SZILA v Minister for Immigration
[2007] FMCA 402
•27 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZILA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 402 |
| MIGRATION – Refugee – fear of persecution from Maoists – Tribunal not satisfied applicant faced real chance of persecution – no breach of s.424A – Tribunal relied on applicant’s evidence provided at hearing – no bias or bad faith – no denial of procedural fairness – weight given to material is for the Tribunal – Tribunal not required to put thought processes to an applicant – Tribunal’s findings were open to it – no error – application dismissed. |
Migration Act 1958, ss.422B, 424A(1), 424A(2), 424A(3)(b), 414A.
| SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 Al ShamryMinister for Immigration & Multicultural Affairs [2000] FCA 1679 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 267 VWBS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] 154 FCR 302 NBKT v Minister Immigration and Multicultural Affairs [2006] FCAFC 195 Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 Lay Lat v Minister for Immigration and Multicultural Affairs [2006] FCAFC 61 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002[2003] HCA 30 WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912 Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 |
| Applicant: | SZILA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 621 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 22 February 2007 |
| Date of last submission: | 16 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 27 March 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. S. Lloyd |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The reference to the name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 621 of 2006
| SZILA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 27 February 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 2 February 2006 which affirmed the decision of a delegate of the respondent Minister not to grant the applicant a protection visa.
Background
The applicant is a national of Nepal. He arrived in Australia on 7 July 2005. On 8 September 2005 the applicant lodged an application for a protection visa. On 13 September 2005 a delegate of the first respondent refused to grant a protection visa to the applicant. On
16 September 2005 the applicant applied to the Tribunal for a review of that decision. The applicant, assisted by an interpreter in the Nepali language, attended at a hearing before the Tribunal on 6 December 2005.
Applicant’s Refugee Convention claims
The applicant’s claims to protection centred around a fear of persecution from Maoists in Nepal. He claimed that on return to his home town (Taplejung) in 2002, the Maoists had “taken over” and demanded he join them. Following his refusal they threatened to kill his parents. He claimed that he escaped to Dubai and stayed there from 2002 to 2005. In November 2005 the applicant made new claims to the Tribunal including that he, and some others, had formed a resistance group to the Maoists to “stand against them”. He claimed that two of the eleven members of his group killed two Maoists and hid the bodies. Following this he was implicated by persons who had been caught and tortured by the Maoists who he claimed were still looking for him.
The applicant’s claims can be found in his application for a protection visa reproduced at Court Book (“CB”) 1 to CB 26 and in his application for review to the Tribunal accompanied by supporting documents reproduced at CB 32 to CB 45. Further, the applicant also submitted further documents reproduced at CB 50 to CB 68 and CB 70 to CB 82.
The Tribunal’s reasons
The Tribunal’s account of what occurred at the hearing is set out in its decision record and reproduced at CB 94.8 to CB 96.3. The Tribunal’s “Findings and Reasons” are reproduced at CB 96.3 to CB 99. The Tribunal:
1)Found that based on independent country information the Maoists’ rebellion in Nepal had spread to numerous parts in Nepal, but that there was no evidence available that it had spread to all parts of Nepal, and in particular that Kathmandu is in danger of falling to the Maoists (CB 96.4).
2)Found that the applicant's claims about his (anti-Maoist) group and its aims and activities lacked “consistency and plausibility” and contained a “discrepancy” which the applicant “failed to resolve” (CB 96.5).
3)Found that the applicant’s claims about the “anti-Maoist group” were a “late invention”, and that he “invented” the reference to a “solicitor” to try and explain or “gloss over the revision of his claims” (CB 96.8).
4)Concluded that based on the applicant's performance as a witness before it, the evidence relating to the anti-Maoist group was a “fabrication” (CB 97.1).
5)Did not give any weight to a letter from the “district administrator” submitted by the applicant which asserted that the applicant faced “generic problems” with the Maoists (CB 97.3).
6)On the evidence presented, did not accept that the presence of Maoists in an area of Nepal “is of itself indicative of a real chance of a non-Maoist facing persecution on the basis of being a non-Maoist” (CB 97.6).
7)Found that the applicant failed to argue that it would be unreasonable to expect him to reside in another part of Nepal, such as Kathmandu (CB 97.8)
8)Gave no weight to the letter from the applicant's witness (CB 97.9).
9)Was confident that the applicant lodged his protection visa application as an “afterthought” following his coming to Australia (CB 98.1).
10)Found that the applicant's voluntary return to Nepal in 2004 was “significant evidence of a lack of genuine fear of Convention related persecution” (CB 98.3).
11)In all therefore, was not satisfied that the applicant faced a real chance of Convention related persecution in Nepal and affirmed the decision not to grant a protection visa to the applicant.
Representation
At the hearing before the Court on 22 February 2007 the applicant appeared in person. He was assisted by an interpreter in the Nepali language. Mr. Lloyd of Counsel appeared for the respondent.
Applicant’s Documents in Court
The applicant put before the Court:
1)An application filed on 27 February 2006.
2)An affidavit made on 27 February 2006, “attacking” the Tribunal decision.
3)An affidavit made on 15 August 2006 which annexed:
a)An amended application asserting the following grounds of complaint:
“(i) failure to take into account relevant considerations;
(ii)failure to give genuine and realistic considerations; identifying a wrong issue and asking
(iii)wrong questions; and
(iv)ignoring relevant materials and relying on other irrelevant matters.”
b)A statement in support of the applicant's claims.
c)Amnesty International Report on Nepal dated 22 May 2006
d)The Tribunal's decision record.
e)A purported Transcript (“T”) of the hearing before the Tribunal.
4)Applicant's written submissions filed on 2 February 2007.
In relation to each of the applicant's documents attached to the affidavit of 15 August 2006:
1)The applicant was granted leave, and the amended application was filed in Court.
2)Mr. Lloyd objected to the statement in support of the applicant's claims on the basis that it was not before the Tribunal, and that it went to the merits of his refugee claims, rather than in support of his application to the Court. I agreed with Mr. Lloyd, and upheld the objection in relation to this statement. It plainly went to the issues of the merits of his refugee claims before the Tribunal, rather than argue jurisdictional error on the part of the Tribunal (the relevant issue before the Court now).
3)For similar reasons I also upheld Mr. Lloyd’s objection to the Amnesty International Report, noting further that in any event it was not in existence at the time of the Tribunal's decision, and was in fact created some time later.
4)In relation to the transcript of the Tribunal hearing Mr. Lloyd expressed concern that the transcript be read in such a way as to be influenced by what he, in my view properly, described the person who created this document as having “a fascination with the exclamation mark”. It is plain that almost everything that the presiding Tribunal member is reported as having said is followed by an exclamation mark. I admitted the transcript on the basis that if the applicant was to rely on the exclamation marks in a way critical to his case (that is, for example to argue that the presiding member’s tone or approach was somehow relevant) then I would give a subsequent opportunity to Mr. Lloyd to again raise his objection on that basis. I note that notwithstanding that there was also nothing before the Court by way of evidence from the person who prepared the transcript nor as to that person's experience and the provenance of the document, I admitted the transcript to provide the application with every opportunity to make out his case to the Court.
At the hearing before the Court the applicant, in oral submissions, raised the following:
1)The Tribunal was not willing to listen to his claims, nor give any credibility, or credence, to his statements. By inference also that, it spent much of the hearing focussing on the circumstances of his arrival in Australia and immediate events leading to the making of the protection visa application.
2)He attempted to provide evidence in support of his claims by way of a witness who was in a Thai refugee camp, and submitted a letter from the witness to the Tribunal, but the Tribunal did not “rely” on that letter.
3)The Tribunal did not give any weight to his documents.
4)The Tribunal did not use country information before it “appropriately”, in that there was a difference in comparing the “international situation with the situation in the grass root level”.
5)The Tribunal should not have made the finding that he could relocate to Kathmandu.
These complaints repeat matters raised in the applicant's amended application and written submissions and will be dealt with below.
Consideration of application of s.424A
Before hearing submissions from Mr. Lloyd I raised with him an issue not directly raised in the applicant's documentation, or by the applicant himself before the Court, but which in my view (given that the applicant was unrepresented before me) merited the Court's consideration as to whether jurisdictional error could be otherwise discerned.
This was with reference to two parts of the Tribunal's decision record:
1)In its “Findings and Reasons” (at CB 96.9) the Tribunal stated:
“The Tribunal is not relying on a discrepancy between material put before the RRT and material put before DIMIA, and does not need to do so. The apparent discrepancy was introduced into evidence before the RRT by the Applicant himself when the Tribunal asked him of [sic: if] he had ever disclosed the claims about the group to the DIMIA and when he explained that he had not. The Tribunal makes its conclusions as to the fabrication of the evidence of the group on the basis of the Applicant's performance as a witness in the RRT hearing.”
The issue is whether, in light of the illumination provided by the SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 (“SZEEU”) package of cases, and in particular as to what Allsop J. said in considering “SZBMI” at [221], the Tribunal was considering an inconsistency in what the applicant had put before the first respondent's Department, with what he subsequently put before the Tribunal. Further, to have done so in circumstances where, on the basis of the majority in Al ShamryMinister for Immigration & Multicultural Affairs [2000] FCA 1679 what the applicant said to the first respondent's Department was not information put before the Tribunal for the purposes of the review, such that the obligation to put such information to the applicant in writing and seek comment (s.424A(1) & (2) and SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 (“SAAP”)) would not be excluded by the operation of s.424A(3)(b) of the Migration Act 1958 (“the Act”).
2)I further sought submissions from Mr. Lloyd in light of the Tribunal’s (somewhat curious – in that it does not directly appear to go to the issued the applicant’s claims) statement, in its decision record, under the heading of “Background” (CB 90.6):
“The Tribunal took longer than the now-statutory 90 days to finalise a decision in this matter due to a combination of factors. Firstly, the review application was lodged before the 90-day regime came into effect, and was constituted to the presiding Member some three weeks after lodgement. Secondly, the hearing had to be set in December 2005 to allow for the presiding Member to take overdue leave in October and November 2005. Thirdly, the Tribunal needed to allow additional times in this particular case for lodgement of further evidence. Fourthly, the Christmas and New Year holiday season intervened. Finally, the presiding Member had an “older” case to prioritise.”
The question, in particular, to which I sought submissions was whether the Tribunal felt compelled, or driven, not to put the information referred to at CB 96.9 to the applicant in writing in circumstances where it felt that it had taken longer than 90 days to finalise this case as required by s.414A of the Act.
In relation to the extract from CB 90.6 Mr. Lloyd submitted that there was about a six-week gap between the hearing and time of the making of the decision. In these circumstances, his position was that it seems unlikely that at the time the Tribunal asked the questions, relevant to the extract at CB 96, that the Tribunal was anticipating, at that time, that it would not have been able to make a decision within the 90 day period. Mr. Lloyd submitted that by the time that it came to write its decision the Tribunal felt some need to explain why it took longer than the 90 days to complete its task. But that in any event what had occurred at the time of the hearing, and the Tribunal's subsequent reliance on information provided at the hearing, was sufficient to bring the issue within s.424A(3)(b) of the Act.
I accept Mr. Lloyd’s submission in relation to the extract at CB 90.6. I agree that given the placement of the paragraph (referring to the statutory 90 days) set under the heading of “background” in the decision record, that this is consistent with the Tribunal explaining the time between the hearing, and the finalisation of this case. The subsequent reference at CB 96 to the discrepancy between what the applicant put before the Department and what the applicant put before the Tribunal, and the way that the Tribunal dealt with this, are not connected in the sense that the Tribunal sought to circumvent any further delay in finalising the matter (which would have occurred had it written to the applicant seeking comments in writing) by asserting what it did at CB 96.9. I am particularly persuaded to this view as will become apparent below following a reading of the transcript of the hearing that the applicant has now provided to the Court (see in particular paragraph 21.8 below).
On the other issue is whether the Tribunal’s statement at CB 96.9 to CB 97.1 reveals jurisdictional error, could the Tribunal be said to have relied on information (in the protection visa application) and compared this with information provided subsequently to the Tribunal as a part of its reason for the decision, bringing it within what was set out at [221] of SZEEU.
Mr. Lloyd's submission was that the particulars, that is, the information on which it relied and which was a part of its reason for its decision was not a comparison of a set of claims put to the first respondent's Department and subsequent claims put to the Tribunal. But that the Tribunal relied on what the applicant himself said at the hearing before it. Therefore the information on which it relied for the part of its decision was information provided by the applicant in circumstances where s.424A(3)(b) applied.
In support of this he relied on what Kenny J. found in SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 267 (“SZDPY”), especially at [35]-[36], and which was subsequently applied by Heerey J. in VWBS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] 154 FCR 302 (“VWBS”), and as considered recently by the Full Court in NBKT v Minister Immigration and Multicultural Affairs [2006] FCAFC 195 (“NBKT”).
I note in particular the following:
1)Kenny J. in SZDPY, a matter on appeal from this Court, at [35]:
“It is clear that the appellant specifically provided the Tribunal with his educational details. I reject the appellant’s submission that the information does not fall within s 424A(3)(b) because it was given in response to questions in the nature of ‘cross-examination’. The Tribunal’s questions were specific and arose, naturally enough, from the appellant’s visa application. The appellant gave direct answers. The relevant information was simple and could be easily given in response to such questions. Further, SZEEU provides support for the proposition that where an applicant affirms a specific fact before the Tribunal that information will be covered by the exclusion in s 424A(3)(b). At [91] Moore J, with whom Weinberg J at [173] and Allsop J at [264] agreed on this issue, said:
“While it appears that the Tribunal originally came to know that the appellant entered Australia on a business visa from sources other than the appellant (an inference which could be drawn from the way the letter of 4 February 2004 was framed) it is tolerably clear from the Tribunal’s reasons that it discussed this fact (that the appellant had entered Australia on a business visa) with the appellant and he affirmed he had. Thus it was information comprehended by s 424A(3)(b) even though it was information also derived from an alternative source.”
2)Young J. in NBKT with whom Gyles J. at [1], and Stone J. at [2], agreed, at [59]:
“These authorities highlight the importance of giving careful consideration to the nature of the information that is said to fall within s 424A(3)(b) and the circumstances in which it is communicated to, or elicited by, the Tribunal. There may be good reasons for requiring that the applicant affirm or actively give specific ‘information’ for the purposes of the review, in order for the exemption in s 424A(3)(b) to apply. Both SZEEU and NAZY [NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744] suggest that the exception may not apply where the appellant does no more than affirm the accuracy of a statement which contains many diverse pieces of information. At the same time, the weight of authority indicates that artificial distinctions should not be drawn between information that is provided by an applicant in the course of his evidence in chief rather than in answer to questions posed by the Tribunal.”
In considering therefore the nature of the information on which the Tribunal relied, it may be (and caution needs to be exercised in not stretching too far into the realm of speculation) that once having read the applicant’s protection visa application, and then the applicant's written statement of 21 November 2005 (CB 59 to CB 60, which he provided to the Tribunal for the purposes of the review), the Tribunal formed a view that there was an inconsistency between the two sets of information. If that was all that was before Court now, then plainly such circumstances would fall within what was set out at [221] in SZEEU, in that the Tribunal if it had made its decision at that time, would have been comparing one set of information provided to it for the purposes of the review with another set of information provided to the first respondent's Department.
But plainly something more did occur in this case. Intervening between the time of the Tribunal's receipt of the applicant’s letter of November 2005 and the drafting of its decision in January 2006. The Tribunal conducted a hearing with the applicant.
In my view the transcript of the hearing provided to the Court now by the applicant himself is of assistance in discerning the nature of the information (for the purposes of s.424A(3)(b)) on which the Tribunal relied, even in part, in the making of its decision. A plain reading of the transcript reveals that, consistent with the claims as put by the applicant before it, the Tribunal explored (from T9 to about T24) the circumstances in which the applicant said he came to Australia and the reasons for it. This included the role of a friend that he said he had met in 2003 and who assisted him subsequently in coming to Australia. The applicant himself had provided information to the Tribunal previously (see CB 50 to CB 54) concerning this friend. In my view, it was certainly open and appropriate for the Tribunal to explore this issue with the applicant at the hearing as it went to the relevant issue of his purpose for coming to Australia, and whether it could suggest that the applicant's purpose for coming to Australia was other than applying for protection as a refugee.
At the hearing:
1)The Tribunal highlighted this issue for the applicant (T24.4):
“Q.105 (Member): And my next question, it's an important one. When did you get the idea to apply for Protection?
A. (Applicant): After I came, in Sydney, here.
Q.106 (Member): And who gave you that idea?
A. (Applicant): Well, after, after I left his house, I stayed one (1) night in “night shelter” where the Police, where the Police people they told me to stay one night, there. Then, after then, Patrick, he rang me, and he asked me, where, I am staying, and everything. And, then, Patrick…
2)The hearing continued, and then relevantly (at T25.10):
“Q.117 (Member): OK! So, after you came to Sydney you, you got the idea to apply for Protection?
A. (Applicant): Yes, Sir!
Q.118 (Member): But who gave you that idea?
A. (Applicant): The person, which I'm staying, now.”
3)Further at T26.7:
“Q.123 (Member): OK! Now, I still don't, I'm still not hearing what a, what a person would reasonably expect to hear from someone whose plan was to escape from Nepal, in order to seek Protection. Like, you didn't know what to do. You’ve just said to me that you didn't know what you could do. And, then, someone else told you, “well, you can apply for a Protection Visa”. OK! it's never…
A. (Applicant): I only didn't because…
Q.124 (Member): … Never been on your mind, until then.
A. (Applicant): … Because I had Visa for three (3) months to stay, in Australia, that’s Travelling Visa.”
4)At T29.7:
“Q.140 (Member): OK! Now, we’ve got the reason why you don't want to be in Nepal. There’ve been written, the written claims.
A. (Applicant): Yes!
Q.141 (Member): This issue about the Maoists. But the, your Passport shows that you did go back, to Nepal?
A. (Applicant): Yes, Sir!
Q.142 (Member): And, that you were there from August 2004…
A. (Applicant): Yeah!
Q.143 (Member):. …until December 2004?
A. (Applicant): After, after my departure in 2002, I went in, I went to Nepal, twice, two (2) times.
Q.144 (Member): Yeah! August!
A. (Applicant): Last year, last year, that was August. I flew from Dubai to Nepal, August ‘til December. Yeah!
Q.145 (Member): OK! That's August! September, October, November, December, that’s four (4) months in…
A. (Applicant): Four (4) months!
Q.146 (Member): …In Nepal!”
5)The applicant's willingness and ability to have returned to Nepal without subsequent difficulty is further considered until ultimately the Tribunal turns to the issue of whether the applicant could stay in his village or could stay in Kathmandu.
6)The hearing continues with questions and answers involving the Maoist rebels until at T34.1:
“Q.157 (Member): Now, you claim that you formed a group to resist the Maoists. I want to hear some detail about that group. So, how many members of the group?
A. (Interpreter): There were about eleven (11) people.”
7)The Tribunal continues to question the applicant at length about this anti-Maoist group and the applicant’s claimed activities with it until at T39.9:
“Q.180 (Member): OK! It's in this statement, this recent statement that came to us. No! That’s people who are not wanting to join the Maoists, were found beaten, and dead. Just a moment! OK! “Persons from the Committee killed two (2) Maoists, and hide their dead bodies so that no one can find them. I ask them about this when they came to our village”. Is this the first time that you’ve mentioned it, in this statement? Did you mention, the killing of the Maoists, to the Immigration Department?
A. (Applicant): No!
Q.181 (Member): Why not?
A. (Applicant): I didn't write it before because I thought that there is some, you know, problem mentioning all these things, and I didn't………… too long (unclear/inaudible)
Q.182 (Member): What problem?
A. (Interpreter): Because it was not connected to the “social group” and, also, you know, that's why I, I didn't put that.
Q.183 (Member): It's connected to “political opinion”.
A. (Interpreter): Yeah! I, I didn't write because I thought that there would be some, you know, ah, it's, nobody likes someone to kill or to, you know, do anything like that.
Q.184 (Member): But what changed your mind?
A. (Interpreter): And, I thought that, you know, I’ll just submit this, and I’ll just tell, you know, by word rather than in, in writing.
Q.185 (Member): But what change your mind?
A. (Interpreter): No! I'm not changing! Just an addition of a few things. I added what actually happened, in detail.
Q.186 (Member): Well, that's not, it doesn't, really, what can I say? You took a strong position not to reveal it, and then I asked you what changed your mind, to alter this strong position, to keep it, to, to a, to hide this fact about the killing, it's a big issue. And, when I asked you, “what changed your mind?” You said, “you didn't change your mind, you just added some detail”. It doesn't sound very convincing, at this stage.
A. (Interpreter): Yeah! That was [because] I didn't write, previously. But, you know, later when I got some advice from the, from the Solicitor. And he also suggested to, you know, “you can write that”. He also said that, you know, and he said that there wouldn’t be…
Q.187 (Member): But you don't have a Solicitor. There’s no Solicitor.
A. (Interpreter): Yeah! I had an appointment, and got some advice.
Q.188 (Member): Yeah! But, when? Where’s the evidence that you went to RACS? When did you go to RACS?
A. (Applicant): That was 24/10/05.
Q.189 (Member): But they're not representing you. OK! So, what evidence do we have that they gave you advice? Can I make a copy of this? I think I should! [The “copy” appears to be a reference to what is required at CB 57.]
8)Finally, it is relevant to note the Tribunal's summary to the applicant of the issues that it saw arising from the hearing and on which its decision would turn. At T53.3:
“Q.229 (Member): All right! Sir, I’ve put to you that I have some difficulties with the plausibility of this account. OK! I’m also concerned that you didn’t act like a person who needed protection, when you came to Australia. You acted like a person who wanted to travel and, maybe, study. I'm also concerned; I’m also concerned with the fact that you were in Kathmandu, that you were in Kathmandu for four (4) months, voluntarily. You claim that you never went back to your village. I have only your word for that. We have a Police letter that, from a District away from where your parents lived, where Police, where the Police just say what your parents told them, and then just write it down, and stamp it. Well, these are, these are the issues that I, that are in front of me that I need to look at in a balanced way. OK! It may take some time for me to write a Decision, some days or weeks. If you have any further material, I'll accept it, until Friday, close of business. OK! I can't keep this open ended because you have to right [sic: write] Decisions within ninety (90) days. OK! But I’d like to set a deadline of Friday afternoon for any further statements that you might like to make or information you’d like to submit. OK!
A. (Interpreter): OK! Thank you, Sir!”
(The Tribunal clearly made reference to the 90 day issue at the hearing on 6 December 2005, but nonetheless gave the applicant further time to provide further material).
I should also note that the Tribunal's account of what occurred at the hearing in its decision record (CB 93.10 to CB 96.2) is consistent with what is set out in the transcript of the hearing provided by the applicant.
The issue therefore is, did the Tribunal rely on information put in the protection visa application and not put before the Tribunal as a part of the reasons for its decision with the consequence that the failure to put this information to the applicant inviting comment pursuant to s.424A(1) would reveal jurisdictional error in the Tribunal's decision. In my view, and in consideration of the material before the Court now, and in particular, a plain reading of the transcript of the hearing before the Tribunal provided by the applicant, reveals that the Tribunal rejected the applicant's claims about his involvement with an anti-Maoist group (claims which were first made in writing to the Tribunal in November 2005 and not contained in his protection visa application) not by relying on this fact, that is, the absence of this claim in his original application, but in my view the Tribunal relied on what the applicant himself said at the hearing.
To borrow, with respect, the words of Kenny J. in SZDPY “while it appears that the Tribunal originally came to know” that the applicant did not raise his claim about his involvement with an anti-Maoist group in his protection visa application, but raised it for the first time in his letter to the Tribunal in November 2005, that “it is [more than tolerably] clear from the Tribunal's reasons that it discussed this fact” with the applicant at the hearing and that the Tribunal's decision relied on information in this respect provided by the applicant at the hearing. In such circumstances therefore that it was information comprehended by s.424A(3)(b), even though the fact that he had not raised this issue originally was “information also derived from an alternative source”.
Further, the Tribunal rejected the applicant's claims about the “eleven-member” anti-Maoist group for two reasons. First, that the applicant's claims in this regard (given that they were presented to the Tribunal, and discussed, for the first time at the hearing) could only have been based on what the applicant put to the Tribunal, which were found by the Tribunal to “lack consistency and plausibility”. The Tribunal found this “even if one leaves aside concerns as to why they were not disclosed earlier” (CB 96.6). The Tribunal had also found that the applicant was “particularly weak” (CB 96.7) in explaining why he formed this group. The Tribunal's account of what occurred at the hearing (CB 94.8 relevantly to CB 94.10) reveals that, consistent with what is set out in the relevant parts of the transcript provided by the applicant, at the hearing it sought details from the applicant as to the aims and expectations of the group to which he claimed to belong, and indeed had created. At the hearing the Tribunal recorded a discrepancy in the applicant’s evidence between the group having “secret meetings only”, and subsequently that the group would tell people not to donate money to Maoists. The Tribunal described the applicant's evidence as being deficient in that he “seemed unable to give even vaguely detailed evidence as to how the group expected to be able to go on doing such things” (CB 94.10).
The second factor on which the Tribunal relied in finding that the applicant's claims regarding the anti-Maoist group was “a late invention”, was also based on its finding that the applicant “invented a solicitor” (this was with reference to the applicant's explanation at the hearing as to the later inclusion of this issue in his claims) to explain or “gloss over the revision in his claims” (CB 96.8). This also was based on information put at the hearing.
I accept Mr. Lloyd's submission that on a plain reading of the Tribunal's decision record (and subsequently a plain reading of the transcript of the hearing before the Tribunal) what the Tribunal relied on was the applicant's explanation as to why he did not mention the anti-Maoist group at an earlier time, and its subsequent conclusion, based on the applicant’s own evidence, that this claim was a fabrication. The information therefore on which the Tribunal relied was not the information contained in the protection visa application which revealed an absence of such a claim (although the issue may first have come to the attention of the Tribunal prior to the hearing when it received the applicant’s written claims on 21 November 2005 – CB 59.8), but information in the form of the applicant's relevant evidence at the hearing, on which the Tribunal based its conclusion, and subsequent finding. In my view therefore, this was information “comprehended by s.424A(3)(b), even though it was information also derived from an alternative source” (with reference to SZDPY).
At paragraph 14 of his written submissions the applicant states that his claim of his membership of the anti-Maoist group “was an articulation of my attitude towards disobeying the Maoists and did not involve any new facts”.
The applicant's characterisation now before the Court of his “claim of membership of the anti-Maoist group” as being “an articulation of my attitude towards disobeying the Maoists and did not involve any new facts” and that it was not open to “the Tribunal to reject a different articulation or classification of the same factual matrix”, is not consistent with what he himself put to the Tribunal at the hearing before it. At T40.3 the Tribunal asked:
“Is this the first time that you’ve mentioned it, in this statement? Did you mention, the killing of the Maoists, to the Immigration Department?”
The applicant replied:
“No!”
Further, any plain reading of the applicant's protection visa application, while it clearly reveals the applicant's claim to fear harm from the Maoists, makes absolutely no mention of his having formed, and been involved with, any anti-Maoist group. This appears to have emerged for the first time, as the Tribunal plainly noted, in the letter of 21 November 2005 which he submitted to the Tribunal (see CB 59.8):
“So we formed a youth group… to fight against them secretly.”
I cannot see that a claim to have formed an anti-Maoist group and that two members of the group killed Maoists can be said to be mere detail to a claim of harm from Maoists who came to his village.
In all therefore I cannot see, either on the basis raised by the Court with Mr. Lloyd, or as it arises out of the applicant’s paragraph 14 of his written submissions, that jurisdictional error can be discerned from this issue.
Application to the Court
The applicant's application makes reference to the following as grounds of the application:
“The RRT member was not acting in good faith in making a decision.
The RRT decision is not reasonably capable of reference to the decision making power given to the RRT member. The decision doesn't relate to the subject matter of the legislation.
The decision exceeds the limits set out in the Commonwealth Constitution.”
No particulars whatsoever are provided in the application. However, the applicant's outline of submissions filed on 2 February 2007 appear to provide some particularity (possibly) to some of what is complained of above, but also appear to raise further grounds. Mr. Lloyd took no issue with the Court considering the applicant's complaints as a wider set of complaints, as arising out of the written submissions, and indeed had already provided written submissions to Court prior to the hearing addressing each of the applicant's issues.
Applicant’s complaints
Paragraphs one and two of the applicant’s written submissions assert jurisdictional error on the part of the Tribunal’s decision in relation to a number of matters. The applicant complained that the Tribunal:
1)“Misdirected itself in relation to the issue of ‘serious harm’”.
2)Failed to address “essential integers of my claim”.
3)Misdirected itself.
4)Erred in its consideration of State protection.
5)Erred in relation to the “relocation” principle.
In relation to the complaint that the Tribunal misdirected itself regarding the issue of “serious harm” no further particularity appears in this document. In any event as Mr. Lloyd submitted, the Tribunal correctly stated the meaning of that expression in its decision record (CB 92.1) and on any plain reading of its “Findings and Reasons” made no finding deriving from, or attendant on, that concept.
As to the other complaints in paragraphs one and two these are dealt with variously below.
In paragraph three the applicant asserts that the Tribunal “incorrectly” assessed his claims by referring to “Nepalese standards of political behaviour” and not by reference to “known international standards” as they relate to fundamental human rights. I can only agree with Mr. Lloyd that it is not clear what the applicant means by the decision turning on “Nepalese standards of political behaviour”. The question that the Tribunal was required to answer was a whether the applicant had a well founded fear of persecution for a Convention reason should he return to Nepal. On a plain reading of the Tribunal's decision I cannot see that in the circumstances presented by the applicant, and in answering this critical question, the Tribunal was required to consider a whether “the claims raise fundamental issues of human right such as the right to engage in political activity”.
The Tribunal answered the essential and critical question. In this it variously accepted some of what the applicant had said, but not all. It found that there was nothing to suggest that in the torment of the Maoists’ rebellion that Kathmandu was in danger of falling to the Maoists. In any event, the Tribunal noted that “the applicant's voluntary return to Nepal is significant evidence of a lack of genuine fear of Convention related persecution on his part at that time”. Ultimately the Tribunal found that there was “no reliable evidence” that would affect the applicant from returning to Nepal “and residing there safely since the time of his last sojourn, at present or in the reasonably foreseeable future” (CB 98).
Just what the applicant required of the Tribunal with his reference to Nepali standards of political behaviour remains unclear. If he means by this that the Maoists employ different standards of behaviour than what might be excepted of dissident groups in other countries, and the Tribunal should therefore have found for him, then as set out above I cannot see that it was not open to the Tribunal on what was before it to make the findings that it did in reaching its ultimate conclusion on the question it was required to answer. In all this complaint does not assist the applicant.
In paragraph four the applicant complains that the Tribunal's “relocation finding” did not immunise its decision “against jurisdictional error” because it could not be said that “the pervasive political violence referred to was geographically limited”.
First, as Mr. Lloyd, correctly in my view, submits whether or not violence in Nepal was pervasive or had extended to Kathmandu was a question of fact for the Tribunal. On what was before it, it was open to the Tribunal to find that there was no evidence produced by the applicant, or available from any other source, to suggest that the Maoist inspired violence in Nepal had spread to Kathmandu. Second, I also agree with Mr. Lloyd that the Tribunal's decision does not depend solely on the finding of relocation being reasonably available to the applicant to sustain it. Plainly, the Tribunal did not accept (CB 97.5) as it said on the evidence before it that the presence of Maoists in the applicant's own area, was of itself indicative of a real chance of a non-Maoist, facing persecution in that area either on the basis of being a non-Maoist or even on the basis of being a young male or a member of some demographic group. In fact the Tribunal noted the applicant proceeded to his home village without evident fear in 2002 and was allowed to leave again. It's finding in the alternative that in any event the applicant was able to safely and reasonably relocate to Kathmandu was a separate and independent basis for its decision which on what was before the Court does not affect the Tribunal's finding that the applicant would not be at risk from Maoists in his home area. This complaint also does not succeed.
In relation to paragraph five in the outline of submissions, the applicant complains that the presiding Tribunal member “expressed reluctances” in considering his case, and failed to recognise the necessity in applying the definition of “Refugee”. Further, that the Tribunal was unfair, and in contrast that his case should have been treated with “fairness and human dignity”. It is not exactly clear, again, what the applicant is complaining about. However, if this is linked to what the applicant says in the first sentence in the stated grounds in his application to the Court, then this appears to be a complaint that the presiding member did not act in good faith, and acted in bad faith in assessing his claims and reaching the decision.
With reference, for example, to Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 at [18] to [20] that such an allegation must be clearly alleged, supported by evidence and demonstrative of personal fault or an absence of honesty on the part of the decision maker. The applicant has brought no evidence whatsoever to ground a complaint that the Tribunal did not bring an open mind to the assessment of his claims, or that the Tribunal acted with bad faith. I note that it is rarely the case that such claims can be made out with reference to the decision record alone, and no further evidence has been provided by the applicant in this respect (VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872).
The applicant did not point to, nor can I discern anything in the hearing that the Tribunal conducted with the applicant, nor in any of the other documentation before the Court, to show that the elements necessary to establish a lack of the good faith are evident in this case. The applicant may indeed see the member’s expressed doubts about key aspects of his claims, and his credibility, as being “an expression of reluctance” in considering his case. In my view however it was proper for the Tribunal to put its doubts to the applicant and to give him an opportunity to comment. The Tribunal’s actions in this regard, far from being perceived as an indicator of bad faith, are in fact consistent with principles of fairness. The applicant was told of the Tribunal’s concerns and given the opportunity to address them.
Further, as Mr. Lloyd submits, the Tribunal understood the definition of “refugee” (CB 91 to CB 93, in particular with reference to Article 1A(2) to the Convention) and I cannot see that it failed to recognise the necessity in applying this definition in its analysis. There complaints do not assist the applicant.
In paragraph six the applicant complains that the Tribunal did not make a finding as to whether he was a victim of the Maoists, or that he was protected by the government authorities. That this was a failure to carry out its jurisdictional task, and that the finding that the Tribunal “actually made in my case was on irrelevant finding”. The applicant's claims ultimately were that he was targeted by the Maoists because he started an anti-Maoist committee, and that as a non-Maoist in his local area, against a background of violence initiated by Maoists, he would be targeted to provide assistance to them.
The Tribunal rejected both these elements of the applicant’s claims. It found the anti-Maoist group claims to be a “late invention”, and it did not accept that the presence of Maoists in the applicant's home area, while it might provide “some difficulties”, was “of itself indicative of a real chance of a non-Maoist facing persecution on the on such basis” (CB 97.7). In the exercise of its jurisdictional task the Tribunal was required to answer the question of whether the applicant would face persecution (in the context of how the term is understood in the Refugee's Convention) if he were to return to Nepal. Based on what the applicant had put to the Tribunal, the Tribunal conceded (CB 97.4) that the applicant “might face some difficulties living amongst the Maoists” in his home area. But it rejected both elements of his claims, which had it found otherwise, might then have gone to the issue of whether he was “a victim of the Maoist” or not. The Tribunal answered the question that it was required to answer and that was whether there was a real chance of persecution on return to Nepal. This complaint also does not succeed.
In paragraph seven the applicant complains that the Tribunal “hadn’t looked at important” “country information” evidence in relation to his personal circumstances and his fear of harm on return to Nepal. The applicant's complaint is that the Tribunal thereby did not follow “proper administrative procedures”. I cannot see that generally, nor specifically, in the circumstances of this case that there was any obligation on the Tribunal to go and seek any further independent country information. Nor does the applicant specify what such information could be. Although, presumably, this may have been information that would have supported his claims. I cannot see that the applicant made reference to any further independent country information before the Tribunal. In any event the transcript of the hearing provided by the applicant shows that towards the end of the hearing the Tribunal said to the applicant:
“If you have any further material, I'll accept it, until Friday, close of business. OK! … But I’d like to set a deadline of Friday afternoon for any further statements that you might like to make or information you’d like to submit. OK!”
A. (Interpreter): OK! Thank you, Sir!”
This complaint also does not succeed.
In paragraph eight the applicant appears to raise three complaints:
1)That he was denied procedural fairness “based on the Tribunal's finding that I lack credibility”.
2)That there was a failure of procedural fairness because the Tribunal rejected the “authenticity” of his documentary evidence./
3)That the Tribunal had “made up its mind during the hearing that [he] was not a refugee”, such that it may be said that the applicant is asserting bias on the part of the Tribunal.
To the applicant's complaint that the Tribunal found that he lacked credibility does not of itself show a denial of procedural fairness. The Tribunal, as is often said, is not required to uncritically accept everything an applicant says. For reasons that it gave, the Tribunal found that the applicant's claim of his creation, and involvement with, an anti-Maoist group was a fabrication both for the deficiencies in the applicant’s presentation of this claim to the Tribunal, and for reasons of the applicant's failure to adequately explain the late inclusion of this claim in his set of claims. Findings of fact, of course, including findings on credibility are for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 by McHugh J. at [67]). Far from being derived procedural fairness (nothing in any event that the application to the Tribunal postdates the introduction of s.422B of the Act, and with reference to Lay Lat v Minister for Immigration and Multicultural Affairs [2006] FCAFC 61 at [64]) the applicant was plainly told at the hearing the Tribunal’s concerns with his evidence.
The applicant also complains that there was a denial of procedural fairness involved in the rejection of the authenticity of his documentary evidence. In context, this appears to be a reference to the letter that the applicant submitted to the Tribunal from the “District Administrator” (CB 50). The Tribunal considered this document in its decision record at CB 97.2. I cannot see that this document was rejected as a fabrication and nor that the Tribunal questioned its authenticity. What the Tribunal found, to the contrary, was to assume that the letter was genuine, but that it was “expository and pointless”, and that its “provenance, self-serving generalities, and date” led it to the “strong view” that it was solicited for the purposes of the protection visa application. This is not a finding that the letter was not authentic, but a finding that what was contained in the letter should not be given any weight. The issue of weight is of course a matter for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]).
The applicant also provided to Tribunal a letter from his witness (see CB 81 to CB 82). Again the Tribunal did not make a finding that this letter was a fabrication. But rather gave it no weight, for the reasons that it gave at CB 97.8. In particular, that it was inconsistent with the applicant's own evidence about safety in Kathmandu and this therefore “undermined the witness’s position”. Further, that the witness’s evidence about the anti-Maoist group did not help to overcome the applicant's “inconsistencies and problems with plausible detail”. Clearly the Tribunal had formed a view about the applicant's lack of credibility in his presentation, such that no corroboration was sufficient to overcome the very firm view that it had derived from the applicant's own evidence.
In this regard I note, relevantly, what the High Court said in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002[2003] HCA 30 at [49]:
"In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant."
Further French J. in WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912 (“WAGU”) at [36]:
"Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party's credibility. In such a case a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness. This is just a special case of the general proposition that procedural fairness does not require the decision-maker, in this case the Tribunal, to invite comment upon its thought processes on the way to its decision. But where corroborative evidence is rejected on the basis of a finding of fraud or forgery or on some other positive basis which has never been put to the tendering party there may be a failure of procedural fairness. Such a failure may have very practical effects for it means that the corroborative material is never weighed in the balance of the general assessment of the tendering party's credibility."
In relation to the latter part of the extract above, the circumstances before his Honour in that case can be clearly distinguished from what is before me. In WAGU his Honour found that there had been a definite finding of a lack of authenticity of the documents, and that this should have been raised with the applicant. Indeed his Honour in that case found that the lack of authenticity in the Tribunal’s view depended on some sort of conspiracy. That is not the situation in the case before me. There has been no finding of fraud, or fabrication, in relation to the witnesses (or for that matter the letter from the “district administrators”). The witnesses’ letter was plainly found by the Tribunal to be of “no weight” because it “was undermined by findings as to the tendering party’s [the applicant’s] credibility”. I cannot see in these circumstances that any obligation was imposed on the Tribunal in terms of “fairness” to have put its thought processes in this regard to the applicant.
The third element (paragraph 8 of the applicant’s submissions) was biased against the applicant during the hearing in that it had “made up its mind”, and therefore could be said not to have brought an open mind to at least part of the hearing. The test for bias was considered by the High Court in (Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17 at [69], [71]-[72], [127] and in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27] to [32] the test for apprehended bias). While it is clear that the transcript of the hearing reveals that the Tribunal put its many doubts about aspects of the applicant's claims to him during the course of the hearing I cannot see that the Tribunal’s putting such doubts to the applicant, and giving him an opportunity to comment, and then subsequently pointing out to the applicant the difficulties with some of his explanations, goes anywhere near to establishing that the Tribunal did not bring an open mind to its task. I cannot see that such an allegation can succeed on what is before me.
In paragraph 9 the applicant complaints that the Tribunal’s reasons did not address the important elements of his claim which he said included the claim to have an “actual political opinion because of my anti-Maoist attitude”. In this regard the Tribunal found that the applicant was not a Maoist supporter. But given that it also found that amongst other things there was no “subjective” factor that would affect the applicant from returning to Nepal and residing there safely, then I cannot see that it was necessary to further consider this issue. Ultimately, the Tribunal did consider the applicant's claim (to the extent that it was put) of actual political opinion in the context of his being a non-Maoist in an area involving Maoist presence and activity. To the extent that the applicant relies on his activities with the anti-Maoist group as an expression of this actual political opinion, then in my view, as I have already set out, the Tribunal adequately dealt with this issue.
The applicant's complaint (in the same paragraph) that the invitation to comment was “unnecessarily uninformative and in the circumstances inadequate”, remains unexplained. He does not say which invitation to comment was uninformative. In all the circumstances the applicant was invited to a hearing, on the evidence before the Court now, was given the opportunity to put forward his comments and indeed at the conclusion of the hearing Tribunal specifically invited the applicant to provide any further comment or information and gave him time to do so. I cannot see that this aspect of this complaint can assist him.
The same paragraph (paragraph 9) also complains that the Tribunal failed to address his claim that he would be denied state protection “from the harm feared for reasons of my political opinion being my non-pro-Maoist attitude”. As Mr. Lloyd submitted the applicant did not claim, and it is not apparent that he claimed, that he would be denied protection because of his political opinion. Rather that when he did ask “government officers” for protection they told him “that they could not even protect themselves” (CB 94.5).
The Tribunal's recording of this is consistent with what the applicant himself put in writing to the Tribunal in his statement of 21 November 2005 (see CB 60.3):
“When I went to Ilam and asked the government officers of the protection of my life, they told me that it is impossible to even secure the army camps and the government offices, so, at this moment we can not give personal protection to a person, we are sorry for that.”
In any event having found that the applicant did not have a subjective fear of harm, and that he could relocate to Kathmandu, there was no necessity for the Tribunal to further investigate and make findings on the adequacy of the effectiveness of state protection. This complaint also does not succeed.
In paragraph 10 the applicant asserts that the Tribunal failed to have regard to relevant material because it made no specific finding as to whether “hiding would lead to avoidance of an adverse reaction from the Maoists”. The applicant unhelpfully does not provide any detail as to what exactly he is referring to here. He does not appear to have made (up to the time of the hearing) any claim that he went into “hiding”. In his protection visa application, specifically at CB 19 to CB 22, the applicant certainly claims that he left his own village. This is repeated (in a different form) in his letter of 21 November 2005 to the Tribunal – see CB 59 to CB 60, and in particular CB 60.3). If what he means by going into “hiding” is that he ran away from his village (“ran away to Ilam”) then clearly the Tribunal dealt with this claim variously when it found that the even though he might face some difficulties living in his home area amongst Maoists, that that did not indicate a real chance of persecution in the event of returning to his home village, but that in any event that there was no such problem in Kathmandu.
The only reference that can be discerned from the transcript of the hearing to the word “hide” is at T38 where the following appears:
“Q.172 (Member): Well, how did you fight with the Maoists?
A. (Interpreter): Our intention was to, you know, the there is, you know, the everyday trouble, when the Maoists, they used to go, and give some trouble and, you know, ask for the donation and, you know, ask young people to join them, then our main action was to stop that. Stop that doing, by the Maoists. And, even, we used to go sometimes to, you know, hide, not, not hide, exactly, to go against the Maoists.
Q.173 (Member): Well, what do you mean, “go against them” because you said, “fight”, and now you're saying, “not fight”. So, I don't know what, really, what you're talking about?
A. (Applicant): if ………………… (unclear/inaudible) it was not possible, you know, to fight the Maoists, actually. But if there is ……………… (unclear/inaudible), you know, if they're just coming with one (1) or two (2) persons, and just ask for the donation, and you know, just; we just decided to kill them, even.
Q.174 (Member): So, was it, was it your; you just decided to kill them?
A. (Applicant): Yeah, of course, because that was to …
Q.175 (Member): But did you kill them or not?
A. (Applicant): Not me! Next, you know, next to my place, our Committee members; they killed two (2) of, two (2) of them. I mean; I was not involved.
Q.176 (Member): Well, you are, if you are in the Committee.
A. (Applicant): Yeah, we have, that’s our Committee.
A. (Interpreter): Yeah, even, some, some of our members from our Committee, they also kill, you know, the people in the other…………… (unclear/inaudible)”
I cannot see that this is an assertion that he had a need to “hide” (“not, not hide exactly”), or that there was a failure by the Tribunal therefore to have dealt with, or made findings on any adverse reaction from the Maoists or the authorities concerns about his safety coming to their notice, as it may have arisen from a claim of needing to go into “hiding”.
I note in passing that this particular extract from the hearing, and indeed much of the transcript of the hearing, leads to a conclusion that it was most certainly open to the Tribunal to find that the applicant’s own evidence “lacked consistency and plausibility” (CB 96.6), and that the applicant “seemed unable to give even vaguely detailed evidence as to how the group expected to be able to go on doing such things” (CB 94.10). In all therefore this complaint is not made out.
Paragraphs 11 and 12 of the applicant's written submissions assert that the Tribunal failed to “fully deal” with the claim that he was a member of a social group, and that the characteristic of this group shared with others, was “local victims of extortion”. Clearly the Tribunal is required to deal with claims expressly made. It is also required, in some circumstances, to deal with a claim that can be said to arise from the circumstances presented by an applicant.
The applicant's claims now, to have been part of groups subject to extortion, do not appear to arise in the protection visa application. at best, in his statement to the Tribunal of 21 November 2005 he does say:
“They were taking donation from my parents time to time.”
At the hearing (see T42) the applicant made reference to a demand by letter sent to him demanding “economical or physical help”. As the Tribunal noted this letter (CB 55) was dated 18 August 2005 some years after the applicant had left his village and was a letter from the local administrator reporting what he had been told by the applicant’s parents. The Tribunal dealt with this letter in its decision record at CB 95.7 and CB 97.2. Putting aside for the moment whether victims of extortion can constitute a particular social group under the aegis of the Convention, I cannot see that the applicant claimed for himself that he had ever been pursued for economic assistance by the Maoists and nor did the Tribunal accept that the Maoists had ever pursued him for that purpose. While the applicant complaints that the Tribunal’s analysis was “too simplistic”, I cannot see that the Tribunal's record of decision, reflecting its analysis, failed to deal with any claim that would link the applicant himself to being a member of particular social group being those who have been the subject to extortion by the Maoists. In my view, the applicant is now attempting to put forward a claim (member of a particular social group – “victims of extortion”), that was not before the Tribunal. This complaint also does not succeed.
At paragraph 13 the applicant complaints that the Tribunal made a positive finding that “documents” that he submitted were “fake”. He then says that this was more than a finding that “the letters” were of no weight. Again, the applicant does not say what letters, but in the circumstances before the Court now these appear to be the letters of the district administrator, and the letter from his witness. Again the Tribunal did not make a finding that these documents were “fakes”, but for reasons that it gave did not give the contents of these letters any weight. The applicant complains that the Tribunal failed to put to him at the hearing that it took the view that the letters were fake and this was a breach of procedural fairness. Given that the Tribunal did not make such a finding then the applicant’s complaints now would not succeed on that alone.
Given s.422B, even if such a complaint is available to the applicant, even further, and in any event, the letter from the district administrator was discussed with the applicant at the hearing (see T42 to T44.7). In particular and relevantly, the Tribunal plainly put to the applicant (T43.8):
“… I don't know I just wonder how much weight I can give this letter.”
The applicant plainly was on notice of the Tribunal's reaction to the letter, and was given the opportunity to comment on it.
Further in relation to the letter from his witness in Thailand, the witness’s (potential) evidence was discussed at the hearing (see T44.7 to T47.2). The witness’s letter is dated 8 December 2005, and is dated two days after the hearing with the Tribunal. But at the hearing, in anticipation of the evidence that this witness could give, the applicant stated that the witness was not in the applicant’s Maoist group and therefore he could not give evidence about the group, and that he would only be able to “tell the Tribunal about the situation in the village”.
In all therefore, I cannot see that this complaint would assist the applicant.
The applicant’s complaints before the Court now do not reveal jurisdictional error on the part of the Tribunal, and neither can such error be otherwise discerned by the Court. The application is dismissed.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate:
Date: 27 March 2007
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