SZJMH v Minister for Immigration
[2007] FMCA 1643
•2 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJMH v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1643 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – applicant is a citizen of Nepal claiming fear of persecution for reasons of his political opinion and religious beliefs – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36, 65(1), 91R(3), 422B, 424A, 424A(1), 424A(3), 425, 474 |
| Minister for Immigration & Multicultural Affairs v Lay Lat (2006) 151 FCR 214; (2006) FCAFC 61 Minister for Immigration & Multicultural Affairs v QAAH of 2004 (2006) 231 ALR 340 Re: Minister for Immigration & Multicultural Affairs; ex parte S20 of 2002 (2003) 198 ALR 59 SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592 SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 SZEOK v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1600 SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 |
| Applicant: | SZJMH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2873 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 18 September 2007 |
| Date of Last Submission: | 18 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 2 October 2007 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Ms Clegg |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The title of the first respondent is changed to Minister for Immigration and Citizenship.
The application is dismissed.
The applicant is to pay the first respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2873 of 2006
| SZJMH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application pursuant to s.39B of the Judiciary Act and pt 8, div.2 of the Migration Act (1958) for judicial review of a decision of the Refugee Review Tribunal dated 5th September 2006 and handed down on 26th September 2006.
The applicant was born on 26th July 1972 and claims to be from Nepal and of Chhettri ethnicity and of the Christian faith.
On 31st December 2005 the applicant arrived in Australia having legally departed from Kathmandu on a passport issued in his own name and a multiple travel visitor visa issued on 11th August 2005.
On 9th February 2006 the applicant lodged an application for a protection (Class XA) visa with the Department of Multicultural & Indigenous Affairs. In his protection visa application the applicant claimed that he feared persecution by supporters of monarchy, including the police and the Royal Nepalese Army for his suspected Maoist political beliefs.
The applicant also claimed that Maoists had threatened him following his subsequent refusal to carry out their instructions. The applicant also claimed fear of persecution for reasons of:
(a)Membership of a particular social group; and
(b)Being a businessman with foreign links and religion.
On 8th May 2006 a delegate of the first respondent, the Minister, refused the applicant's application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 24th May 2006 the applicant lodged an application for review of the delegate's decision by the Tribunal. The applicant provided no further material in support of his review application at that stage. Subsequently, the Tribunal invited him to attend a hearing on 19th July 2006. The applicant wrote to the Tribunal on 7th July 2006 advising the Tribunal that he had converted from Hinduism to Christianity and enclosed a letter from a senior pastor of his church. He made a submission headed - My previous political activities suspicion by government authorities - in which he said:
I fear that there is a real chance that I will be the subject of persecution by either the government forces or by the Maoists. I fear that I will be perceived as a Maoist if I am returned to Nepal because of my previous political activities on behalf of the Nepal Communist Party (UML). I fear the Nepalese government and is[1] therefore unable to avail myself of its protection.[2]
[1] It presumably should read “I am”
[2] See Court Book at 46
In his submission he included a further claim headed - My religion - conversion to Christianity.
In that submission he said:
I have converted from Hinduism to Christianity and am committed to being a committed Christian. I fear harm or ostracism as a result of my conversion to Christianity by Hindu extremists and the authorities will not or cannot protect me in such a situation. I cannot freely practise my religious belief in Nepal. I will also be harmed by the Maoists because of my conversion to Christianity. I will be persecuted for reasons of my religion by operation of the Nepalese law banning proselytising.[3]
[3] Court Book 47
The applicant's letter enclosed a letter from Senior Pastor David Boyd of the Jesus Family Centre at Cabramatta and also included a number of extracts of articles from the internet about persecutions of Christians.[4]
[4] Court Book 49-59
The applicant signed a Response to Hearing Invitation indicating that he wished to attend the hearing and would require an interpreter in the Nepalese language. The applicant attended the hearing. He produced a copy of his Nepalese passport. He also provided a reference from the Village Development Committee in a village in Nepal and copies of media articles taken from the internet relating to persecution of Christians. I note that some of that material referred to persecutions of Christians in India.[5]
[5] Court Book 75-98
The applicant also produced some instructions about water baptism classes from the Jesus Family Centre and copies of various identity documents and his Nepalese citizenship certificate.
The applicant attended the hearing where he gave evidence with the assistance of an interpreter in the Nepalese language. No other witness was called.
The Tribunal handed down its decision on 26th September 2006.
A copy of the Tribunal decision record appears at pages 112 through to 128 of the Court book. In that decision the Tribunal considered the applicant's claims and evidence taken from the file of the Department of Immigration & Multicultural Affairs and also set out a summary of the applicant's evidence to the Tribunal. The Tribunal noted that the applicant claimed a fear of persecution in Nepal for reasons of:
a)political opinion,
b)membership of a particular social group, being businessmen with foreign links; and
c)religion.
The Tribunal noted that the applicant claimed that he had joined the Communist party of Nepal, United Marxist Leninist, in January 1999 but did so without really knowing much about it. He claimed that he acted as a messenger for active members in the Communist Party of Nepal, United Marxist Leninist and being a messenger involved going from village to village when those active members wanted to have meetings. He came under notice and faced aggression in fact from both the Maoists and the security forces. He claimed that the Maoists asked him for donations and the tribunal noted that the culture of Maoists demanding donations is independently documented, although not ubiquitous in Nepal.
The Tribunal referred to an article from independent country information about Marxists running an extortion racket called Revolutionary Taxes in about two thirds of the country.[6]
[6] Court book 116
The Tribunal noted that the applicant told the Tribunal that he fled Nepal because the Maoists threatened to harm him after he refused to give them donations. He said that the Maoists had targeted him for donations because he was a businessman running a shop that sold imports from foreign countries. He implied to the Tribunal that the Maoists targeted him for reasons of membership of a particular social group and for reasons of imputed political opinion.[7]
[7] Court Book 117
The Tribunal asked the applicant a number of questions about his evidence and challenged him about inconsistencies in his evidence. The Tribunal noted that he changed another part of his evidence about a letter of demand from the Maoists and put to him that he was changing his oral evidence in significant details and cited how he had given conflicting dates in 2004 and 2005 of the forced closure of his business. The Tribunal noted:
In reply the applicant said he did not want to go into detail.
The tribunal then indicated to him that it needed detailed and consistent evidence. The applicant reverted to the claim about having closed his business in 2004 long before the Maoists demanded the money from him and in fear that they might ask him for donations at any time.[8][8] Court Book 118
The Tribunal then put to the applicant that his voluntary return to Nepal in 2005, before his last visit to Australia, might be regarded as evidence of a lack on the applicant's part of a subjective view of persecution which was an action inconsistent with his evidence about
pre-emptively closing his business in 2004. The Tribunal noted that by way of reply the applicant had changed the subject to discuss the medical condition of his son.[9]
[9] Ibid
The Tribunal noted that it put to the applicant the gist of a number of independent country reports regarding the rapprochement between the government and the Maoists and referred to a Reuter's report and another report.[10]
[10] Court Book 119-120
The Tribunal noted that the applicant said that he remained fearful because the Maoists had not yet given up their arms.
The Tribunal asked the applicant about his becoming a Christian and asked him for more details about his conversion. The Tribunal asked a number of questions about his conversion to Christianity.
The Tribunal also considered independent country information about the constitution of Nepal and Christians in that country and about persecution of Christians.[11]
[11] Court Book 122-125
The Tribunal also noted independent evidence of isolated harassment of evangelists by Maoist rebels.[12]
[12] Court Book 125
The Tribunal's findings and reasons are set out at pages 125 to 128 of the Court Book. The Tribunal accepted that the applicant is a national of Nepal and was once a low ranking member of the Communist Party of Nepal, United Marxist Leninist, but gave no weight to that fact because the applicant had claimed to have quit the party several years before and noted that the applicant emphasised that his problem was about being targeted by the Maoists as a businessman selling imports from foreign countries and targeted by the security forces for appearing to help the Maoists and oppose the absolute rule of the king.
The Tribunal noted documentary evidence produced by the applicant but found that it could not give any weight to the documents that the applicant produced relating to his convention related problems in Nepal.
The Tribunal dismissed the applicant's evidence about having been forced to pay donations to the Maoists; saying:
However, on the inconsistent evidence before it the tribunal dismisses the applicant's claims about having been forced to pay donations to the Maoists as a complete concoction.[13]
[13] Court Book 126
The Tribunal then went on to consider the applicant's claims about being perceived as a political activist opposing the rule of the king and was again unwilling to accept that claim, noting:
Having accepted that he quit politics in 2001, the Tribunal concludes that the applicant could not have been politically active during either of the king's periods of absolute rule. In any event, there has evidently been a significant change in social and political conditions in Nepal since the king relinquished absolute rule again in April 2006. The tribunal relies on this development and evidence of the state, even releasing actual Maoist prisoners in coming to the conclusion that a person in the situation described by the applicant would not face a real chance of being arrested or in any other way importuned by the authorities in Nepal for having opposed the king's absolute rule.[14]
[14] Ibid
The Tribunal then went on to consider the applicant's claims about religion but took the view that they were already tainted to some extent by an invention:
Because the applicant claims he went to the church to tell the pastor about his experience with Maoists. The problem is that the Tribunal does not accept that the applicant ever had those experiences with the Maoists.[15]
[15] Court Book 126
The Tribunal was confident that applicant's involvement with Christianity was motivated out of a concern for his protection visa application because of the emphasis that he placed on his descriptions of the Christian message on proselytisation.
The Tribunal went on to consider whether the applicant would face a real chance of persecution in Nepal irrespective of where he might reside in the Nepal for reasons of associating or having associated with evangelical Christians or for reasons of being imputed in some way to be a Christian.
The Tribunal gave weight to the constitution of Nepal which said nothing about allowing a person to embrace a new religion and also gave weight to the fact that Christianity was reported to be a conspicuously fast growing religion in Nepal and inferred that this could only be so because the Christian message continues to be communicated by Christians in Nepal to non-Christians.
The Tribunal went on to find that Nepalese law and social tolerance allows much room for religious conversion and that missionaries in that country have struck a successful balance between respect for tradition and the law and what they feel enjoined or compelled as Christians to do. The Tribunal gave no weight to independent evidence of mistreatment of Christians in certain parts of India because no evidence before the Tribunal suggested that India, with its unique history of sectarian struggles should be regarded as a template for what happens or will happen in Nepal.[16]
[16] Court Book 127
The Tribunal was not satisfied on the evidence before it that the applicant would face a real chance of persecution in Nepal for reasons of religion. It was not satisfied that the applicant faced a real chance of convention related persecution in Nepal and found his claimed fear of persecution was not well founded. The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.
Application for Judicial Review
On 6th October 2006 the applicant filed an application seeking judicial review of the Tribunal's decision.
The legislative framework is s.65(1) of the Migration Act which authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for protection visa is that an applicant is a non-citizen of Australia for whom the Minister is satisfied that Australia has a protection obligation under the Refugee's Convention as amended by the Refugee's Protocol. Section 51 of the Act defines Refugee's Convention and Refugee's Protocol as meaning the 1951 Convention relating to the status of refugees and 1967 protocol relating to the status of refugee. Sections 91R and 91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) Convention.
The applicant was unrepresented before the Court but had the assistance of a Nepali interpreter. He has participated in the panel advice scheme but according to a letter received from a barrister involved in the scheme, the applicant did not attend the conference on 15th January 2007. However, the applicant later attended a further conference and was provided with written advice.
The applicant relies on an amended application and an affidavit which were filed or sought to be filed on 22nd December 2006. The lawyers for the Minister received copies of those documents and prepared an outline of submissions in reply which was filed on 10th September 2007.
The applicant, in his amended application, relies on twenty-two grounds of review. He sets out in his affidavit some twenty-three paragraphs in support. The applicant also made oral submissions to the Court. The applicant's grounds of review are these:
i)I do not agree with the purported decision of the Tribunal on the ground of denial of procedural fairness and natural justice. The Tribunal member did not refer to the duty to observe common law requirements of fairness as a duty to act judicially.
ii)I contend that the Tribunal member did not act in good faith in my case as he had not carefully addressed my claims and he also ignored basic common knowledge to arrive at a conclusion that is convenient.
iii)There was jurisdictional error on the part of the Tribunal in respect of the failure to consider the convention ground of imputed political opinion and the failure to examine the issue of adequate state protection in light of the potential convention based persecution and the significant accepted history of failed state protection.
iv)The Tribunal's comments throughout the course of the questioning and reasoning were belittling of my responses which admitted a lack of consistency. The Tribunal's conduct intimidated me into giving incomplete evidence.
In addition, it created the impression in my mind that it had decided against me and there was nothing further I could say to change these adverse opinions.v)The Tribunal committed a jurisdictional error in finding that my claim to be a member of a religious group was not raised prior to the review application and was therefore fabricated for the purposes of the visa application. The Tribunal failed to undertake a duty to consider all the possible ways in which I made claims.
vi)The Tribunal failed to consider the availability of state protection in circumstances where I was found to have suffered serious harm at the hands of Maoists for a non-convention reason. The Tribunal overlooked the subjectively and objectively based fear of persecution on my part for a convention ground.
vii)The Tribunal failed to consider the availability of state protection in circumstances where I was found to have suffered serious harm at the hands of Maoists for a non-convention reason. This must have been so as to afford me the opportunity to put more information before the Tribunal and address such problems if I wished. When problems were apparent - and this was not done and the decision was adverse, the failure to put such problems to me was procedurally unfair.
viii)The Tribunal failed to record me procedural fairness.
A positive finding of concoction of documents, preparing false documents, of giving instructions for the preparing of false documents is not just a failure to accept the documents but a positive finding of improper conduct. Such a finding was not put to me.ix)The Tribunal's finding that the relevant documents had been fabricated amounted to an allegation of forgery on my part. Fairness required that I should be given a proper opportunity of answering the allegation, not simply in the indirect and cursory manner adopted by the Tribunal, which did not properly alert me to any doubts it may have had and the basis for such doubts regarding the authenticity of the documents.
x)The Tribunal member took a view that Nepal has the same security and justice system as in Australia. It is more than illogical to think that. The situation in Nepal viewed like in Australia was an irrelevant consideration and taking an irrelevant consideration into account to cast a shadow on my credibility was a jurisdictional error. The Tribunal misapprehended the relevant legal test in relation to state protection and consequently failed to determine the appropriate issues giving rise to jurisdictional error.
xi)The Tribunal gave material weight to its finding that the Maoists did not send me a letter of demand for donation on my voluntary return to Nepal in 2005. Its reasons did not suggest that this finding was a discrete and a severable reason for its inference that I did not have a subjective fear of persecution and hence its decision to proceed summarily. The Tribunal proceeded on an erroneous factual conclusion.
xii)I argued that I was denied procedural fairness based on the Tribunal's findings that I lacked credibility and the rejection of the authenticity of documentary evidence. I also contend that the Tribunal had made up its mind during the hearing that I was not a refugee.
xiii)I found that the Tribunal had not looked at important evidence, country information, properly to encompass my personal circumstances in relation to my fear of harm on return to Nepal. I believed that the Tribunal has not followed proper administrative procedures in dealing with my case.
xiv)The Tribunal member appeared to be confident that the Maoists will not harm me if I return to Nepal. It is completely ridiculous and untrue and the Tribunal member cannot be confident that it will not happen to me and I am very worried about it.
xv)The Tribunal member took a view that Nepal has the same justice system as Australia. It is more than illogical to think that. The situation in Nepal will be viewed like in Australia was an irrelevant consideration and taking an irrelevant consideration into account to cast a shadow on my credibility is a jurisdictional error.
xvi)The Tribunal failed to form a view as to the reasons for my unwillingness to avail myself of that protection.
The Tribunal did not undertake that inquiry. The Tribunal misapprehended the relevant legal test in relation to state protection and consequently failed to determine the appropriate issues giving rise to jurisdictional error.xvii)The Tribunal member's comments also obviously and impermissibly impeded my right to give evidence and present arguments in writing after the hearing in support of my case. There was a breach of procedural fairness.
xviii)The Tribunal failed to give me a reasonable opportunity to deal with significant and material allegations highly prejudicial to my claims. The Tribunal failed to consider a matter relevant to the reasoning by which it affirmed the delegate's decision and which it was legally bound to consider.
xix)I contend that the Tribunal fell into jurisdictional error by too readily concluding that my evidence about having been forced to pay donations to the Maoists as a complete concoction constituted recent inventions impugning my credibility.
xx)The factual error that I was claiming to fear persecution because of my actual opinion as a business person and Maoist sympathiser constituted the misapprehension of the question to be asked and the consideration of irrelevant material. To make a finding that I lacked credibility because claims which I did not make were controverted by country information distinguishes this from cases relating to pure findings of credibility.
xxi)The deprivation of my opportunity to answer the Tribunal member's questions in writing was a breach of procedural fairness going to jurisdiction. In a case in which credibility and inconsistencies were important, my claims and evidence were rejected on credibility grounds in the view of the Tribunal. It cannot be said that the opportunity given by the member to clear up particular inconsistencies was immaterial to the outcome but based on the Tribunal's statement at the hearing a reasonable observer would gain the impression the Tribunal had already made up its mind and that anything else would be a waste of time.
Even though the Tribunal did ask me if I wanted to add anything more, the damage had already been done as the Tribunal seemed to have already made it clear that his mind was made up.xxii)I argued that I was regarded as an implicit economic refugee other than a refugee of persecution in the view of the Tribunal member because it failed to recognise the complete necessity in applying the definition of a refugee in dealing with my case. This is completely unfair and injustice.
Those are the twenty-two grounds on which the applicant relies. In his affidavit, which he affirmed on 22nd December 2006, he makes submissions; the relevant parts of which are set out in paragraphs three to twenty-three.
(3) The Tribunal member expressed reluctance as in considering my case to be valued for the purpose of a convention reason and failed to recognise the necessity in applying the definition of refugee. The decision in my case was not made by reference to subject matter, scope and objects of the Immigration Act. This is completely unfair and injustice. This has lead to the tribunal member making incorrect conclusions on information supplied and thus amounting to judicial error.
(4) The Tribunal member displays a lack of Nepalese political awareness that is necessary to examine information from the point of view of the environment in which it occurred rather than from the point of his own world view when dealing with my fear of being harmed on return to Nepal.
(5) I believe the record of the interview at the RRT seemed to be inaccurate for a variety of reasons including interpretation errors. Accordingly, it may be at times inappropriate to place weight on the record of interview. However tentatively that I feared persecution if I returned to Nepal, the general nature of my claims in the interview at the RRT strongly suggested I did fear being persecuted upon return to Nepal.
(7) The Tribunal did not exercise to identify necessary part of important country information that is favourable and supportive of my case which was intentionally not read because the Tribunal member regarded me as an implicit economic refugee other than a refugee of persecution. My evidence before the Tribunal was inferentially adversely construed against my claims. This is injustice.
(8) The Tribunal member did not consider all the country information as the Tribunal member's lack of knowledge, which can only be attributed to his failure to read the available country information.
(9) The hearing was quite short and that the references to the potential defects with my documents were oblique.
(10) I argue that I was regarded as an implicit economic refugee other than a refugee of persecution in the view of the decision maker because the decision maker failed to identify the complete necessity in applying the definition of a refugee in dealing with my case.
(11) I argue that the RRT did not act in good faith with my case as the RRT had not carefully addressed my claims and it also ignored basic common knowledge to arrive at a conclusion that is convenient.
(12) The Tribunal member's decision in relation to my case was taken in breach of the rules of natural justice. The Tribunal member appeared to have considerable familiarity with the independent country information on Nepal.
(13) The Tribunal's decision was not detailed, painstaking and careful one. The substantial conclusion reached by the Tribunal was poor justified. The Tribunal member established an initial disbelief of my credibility on one matter and failed to look at my entire evidence in a new light.
(14) The Tribunal committed two jurisdictional errors by ignoring two essential criteria for the grant of a protection visa. First; it had failed to address the first sur place claim. Secondly, it had ignored the question whether I had a subjective fear of persecution.
(15) The RRT did not consider it necessary to come to a concluded view as to whether I was a victim of Maoists or protected by the government authorities. My whole purpose to stay in this country is to save my life. I cannot go back to Nepal because of persecution. I am aggrieved by the purported decision because my ability to remain lawfully in Australia is adversely affected.
(16) The Tribunal member expressed reluctance as in considering my case to be valued for the purpose of convention reason and failed to recognise the necessity in applying the definition of refugee. The decision in my case was not made by reference to subject matter, scope and objects of the Immigration Act. This is completely unfair and injustice. I should be treated with fairness and human dignity.
(17) The Tribunal misapprehended the relevant legal test in relation to state protection and consequently failed to determine the appropriate issues giving rise to jurisdictional error.
(18) The Tribunal did not act in dereliction of its duty or failed to review the delegate's decision by finding it could not be satisfied of my claims on the evidence before it.
(19) It is more than illogical to think that Nepal has the same justice system as Australia. The situation in Nepal be viewed like in Australia was an irrelevant consideration and taking an irrelevant consideration into account has cast a shadow on my credibility was jurisdictional error.
(20) I argued that I was denied procedural fairness based on the tribunal's findings that I lacked credibility and the rejection of the authenticity of documentary evidence. I also contend that the Tribunal had made up its mind during the hearing that I was not a refugee.
(21) The Tribunal failed to accord me procedural fairness.
A positive finding of concoction of documents, preparing false documents and giving instructions for the preparing of false documents is not just a failure to accept the documents but a positive finding of improper conduct. Such a finding was not put to me in writing after the hearing.(22) The Tribunal did not accept my claims as it did not find me to be a credible witness. In doing so the Tribunal relied on information in my protection visa application as well as material submitted at review and my evidence at the hearing. The real question in my case is whether I have a well-founded fear of persecution in the future for a convention reason and not whether I have a well founded fear of a continuation of past persecution. The Tribunal gave no consideration as it was obliged to do. In the face of the Tribunal's earlier findings, its conclusion based on this key finding is unreasonable in a sense of lacking evidentiary foundation or is based on a finding of fact which is not open to it as a matter of law.
(23) The Tribunal member's decision in relation to my case was taken in breach of the rules of natural justice. The RRT did not consider it necessary to come to a concluded view as to whether I was a victim of Maoists or protected by the government authorities. The Tribunal member appeared to have considerable familiarity with my personal circumstances and the independent country information on Nepal. The Tribunal member established that an initial disbelief of my credibility on one matter and failed to look at my entire evidence in a new light. The substantial conclusion reached by the Tribunal member was poor justified. [17]
[17] Applicant's affidavit 22 December 2006 paragraphs three to twenty-three.
The applicant attended Court and submitted that he was very aggrieved by the Tribunal's decision in relation to his belief in Christianity and complained that his fear on return to Nepal was taken very slightly.
He said that he is very worried about the future if he returns to Nepal because the issues in his country keep changing. There is a problem between the political parties in Nepal and no-one can predict what will happen. He said that the monarchy can play a role. He said that the Congress party supports the monarchy and it would be a terrible situation for him if he were to return to Nepal.
He said he applied for a protection visa because he is a victim of the Maoists. He said he told the Tribunal that he had a problem with the Maoists and was tortured. He said it was very difficult for him to return to Nepal. He believes that there was an error when the Tribunal made the decision. He said he could not hire a lawyer because of financial problems. He said he had not committed any crime in Australia and he had enjoyed living in this country. He is worried about living in Nepal because of Maoists. He said that one cannot predict the political situation in Nepal. He told the Tribunal in answer to the bench, about the political situation in Nepal, saying that it could not be predicted.
The applicant went on to submit that in the context of Nepal the stable government cannot be predicted in Nepal in the future. He said the violence in Nepal causes a lot of problems and the situation in Nepal is getting worse day by day. The applicant told the Court that the Tribunal member did not believe that he had problems with the Maoists. The Tribunal said that the Maoists did not look for problems. He said it is believed that the number of Maoists in Nepal has increased and that there are a lot of disputes among political parties in Nepal.
He said he came to Australia to save his life.
In his family he has only one son. He needs justice. He believes that the Court will discern an error of law in the Tribunal decision. He told the Court that he would certainly be harmed if he were to return to Nepal. Even the king cannot stay silent in Nepal. The applicant said that he was a person who came from a place in Nepal but it was not safe for him to remain in that place. He does not want to mix with people who are Maoists.
The applicant went on to tell the Court about a bomb blast that had occurred in Kathmandu in the last few days before the hearing.
I advised the applicant that the Court could not consider fresh evidence that had not been before the Tribunal. The Court can only look at matters that were before the Tribunal in order to ascertain whether or not the Tribunal fell into jurisdictional error.
It is not open to the Court to conduct its own assessment of the factual situation. The applicant later told the Court he did not believe that the Tribunal decision was a good decision and claimed that the Tribunal member did not consider the nature of Maoists. He also said that he was a convert to Christianity and he believed in peace. He said that Nepal was a different country from the rest of the world. The applicant reiterated his claim to fear harm if he were to return to Nepal.
Counsel for the respondent Minister, Ms Clegg, submitted that the grounds identified in the applicant's amended application were not particularised and in many cases were not directed to the facts of the applicant's case. She submitted that some of the grounds seek to review the merits of the applicant's case by re-agitating his factual claims and that some of the grounds are repetitive.
Ms Clegg submitted that the grounds in the applicant's amended application can be placed into a number of categories:
a)Denial of procedural fairness.
b)Lack of good faith or improper conduct during the hearing.
c)Failure to consider grounds.
d)Error in approach to the religious claim.
e)Approach to documents.
f)The Tribunal took the approach that security system in Nepal is the same as Australia.
g)The Tribunal gave weight to the finding that Maoists did not send a letter asking for a donation or for the applicant's return to Nepal.
h)Merits review grounds.
In respect of those grounds Ms Clegg submitted that:
a)There was no denial of procedural fairness and this is a case to which s.422B applies. Common law natural justice was not appropriate. She submitted that the Tribunal did not commit any breach of ss.424A or 425 of the Migration Act.
b)She submitted in respect to the lack of good faith or improper conduct claims, she submitted there was simply no evidence of lacking good faith or a suggestion of bias either actual or apprehended. As to the error in approach to religious grounds; Ms Clegg submitted that this ground of review misconceived the Tribunal's approach, noting that the Tribunal found that the applicant's involvement with Christianity was motivated out of concern for his protection visa application.[18]
c)As to the Tribunal's approach to documents, grounds eight and nine, Ms Clegg submitted that the Tribunal's approach was open to it.
d)As to the claim that the security system in Nepal was the same as in Australia; in grounds ten to fifteen, Ms Clegg submitted that there was no such view recorded in the Tribunal's findings and reasons.
e)As to the claim that the Tribunal gave weight to the finding that Maoists did not send a letter asking for a donation or for the applicant's return to Nepal; Ms Clegg noted that the Tribunal did not accept the applicant's claims in this regard and that it was - it was trite to submit that the Tribunal must give weight to its own findings. In short; she submitted this was an attempt to re-visit the merits of the applicant's case.
f)Ms Clegg submitted that there were merits review grounds, being eleven, fourteen, nineteen and twenty and that they do not identify ground of judicial review and merely seek to re-agitate the merits of the applicant's claim to be a refugee.
[18] Court Book 126
As to the applicant's affidavit; Ms Clegg noted that the applicant's affidavit effectively re-states his grounds in review but in a slightly different fashion. She went on to submit that the only discernable additional ground warranting consideration and which was not clearly raised in the amended application, was an allegation that there were interpretation errors. She pointed out that there were no particulars of such a claim other than the reference to the record of interview.
As there was no evidentiary basis for this claim, she submitted that it could not be sustained.
In oral submissions Ms Clegg pointed out that the applicant's grounds twenty-one and twenty-two may not have been considered in the written submissions. Twenty-one was a procedural fairness ground containing an allegation of inconsistencies in the applicant's evidence should have been put to him along with an allegation of bias on the part of the Tribunal member. She submitted that the inconsistencies were in fact covered by the sub‑s.424A(3) (a) and (b) of the Migration Act and that the Tribunal was referring to independent evidence and also material put by the applicant, both of which are excluded from the operation of s.424A(1) of the Act. As to the claim of bias; where the Tribunal was said to have made up its own mind, she submitted there was no evidence of this.
Ground twenty-two was, Ms Clegg, submitted, a merits claim where the applicant complained that he was regarded as an economic refugee. Her submission was that the Tribunal did correctly apply the definition of refugee despite the applicant's claim that the Tribunal incorrectly applied it and essentially she submitted that the applicant was just re‑arguing the merits of his own case.
Ms Clegg also referred to grounds eight and nine of the applicant's amended application. She submitted that the Tribunal did not find the applicant's documents were fraudulent. She said that what the Tribunal did was to decide not to give the documents any weight, which is a significant difference.
As to the applicant's oral submission to the Court; Ms Clegg submitted that the applicant referred (a) to the political situation in Nepal and (b) of his fear of harm from the Maoists. Both of these points, she submitted, sought to re-agitate the merits of the applicant's case.
She also pointed out that the Tribunal decision had to be considered in the light of the situation at the time, not, as the Court had pointed out to the applicant, at the time when the applicant appeared before this Court.
She also pointed out that a reading of the decision at page 119 of the Court book showed that adverse information was put to the applicant by the Tribunal member during the hearing.
The applicant seeks the following orders:
i)A writ of certiorari quashing the Tribunal decision.
ii)A writ of mandamus requiring the Tribunal to determine his application for a protection visa according to law.
iii)A writ of prohibition preventing the Minister from taking any action upon the decision of the Tribunal and
iv)An order for costs.
Those grounds are set out in the applicant's affidavit. His amended application, dated the same day, 22nd December 2006, seeks these orders:
i)It should be ordered that the Minister not to implement and enforce the decision and the decision be quashed or set aside.
ii)The matter be referred back to the Refugee Review Tribunal.
iii)It should be ordered that the Minister allocate a competent, unbiased member of the Tribunal to re-hear and re-determine my review application in accordance with the law.
iv)The respondent should be dismissed with costs.
I made it clear to the applicant during the hearing that in order for the Court to make orders quashing the Tribunal decision, the Court must be satisfied that the decision is affected by jurisdictional error. I also pointed out that it was not open to the Court to make an order that the Minister allocate a competent, unbiased member of the Tribunal or indeed allocate any member of the Tribunal to re-hear and re-determine his review application.
It is well established that the appointment of a Tribunal member to hear a case in the sense of constituting a particular Tribunal is a task for the Principal Member. It certainly is not a function of the Minister (see SZEPZ v Minister for Immigration & Multicultural Affairs[19].
[19] [2006] FCAFC 107
Dealing with the applicant's grounds of review, Ground one alleges a denial of procedural fairness and natural justice and claims a failure to observe the common law requirements of fairness. This ground cannot be sustained. Section 422B of the Migration Act applies and it is well established that common law natural justice does not apply (see Minister for Immigration & Multicultural Affairs v Lay Lat[20] and also SZCIJ v Minister for Immigration & Multicultural Affairs.[21]
[20] (2006) 151 FCR 214;[2006] FCAFC 61
[21] [2006] FCAFC 62
Ground two alleges that the Tribunal member did not act in good faith in that he did not carefully address the applicant's claims and ignored basic common knowledge to arrive at a conclusion that was convenient. There is no evidence of a failure to act in good faith.
A lack of good faith is a serious matter alleging personal fault on the part of the decision maker. It must be strictly alleged and strictly proved. It is rare and extreme for a lack of good faith or bias to be apparent from nothing else but the reasons for decision of a decision maker (see SBBF v Minister for Immigration & Multicultural & Indigenous Affairs[22] and SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[23] ).
[22] [2002] FCAFC 358
[23] [2002] FCAFC 361
Ground three alleges jurisdictional error in respect of the failure to consider the convention ground of imputed political opinion. I am satisfied that the Tribunal did consider the applicant's claim of political opinion and rejected it based upon adverse credibility findings and upon the applicant's own evidence. The Tribunal found the applicant did not have a well-founded fear of persecution. The claim that the Tribunal failed to examine the issue of adequate state protection cannot stand because the Tribunal found that the applicant did not have a well-founded fear of persecution in Nepal and so it was unnecessary for the Tribunal to consider the availability of state protection (see SZEOK v Minister for Immigration & Multicultural & Indigenous Affairs[24] at [45]).
[24] [2006] FMCA 1600
Ground four alleges the Tribunal's comments throughout the course of questioning were belittling of his responses. This is a claim of a lack of good faith and there is no evidence of it. This ground cannot stand.
Ground five alleges jurisdictional error by finding that the applicant's claim to be a member of a religious ground was not raised prior to the review application and it was therefore fabricated. The Tribunal found that it was confident that the applicant's involvement with Christianity was motivated out of concern for his protection visa application[25] and therefore disregarded his conduct in Australia under s.91R(3) of the Act. The Tribunal relied on independent country information to conclude that the applicant did not face a real danger of persecution in Nepal for reason of religion and in my view the Tribunal was open to make that finding. No jurisdictional error is disclosed.
[25] Court Book 126
Ground six refers to the failure to consider the availability of state protection. As the Tribunal was not satisfied that the applicant had a well founded of persecution there was no necessity for the Tribunal to do so. This ground fails.
Ground seven again refers to the failure to consider the availability of state protection. There was no need for the Tribunal to do so.
This ground fails.
Ground eight alleges a failure to accord procedural fairness in respect of a positive finding of concoction of documents, preparing false documents, giving instructions for the preparing of false documents.
I am satisfied that the Tribunal did not err when approaching the question of the applicant's documents. It is well established that the Tribunal may reject corroborative evidence where the Tribunal is confident that the witness is fabricating an account (see Re Minister for Immigration & Multicultural Affairs; ex parte S20 of 2002 at [12], per Gleeson CJ). In this case the Tribunal had rejected the applicant's claims on the grounds of credibility.
Ground nine alleged that the Tribunal's finding that t[26]he relevant documents had been fabricated amounted to an allegation of forgery on his part. This is not the situation. The Tribunal did not allege that the applicant had forged documents. The Tribunal just refused to give the documents any weight based on the applicant's credibility. This ground fails.
[26] (2003) 198 ALR 59
Ground ten alleges an illogicality on the part of the Tribunal in claiming that Nepal has the same security and justice system as Australia. The Tribunal did not make that finding. This ground fails.
Ground eleven claims that the Tribunal gave material weight to its finding that the Maoists did not send him a letter of demand for a donation on his voluntary return to Nepal in 2005. The claim is that the Tribunal proceeded on an erroneous factual conclusion. In my view; counsel for the Minister is correct when she submitted that this ground is an attempt to re-visit the merits of the applicant's case.
No jurisdictional error is disclosed. That ground is rejected.
Ground twelve is an allegation of a denial of procedural fairness relating to the Tribunal's findings that the applicant lacked credibility and the Tribunal's rejection of the applicant's documentary evidence.
It also claims the Tribunal had made up its mind, which is an allegation of bias. I am not of the view that there is a failure to provide procedural fairness either under s.424A or s.425 in providing the opportunity to an applicant to have a real and meaningful hearing.
The Tribunal invited the applicant to attend a hearing; he attended and gave evidence with the assistance of an interpreter in the Nepali language. I am not of the view that any of the Tribunal's findings would have dealt with an issue of which the applicant was unaware from the delegate's decision. I am satisfied that the applicant was afforded a fair hearing for the purpose of s.425 of the Migration Act (see SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs[27] at [42] to [44]).
[27] (2006) 231 ALR 592
Ground thirteen alleges that the Tribunal did not look at important evidence and had not followed proper administrative procedures in dealing with his case. There is no evidence that the Tribunal failed to consider any integers of the applicant's claim nor in breach of Migration Act or the Migration regulations in dealing with the case.
If this is a ground alleging denial of procedural fairness as counsel for the respondent minister contends and it has not been made out.
There is no jurisdictional error and ground thirteen will be dismissed.
Ground fourteen alleges that it is completely ridiculous and untrue for the Tribunal member to form the view that the Maoists would not harm the applicant if he were to return to Nepal. This is no more than an attempt at merits review, an attempt by the applicant to argue factual matters. No jurisdictional error is demonstrated.
Ground fifteen again refers to a view by the Tribunal member that Nepal has the same justice system as Australia and claims that this is illogical. As I have previously indicated in respect of ground ten; the Tribunal did not make that finding. The Tribunal did consider developing political circumstances in Nepal and I am satisfied that counsel for the respondent Minister correctly submits that it is well established that it was open to the Tribunal to take changed country circumstances into account in order to conclude that the applicant was not a refugee at the time the tribunal's decision was made (see Minister for Immigration & Multicultural Affairs v QAAH of 2004[28] at [38] to [50]).
[28] (2006) 231 ALR 340
Ground sixteen claims that the Tribunal failed to form a view as to the reasons for his unwillingness to avail himself of what is said to be that protection but would appear to be state protection. As the Tribunal was not satisfied that the applicant had a well-founded fear of persecution, there was no necessity to consider the availability of state protection. The applicant claims that the Tribunal misapprehended the relevant legal test in relation to state protection and consequently failed to determine the appropriate issues which gave rise to jurisdictional error. The Tribunal did not commit that misapprehension and there is no evidence of any failure to determine the appropriate issues.
Ground seventeen relates to the applicant's claim that the Tribunal member's comments impermissibly impeded his right to give evidence and present arguments in writing after the hearing in support of his case, which was a breach of procedural fairness. There is no evidence of that. There was nothing to suggest that the applicant could not have made a post-hearing submission if there was an issue which he felt needed to be clarified. There is no breach of procedural fairness.
This ground fails.
Ground eighteen alleged that the Tribunal failed to give the applicant a reasonable opportunity to deal with significant and material allegations highly prejudicial to his claim. This is tantamount to an allegation of a failure to prove procedural fairness and there is no evidence that the tribunal fell into error in that way. I see no breach of procedural fairness. Ground eighteen fails.
Ground nineteen claims the Tribunal fell into jurisdictional error by:
Too readily concluding that my evidence about having been forced to pay donations to the Maoists as a complete concoction constituted recent invention imputing my credibility.
In my view this is no more than an invitation to the Court to conduct a merits review of the applicant's factual claims. The applicant is seeking to re-argue the merits of his refugee claim. No jurisdictional error is demonstrated and this ground is not made out.
Ground twenty claims that the Tribunal made a factual error and misapprehended the question to be asked in the consideration of irrelevant material. He goes on to claim:
To make a finding that I lacked credibility because claims which I did not make were controverted by country information distinguishes this from cases relating to pure findings of credibility.
The factual error that the applicant claims the Tribunal made is that he was claiming to fear persecution because of the actual opinion as a business person and Maoist sympathiser. This, in my view, is an attempt to re-argue the merits of the applicant's factual case. I am not satisfied that the Tribunal failed to consider any integer of the applicant's case and in my view the Tribunal considered the grounds and the possible convention grounds upon which the applicant's case was being argued. No jurisdictional error is demonstrated and this ground is not sustained.
In ground twenty one the applicant claims of the deprivation of his opportunity to answer the Tribunal's questions in writing was a breach of procedural fairness going to jurisdiction. There is no right to provide written answers other than that set out in s.424A (1) of the Migration Act. The Tribunal's findings, however, were arrived at by a consideration of independent country information and a consideration of the applicant's own claims. Neither of these come within s.424A(1) of the Migration Act. If the applicant wished to make a post-hearing submission it was open to him to do so.
Ground twenty two contains an allegation that the applicant was regarded as an economic refugee by the Tribunal and that the Tribunal failed to consider the definition of refugee. I am not satisfied that the Tribunal did make a finding that the applicant was an economic refugee. I am certainly satisfied that the Tribunal did consider the definition of refugee as set out in Article 1A(2) of the Convention and ss.91R and 91S of the Migration Act. This ground has not been made out and should be dismissed.
The applicant also claims a failure of interpretation and casts doubt on the reliability of the Tribunal decision. If the applicant wished to argue that the Tribunal interpreter was in some way deficient, it was open to the applicant to provide evidence of this. There is no affidavit setting out any factual matters other than an assertion of a failure of interpretation. There is no transcript of the proceedings and there is no evidence, in short, which would indicate that the interpreter at the hearing in any way failed to provide an accurate interpretation of the evidence. Consequently, this ground, which appears to be an additional ground, has not been made out.
I am mindful of the fact that the applicant is not legally represented in these proceedings. My reading of the Tribunal decision does not indicate any other arguable ground for jurisdictional error and I am satisfied that no jurisdictional error has been made out.
As the Tribunal's decision is not affected by jurisdictional error it is therefore a privative clause decision. Under s.474 of the Migration Act, a privative clause decision is final and conclusive.
Consequently, no orders in the nature of certiorari or mandamus are available. The application will be dismissed with costs.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 27 September 2007
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