SZIMP v Minister for Immigration - [2007] FMCA 811

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIMP v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 811

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – allegation of no evidence to support a finding of fact – extent of duty to give reasons.

Migration Act 1958, ss.91X, 368, 430

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicants:

SZIMP

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3737 of 2006

Judgment of:

Cameron FM

Hearing date:

9 May 2007

Date of Last Submission:

9 May 2007

Delivered at:

Sydney

Delivered on:

5 June 2007

REPRESENTATION

Solicitors for the Applicant:

Newman & Associates

Counsel for the Respondents:

Mr C. Mantziaris

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application will be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3737 of 2006

SZIMP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By an amended application dated 27 March 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 13 November 2006 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“Minister”) dated 15 November 2005 refusing the applicant’s application for a protection visa.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. There was a previous Tribunal decision handed down on 9 February 2006 which was quashed by order of this Court dated 13 June 2006 (Court Book (“CB”) page 128).
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.

Background facts

The Tribunal described the applicant as follows:
The Applicant is a Hindu and a businessman from Butwal, an area near the border with India … The Applicant was educated to university level, attending Tribhuvan University in Kathmandu, and later became a proprietor in a rice mill. (CB 538-539)
The applicant claims to fear future persecution in Nepal because of his political opinions and his membership of a particular social group, namely businessmen in Nepal who are identified as such by Nepal’s Maoists.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-15 of the Tribunal’s decision (CB 538-549). Relevantly, they are in summary:
a)the applicant was an active member of the Nepalese Congress Party (“NC”), having been a member of the party and before that its student wing for about 20 years. The applicant claims to have been involved in various election campaigns since the democratic political process was established in 1990 and to have acted in support of various NC candidates. He claimed he was a member, by nomination, of an NC municipal committee in Butwal;
b)the applicant claimed that Maoists pressed him for donations of “revolutionary taxes” over the ten years since the declaration of the People’s War. He said that the Maoists targeted him because of his association with the rice mill business. He claimed he never obeyed due to his morals. He also claimed that he organised rallies against the Maoists in Butwal;
c)the applicant claimed he received letters from the Maoists ordering him to stop his anti-Maoist activities or face serious consequences. He claimed he later received a letter containing a death threat from the Maoists and that he ceased living in his home after that;
d)the applicant claimed he owned a number of buses and that some of these were destroyed by the Maoists after they were hired by the army to transport personnel;
e)the applicant claimed that because of the destruction of some of his buses, he sold the rest and bought a rice mill in 2003. He operated the mill for two years until Maoists closed it over a refusal by him to pay donations. He claimed he could not operate the mill because the Maoists left soldiers there to monitor it and threatened to bomb it if he tried to open the doors and operate it. He claimed that the Maoists continued to search for him even after he abandoned the mill;
f)the applicant claimed that in the 12 months leading up to his departure from Nepal he was living “everywhere,” staying alternately with friends and distant relatives. He claimed he ultimately decided to leave Nepal when he received information from a Maoist “insider”;
g)the applicant claimed that he could not stay in Nepal because as an NC member he was always in danger. He claimed that his name was on a Maoist “black list” and that he could not even hide in Kathmandu, where he hid before, because there are Maoists in Nepal.

The Tribunal’s decision and reasons

After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the applicant’s evidence as to why the bus attack should be regarded as direct retribution against him was generally unimpressive, as were his evasive responses to questions about why he did not try to go to India after failing to get a visa for the USA in 2002. The Tribunal ultimately gave the 2003 attack on the applicant’s buses no weight, finding that the Maoists’ targets were the soldiers in the buses and that even the applicant himself did not regard himself as the target of the attacks on the buses;
b)the Tribunal accepted that a person with the applicant’s business profile probably did make payments under coercion to Maoists in recent years. However, none of the evidence before the Tribunal satisfied it that the amounts paid to the Maoists by the applicant were so high as to deprive him or his family in such a way as to amount to persecution;
c)the Tribunal did not accept on the evidence before it that the applicant received or even feared personal death threats because he says he went for many years without responding to requests for “revolutionary taxes” without changing his way of life in any significant way, and for want of evidence of death threats having been attempted or carried out in respect of him or any members of his family;
d)the applicant claimed that he avoided succumbing to alleged death threats by hiding himself. The Tribunal dismissed those claims as fanciful because not only did the applicant do so little to get himself out of Nepal, he left his family at home the whole time, where they remained doing what they normally did;
e)the Tribunal did not accept as genuine the letter of 8 September, being an alleged “Notice of Information and Warning” from the Maoists, or that the death threat it contained was ever made to the applicant in any form;
f)the Tribunal accepted that the Maoists vandalised the applicant’s rice mill as a form of pressure to extract a “revolutionary tax”, not as a form of death threat, and the Tribunal gave no weight to it given that the applicant did not go into hiding or act urgently to travel abroad or try to move his family away from the region in which this event allegedly occurred;
g)the Tribunal found the applicant’s evidence as to how and when he became a member of the NC regional committee vague and unimpressive, particularly for someone who claimed to have been actively involved in influencing the political thinking of others. It did not accept the evidence that the applicant was a member of the party let alone an “active” or “activist” member.
In essence the Tribunal found:
The Tribunal accepts that the Maoists have in different places and at different times broken the April 2006 truce in very violent episodes, but gives weight to the Applicant’s lack of any significant political profile, notwithstanding his status as a “businessman,” and finds that the Applicant and his family do not face a real chance of such treatment in the reasonably foreseeable future. The Tribunal gives weight to the fact that the Applicant’s family remains in Butwal, living an evidently unremarkable life. (CB 551)

Proceedings in this Court

In the amended application the applicant asserted that the Tribunal had erred in rejecting a number of letters he submitted to it without giving reasons
relating to the issue of their late production and to the explanation given by the applicant contrary to ss368 (b) & (c) of the Migration Act 1958.
The reference to s.368 should have been a reference to s.430.
In its decision the Tribunal said:
The Applicant claims that the 8 September “Notice of Information and Warning” is genuine evidence of the Maoists threatening to kill him and of their trying to direct his behaviour under threat of killing him. Having considered the content of the letter, the widely-reported ruthlessness of the Maoists and the summariness of their behaviour, as distinct from the notice given in the letter, the lateness of the letter’s presentation as evidence in this matter and the Applicant’s explanation for that delay, the Tribunal does not accept that the letter is genuine, or that the death threat it contains was ever made to the Applicant in any form. (CB 550)
The applicant submitted that although the Tribunal claimed to have considered the facts alleged by the applicant to explain why the letter in question, reproduced in translation at CB 87, was not produced more promptly, it “gave no reason for rejecting” the factual allegation which then “allowed the Tribunal to reject the letter as a forgery and to consider the applicant a fraudster”. The applicant submitted that:
The closest the tribunal comes to giving a reason is a bald, unsupported if not contradicted statement at CB 550, ‘the widely reported ruthlessness of the Maoists and the summariness of their behaviour, as distinct from the notice in the letter’. (emphasis in original)
In submissions at the hearing, the applicant said that the Tribunal’s reference at CB 552 to having considered the content of the letter required it to do more than give it a “quick read”; it required the Tribunal to contemplate and to scrutinise it. Regardless of how that word “consider” is properly defined, the applicant has pointed to nothing to support the assertion that the Tribunal failed to consider the matters referred to in the passage quoted above at [10] except to say that there was evidence available to the Tribunal which might have supported a different conclusion and that the Tribunal’s reference to the summariness of the Maoists’ behaviour was not a finding supported by any evidence.
The applicant’s submission that the Tribunal did not consider the large number of documents presented to it by the applicant’s then solicitors is not one supported by any evidence presented to this Court. Moreover, even were it to have been demonstrated by evidence, it would be of no assistance to the applicant unless the Tribunal’s ignoring of relevant material affected the exercise of power such as to amount to an error of law: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82] per McHugh, Gummow and Hayne JJ.
In support of the assertion that the documents submitted by the applicant’s then solicitors to the Tribunal were not considered, the applicant submits that the statement contained in the Tribunal’s decision quoted in his submissions which are, in turn, quoted at [11] above, was contradicted by information contained in the material submitted to the Tribunal by the applicant’s then legal advisers. However, the fact that there was alternative evidence available to the Tribunal which might have led it to a conclusion different from the one which it reached in relation to the conduct of the Nepalese Maoists is not a matter which this Court can review. Findings of fact are matters for the Tribunal and the mere fact that it did not refer to certain evidence which was before it does not demonstrate that the Tribunal failed to consider the evidence. In Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 McHugh J said at 422-423 [64]-[66]:
In Addo, the [Full Court of the Federal] Court said:
"Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act.
…
It is not necessary, in order to comply with s 430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made."
In my opinion, this passage correctly sets out the effect of

s 430(1)(c) and (d). However, the obligation to set out "the reasons for the decision" (s 430(1)(b)) will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons.
It cannot be said that rejection of the information supplied to the Tribunal by the applicant’s then solicitor was one of the reasons for the Tribunal’s decision. Consequently, no jurisdictional error is demonstrated in respect of the applicant’s assertion that the Tribunal did not consider all the documents submitted to it on behalf of the applicant.
As to whether the Tribunal’s finding that the Maoists demonstrated “summariness” in their behaviour is unsupported by evidence, the applicant submitted that “summariness” means a procedure rapidly carried out omitting formalities. Without the benefit of a dictionary at hand the first respondent submitted that it could be considered to mean swift, arbitrary and with a hint of indiscriminateness.
“Summariness” is a noun derived from the adjective “summary”. The New Shorter Oxford Dictionary relevantly defines it as:
Performed or effected by a short method; done without delay.
The Macquarie Dictionary (Rev. 3^rd Ed) relevantly defines “summary” as:
Direct and prompt; unceremoniously fast.
The applicant submitted that the finding of summariness was significant given that the Tribunal contrasted it with the fact that the letter purported to put the applicant on notice of future punishment.
Whichever of the definitions is preferred, it is apparent that there was sufficient evidence referred to by the Tribunal, as required by s.430, to justify its finding that the Maoists’ behaviour could be said to demonstrate summariness. The attack on an ambulance referred to at CB 542, to which the Court was taken by the first respondent, is only one example of conduct by the Nepalese Maoists referred to in the Tribunal’s decision demonstrating the summariness of their actions.
The Tribunal’s finding that the Maoists’ behaviour demonstrated “summariness”, being open to it on the evidence, cannot be reviewed in these proceedings. Therefore, to the extent that the applicant says that there was a jurisdictional error committed by the Tribunal in this finding it is not made out.
More generally, the applicant submitted that the Tribunal had failed to discharge its obligations under s.430(1) of the Act. As McHugh, Gummow and Hayne JJ said in Yusuf’s case at 345-346 [67]-[68]:
Section 430(1) of the Act obliged the Tribunal to prepare a written statement that does four things:
"(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based."
As was rightly observed in the joint judgment in Singh, this section calls for a recording of matters that are matters of fact. In particular, s 430(1)(c) requires the Tribunal to set out the findings of fact which it made. But does it require more? Does it oblige the Tribunal to make findings on any and every matter of fact objectively material to the decision which it was required to make?
Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. In Singh, significance was attached to the use of the word "material" in s430(1)(c). It was said that "material" in the expression "material questions of fact" must mean "objectively material". Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make. But it is not right to read "material" as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.
Further, as McHugh J held in Durairajasingham’s case at 423 [67]:
In addition, the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor's claim that members of PLOTE tried to recruit him were “utterly implausible”. However, this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged.
The paragraph in question, quoted above at [10], satisfies the elements of s.430(1) which applied to it as merely a portion, rather than the entirety, of the Tribunal’s decision record in that it sets out findings on material question of fact - the genuineness of the letter and the death threat it contained and the evidence on which the finding of fact was based. Thus no jurisdictional error is demonstrated in relation to it.

Conclusion

For the above reasons, jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the applicant will be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date: 5 June 2007