while residing in Kathmandu. Apart from the claims relating to his tenant, which the Tribunal has rejected, the applicant did not claim and there was no evidence before the Tribunal to suggest that he had suffered any other harm at the hands of Maoists in Kathmandu. The Tribunal has considered the applicant’s concerns regarding the present situation in Nepal and his general fears of Maoists. The Tribunal accepts the country information before it which suggests that despite the comprehensive peace agreement being signed in late November last year, reports of attacks and killings committed by Maoist cadres continue to appear in the media. The sources consulted suggest that while the Maoist leadership promulgates peace and political stability, several abductions, murders and cases of extortion have been carried out by Maoists at a local level. The victims of such attacks have been individuals and groups seen to be opposing the Maoists, or simply on the receiving end of arbitrary Maoist justice. That said, the applicant’s own evidence clearly indicates that while he remained a member of the Nepali Congress Party in Kathmandu, he was not politically active, there was no evidence to suggest that he occupied a political position, let alone a high profile position, in Kathmandu and was never targeted for harm by the Maoists for the reason of his political affiliation, membership of a particular social group, including being a businessmen in Kathmandu, or any other Convention reason. The applicant did not claim to have been politically active in Australia or that he intended to voice his opposition to the Maoists upon his return. There was no persuasive evidence in the sources consulted to suggest that ordinary members of the Nepali Congress Party are currently being targeted for harm by Maoist cadres in Kathmandu. The Tribunal also found no evidence in the extensive sources consulted to suggest that Kathmandu is amongst the areas where Maoists have continued to engage in extortion activities. The Tribunal is not satisfied that if the applicant were to return to Kathmandu and continue to engage in political activity at the same level as he has in the past there is a real chance that he would face harm at the hands of Maoists or any of their offshoots, including MJF, for the reason of his political opinion, membership of a particular social group or any other Convention reason.
The Tribunal is prepared to accept that the applicant’s house was robbed in June 2006. The Tribunal, however, is not satisfied that the house was robbed by Maoists or for the reason of the applicant’s political opinion or any other Convention reason. No one was home at the time of the robbery. The assumption that the thieves were Maoists was apparently based on the observation of an old neighbour who had seen five young men with black hair, wearing headbands entering the house. Just because Maoists also wear black headbands, it does not mean that thieves were Maoists or that the house was robbed for the reason of the applicant’s political profile or opinion. The Tribunal notes that the letter from the police submitted by the applicant support of this claim makes no mention of Maoists being responsible for or suspected of having committed the robbery. The Tribunal does not accept that the police would not have mentioned the Maoists’ role, if any, because the Maoists are running a parallel government in Nepal, as claimed by the applicant. Having regard to the evidence before it, including the applicant’s overall credibility, the Tribunal is of the view that the robbery was a random criminal act which the applicant has sought to rely on in order to strengthen his claims for being a refugee. The Tribunal, therefore, does not accept that the robbery was Convention related or that it exacerbates the applicant’s chance of being persecuted for a Convention related reason in Nepal.
The Tribunal has carefully considered the country information provided by the applicant’s representative in support of the application for review. The Tribunal finds this information to generally confirm the independent evidence before the Tribunal, discussed above, and does not add any value to his evidence.
Overall, based on the evidence before it, the Tribunal is not satisfied that the applicant’s fear of persecution in Nepal for the reason of his political opinion is well-founded. He is not a refugee.
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth) (“the Act”).
The application
In his application, the applicant set out the following ground:
(1)The second respondent (the Tribunal) committed jurisdictional error by failing to comply with the requirements of s.425(1) of the Migration Act.
Particulars
(a) The Tribunal failed to give the applicant an opportunity to give evidence and present arguments relating to an issue that arose in relation to the decision under review; that being whether Rajendra Dhakal was or had been in police custody, or had escaped from police custody.
The applicant has not filed an amended application.
Findings as to the ground in the application
It is alleged for the applicant that an issue that arose in relation to the decision under review was not put to the applicant for him to give evidence and present argument as required by s.425(1) of the Act. The issue here was the plausibility of the existence of two people with the same names and the other distinguishing factors (as set out hereunder). That issue was put to the applicant: see the transcript of the Tribunal hearing – Exhibit A1 at Q137, 138 and 144:
Q144: …It’s highly unlikely that there are two Rajindra…who are both lawyers, who are both wanted by the authorities, who are both from the Gorkha region and who are both arrested by the police but one is mentioned and the other one isn’t. That sounds unusual, doesn’t it?
Mr Karp alleges for the applicant that the issue not put to the applicant was that there were conflicting statements in the Amnesty International report (Exhibit A2) about whether Rajendra Dhakal had been arrested or was in police custody. The relevant part of the Amnesty International Report was put to the applicant in a s.424A letter and an internet reference given to obtain the full report. That itself was sufficient to put the question of the arrest of Rajendra Dhakal to the applicant for him to give evidence and present argument in relation to it. If the applicant had read the report he could have commented on the varying conclusions in it as to arrest and detention of that person. It is for the applicant to make their case. As stated in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70: “It is no part of the duty of the decision-maker to make the applicant’s case for him [or her]”.
Mr Karp stated that his submission is seeking to develop the law in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 to encompass a slightly different fact situation. In SZBEL it is said that the issues that arose in relation to the decision are to be identified by the Tribunal: [35]. At CB 271.2, the Tribunal makes clear that an issue that arose was the content of the report from Amnesty International and the conclusions to be drawn from it when it said:
However, according to a report by Amnesty International Rajendra Dhakal, a lawyer and former Maoist leader originally from Gorkha district, was arrested by police on 8 January 1999 and has not been seen since (see Amnesty International 2000, Nepal: Rajendra Dhakal, 1 February – Accessed 18 January 2007). When this information was put to the applicant at the hearing, he said that there are many people by that name in Nepal and that this could have been a coincidence. In his response to the Tribunal’s 424A notice he repeated this explanation and confirmed that, having sighted the photograph of Rajendra Dhakal in the Amnesty International report cited above, the person arrested at his house was not the person in the photograph. The Tribunal considers it far-fetched and highly unlikely that there was another Rajendra Dhakal from Gorkha, who also happened to be a lawyer, a Maoists leader and wanted by the authorities around the time the applicant claims his tenant was arrested. The Tribunal finds this explanation unpersuasive.
The Court finds that the action taken by the Tribunal complied with its obligations under s.425 and with the decision in SZBEL. The alleged breach of s.425 was the sole ground in the application.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, and has not been infected by jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application is dismissed.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 15 October 2007
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