SZISO v Minister for Immigration - [2008] FMCA 41

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZISO v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 41

MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – claim that Tribunal misconstrued applicant’s claims to fear persecution – whether Tribunal properly dealt with applicant’s claim to have been a member of “sportsmen” as a particular social group – found that Tribunal dealt with both aspects of the applicant’s claims and comprehensively rejected the claims – application dismissed.

Migration Act 1958, s.476

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801
NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235
W404/01A of 2002v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 255
Australian Broadcasting Tribunal vBond (1990) 170 CLR 321 (“ABT v Bond”) VWFP and VWFQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 231
Wu Shan Liang v Minister of Immigration and Ethnic Affairs [1995] FCA 1327
Abebe v Commonwealth 197 CLR 510 (1999) 197

Applicant:

SZISO

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1144 of 2006

Judgment of:

Nicholls FM

Hearing date:

11 October 2007

Date of Last Submission:

11 October 2007

Delivered at:

Sydney

Delivered on:

25 January 2008

REPRESENTATION

Counsel for the Applicant:

Mr J R Young

Solicitors for the Applicant:

Simon Diab & Associates

Counsel for the Respondents:

Ms T Wong

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The reference to the first respondent be amended to read “Minister for Immigration and Citizenship.”
The application made on 18 April 2006 and amended on 11 October 2007 is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1144 of 2006

SZISO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application under the Migration Act 1958 (Cth) (“the Act”) filed in this Court on 18 April 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 23 February 2006 and handed down on 14 March 2006, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

The Minister has put a bundle of relevant documents before the Court (Court Book – “CB”) from which the following background can be discerned.
The applicant is a national of Nepal who arrived in Australia on 8 July 2005 and applied for a protection visa on 5 August 2005 (reproduced at CB 3 to CB 46, with annexures). On 26 October 2005, a delegate of the respondent Minister refused to grant a protection visa to the applicant. On 23 November 2005, the applicant applied to the Tribunal for review of the delegate’s decision. On 14 March 2006, the Tribunal handed down its decision affirming the delegate’s decision.

The applicant’s claims to protection

The applicant’s claims to protection were initially set out in a handwritten statement in the Nepalese language annexed to his original application made to the first respondent’s Department (reproduced at CB 30 to CB 35). A copy of a translation of this document was provided by the applicant’s then advisers to the Tribunal (reproduced at CB 83 to CB 85). Silacon
The applicant claimed to be an “International Black Belt” in Taekwondo who was permitted, by the Nepal Taekwondo Council, to open a training facility in his village in Nepal. This was in the Baglung district. The applicant claimed that he was forcibly taken from his training facility to train the People’s Militia (Maoists) of a particular village for a month. However, he was not permitted to return home at the conclusion of that period, but was moved to another village for the same purpose. (The Maoists were in armed conflict with the Nepalese government). The applicant claimed (probably in 2003) that his protests against this were disregarded, and he was threatened with harm if he did not comply. He claimed that he escaped, but later learned that he had been identified as a wanted person who could be “killed at any time” if found in Nepal. The applicant also claimed that he attended a Taekwondo competition in Malaysia and was the sent to Australia by the Nepal Taekwondo Council to participate in an event here. The applicant claimed that he is on the wanted list of the Nepalese Government Army, and that he is not safe anywhere in Nepal. His fear of harm was said to be from the “government Army,” and from the Maoists.

The Tribunal

On 11 January 2006, the applicant appeared before the Tribunal and gave evidence. His adviser was not present. He had the assistance of an interpreter in the Nepalese language.
The Tribunal found:
1.The applicant was a citizen of Nepal and that he was a Taekwondo champion (CB 105.3).
2.It would be dangerous for the applicant to travel to his home district but because of the Nepalese government’s war with the Maoists, it would be “dangerous for anyone.” (CB 105.4).
3.Did not accept that the applicant had ever been forced by Maoists to train militia (CB 105.5).
4.Did not accept that the applicant was wanted by the Nepalese authorities (CB 105.6).
5.Found that the applicant was able to continue to work and live in Kathmandu free from risk of persecution (CB 105.7).
6.In all, therefore, the Tribunal found that the applicant’s claimed fear of persecution was not well founded, and concluded that the applicant was a not a refugee within the meaning of the Refugees Convention (CB 105.9).

Application to the Court

The applicant was assisted in the making of the application of 18 April 2006 to the Court by a solicitor (See “Lawyer’s Certification” on the application and the affidavit of Simon Diab made 13 April 2006).

Hearing before the Court

At the hearing before the Court, Mr J R Young of Counsel appeared for the applicant. Ms T Wong of Counsel appeared for the first respondent.
Mr Young sought leave to file in Court an amended application. This apparently had been “flagged” with the Minister’s solicitor some few days earlier. I note in this regard that the applicant’s written submissions, which related to the proposed amended application, were filed on 9 October 2007.
Mr Young explained that the applicant’s solicitors had lost contact with the applicant and had only regained contact with him four days earlier. Ms Wong noted that the late filing of submissions, and the late production of the proposed amended application, caused inconvenience to the Minister, but ultimately did not object to the Court granting leave for the amended application to be filed in Court. This was done.

The Application

The amended application states the following:
“1. The Respondents made a jurisdictional error by failing to apply the Refugee Convention as amended by the Refugees Protocol to the application in question.
Particulars
a) the respondents failed to identify the applicant’s claims of being a member of particular social group, sports man/ able-bodied person, who was forced to train Maoist insurgents.
2. The Respondent made jurisdictional error by failing to take account of relevant facts and taking account of non-existed facts into considerations.
Particulars
a) The applicant’s claim and evidence that he was subjected to Maoist Insurgent’s harassment and his inability to satisfy their demands was not considered by the Tribunal
b)The Tribunal took into consideration irrelevant matters which did not exist in the applicant’s claim and evidence in that the applicant’s place of birth is NOT near the Indian border, the applicant mostly feared from Maoist for being able-bodied sportsmen, NOT from the authorities for his imputed political opinion, the authority meant by the applicant is Royal Nepalese Army, NOT the police and other bodies which issue passport and the applicant’s name and photographs were pasted as “wanted” by the MAOIST for deserting from them, NOT by the authorities.
3. The Second Respondent made jurisdictional error in that it constructively failed to exercise jurisdiction in that it misconstrued and failed to consider the following claims:
(a) influence of Maoists over local Village Development Committees
(b) the applicant escaping from the People’s Liberation Army
(c) notices issued by the Village Development Ccommittees calling for the applicant to be killed as he had deserted the Maoists.
4. The Second Respondent made jurisdictional error by failing to consider relevant claims of material namely the applicant statement at CB 85.4 that he ran away from the Maoists leading to a circular being issued amongst Village Development Committees that he be killed.
5. The Second Respondent made jurisdictional error by failing to have regard to the applicant’s claim of persecution as a member of a particular social group (sportsmen), however cognisable in Nepalese Society, merely because the applicant provided no argument to DIMIA in support of sportsmen as a group.”

[Errors in original]

Mr Young submitted that he was not going to argue in support of grounds 1 and 2, although he did not abandon those grounds.
Mr Young submitted that the Tribunal decision contains jurisdictional error in two ways:
1.That it misconstrued the applicant’s claims in relation to his fear from the Maoists, finding that the applicant was confused in some aspects of his claims in this regard, and that because they lacked consistency and plausibility in detail, rejected these claims.
2.That the Tribunal did not properly deal with the applicant’s claim to have been a member of a particular social group – “sportsmen.”
The applicant’s position further is that the Tribunal made no independent finding that he could reasonably and safely relocate within Nepal such that the Tribunal could rely on such a finding, in circumstances where other parts of its decision record were affected by jurisdictional error.
These submissions were addressed to, and derived from, grounds 3, 4, and 5 of the amended application.
The first issue can be understood with reference to the following:
1.In his statement attached to his protection visa application, a translation of which was provided to the Tribunal, the applicant relevantly stated as follows (CB 85.3):
“As I ran away from the Maoist’s program of attacking at Myagdi, I learnt from my home and other close friends that there was a circular going around at my Village Development Committee and other Village Development Committees that I will be killed any time I am found anywhere in Nepal. Such notices with my photographs were pasted at various places. This notice had also reached the Government Army at Bhimgethe.”
2.In summarising the applicant’s claims, the Tribunal relevantly said as follows in its decision record: (CB 103.4):
“He claimed his VDC and other VDCs put out notices accusing him of assisting the Maoists. At this point in his statement he appeared confused as to whether his local VDC was taken over by the Maoists, as suggested in the claim about being forced to train its People’s Militia, or opposed to the Maoists.”
(Village Redevelopment Committee – “VDC”)
3.Further, in its account of what occurred at the hearing (see CB 104.3):
“When the Tribunal put it to him that his multiple entries and exits from Nepal suggested that the authorities might not be interested in him, he said he mainly feared the Maoists. The Tribunal took it to the Applicant again that he claimed in other evidence that he very specifically feared the authorities. In reply, he said :Yes” but added that he mostly feared the Maoists.”

[Errors in original]

4.In its “Findings and Reasons” (see CB 105.4):
“The Tribunal does not accept on the evidence before it that the applicant was ever forced by Maoists to train their personnel, or that the authorities were, are or would be seeking him in connection with any such activity. The Tribunal finds that the Applicant’s claims lack consistency and plausibility in the detail. The evidence of his passport, e.g., where (and by whom) it was issued and how (and how often) he was able to use it, contradicts his claim about being wanted by the authorities, as does the very obvious inconsistency with which he argued that the authorities ‘wanted’ him.”

The applicant’s position is that the only reason the Tribunal gave for rejecting his claim to fear harm from the Maoists (as it derived from his claim to have been forced by them to train their personnel) was that the Tribunal found that his claims: “lack consistency and plausibility in the detail.”
Mr Young submitted that this derived from the way the Tribunal characterised the applicant’s claims relating to the VDC (Village Development Committee) putting out the “wanted” notices in relation to him. The argument was that the Tribunal stated [at CB 103.4] that the applicant had claimed that the VDC put out notices accusing him of: “assisting the Maoists.” The Tribunal, in recounting what was written in the applicant’s statement, said that he appeared “confused as to whether his local VDC was taken over by the Maoists” … “or opposed to the Maoists.”
Any plain reading of the statement, on Mr Young’s submission, shows that, firstly, the applicant’s claims went beyond just being forced by the Maoists to train their personnel, in that the applicant’s claims were also that the notice about him was put out was because he ran away from the Maoists (“As I ran away from the Maoist’s program of attacking at Myagdi … ”(CB 85.3). Further that there was no confusion in the applicant’s statement about whether his local VDC had been taken over by the Maoists, or opposed to it.
In the latter regard, Mr Young submitted, that in his statement, the applicant had stated that his local village, as well as other villages, had been taken over by the VDCs, that his village, and others, were in districts that “are extremely influenced by the Maoists” (CB 83.3), and that the VDCs forced him to train their People’s Militia (CB 83.5). Further, that the People’s Liberation Army (Maoists) and the People’s Militia were jointly involved in military activities against the Nepalese government (see CB 84.4 to CB 85.3).
That ultimately, in his statement, the applicant put that as he was running away from the “Maoist program of attacking … ” he learnt from his home and close friends that there was a notice circulating around his VDC (and other VDCs) that he would be killed any time he was found in Nepal. Mr Young’s submission was that there was no confusion in the applicant’s statement as to whether his “local VDC was taken over by the Maoists” or “opposed to the Maoists.” Plainly, they were part of the Maoists from whom the applicant feared harm.
Mr Young’s submission was, therefore, that in these circumstances, it was not open to the Tribunal to say that the applicant’s statement appeared confused in this regard, and that this was the only aspect of what is recorded in its decision record that supports the Tribunal’s finding that the applicant’s claims lack consistency and plausibility in regard to his claim to fear from the Maoists.
In relation to the second issue, Mr Young submitted that in setting out the applicant’s claims in its decision record, the Tribunal said (at CB 102.7):
“The Applicant claimed he faced persecution as a member of a particular social group, namely ‘sportsmen.’ He provided no argument to DIMIA in support of sportsmen as a group, however recognisable or cognisable in the Nepalese society, being persecuted for being members of that group. His claims struck the Tribunal as being claims regarded by the ‘political opinion’ or imputed ‘political opinion’”.
The complaint was that the Tribunal dealt with the applicant’s claim to have been a member of a particular social group by stating “however recognisable,” this group may be in Nepalese society (at least implicit that it recognised that such a group did exist) that the applicant had provided no argument to DIMIA in support of sportsmen as a group. Therefore, it saw his claims as being under the category, or “label,” of political opinion or imputed political opinion.
He referred the Court generally to what was said by the Full Federal Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 (“NABE”). In particular, at [58] - [63].
In short, the argument was that the Tribunal, at least implicitly, said that the group put forward by the applicant is recognizable in Nepalese society, yet it rejected the applicant’s claims to protection in this regard. It did not consider them because the applicant was said to have “provided no argument to DIMIA in support of sportsmen as a group.”
The argument in this regard was that the case put by the applicant before the Tribunal sufficiently raised the issue of the existence of such a group, and his membership of the group, and that this required the Tribunal to have dealt with it and it did not. Further, the Tribunal chose to apply a different “label” to the applicant’s claims in this regard, by labelling his claims as “political opinion or imputed political opinion,” rather than dealing with the claim of his membership of a particular social group.
In this latter regard, I understood Mr Young to be referring the Court to what was said in NABE at [60]. In particular, the reference at that paragraph to what was noted by the Full Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 at [49]:
“The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention "label" to describe his or her plight, but the Tribunal can only deal with the claims actually made.”
Mr Young also submitted, in light of what he said were the jurisdictional errors committed by the Tribunal as set out above, that there was no separate and independent basis in the Tribunal’s decision to support its ultimate conclusion to affirm the delegate’s decision.
The Tribunal made a statement at CB 105.7:
“The Applicant gave plenty of evidence of an ongoing ability to continue living and working free from risk of persecution in Kathmandu, no matter what conditions obtain in Baglung or other parts of Nepal.”
This, however, did not constitute a finding of his being able to reasonably and safely relocate to Kathmandu away from his home district because, at the very least, in making this statement, the Tribunal did not actually make an independent finding of relocation. Secondly, it would not have been able to make such a finding without “factoring in” the aspects of the applicant’s claim to fear persecution from the Maoists (which I understood him to submit was a fear that was not just confined to his home district but as it applied to all of Nepal).

Respondent’s Submissions

In reply, Ms Wong reminded the Court of the relevant authorities in relation to the issue of jurisdictional error and errant fact-finding (see Australian Broadcasting Tribunal vBond (1990) 170 CLR 321 (“ABT v Bond”), particularly at 356 and VWFP and VWFQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 231 (“VWFP and VWFQ”) at [70]-[77] for the proposition that there is no error of law in simply making a wrong finding of fact which was, in any event not conceded, had occurred in this case.
In relation to the applicant’s complaint as it arose from what was said to be the Tribunal’s interpretation of the applicant’s statement (see CB 85.4 and CB 103.4 (VDCs and notices), Ms Wong submitted that this was a finding of fact made by the Tribunal which was open to it, and which was logical as it is understood within relevant authorities.

Ms Wong submitted that the part of the applicant’s statement dealing with the VDCs and circulating of the notice (at CB 85) needs to be seen in the context of the totality of the applicant’s statement provided to the Tribunal. In his statement at CB 83.3, the applicant stated that the districts adjacent to his district “are extremely influenced by the Maoists.” That in light of this, it is not clear whether the Maoists control the VDCs or whether the VDCs were their instruments, or something else. Noting that in any event, the applicant lived for eight months in his home village without being troubled by the Maoists. Ms Wong submitted that there was no direct statement in what he had put to the Tribunal that the VDCs were controlled by the Maoists, and that it was not clear what the status of the VDC was in his home area. While conceding that it may have been a logical assumption to draw that the VDCs were controlled by Maoists, it is not the only conclusion that was open to the Tribunal on what was before it, and that it was not illogical of the Tribunal to draw a different conclusion as it did as recorded at CB 103.4.
That this is the case can also be seen with reference to what the applicant also stated in his statement at CB 85.4. He said that there was a circular going round at: “my Village Development Committee and other Village Development Committees that I will be killed any time I am found anywhere in Nepal.” This does not state what VDCs he is referring to. It does not state whether any, or all, or some, were controlled by Maoists. It also needs to be read in light of the subsequent statement that: “This notice had also reached the Government Army at Bhimgethe.” This, she submitted, does create some confusion because if the army was said to have received a notice that he was wanted by Maoists, why, in those circumstances would it then put him on a government “wanted list,” as he also stated (at CB 85.6).
The Minister’s position therefore is that in these circumstances, there is more than one plausible interpretation that could be given to the applicant’s statement. It cannot be said that what the Tribunal found (that is, that he appeared confused), was an “incorrect” finding of fact that would give rise to the situation considered in ABT v Bond, per Mason CJ. in particular.
In the alternative, the submission was that even if this were said to be some sort of “errant fact-finding” (which was not conceded), Ms Wong submitted that there then needs to be a further finding by the Court that this was critical to the Tribunal’s decision (see VWFP and VWFQ at [77]:
“The immediate obstacle confronting this ground of appeal is that the Tribunal is the finder of fact. Mere errors in fact-finding will not constitute an error of law, let alone a jurisdictional error: see Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 per Brennan J at 35-36; and Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; (2003) 198 ALR 59 ("Appellant S106/2002") per Gleeson CJ at 61–62 [5]–[9] and per Kirby J at 85–86 [116]–[120]. Even if a factual finding is illogical or unsupported by evidence, it would only be capable of constituting a jurisdictional error if it constituted a critical step in the Tribunal’s ultimate conclusion or demonstrated that there had been only a purported, rather than a real, exercise of power.”).
Therefore, even if this were said to be errant fact-finding, that is, that the applicant’s claims appeared confused in relation to the VDC and the notice, when regard is given to the applicant’s claims as a whole (rather than just focusing on one small part), then there is no doubt on any plain reading of the Tribunal’s decision record that the Tribunal did understand that the applicant was saying that he would be targeted by Maoists, and that Maoists were attempting to harm him throughout Nepal. Further, there was no doubt that the Tribunal understood that there was also a threat to the applicant by the authorities. That these constituted the claims made by the applicant, and that these were the claims dealt with by the Tribunal.
Ms Wong emphasised that what the Tribunal set out in its decision record (at CB 105 .4) (that is, the part focused on by Mr Young in his submission – see [17.4] above) where the Tribunal said that the applicant’s claims lack consistency and plausibility in the details, referred to a much greater body of evidence than what is set out at CB 103.4. (see [17.2] above) That what the Tribunal, having spent a considerable amount of time going through the applicant’s claims at the hearing, and trying to understand the applicant’s claims about the Maoists and the authorities wanting him, ultimately set out in its Findings and Reasons, cannot be seen in the context of one sentence (at CB 103), as being the Tribunal’s entire dealing of the applicant’s claims.
Ms Wong also submitted that illogical reasoning of itself does not constitute jurisdictional error. She referred the court to NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 and W404/01A of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 255.
But in any event, the submission was also, to the extent that the applicant’s complaint may be said to encompass some assertion that the Tribunal’s reasoning was illogical, Ms Wong submitted that there was no illogical reasoning evident in its analysis. She invited the Court to look at the statement by the Tribunal complained at CB 103.4 as being just one part of the Tribunal’s dealing with the applicant’s claims. That in examining those claims, the Tribunal noted that the applicant: “gave evidence that was more or less similar to the claims in his statement” (CB 103.8). The Tribunal noted the applicant’s evidence that he had spent the last two years in Kathmandu and: “effectively indicated that he had been safe from the Maoists while living there.” (at CB 103.8)
The importance of this part to the Tribunal’s subsequent findings, was that the applicant’s evidence was that he was safe from Maoists for at least two years in Kathmandu, and that his claimed fear was not uppermost in his mind in deciding to come to Australia. Further, that the Tribunal also explored with the applicant his claim that he was “also wanted by the authorities,” and that when the Tribunal pointed out to him that the authorities did not appear to have taken an interest in him while he lived in Kathmandu, (and while he was “passing in and out of the country”), the applicant responded that the police knew about his having trained the Maoists. When the Tribunal asked him to explain, therefore, how it then came that the authorities had issued his passport, and that his multiple entries and exits from Nepal “suggested that the authorities might not be interested in him,” the applicant then said, “he mainly feared the Maoists.”
The Tribunal pressed the applicant that in other evidence he had said that he: “very specifically feared the authorities,” but the applicant responded that he: “mostly feared the Maoists.” Importantly, given the Tribunal’s subsequent finding, the Tribunal records the following at CB 104.2:
“The Tribunal was concerned about this evidence as, irrespective of where the Applicant placed his greater and lesser fear, that fact should have remained that the authorities were seeking him and yet, contrary to that position they issued him with a passport in the district where they had him on “wanted” lists, let the passport remained valid and let him use it in and out of Nepal several times.”
That what follows continues in a similar vein in an examination of the applicant’s evidence until ultimately, the Tribunal:
“put it to the Applicant that this appeared to be evidence of Kathmandu being a place where he was able to live and work without being at risk of persecution from the Maoists. He gave no cogent substantive reply to the position.”(CB 104.9).
Ms Wong also submitted that what is set out at CB 105.7 (“The Applicant gave plenty of evidence of an ongoing ability to continue living and working free from risk of persecution in Kathmandu . . . other parts of Nepal”) is not a “relocation finding,” as that it is understood by the relevant authorities, but was simply a reflection of the applicant’s own evidence that the applicant could safely return to Kathmandu, from where he had departed to come to Australia, and importantly, had been living and working there for two years free from risk of persecution, irrespective of what other “conditions” were said to exist in his home district or other parts of Nepal.
In relation to the complaint that the applicant had claimed to be a member of a particular social group, namely, “sportsmen,” that there was no necessity for the Tribunal to specifically mention any group identified as “sportsmen” in its “Findings and Reasons,” because the Tribunal dealt with all of the applicant’s claims and rejected the sub strata of facts upon which the applicant relied.
The Tribunal understood the applicant’s claims as being that the Maoists had forced him to train their personnel, that he had been generally harassed by Maoists, and was wanted by them, and that he was harassed and wanted by the authorities. The Tribunal rejected all these claims when it said that “on the evidence before it” it did not accept that the applicant was forced by Maoists to train their personnel, or that the authorities were, or would be, seeking him in connection with any such activity. The Tribunal therefore comprehensively dealt with both aspects of the applicant’s claims as they were said to arise from his fears from Maoists, and his fears of harm from the authorities, by rejecting the factual basis upon which the applicant claimed these fears to have arisen.
In relation to the applicant’s submission that the Tribunal had utilised an approach of using “labels,” and misapplying “labels” to his claims, Ms Wong submitted, that there was a strong claim of either “political opinion” or imputed “political opinion” in what the applicant had put to the Tribunal. Namely, that the Maoists had requested the applicant to train their personnel. The applicant responded that he did not want to. The Maoists then forced him to do so. The submission was that in these circumstances, it was plainly open to the Tribunal to come to the conclusion that the applicant was demonstrating a political opinion, and at the very least an imputed political opinion, that the Maoists would think that he was against them. This was further emphasised by the applicant’s evidence that he kept trying to flee from their armies, and didn’t want to assist them in attacking the government. Further, that he also claimed that the government believed that he was assisting the Maoists. This again could be seen as a statement of political opinion held by the applicant.
But ultimately, Ms Wong’s submission was that whatever the situation in this regard, the Tribunal dealt with both aspects of the applicant’s claims (that is, both the fears from the Maoists and the fears from the authorities) and rejected the claims.

Consideration

I agree with submissions made by Ms Wong (and to the extent that these were common with submissions made by Mr Young) that the Tribunal is required to deal with an applicant’s claims, and each integer of an applicant’s claims, and relevant issues sufficiently raised by the applicant such that the Tribunal is required to have dealt with them.
On any reading of the applicant’s claims as presented in his statement (CB 83 to CB 85) and as said to have been presented to the Tribunal at the hearing, and in this latter regard, I note the Tribunal’s statement that the applicant gave evidence “that was more or less similar to the claims in his statement” (CB 103.8), a statement which is now not disputed by the applicant, that what emerges from all of this is that the applicant’s claim to fear harm and persecution emanates from two sources in Nepal. The first being the Maoists, and the second being the authorities. The applicant provided to the Tribunal an account of events that he said occurred in Nepal which went to support both aspects of his claim to protection in Australia.
I agree with submissions made by Ms Wong that, ultimately, the Tribunal dealt with, and made findings in relation to, both aspects of his claim. The Tribunal rejected that the applicant was ever forced by Maoists to train their personnel, a finding which plainly means that the applicant’s subsequent claims that flowed from that claim, also fell away. That is, that he had run away from the Maoists after training their personnel, and that notices were put out accusing him of assisting the Maoists. The Tribunal also did not accept that the authorities were, or would be, seeking the applicant in connection with any such activity. Given that the applicant had not provided any other reason for any interest by the authorities in him, this finding also is sufficient to deal with that aspect of the applicant’s claim.
The applicant complains that the Tribunal’s rejection of both these aspects were based on the finding that the applicant’s claims lacked consistency and plausibility in detail. Mr Young submitted that this finding by the Tribunal could only have been based on what it said to be the applicant’s confusion as to whether his local VDC was taken over by Maoists, or opposed to Maoists.
Firstly, I agree with Mr Young that it is open to interpret, and to understand, the applicant’s claims in relation to the VDC and the notices, that the applicant had claimed that the VDCs were under the control or influence of the Maoists, and that the notices were put out because he had run away from assisting the Maoists in their attack at Myagdi.
However, while this may be seen as even a preferable view to be taken of the applicant’s evidence in this regard, I also agree with Ms Wong that the Tribunal’s interpretation, focussed as it was to that relevant part of the applicant’s statement (CB 85.3 to CB 85.4) – that there “appeared” to be confusion – that the Tribunal’s finding was reasonably open to it. That in the totality of the applicant’s claims, that it was not clear what status the VDC in his particular home village held.
But I am further persuaded that it was at least reasonably open to the Tribunal to characterise this part of the applicant’s statement as confused, particularly when the applicant stated immediately below, that the notice had reached the “government army.” It is inconsistent, in that sense, to then say that he was also: “in the wanted list of the government army,” given that if the army was in possession of notices stating that the applicant was going to be killed by Maoists, and that this notice had come to the specific attention of the government army, that it was then inconsistent, and certainly falls within the description of “confused,” that he could at the same time be wanted by the government army, given that he was subject to being killed by their opponents.
That he was on the wanted list: “because of the various Maoist activities I was forced into,” does not assist the applicant’s argument now, because on his own evidence, all that the government army knew was what was contained in the notice circulating in the VDCs. While in an earlier part of the statement, the applicant claimed that the army had come looking for him, this was at some earlier time, and prior to his having gone to Kathmandu (CB 84.3): “I escaped . . . and then proceeded to Kathmandu. I learnt later that the army . . . . visited my home to look for me.” Subsequent events are said to be that the applicant left Kathmandu, “returned home clandestinely” (CB 84.4), being caught up in the fighting at Myagdi and then running away from this “Maoist’s program of attacking at Myagdi” (at CB 85.4). He then returned to Kathmandu.
But further, and whatever the situation in regard to the Tribunal’s view of the applicant’s evidence of the VDCs and the “notices,” what plainly remains is that I do not accept Mr Young’s submission that the Tribunal’s finding (at CB 105.5) that “the applicant’s claims lacked consistency and plausibility in the detail” arise only, and solely, from what it said earlier when in the recounting the applicant’s claims, that his statement “appeared confused.”
The Tribunal’s account of what occurred at the hearing, which was plainly focussed on the Tribunal’s consideration with the applicant of the claims that he had articulated in his statement (which were said to be “more or less similar to the claims in his statement” – CB 103.8).
Even the plainest of readings of what the Tribunal has set out reveal that the Tribunal’s finding of the lack of consistency and plausibility was focused on a much wider range of evidence than just the evidence in relation to the notices, and the VDC. For example, at CB 103.8 the Tribunal pointed to inconsistencies in the applicant’s statements relating to his being wanted by the authorities. What follows is sufficient, in my view, to ground its finding that the claims lacked consistency and plausibility. The applicant claimed to fear harm from the Maoists, and that this was one of the reasons that he gave for coming to Australia, yet at the same time, had told the Tribunal that he had spent the last two years in Kathmandu prior to coming to Australia and had been safe from the Maoists while living there. The Tribunal put to the applicant that there was evidence (based on his own statement to the Tribunal) that “he was able to live and work without being at risk of persecution from the Maoists” in Kathmandu (CB 104.9). The Tribunal reports that the applicant: “gave no cogent substantive reply to the position.” Further the applicant “clearly altered his evidence” in relation to being asked to provide detail about his claim that “he had tried to get asylum without success” in Malaysia (CB 105.3).
Also given the above, nor do I agree with the implications, to the extent that it arose from the submissions made by Mr Young, that the Tribunal was somehow illogical in its reasoning. I agree with Ms Wong’s submissions in this regard.
Ultimately, the applicant made one claim to the Tribunal. He feared harm in returning to Nepal from two sources - the Maoists, and the authorities. The fear of harm from the Maoists was said to emanate from his refusal, and reluctance, to assist in training their personnel, and his having run away from one particular Maoist attack, and ultimately culminating in notices circulating around his VDC and other VDCs that he would be killed if he were found anywhere in Nepal. The second was said to emanate from the authorities knowledge that he had assisted in training the Maoists.
The Tribunal rejected the applicant’s claims of harm as they were said to arise from both sources.
In relation to the authorities, the Tribunal found it inconsistent that the authorities were seeking to locate the applicant and to harm him when he had been issued with a passport by the authorities, and that there was: “evident ease with which he had used his passport on several occasions,” (CB 104.4). The Tribunal specifically told the applicant at the hearing that this “might make it difficult to accept his claims about persecution by the authorities as credible.”
I agree with Ms Wong that the Tribunal’s finding that the applicant’s claims lacked consistency and plausibility as it arose from his evidence relating to his fears from the government could equally be applied to his claims to fear harm as it was said to arise from the Maoists. The applicant’s claims that he left Nepal because he feared harm from the Maoists, was seen by the Tribunal as lacking in consistency and plausibility, given his evidence at the hearing that: “he spent the last two years in Kathmandu and effectively indicated that he had been safe from the Maoists while living there” (CB 103.8).
Further, the Tribunal specifically put to the applicant at the hearing: “that this appeared to be evidence of Kathmandu being a place where he was able to live and work without being at risk of persecution from the Maoists” (CB 104.9). That the Tribunal took the view (open to it on what was before it) that the applicant’s claim in this regard lacked plausibility can be seen with the following: “He gave no cogent substantive reply to the position” (CB 104.9).

The applicant also complains that the Tribunal failed to deal with the applicant’s claim of being a member of a particular social group, mainly “sportsmen.” I also agree with Ms Wong’s submissions in this regard that having rejected the sub stratum of facts upon which the applicant relied (that is, having rejected this in its entirety), it was not necessary for the Tribunal to then consider whether any such particular social group existed in Nepal. This is so irrespective of whether (as submitted by Mr Young) what the Tribunal said (at CB 102.7. See also [24] above) could be taken as the Tribunal saying that there was a “recognizable or cognisable” group (such as “sportsmen”) in Nepalese society.
That part of the Tribunal’s record from which this complaint derives is (at CB 102.7):
“The Applicant claimed he face persecution as a member of a particular social group, namely “sportsmen.” He provided no argument to DIMIA in support of sportsmen as a group, however recognisable or cognisable in Nepalese society, being persecuted for being members of that group. His claims struck the Tribunal as being claims regarded ‘political opinion’ or imputed ‘political opinion.’”
First, that part of the Tribunal’s decision record, plainly, contains the setting out the applicant’s claims and evidence. What is set out in the Tribunal’s record at CB 102.7 is reflective of the applicant’s claim as set out in his protection visa application (see CB 11.5). This precedes the Tribunal then setting out what was written in the applicant’s statement (attached to the protection visa application and subsequently submitted to the Tribunal in translated form). This is also clearly before what was reportedly said by the applicant as evidence at the hearing.
I saw the Tribunal’s statement at that part of its decision record (CB 102.7) as being a factual reflection of what was contained in the protection visa application itself. Namely, as set out in his protection visa reproduced at CB 11.5: “being a member of particular social group – sportsmen, I feared for my life.” It was plainly open to the Tribunal in all the circumstances relevant at the time to also note that he “provided no argument to DIMIA in support of sportsmen as a group.” No such argument appears in the protection visa application itself (nor elsewhere).
What immediately follows in the Tribunal’s decision record: “however recognisable or cognisable in Nepalese society,” does not in my view amount to some acknowledgement by the Tribunal that such a group does, or even could, exist in Nepal. But simply is a reflection of its observation (which was plainly open to it) that the applicant provided no argument in support of “sportsmen” as a group being recognizable or cognisable in Nepalese society. Nor that he provided argument that if in the event such group did exist, people were persecuted for being members of that group. The Tribunal’s statement was a description of the applicant’s claim, not an acceptance of the claim.
It is important in a situation such as this to keep in mind what was said by the High Court in Wu Shan Liang v Minister of Immigration and Ethnic Affairs (1996) 136 ALR 481 at [491]:
“These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.²⁵ In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”
I do not see it that the word “however” in that part of the Tribunal’s recounting of the applicant’s claims can be read to impart any acceptance that such a group exists, or could exist. The Tribunal’s plain meaning was that the applicant had provided no argument to the Minister’s Department in support of such a group existing, nor argument that people were being persecuted for being members of such a group.
Further, that the Tribunal subsequently said that the applicant’s claims “struck” it “as being claims regarded [as] ‘political opinion’ or imputed ‘political opinion’” was for all the reasons given by Ms Wong plainly open to the Tribunal (see [46] to [48] above).
Ultimately, and additionally, the applicant’s complaints as they are said to be expressed in grounds 3 to 5 of the application, and as supported by submissions from Mr Young, are rejected for one very clear and simple reason. The Tribunal well understood that the applicant’s claims to fear harm arose from the Maoists because of his reluctance to assist in training their troops, and his having run away, and from the government authorities because he claimed they perceived him to have helped the Maoists.
It was open to the Tribunal to find that the applicant’s claims in their totality lacked consistency and plausibility. Ultimately, it was open to the Tribunal to rely on the applicant’s own evidence that he had lived and worked free from risk of persecution in Kathmandu for two years before coming to Australia. That is, free from risk of persecution not only from the authorities, but also from the Maoists. In those circumstances, it was open to the Tribunal to say that the applicant did not face a real chance of Convention related persecution in Nepal if he were to return (not relocate) to that part of Nepal (namely, Kathmandu) where he had lived for two years prior to departure, free from risk of persecution from both sources from which he claimed such persecution.
Mr Young submitted that while he did not press argument in relation to grounds 1 and 2 of the amended application, he did not formally abandon them either. In this regard, I note that ground 1 is a complaint that the Tribunal failed to deal with the applicant’s claim of being a member of a particular social group to the extent that the social group may be identified as “sportsmen.” This complaint is already subsumed in the applicant’s complaints already dealt with above. To the extent that the particulars to this ground assert a particular social group that goes beyond just “sportsmen,” namely, an “able-bodied person” who was forced to train Maoist insurgents, then the Tribunal plainly dealt with this aspect of the applicant’s claims, and found that it did not accept that he was ever forced by Maoists to train their personnel.
Similarly, ground 2 does not succeed in that the Tribunal fully dealt with the applicant’s claim to have been subject to harassment from the Maoists, and his inability to satisfy their demands, when it rejected that he had ever been forced by them to train their personnel. To the extent that particulars in ground 2(b) assert factual error on the part of the Tribunal (the applicant’s place of birth) then there is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact (see Abebe v Commonwealth 197 CLR 510 (1999) 197 at [137]).
In all, the applicant put forward a claim to fear harm from Maoists and government authorities in Nepal. The Tribunal understood and addressed the applicant’s claims in this regard. It found ultimately that it could not be satisfied on what had been put before it that the applicant was a person to whom Australia owed protection obligations. It must be emphasised that it was the applicant’s own evidence that the Tribunal found to be unpersuasive and causing it to be unable to reach the requisite level of satisfaction such that a protection visa must be granted. None of the grounds in the application reveal jurisdictional error in the Tribunal’s decision. This application is dismissed.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: C Darcy

Date: 25 January 2008