SZJLL v Minister for Immigration - [2009] FMCA 1221

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJLL v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1221

MIGRATION – Review of decision of RRT – where applicant alleged Tribunal had filed to deal with all his claims – where failure to comply with s.424A was alleged.

Migration Act 1958, ss.422B, 424A

Applicant:

SZJLL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 231 of 2009

Judgment of:

Raphael FM

Hearing date:

24 November 2009

Date of Last Submission:

24 November 2009

Delivered at:

Sydney

Delivered on:

24 November 2009

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondent:

Mr Y Shariff

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of 4,670.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 231 of 2009

SZJLL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Nepal who arrived in Australia on 16 December 2005 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 27 January 2006. On 18 May 2006 a delegate of the Minister refused to grant a protection visa and on 19 June 2006 the applicant sought review of that decision from the Refugee Review Tribunal. A first Tribunal affirmed the delegate’s decision on 7 September 2007 but on 11 August 2008 this court set aside that decision and remitted the matter to the Tribunal to be heard and determined according to law. The matter was referred to a second Tribunal who held a hearing which the applicant attended. On 2 January 2009 the second Tribunal determined to affirm the decision and handed that decision down on the same day.
The history given by the applicant in support of his contention that he was a person to whom Australia owed protection obligation was that whilst running a small guesthouse with his wife in Nepal, he was given a Bible by an American tourist named Roger. At that time the applicant was, like the majority of Nepalese, a Hindu. He found it difficult to read the Bible which Roger had given him but he bought himself a Nepalese Bible and began to read that. He claimed that as a result he became a convinced Christian and tried to persuade others of the truth of that religion.
The applicant claimed to have a fear of the Maoists in Nepal who, he claimed, had sought money from him and he pointed to the prohibition in the Nepalese Constitution of proselytising for any non-Hindu religion. The applicant came to Australia in order to escape what he claimed to be a fear of persecution if he had remained in Nepal. He claimed that he had a well-founded fear of persecution in that country for three reasons, the first being that he was an evangelical Christian who was committed to sharing his faith and sharing gospels with non-Christians. Secondly, because of his imputed political opinion, he said that as a Christian he would be perceived by Maoists as belonging to a foreign non-government organisation. Thirdly, he feared persecution as a member of a particular social group, being persons who have returned from a Western country.
When the applicant arrived in Australia he commenced attendance at the Jesus Family Centre where he was instructed by a Pastor David N. Boyd. Mr Boyd gave evidence to the first Tribunal to the effect that the applicant had become interested in Christianity about a year prior and that his wife was also a Christian. He had taken the message of Christianity to people he knew in Nepal. Pastor Boyd met the concern that was later expressed by the Tribunal, that the applicant had really little knowledge of the Bible, by indicating that this was not entirely necessary and that the important factor to consider was whether the applicant was prepared to proselytise the message of Jesus rather than being able to teach Bible stories.
The second Tribunal considered the evidence that had been placed before the first Tribunal and sets it out in some detail [CB 152-155]. At the hearing on 10 October 2008 it conducted its own review of the evidence including discussing with the applicant the manner in which he had found his interest in Christianity whilst in Nepal and the fears which he expressed should he return. The Tribunal questioned the applicant in some detail about his understanding of Christian beliefs commencing at [57] of [CB 157] and found that his responses were not at all convincing.
The Tribunal put this to the applicant at the hearing but also following the hearing on 7 November 2008 wrote the applicant a detailed letter pursuant to s.424A of the Migration Act 1958 (the “Act”). The content of that letter is set out at [CB 160-162]. The letter provides the applicant with details of parts of his statement and that of Pastor Boyd which appeared to be inconsistent with the evidence he had given. For example Pastor Boyd had suggested that the applicant had only become a Christian a year before he had met the pastor whereas the applicant had said that he commenced reading the Bible some four years prior. The applicant had given contradictory evidence before the delegate on this matter as well.
The Tribunal noted that the applicant had given contradictory evidence about people who threatened to persecute him saying at one stage to the Department that the Shiva Sena group had threatened him but he told the Tribunal that the only people who were causing him concern were the Maoists. The Tribunal pointed out the concerns it had about the lack of knowledge of the Bible which the applicant had shown notwithstanding that he had been studying the Bible in Nepal since 2002 and had been going to Bible reading classes and prayer meetings in this country since his arrival. Pastor Boyd had suggested that the applicant’s lack of knowledge of the Bible was due to the fact that he had difficulty reading it in English but the Tribunal noted that he was in fact reading a Nepali Bible and that this Bible was basically identical to the Bible published in English.
The Tribunal also considered the concerns expressed by the applicant about his political opinion and the reaction of the Maoists thereto. The Tribunal noted independent country information concerning the current political situation in Nepal which had the Maoists in power and independent country information concerning the treatment of Christians in that country. It concluded that the applicant’s fear of an imputed political opinion was not justified. It also considered the fear as a result of being a member of a particular social group of returnees saying at [CB 173 – 174]:
“In the submission dated 6 April 2006 the applicant has provided independent information regarding the poor state of human rights in Nepal. However, the applicant has not provided any evidence that Nepalese persons who have lived in a Western country are targeted by Maoists for extortion. The Tribunal is of the view that the applicant’s claim that he fears persecution, specifically extortion, because he would be viewed as a person who has returned from a Western country, is likely speculative. The Tribunal therefore finds that there is not a real chance that the applicant would face extortion by Maoists because he will be perceived as a person who has been living in a Western country.”
On 30 January 2009 the applicant applied to this court for review of the Tribunal’s decision. He gave three grounds of application. He claimed in the first that there was a jurisdictional error on the part of the Tribunal in respect of the failure to consider the Convention ground of imputed political opinion as well as membership of a particular group and failed to examine the issue of adequate state protection in the light of the potential Convention based persecution.
I am quite satisfied that the Tribunal did consider the complaint by the applicant of his fear resulting from imputed political opinion and the membership of a particular social group. This being the case, and as the Tribunal came to the conclusion that the applicant did not have anything to fear from either of these concerns, there was no need for the Tribunal to investigate the question of adequate State protection because there was nothing that the State needed to protect the applicant from.
The same ground of application claims a failure of procedural fairness. It indicates that the evidence that the Tribunal relied on was so unreasonable or so inadequate that the only inference was that the Tribunal applied the wrong test and that the applicant was a victim of an impulsive decision made by the Tribunal member. The Tribunal decision covers some 107 paragraphs over 29 pages. I think it would be unfair to the Tribunal to suggest that it was impulsive.
The evidence which the Tribunal relied upon was the evidence given by the applicant himself in great part and particularly the inconsistencies in that evidence between the three occasions upon which he had been questioned. It is to be remembered that the applicant was given an opportunity and did, in fact, respond to a very detailed letter under s.424A and in these circumstances the court could not hold that the Tribunal was guilty of Wednesbury unreasonableness in its consideration of the evidence.
Finally, the applicant argued that the Tribunal member failed to satisfy all its statutory requirements because it did not refer to its duty to confer common law natural justice in determining his application. It seems to me there was a very good reason why the Tribunal did not do this and that is because there is no common law duty of natural justice, given the provisions of s.422B of the Act. That is an exhaustive statement of the requirements of the natural justice hearing rule.
The applicant appeared before me today. He told me that he had answered all the questions that had been asked of him by the Tribunal and that he had said everything that he thought the Tribunal needed to hear. He could not understand why the decision was negative when he had answered the questions very well according to his claims. These are not matters of jurisdictional error because they refer to the consideration given by the Tribunal to the applicant’s own evidence, which is a matter for the Tribunal “par excellence”.
In these circumstances I am unable to find that the Tribunal did fall into jurisdictional error in the manner in which it reached its decision in this case. The application is dismissed. The applicant must pay the first respondent’s costs which I assess in the sum of $4,670.00.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 8 December 2009