SZJSS v Minister for Immigration
[2009] FMCA 886
•11 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJSS & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 886 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 94 Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21 Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 NACB v Minister for Immigration & Indigenous Affairs [2003] FCAFC 235 NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264 NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77 Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59 Re Refugee Review Tribunal ex parte H (2001) 179 ALR 425 SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 SZDGC v Minister for Immigration [2008] FMCA 1638 SZIIF v Minister for Immigration & Citizenship (2008) 102 ALD 366 SZMSJ v Minister for Immigration & Anor [2009] FMCA 102 |
| First Applicant: | SZJSS |
| Second Applicant: | SZJLFG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3009 of 2008 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 15 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 11 September 2009 |
REPRESENTATION
| Counsel for the Applicants: | Mr J Young |
| Solicitors for the Applicants: | Diab & Associates |
| Counsel for the Respondents: | Ms T Wong |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application filed on 19 November 2008 is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3009 of 2008
| SZJSS |
First Applicant
| SZLFG |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicants are husband (SZJSS) and wife (SZLFG) from Nepal. They arrived in Australia on Visitor’s visas on 22 February 2006 and applied to the Department of Immigration & Citizenship for Protection (Class XA) visas on 5 April 2006. That application was refused on 3 July 2006 by a delegate of the Minister.
The applicants applied for review of the delegate’s decision to the first constituted Refugee Review Tribunal (“Tribunal 1”) on 25 July 2006. Tribunal 1 affirmed the delegate’s decision in a decision handed down on 19 October 2006. The applicants sought judicial review of Tribunal 1’s decision in the Federal Magistrates Court on 22 November 2006. On 15 August 2007, Smith FM found jurisdictional error in Tribunal 1’s decision, quashed that decision and remitted the matter to the Tribunal to be determined according to law.
A second and differently constituted Tribunal (“Tribunal 2”) affirmed the delegate’s decision not to grant the applicants Protection visas and handed down its decision on 3 January 2008. On 25 January 2008, the applicants filed an application in the Federal Magistrates Court for review of Tribunal 2’s decision. On 8 July 2008 and without a final hearing, Raphael FM made an Order by consent that the matter be returned to the Tribunal for reconsideration of the applicants’ claims. His Honour noted that:
The First Respondent concedes that the decision of the Second Respondent is affected by jurisdictional error in that the RRT failed to consider an integer of the applicant’s claims (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1). In particular, the RRT failed to consider the applicant’s claimed fear of persecution at the hands of the police and the Royal Nepalese Army, and this failure vitiates the RRT’s relocation finding as well as its primary findings.
A third and differently constituted Tribunal (“Tribunal 3”) considered the applicants’ claims and again affirmed the delegate’s decision not to grant the protection visas on 23 October 2008. An application for review of that decision was filed in the Federal Magistrates Court on 19 November 2008 and it is the decision of Tribunal 3, reference number 0804434, which is before me for consideration.
Background
The applicant husband (also “the applicant”), a former school teacher, claims fear of persecution in Nepal for the Convention-related reasons of actual and imputed political opinion. The applicant wife states in her Protection visa application that she does not make her own claims but depends on those of her husband. The applicant husband claims fear of persecution from Maoists rebel insurgents for reason of being opposed to the Maoists and their demands for donations, but also from the police and army.
At the third Tribunal hearing, these claims were modified as the Maoists now have a parliamentary majority in Nepal, can draw on State taxes and are not required to pursue ad hoc donations. The applicant acknowledged that due to these changes, circumstances for some people had changed but that this did not apply to him. In addition, he claims to be a member of a particular social group (school teachers) and that together with his being a businessman who owned a shop, he was singled out for harassment by the Maoists. The applicant claims that his two occupations attracted the attention of the Maoists.
The applicant argued that it was unsafe and unreasonable for him to relocate to Kathmandu as there were Maoist networks operating there. Nor was it appropriate for him to change occupations to avoid attracting harm from the Maoists. He argued that this would amount to him having to act discretely.
The applicant claims that the Maoists bashed people who did not support them but conceded that not everyone opposed to the Maoists feared serious harassment. He claims that there were still many episodes of kidnap, especially of school teachers.
Grounds
The original application was filed on 19 November 2008 and contains three unparticularised grounds. At the commencement of the final hearing, Mr Young for the applicants sought leave to file an amended application. As there was no objection, leave was granted.
The grounds in the amended application are:
1. The second respondent made jurisdictional error by not taking into account the effect of delay and of the applicant having to repeat a detailed account of past history when the second respondent was assessing the credibility of the applicant.
2. Not pressed.
3. The second respondent made jurisdictional error by showing a pre-judgment of issues and creating a reasonable apprehension of bias such as by describing a claim by the applicant to be a school teacher as a baseless tactic notwithstanding that the second respondent ultimately accepted that he had been a school teacher and may again be a school teacher.
3A. The second respondent made jurisdictional error in making credibility findings against the applicant(s), by fialing to have regard to:
a) The nature of the tasks of fact finding in relation to a claim for asylum; and / or
b) The findings made by the second respondent finding claims made by the applicant(s) to be true.
4. The second respondent made jurisdictional error by dismissing certain documents (“the headmaster letters”), notwithstanding that it accepted that the letters were genuine on the grounds that:
(i) the contents of the letters was inconsistent with certain evidence by the applicant; and/or
(ii) the applicant had given inconsistent evidence about the provenance of the letters.
5. The second respondent made jurisdictional error by failing to give proper, genuine and realistic consideration to the applicant’s evidence and / or making a determination which was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.
Applicants’ submissions on Ground 1
Mr Young submits that the Tribunal failed to take into account the effect of delay and that the applicant had to repeat a detailed account of past history when Tribunal 3 was assessing his credibility: SZIIF v Minister for Immigration & Citizenship (2008) 102 ALD 366. In that case, three Tribunal hearings were held over for a four year period and the applicant was required to provide accounts of his past persecution on several occasions. Justice Weinberg determined that there was jurisdictional error in the Tribunal decision because:
a)The Tribunal erred in the finding that there were discrepancies of any consequence between the applicant’s earlier statements and what he said during the course of the hearing, which showed that the Tribunal had no proper basis for concluding that the applicant had invented a history of persecution in order to obtain a visa: SZIIF at [57]; and
b)The Tribunal did not take into account the effect of delay in considering any possible inconsistencies between the statements the applicant had made regarding his past persecution: SZIIF at [60], [90]. Critical to the Court’s determination in SZIIF where the findings relied upon by the Tribunal about discrepancies between the applicant’s accounts of his past persecution on different occasions. For example, between what he had said at his Departmental interview and then four years later before the third Tribunal.
Mr Young argues that the deficiency may either be treated as an absence of evidence or as a matter going to credibility. He submits that the mere fact that the applicant had solicited letters does not entitle the Tribunal to give them no weight, nor could this go to inconsistent evidence.
Mr Young submits that the decision in SZIIF is not limited to the issue of delay or on the issue of the applicant giving evidence on multiple occasions. Mr Young raised NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77 where the High Court considered that excess or inordinate delay may result in a want of procedural fairness or a want of a proper hearing or that there was a wider principle that the Tribunal had to give “proper, genuine and realistic consideration” to an applicant’s case. In SZIIF it was accepted that the principle in NAIS does not invite merits review but rather asks the question of whether there has been a genuine merits review.
Mr Young submits that the critical issue is that the review in this Court is not done in a formulaic way by simply comparing each case with either NAIS or SZIIF.
In SZIIF, Weinberg J found:
61 …the delegate who first dealt with this matter displayed an awareness of the need to approach refugee claims with appropriate sensitivity to the principles that govern fact finding in such matters. He was far more attuned to that need than was T3. It has been said, correctly in my view, that a person who applies for refugee status may have been traumatised in the past in a way that can adversely affect that person’s ability to present claims in a coherent and plausible manner. In addition, the procedure used in deciding a refugee’s application can be stressful and this can further interfere with his ability to recall his background accurately and to express his claims consistently.
62 Of course, this does not mean that a delegate or the Tribunal is required to accept uncritically all claims made. It does, however, mean that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all their claims.
64 Underlying the Minister’s submission is a misconception. It is assumed that factual errors, leading to a finding that an applicant is not a witness of truth, cannot give rise to jurisdictional error.
66 I accept that at common law want of logic is not synonymous with error of law…
67 The decision of the High Court in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470 provides a useful illustration of the fine lines that sometimes have to be drawn…
83 Speaking generally, therefore, NAIS stands as support for the proposition that lengthy delay, unacknowledged by the Tribunal in its reasons for decision, can give rise to jurisdictional error.
86 The Minister did not specifically challenge the proposition that the decision in NAIS established that delay could, in some circumstances, give rise to a denial of procedural fairness. Nor did he necessarily accept that proposition. He submitted, however, that the particular circumstances of this case were far removed from those in NAIS…
88 I accept the Minister’s submission that NAIS is not directly in point. However, the principles underlying the majority view seem to me to be relevant, by analogy, to the particular circumstances of this case.
Mr Young submits that there is greater similarity between this matter and SZIIF. That there have been a number of years where the applicant has been required to give successive accounts of persecution. This is particularly so when there has been some trauma to the applicant. In the matter before this Court, Tribunal 3 accepted that the applicant’s claims were largely true and that he had been subjected to incidents in the past that may amount to persecution. What Tribunal 3 did not find is that there is a real chance that the applicant will suffer persecution in the future.
Mr Young argues that the Tribunal 3 did not say that it did not accept the headmaster’s letters but that it accepted that the letters originated from the relevant school (CB 382 at [143]). He submits this is akin to finding the letters genuine. The Tribunal also accepted that the applicant would face harm in Kathmandu (CB 381-2 at [142]). However, it indicated that it would not consider it because of the matters set out at paras.143 and 144. Mr Young argues that if there were a shift, it is incumbent on the Tribunal to take into account the time period and the number and times which the applicant had to give evidence.
A third factor which Mr Young submits is that Tribunal 3 had already accepted that the applicant has been subject to various acts of past persecution. He submits that at [145] of the decision, Tribunal 3 effectively said that even though there was nothing in the applicant’s oral evidence which undermined his claims, it gave the documents no weight. Mr Young also referred to SZDGC v Minister for Immigration & Citizenship [2008] FCA 1638 per Finkelstein J and SZMSJ v Minister for Immigration & Anor [2009] FMCA 102 per Driver FM.
Respondent’s submissions in respect of Ground 1
Ms Wong submits that this case is distinguishable from SZIIF on a number of bases. First, only two years and four months elapsed from when the applicant was first required to give an account of his past persecution (the statement annexed to his Protection visa application of 2 April 2006) and the third Tribunal hearing held on 13 August 2008. This period is far less than the four years which elapsed in SZIIF.
Secondly, paras.143-145 of the Tribunal’s reasoning upon which Mr Young relies do not contain reasoning of the type present in SZIIF. The Tribunal states at para.143:
Although the Tribunal accepts the [2] headmaster’s letters originated from the relevant schools, the Tribunal gives no weight to the content in view of evidence the applicant has presented in the Tribunal over time undermining his claim about his purported politics and social activism. (CB 382, emphasis added)
Ms Wong submits that a review of the preceding paragraphs in Tribunal 3’s decision demonstrates that the reference to “evidence the applicant has presented the Tribunal over time” does not refer to inconsistencies in accounts given by the applicant to different Tribunals, but is a reference to the following evidence given by the applicant. This evidence directly undermined his claim of having been singled out by the Maoists due to his political and social activities:
a)The applicant told Tribunal 3 that the local Maoists and insurgents began their program at his school which he was forced to attend in 2000 (which was consistent with the applicant’s first witness statement provided with his Protection visa application. However he did not join Amnesty International until September 2005 (CB 378 at [112], [117]); and
b)The applicant informed Tribunal 3 that the local Maoists treated pro- and imputed anti-Communist teachers the same, which was inconsistent with his claim of having been treated more harshly due to his social and political activities (CB 376-367 at [13]-[14]; [17]-[18]).
Ms Wong submits that unlike SZIIF, it was not that the applicant’s account of persecution changed over time. Rather, the applicant gave evidence to Tribunal 3 which directly contradicted his continuing claims of persecution.
Ms Wong submits that Mr Young also relies upon para.144 of Tribunal 3’s reasoning for its decision:
The Tribunal gives the two “headmasters” letters no weight for an additional reason. In regard to the second letter the applicant told an earlier Tribunal that he had not asked for the letter, that his brother had sent it to him and that his brother too had not asked for it…Much more significant though, the applicant was inconsistent in his evidence as to the providence of the letters, and this goes directly to the question of his bona fides. He told the presently constituted Tribunal that he did not ask for the letters several times. On this evidence, the Tribunal has come to the view that both the headmaster’s letters and the particular contents were solicited. (CB 382, emphasis added)
Ms Wong submits that from this extract, it is apparent that Tribunal 3 relied upon the applicant’s evidence that he had requested the letters in determining that they should be given no weight. The Tribunal accepted the applicant’s most recent evidence and made a finding based upon this rather than rejecting the applicant’s evidence due to inconsistencies over time, as had occurred in SZIIF.
Ms Wong submits that Mr Young relies upon para.145 of Tribunal 3’s decision which does not refer to inconsistencies at all. Therefore, that none of the three paragraphs relied upon by the applicant contain findings of a type which led to jurisdictional error in SZIIF. Unlike SZIIF, the present Tribunal accepted many of the applicant’s claims of persecution (CB 377-37 at [106]-[115]). The Tribunal’s determination that the applicant did not have a well-founded fear of persecution was instead based principally upon on the change conditions in current day Nepal (over two years since the ceasefire) and the applicant’s inability to provide any evidence that he would continue to be targeted if he lived in the large Nepalese cities (CB 378 at [115]; CB 381 at [138]-[141]; CB 382-383 at [147]-[149].
Justice Weinberg in SZIIF at [27] reviewed the findings and reasons of that Tribunal decision and reproduced the following passage:
Firstly, the applicant told the Department, at an interview, that he was beaten up once. He told T3 that he was beaten up on 2 occasions. Whilst he explained that he was nervous, I do not accept that even a nervous person would omit details of a serious attack when claiming protection from harm that occurred to him in his country of nationality. Secondly, the applicant told T3 that he was so seriously injured when he was attacked on the 1st occasion in 2001 he required medical treatment and on the 2nd occasion in 2001 he required hospitalisation for a few days. He did not inform the Department or TI or T2 that his injuries were so extensive in the Ukraine that he required medical treatment and on the 2nd occasion required hospitalisation.
Ms Wong submits that the Tribunal in SZIIF conducted a minute dissection of each of the applicant’s individual claims to determine whether they appeared consistently throughout the course of the various Tribunal hearings. These are the types of discrepancies which would emerge if a person is asked to give an account of their claims on successive occasions. In other words, they are the sort of minute details a person might forget over a number of years. After extracting this portion of the third Tribunal’s reasons for its decision, Weinberg J went through each one of these inconsistencies and found that really they were distinctions without a difference:
In my view, T3 erred in finding that there were discrepancies of any consequence between the appellant’s earlier statements and what he said during the course of the hearing. T3 appears to have taken a number of the appellant’s earlier statements out of context. It has also attributed to him things that he simply did not say. That is, of course, quite unfair. More than that, it undermines the foundation upon which T3 rejected the appellant’s claims. It shows that there was no proper basis for concluding that he had invented a history of persecution in order to obtain a visa. (SZIIF at [57], emphasis added)
Importantly, his Honour said at [89]-[90]:
89 As previously indicated, the appellant first gave a detailed account of his past history in the Ukraine as far back as 2001. Some of the events that he described were relatively recent at that stage. However, through no fault of his own, he was obliged over the next four years to recall repeatedly the details of events that must have become more difficult to remember with the passage of time.
90 In my view, T3 was obliged to take that aspect of delay into account when considering any possible inconsistencies between the various statements that he made regarding these events.
Ms Wong submits that what is clear from these two paragraphs is that delay was a central reason for Weinberg J’s determination. She submits that had there been no delay, asking someone to give repeated accounts of something that happened very recently is of no concern.
Ms Wong further submits that in citing NAIS (supra), Weinberg J was relying upon the fact of inordinate and excessive delay that was central to that determination. Also that a comparison between SZIIF and the matter before this Court raises the following issues:
a)That there was no excessive delay in this case. Essentially, the Tribunal proceeded rapidly and had regard to the successive remittals that occurred. The protective visa statement was filed in April 2006 and two years and four months later the final Tribunal hearing was held. The first respondent submits that this was not an excessive or inordinate delay and something Tribunal 3 was required to take into account.
b)The Tribunal’s findings regarding the headmaster’s letter are logical and do not contain inconsistencies of the type that made in SZIIF.
c)The headmaster’s letters do not contain inconsistencies of the type present in SZIIF, where the whole basis of the Tribunal’s reasoning was the inconsistencies. Had those discrepancies not been present, the Tribunal would have proceeded on an entirely different type of reasoning.
Ms Wong further submits in relation to the first proposition, that the letter from Sharee Gyanodaya Higher Secondary School states:
Having been unsatisfied with the social work and teaching you have been performing at VDC; Turang Majuwa Gulmi. We here by inform you that, the place you have been hiding can be protective.
After your leave acceptance, too, they have been searching through dictators and sometimes by arm forces. Therefore we would like you to not to go out and just stay at where you are. (CB 45)
Allowance must be given for difficulties experienced by a person attempting to write in English when it is not their linguistic background. However, even if allowance is made for the person drafting the letter, the two sentences in the first paragraph read together do not make sense from the school’s point of view. The confusing contents were averted by the Tribunal and it gave the letters no weight. In the second headmaster’s letter from Shree Guanodaya Higher Secondary School states:
This is to inform you [SZJSS] that your position as a teacher in Shree Gyanodaya Higher Secondary School in Gulmi no longer exists as you have not joined the school after taking leave with three months until 2062/11/4 (Nepalese date) 16 February 2006 (Australian date) due to your safety reasons and threats given to you. You are not required to come back and continue your job as a teacher in this school. (CB 80)
The Tribunal also had concerns about the contents of this letter (CB 372-373 at [56]-[65]). The difficulty that the Tribunal had with the second letter is that it was signed by the school’s headmaster and sent to and from the same address (CB 372 at [58]). Further it seemed confused because it said the applicant was not required to return to his job and also that due to safety issues he did not have to do so.
A letter from Polaris Secondary Boarding School states:
We are now unable to be accepted as a boarder student for Maoists, the terrorist, have been challenging us time and again not to admit in this institution. (CB 46)
This was taken by the Tribunal to mean that this school was not accepting boarders because of the Maoists. The applicant seeks to draw support from these letters. However, Ms Wong submits that it is doubtful that they would assist the applicant and whether the statements that in those letters were solicited by him. Ms Wong further submits that what emerges as important in this context is not whether the letters were in from the headmaster but whether their contents could be relied upon as an accurate statement of the applicant’s claims of being persecuted.
Ms Wong submits that the other question is whether the Tribunal’s findings in respect of those two letters are logical. The important passage in the decision states:
143. Although the Tribunal accepts that these two letters originate from the relevant school, the Tribunal gives no weight to the contents in view of the evidence the applicant has presented the Tribunal over time undermining his claim about his purported political and social activism. (CB 382)
Ms Wong submits that if the findings and reasons of the Tribunal are read as a whole, especially the paragraphs which preceded this statement, it is apparent what the Tribunal was referring to. The Tribunal first dealt with the question of whether the applicant was being targeted because of his purported political and social activism at the time:
…On the Applicant’s evidence at the hearing, it gives no weight to the Applicant’s claim to the Department that the Maoists targeted the Applicant in particular because of his perceived support for democracy or because of him being an active member of a human rights group. This is because the Applicant told the presently constituted Tribunal that the local Maoists insurgents began their programs at his school back in 2000, whereas he did not join Amnesty International until September 2005… (CB 377)
It then indicated other evidence it relied upon:
The Applicant made this all the more clear when he told the presently constituted Tribunal that the local Maoists insurgents treated pro and imputed anti-Maoist teaches the same, requiring all of them to attend the training camps and incorporate the Maoist curriculum into their own. (CB 377-378 at [113])
Ms Wong submits that it is logical for the Tribunal to give no weight to these letters because their contents conflict with other evidence given by the applicant. She maintains that there is nothing inherently confusing, illogical or irrational in the Tribunal’s mode of reasoning incorporated in para.143.
Ms Wong raised the question of whether the type of evidence the Tribunal relied upon in reaching its conclusion (at para.143) demonstrates the type of inconsistency which was present in SZIIF, such as discrepancies in the applicant’s account of:
a) Being beaten up once or twice;
b) Whether he did or did not go to hospital.
These types of discrepancies emerged and the applicant was asked to give repeated accounts of events.
Ms Wong argues in respect of para.112 of Tribunal 3’s decision that there was no change in the applicant’s evidence “that the local Maoists insurgents began their programs at his school back in 2000” (CB 377).
This evidence was contained in the applicant’s Protection visa application and was given as evidence to Tribunal 3. It was a consistent aspect of the applicant’s case. There was also no change in the applicant’s evidence regarding the period when he joined Amnesty International in September 2005. Ms Wong submits that the applicant did not change his evidence but there is a direct, inconsistent and overt conflict in what the applicant said happened and other facts he had given regarding his case. This is not the type of inconsistency which Weinberg J described in SZIIF. Similarly, what was described at para.113 of the decision was not a minute discrepancy but evidence given by the applicant directly in conflict with his asserted claims of being persecuted. It is argued that it is far from the type of case in SZIIF.
Ms Wong submits in response to Mr Young’s submission that para.144 also demonstrates an inconsistency of the type in SZIIF, that it is apparent when read as a whole that the Tribunal accepted the most recent evidence given by the applicant, in particular:
…On this evidence, the Tribunal has come to the view that both of the headmaster’s letters and their particular contents were solicited. (CB 382)
Ms Wong disagreed that this line of reasoning is irrational, but that it is a matter of fact and degree. Further that if the letters appear drafted they are self-serving statements when an applicant has requested someone with an order to assist him in his claim. There is no bar whatsoever to the Tribunal taking that in account in determining that those letters should not be given any weight. It is a matter entirely for the Tribunal to make an assessment of the evidence and it is not correct to say that in all circumstances when an applicant has asked for a letter that that is not a relevant fact. In the particular circumstances of this matter there is no apparent illogicality in para.144 and so does not contain inconsistencies as present in SZIIF.
Ms Wong submits that even if paras.143 and 144 contain inconsistencies of the type present in SZIIF, the Tribunal’s reasons taken as a whole do not. She submits that the change in conditions in Nepal the applicant suffering difficulties in Nepal prior to his departure were both accepted by the Tribunal. However, the extent of those difficult circumstances was disputed. The Tribunal did not accept that everything the applicant said about the period before his departure from Nepal was correct. Even if it accepted all of what the applicant said, conditions had changed in Nepal such that there were now safe places for the applicant to relocate to, namely the large cities, including Kathmandu.
Tribunal 3 then stated at para.147 of its decision:
All factors considered, the Applicant indicated a number of times at 13 August 2008 hearing that conditions had significantly changed for members of the population who did not and do not support the Maoists. (CB 382)
On the applicant’s own evidence there had been a substantial change to the conditions in Nepal which meant that:
…a lot of people previously in hiding being able to move at large again. (CB 383.1)
The question the Tribunal faced with the applicant’s own evidence that conditions had changed for the better, was to determine whether the applicant was a person who was likely to suffer risk of persecution, particularly in the big cities in Nepal. It found was that the applicant was not able to present evidence to demonstrate that he would be targeted if he returned to live in one of those large cities. Ms Wong submits that in the context of the SZIIF claim, the substance of the Tribunal’s determination was not dependent upon finding discrepancies or inconsistencies of the type present in SZIIF. The main basis for the Tribunal’s finding was a change in circumstances which the applicant gave evidence to the Tribunal about and which he was unable to demonstrate would result in him being persecuted.
Consideration of Ground 1
I have the benefit of written and oral submissions from both Counsel in respect of this ground. In light of those submissions and SZIIF, I have re-read the Tribunal decision. I agree with the submissions made by Ms Wong that the applicant has failed to establish that Tribunal 3 in this matter has made a jurisdictional error of the type which occurred in SZIIF.
A substantial part of the arguments raised in respect of Ground 1 is closely related to the issues raised in ground four. I have considered the arguments relevant to grounds one and four and address these issues under the heading “Consideration of Ground four” to avoid repetition of the arguments.
Consideration of Ground 2
Mr Young informed the Court that Ground 2 was not pressed.
Applicant’s submissions in respect of Ground 3
Mr Young relies upon two matters to demonstrate apprehended bias in the Tribunal decision:
a)Paragraphs 139-141 of the decision which conclude with the Tribunal stating that the applicant’s reference to being a school teacher was a “baseless tactic”;
b)The Tribunal finding that the applicant had engaged in “backtracking”, was “disingenuous” and had engaged in “exaggeration”, despite having accepted many of his claims.
Mr Young submits that a finding of pre-judgment or reasonable apprehension of bias would not normally be made in the absence of a transcript of the hearing. However he submits that in this case, on the Tribunal’s reasons alone there is plain evidence of pre-judgment. At para.139 the Tribunal considered the question of whether school teachers in Kathmandu are charged with revolutionary taxes under threat of violence (CB 381). At para.140 the applicant was asked whether he would face a real chance of forced donation to the Maoists upon him becoming a business or shopkeeper again no matter where he would live in Nepal. The applicant was then asked at para.140 if there was any difference between his brother and himself to which he responded:
he cited, as the only distinguishing factor, the fact that he is by vocation a school teacher.
Mr Young indicates that the Tribunal’s response to this information was extraordinary:
The Tribunal is of the view that to a very large part, the applicant’s reference to being a school teacher at this point was the baseless tactic to helping address the potentially adverse impression the Tribunal disclosed to him after he said that people who used to be in hiding from the Maoists are now living out in the open. (CB 380 at [141])
Mr Young submits that the Tribunal has asked the applicant to differentiate between himself and his brother and he identified a difference which the Tribunal accepted as true. The Tribunal did accept that the applicant had been substantially mistreated by Maoists and forced to participate in school programs and training camps. It also accepted that the applicant and his wife were targeted and threatened for revolutionary taxes. Mr Young submits that the Tribunal accepted that this was Convention-related harm.
Mr Young also submits that the matters accepted by the Tribunal involved findings that the applicants had been through a terrible ordeal in Nepal. This does not of course necessitate a finding that there is a real chance of harm in the future, however the Tribunal’s use of expressions such as “backtracking”, “disingenuous”, “exaggeration” contradicts the matters it has accepted. He submits that Tribunal 3 has placed the applicant’s answers in respect of his brother in the context of finding that the applicant is not a person of credit.
Mr Young submits that a person engaging in baseless tactics attempts to mislead the Tribunal. The applicant did not do this. He submits that although the Tribunal can say it does not accept that the distinction given by the applicant, to say that it is a baseless tactic is another matter. The Tribunal has accepted that the applicant has been substantially mistreated by Maoist insurgents, that he has been forced to participate in the school program, to attend training camps and that he and his wife were targeted for the payment of revolutionary taxes. There have been threats in relation to these demands and the Tribunal accepted that there had been harm threatened to deter the applicants from resisting revolutionary taxes.
Mr Young submits that the matter before this Court is not a case where the Tribunal said the applicant is a person who has continually made false claims which the Tribunal does not accept. He submits that this is a case where the Tribunal accepted the applicant had been through difficulty but used expressions such as “backtracking”, “disingenuous exaggeration” in relation to him. Mr Young submits that in the circumstances, the Tribunal has not considered the matter fairly.
Respondent’s submissions in respect of Ground 3
Ms Wong submits that if paras.139-141 are read as a whole, it is apparent that the Tribunal was not describing as a “baseless tactic” the applicant’s claim to be a school teacher but was referring to his reliance on the fact to try to distinguish himself from other people in Nepal who came safely out of hiding. In this context the use of the phrase “baseless tactic” would not give rise to an apprehension of bias in the mind of a fair-minded lay observer or properly informed lay person: Re Refugee Review Tribunal ex parte H (2001) 179 ALR 425.
Ms Wong also submits that Tribunal 3 was entitled to form the opinion that the applicant had engaged in “backtracking” (CB 378 at [115]-[116]) and “exaggeration” (CB 378 at [118], CB 379 at [124]) and was entitled to accept some claims made by the applicant and reject others. The Tribunal decision is clearly reasoned and there is nothing on the face of it to support a claim of apprehended bias.
Consideration of Ground 3
A claim of apprehended bias will exist where a fair-minded lay observer, who is properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, forms the view that the Tribunal member did not approach the decision-making process with an impartial mind. The commonly quoted authority in respect of this issue is ex parte H (supra) at [27].
Examples of apprehended bias occur when an applicant has been overborne or intimidated by the Tribunal (ex parte H (supra) at [31]), the fact finding was conducted in a manner which was substantially unreasonable, lacked rational or reasonable foundations, was at times plainly and ex facie wrong and selective of material going one way: NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264 at [115]. Significantly the Tribunal member has to be open to persuasion: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 at [72] and [86].
This ground was raised in the absence of a recording or verified transcript of the Tribunal hearing. It appears to rely solely upon the wording found in para.141 of Tribunal 3’s decision where the term “baseless tactic” was used. Mr Young advanced the argument that the Tribunal was suggesting that the applicant was trying to mislead it. I am not satisfied that the term “baseless tactic” means a tactic which is without support or an attempt to do something which has no foundation. In circumstances where the applicant has been unable to provide any positive evidence that school teachers were treated differently from other members of the population in large cities like Kathmandu, the Tribunal’s observations at para.141 are acceptable.
Paragraph 141 does not contain a rejection that the applicant was a school teacher but rather is the applicant’s attempt to demonstrate significant difference between himself and his brother as a ground for a claim of persecution. I am satisfied that Tribunal 3 observed that the applicant’s attempt to establish this was made without evidence of that claim (a baseless tactic) and, in the circumstances, could not sustain a claim of apprehended bias in the mind of a fair-minded lay observer. Ground 3 cannot be sustained and should be dismissed.
Applicant’s submissions in respect to Ground 3A
Mr Young submits that this ground is related to Ground 3 and that the Tribunal made a jurisdictional error in failing to have regard to the nature of fact finding in a claim for asylum. Mr Young argues that the Tribunal is not entitled to simply disregard the fact that it has made substantial findings against an applicant and, consequently, subsequent findings should be influenced by that decision. Mr Young referred to SZIIF (supra) at [61] where Weinberg J referred to the appropriate sensitivity needed to govern fact finding in asylum matters. It is submitted that the Tribunal cannot avoid its responsibility of not saying so if it finds that someone is simply untruthful. However, that is not the case in this matter. He submits that the Tribunal treated the applicant as a person of poor credit which is contrary to the facts. The Tribunal was obliged to have regard to the way it had earlier assessed the evidence.
Mr Young (on Ms Wong’s request) indicated that the Tribunal in its assessment of credibility did not take into account the fact that it did make findings which went to credibility. The Tribunal’s only statements about credibility were “exaggerated”, “baseless tactics” but the actual findings had to go to credibility as well.
Respondent’s submissions in respect to Ground 3A
Ms Wong submits that the proper role of the Tribunal is to assess the merits of each claim made by the applicant. Mr Young in this ground appears to be suggesting that once a Tribunal accepts a claim, it should accept all other claims, on no other basis than that the applicant should be believed on the sum of his evidence. She submits this would permit the Tribunal to abdicate its role to carefully consider each claim made by an applicant on its merits, which it is required by law to undertake.
Ms Wong further submits that the applicant’s difficulty in this case was the changed circumstances in Nepal. The argument of Mr Young was that the Tribunal did not, when assessing the applicant’s credit, have regard to the previous findings it made accepting the applicant’s claims. At para.146, the Tribunal sought to weigh the applicant’s claims in a balanced fashion:
The Tribunal does not accept that the applicant’s left Gulmi for Kathmandu, and then for Australia, or seek to remain here, because the Maoists were and are searching for them. The Tribunal does not accept that the applicants became exasperated with having to pay revolutionary taxes, and that the applicant himself did not like attending the training camps and participating in the Maosist school curriculum, and moved away from where these practices were at the time being conducted. As other findings in this decision address, however, the Tribunal does not accept that the situation where the applicants moved away from in 2005 is indicative of the real chance of them facing convention – related persecution in Nepal in the reasonably foreseeable future. (CB 382)
Ms Wong submits that the Tribunal has performed its function properly as it dissected each of the applicant’s claims and was not biased in its approach as it accepted some claims and rejected others.
Ms Wong then referred to para.116 of the decision regarding “backtracking” and submits that there is a logical foundation for the Tribunal’s finding. The consideration takes place at para.115 and 116 where Tribunal 3 states:
…in fact, the applicant said more than once that the cities are different from the rural areas, only backtracking from this position when the Tribunal put to him the potential negative overall inferences that might be drawn from this information…
The Tribunal regards this backtracking on the applicant’s part disingenuous, and it goes against him overall as a reliable witness in the present matter. (CB 378)
Ms Wong submits that the Tribunal is required to assess each and every claim made by the applicant, which it did. Provided that the reasons are logical and rational there is no jurisdictional error in the Tribunal’s reasoning. Ms Wong argues that Ground 3A in effect seeks a merits review of the Tribunal decision.
Consideration of Ground 3A
The legal principles in relation to failing to take into account relevant matters were examined in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 94 at [39] where Mason J observed:
What factors a decision maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the consideration to be taken into account it will often by necessary for the Court to decide whether those enumerated factors are exhaustive or merely inclusive. If relevant factors…are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act.
His Honour continued at [41]:
In some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or to take into account relevant considerations, but the decision is “manifestly unreasonable”.
Then at [42] His Honour stated:
…in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors. Least it exceeds it supervisory role by reviewing decision on its merits.
The claim in the matter before this Court is that in assessing the applicant’s credibility, the Tribunal failed to have regard to its previous findings in which it accepted his claims. I agree with the argument advanced by Ms Wong in her submissions above that the Tribunal did weigh the applicant’s claims in a balanced fashion. In its assessment process, the Tribunal accepted some of the applicant’s claims and rejected others.
I am satisfied that each issue or claim has been identified and separately addressed by Tribunal 3 and it stated its reasons accepting or rejecting the claims. In the circumstances, I am not satisfied that Ground 3A can be sustained and it should be dismissed.
Applicant’s submissions in respect to Ground four
Mr Young submits that part of the claim for relief sought by the applicant relates to two letters – one from the headmaster of Sharee Guanodaya Higher Secondary School (CB 45) and one from the principal of Polaris Secondary Boarding School (CB 46). The Tribunal dealt with those letters in the “Findings and Reasons” at para.141, referring to the applicant’s reference to being a school teacher as being a “baseless tectic”. Mr Young suggests that the comment seems to have been made when the applicant was asked about the difference between him and his brother. At para.142 the applicant claims that he will still face harm in Kathmandu partly because the Maoists have been searching for him since he left Gulmi on suspicion that he had spied on them and reported to the local authorities.
Then the Tribunal continued:
Although this claim appears supported by the text in the Gulmi headmaster’s letters dated 20 March and 18 May 2006, the Tribunal gives no weight to it. (CB 382)
This analysis is continued in paras.143, 144 and 145 where the Tribunal stated, although not clearly, that the reason why it did not give any weight to those letters was because of inconsistency in relation to what the applicant has said.
The Tribunal then stated at para.144:
The Tribunal gives the two “headmaster” letters no weight for an additional reason…the Applicant was inconsistent in his evidence as to the provenance of the letter, and this goes directly to the question of its bona fides. (CB 382)
Mr Young submits that the Tribunal took the view that the letters were solicited and should be given no weight. He submits that even if the applicant had solicited the letters per se and given inconsistent evidence in relation to them, the Tribunal would not be entitled to reject probative corroborative evidence on the basis of Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59 simply because the applicant had asked for them.
Mr Young submits that on a fair reading of the relevant paragraphs, the Tribunal seems to have given the two letters described as the “headmaster’s letters” no weight because:
a)There was evidence that the applicant had given over time which undermined his claims about politics and social activism;
b)There were (unspecified) inconsistencies in relation to the evidence of the applicant about the provenance of the letters and whether the letters had been solicited or come unsolicited from the applicant’s brother in Nepal.
While the Tribunal states that these letters go “directly to the question of bona fides” there is no finding that the letters were not genuine. On the contrary, the Tribunal accepted that the letters originated from the relevant schools and supported the applicant’s claim that he would face harm in Kathmandu.
Mr Young submits that if there is contained in the Tribunal’s reasons at paras.143-145 some suggestion of inconsistency, the Tribunal was bound to have regard to the history of the matter. In SZIIF (supra), Weinberg J found that where an applicant had been required to give evidence on numerous occasions over a lengthy period due to no fault of his own, the Tribunal was obliged to take into account this aspect of delay and having to repeat the story before different Tribunals. It is argued that this is precisely the situation in relation to this matter, but Tribunal 3 failed to take this into consideration. If the Tribunal was to set aside the applicant’s supporting documentation as being of no weight because of alleged inconsistencies, then it was obliged to take these matters into account in the decision record.
Mr Young referred to SZMSJ (supra) at [24] where Driver FM stated that the class of cases in which corroborative evidence can be disposed of because of issues of credibility of the party tendering the material is necessarily a small one. His Honour relied on SZDGC (supra) at [23]-[27]. That decision is binding on this Court. His Honour went on to state that the case before him was not necessarily a “poisoned well” case, using the expression which finds its genesis in the judgment of McHugh and Gummow JJ in Ex parte S20/2002 (supra) at [49].
Similarly, Mr Young submits that the case before this Court cannot be a “poisoned well” case. Significant claims of the applicant’s were accepted. It was accepted that he was a school teacher and a business person, had been forced to participate in the local Maoist insurgent school program, forced to attend training camps and these could have made him feel persecuted as an anti-Maoist.
Mr Young submits that in this matter the Tribunal accepted at para.130 that local Maoist insurgents targeted local schools and businesses in Gulmi area (where the applicant lived) for obligatory payments of “revolutionary taxes”. At para.131 the Tribunal also accepted that local Maoist insurgents targeted the applicants for payment of these revolutionary taxes both through the school payroll system and direct demands at the shop they managed. While the Tribunal rejected other parts of the applicant’s claims his credibility was not so comprehensively destroyed but the Tribunal avoided taking into account corroborative evidence in dealing with his claims. Therefore the corroborative evidence needed it to be weighed up in making an adverse credibility finding, it could not simply be ignored because of an alleged inconsistency in the evidence.
Respondent’s submissions in respect of Ground 4
Ms Wong agreed with Mr Young’s submission this is not a “poisoned well” case. However, she submits that the Tribunal did not ignore or dismiss corroborative evidence presented by the applicant on the basis of his general lack of credibility. It is submitted that the Tribunal determined that it would not give any weight to the headmaster’s letters for two reasons, each of which related to the contents of the letters themselves:
a)That the applicant’s evidence itself undermined his claim about his purported political and social activism and was inconsistent with the content of the letters (CB 382 at [143]); and
b)The letters and their contents had been solicited by the applicant (CB 302 at [144]).
Ms Wong submits that the Tribunal gave further reasons for its determination that it would give no weight to the headmaster’s letters earlier in its decision (CB 372-373):
a)The letter dated 18 May 2006 was addressed to the same school from which it was sent and it appears somewhat confused The author says on the one hand that the applicant could no longer return to his job and on the other hand that due to his safety issues he did not have to do so ([59]-[61]);
b)The letter dated 20 March 2006 contained text which appeared confusing. The Tribunal said the letter’s date was clearly a month or more after the expiry of the applicant’s permitted leave and yet no request for an update was sought ([64]-[65]).
Ms Wong submits Tribunal 3 gave full and careful consideration to the headmaster’s letters before determining that it would give them no weight.
Consideration of Ground 4
The first headmaster’s letter (from Shree Gyandoaya Higher Secondary School) identifies the applicant and opens with:
Having been unsatisfied with the social work and teaching you have been performing in VDC; Turang Majuwa Gulmi. We hereby inform you that, the place you have been hiding can be protective. (CB 45)
I accept that the author is expressing this letter in English and I give allowance for difficulties this may present. However, the passage does not make sense from the school’s point of view.
The letter continues:
After your leave acceptance, too, they have been searching through dictators and sometimes by armed forces. Therefore we would like you not to come out and to stay at where you are.
This confusion was averted to by the Tribunal in reaching its determination that it would not give this letter weight.
The second headmaster’s letter (from Shree Gyuanodaya Higher Secondary School) states:
This is to inform you [SZJSS] that your position as a teacher in Gulmi is no longer exist as you have not joined the school after taking leave for three months until 2062/11/4 (Nepalese date) 16 February, 2006 (Australian date) due to your safety reasons and various threats given to you. You are not required to come back and continue your job as a teacher in this school. (CB 80)
The Tribunal’s concerns in respect of both letters are set out from paras.56 to 65 in its decision (CB 372-373). The Tribunal expressed that it had concerns with them on the face of the documents. It formed the view that the statements in those letters were not of a kind a school would normally make and that they were likely to have been solicited by the applicant.
The issue of importance is not whether the letters were in fact letters from the respective headmasters, but whether their contents could be relied upon as an accurate statement of the applicant’s claims to be persecuted. The next issue raised in respect of this ground is whether the Tribunal’s finding in relation to the letters are logical. The Tribunal stated at para.143:
Although the Tribunal accepts that these two letters originated from the relevant schools, the Tribunal gives them no weight to their contents in view of the evidence the applicant has presented over time undermining his claim about his purported political and social activism. (CB 382)
The preceding paragraphs clarify this conclusion.
At para.112 the Tribunal dealt with whether the applicant was being targeted because of his purported political and social activism:
112. On the applicant’s evidence at the hearing, it gives no weight to the applicant’s claim to the department that the Maoists targeted the applicant in particular because of his perceived support for democracy or because of his being an active member of a human rights group. This is because the applicant told the presently constituted Tribunal that the local Maoists and surgeons began their programs at his school back in 2000, whereas he did not join Amnesty International until September 2005… (CB 377)
The Tribunal relied upon other evidence and referred to it at para.113:
The Applicant made this all the more clear when he told the presently constituted Tribunal that the local Maoist insurgents treated pro-and imputed anti-Maoist teachers the same, requiring all of them to attend the training camp and incorporate the Maoist curriculum into their own.
I am satisfied that it is logical for the Tribunal to give no weight to the two letters because their contents conflict with other evidence the applicant gave. I am satisfied that there is nothing inherently confusing, illogical or irrational about the Tribunal’s mode of reasoning incorporated at para.143.
I have been invited to accept that the type of evidence the Tribunal relied upon in reaching its conclusion in para.143 demonstrates the type of inconsistency present in SZIIF (supra). I acknowledge that there are discrepancies in the applicant’s accounts given to the different Tribunals, such as:
a)Being beaten up once or beaten up twice;
b)Being required to go to hospital as opposed to not having to go to hospital.
This type of discrepancy would emerge when a person is required to give repeated accounts over a period of time. However, claims that the Maoist insurgency began its programs at a school in 2000 consistently appeared in both the Protection visa application and the applicant’s oral evidence to the Tribunal. Similarly, there was no change to the applicant’s evidence that he joined Amnesty International in September 2005. Each of these pieces of evidence have remained unchanged, but there is an overt inconsistency in these two claims, being the suggestion that the applicant has been a member of Amnesty International long enough to become known as an activist. I am satisfied that this is not the type of inconsistency to which Weinberg J was referring to in SZIIF.
It is suggested that para.144 of the decision also demonstrates the type of inconsistency present in SZIIF. The Tribunal stated:
On this evidence, the Tribunal has come to the view that both of the headmaster’s letters and their particular contents were solicited. (CB 382)
The submission on behalf of the applicant is that this sentence is irrational because the Tribunal was of the view that just because the applicant asked for something, it should not be given weight. I am satisfied that it was entirely for the Tribunal to make an assessment of the evidence and it is not correct to say that all instances where the applicant asked for a letter meant that it was not a relevant fact. In the circumstances of this case, there is no apparent illogicality in that statement and it does not contain inconsistencies of the type addressed in SZIIF. The Tribunal accepted that the applicant had suffered difficult circumstances in Nepal prior to his departure although the extent of those difficulties is disputed. The Tribunal did not accept that everything the applicant claimed about the period before his departure from Nepal was correct. However, even if it had accepted all of what the applicant claimed had occurred, conditions had changed such that there were now safe places for the applicant to relocate, such as the large cities including Kathmandu.
Paragraph 147 of the decision record states:
All factors considered, the applicant indicated a number of times at 13 August 2008 hearing that conditions had significantly changed for members of the population who do not and did not support the Maoists.
The applicant’s evidence was that there had been a substantial change in the conditions in Nepal:
…He referred to a lot of people previously in hiding being able to move at large again.
Tribunal 3 found that the applicant was not able to present any evidence to demonstrate that he was a person who would be targeted if he returned to live in one of the large cities. The substance of the Tribunal’s determination was not dependent on the findings of discrepancies or inconsistencies of a type as in SZIIF, but rather that there was a change in circumstances which the applicant gave in his evidence. There are a number of passages in the “Findings and Reasons” which refer to the changed circumstances and this is a prevalent theme. I am satisfied that the circumstances which form the basis of SZIIF are not present in this matter.
The other argument raised in respect of this ground is that the Tribunal ignored or failed to give proper consideration to the headmaster’s letter even though this is not a “poisoned well” case. S20/2002 at [49] states:
In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption.
This type of reasoning in “poisoned well” cases results in reasoning expressed in terms of rejection, that the applicant is not a credible witness or a witness of truth. For that reason and without any further analysis a Tribunal dismisses corroborative evidence. It is acknowledged by both parties that this principle does not apply to the facts in this matter. The applicant’s account of his persecution was accepted in many respects. Clearly the Tribunal did not reject the headmaster’s letters on the basis of an adverse finding on the applicant’s credibility. Rather it engaged in an analysis of the provenance and contents of those letters but gave them no weight because they claimed the applicant had engaged in activism and was being actively pursued by the Maoists. The Tribunal found that there was a direct inconsistency between the contents of the letters and the applicant’s own evidence. I am satisfied that the Tribunal did not treat this as a “poisoned well” case and gave proper and genuine consideration to the contents of the headmaster’s letters. No jurisdictional error arises in this reasoning process. I am satisfied that there is no substance to the applicant’s claim that any of the evidence contained in the headmaster’s letters was ignored in any superficial manner as found in a classic “poisoned well” case.
Applicant’s submissions in respect of Ground 5
Mr Young submits that the proper, genuine and realistic consideration is not actually Wednesbury unreasonable per se, although he accepted that it was a related concept. Mr Young identified the claims of illogicality and irrationality as:
a)The reasons for the decision of Tribunal 3 are “impenetrably obscure”, referring in particular to para.120;
b)Once the Tribunal accepted that the headmaster’s letters were from the relevant schools, it “bordered on perverse or irrational” to give them no weight; and
c)It was “quite perverse” for the Tribunal to give the Polaris School letter no weight, despite the fact that it was not undermined by the applicant’s evidence.
Mr Young submits that there is no dispute between the parties that something more than want of logic or irrationality is needed to demonstrate jurisdictional error. Mr Young states that it is not exactly clear what the Tribunal is attempting to say. However, that the letters are given no weight is perverse or irrational.
Respondent’s submissions in respect of Ground 5
Ms Wong submits that want of logic or irrationality does not demonstrate jurisdictional error: NACB v Minister for Immigration & Indigenous Affairs [2003] FCAFC 235 at [30]. She submits that the Tribunal’s reasoning does not demonstrate any lack of logic or irrationality. Ms Wong submits in relation to the first particular that Mr Young partially misquoted para.120 which states:
[120] The Tribunal does not accept that the applicant was kidnapped and detained by Maoists in November 2005 just prior to moving to Kathmandu. To be sure, November 2005 did come after September 2005 when the applicant joined [Amnesty International] but all relevant facts considered, the Tribunal is of the view that the applicant had invented this story to provide some kind of relevant narrative impetus for the move to Kathmandu.The Tribunal gives weight, rather to the fact that the applicant and his wife had already applied for and received their passports in Gulmi in October 2005. On the evidence before the Tribunal, the desire on the applicant’s part to move out of Gulmi and eventually travel abroad exists entirely independently of this claimed detention in November 2005. (CB 379)
Ms Wong submits that far from being incomprehensively obscure, this passage demonstrates a careful attempt to deal with the applicant’s claim in a logical and reasoned manner. Similarly, there was no irrationality in the Tribunal’s finding to give the headmaster’s letters no weight even though it accepted they came from the schools in question, as it had determined that the letters and their contents had been solicited by the applicant.
Ms Wong further submits that the fact that the Polaris School letter was not undermined directly by the applicant’s evidence is irrelevant, as there were a number of reasons why the Tribunal gave the letter no weight, including that:
a)There was no evidence before it suggesting that Maoist insurgents in Gulmi stopping schools from having borders was indicative of a real chance of a Convention-related persecution;
b)The letter referred to a past action in a particular location and prior to the recent socio-political changes in Nepal; and
c)The applicants’ children were currently attending private schools in Kathmandu and faced no pressure from the Maoists.
To the extent that the applicant claims that the Tribunal failed to give genuine consideration to the headmaster’s letter Ms Wong indicated that she repeats her submissions above.
Consideration of Ground 5
The applicant’s claim in this ground is that there has been a failure to give proper, genuine and realistic consideration to the applicant’s claims and/or Wednesbury unreasonableness. Wednesbury unreasonableness applies to the exercise of discretionary power: Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21. Consideration of reasonableness bears upon the formation of the state of “satisfaction” by requiring that the relevant satisfaction be one that could reasonably be reached on the material before the decision-maker. The relevant limitation of the power is therefore one which bears upon the quality of the opinion formed by the decision-maker, not on his or her conduct interior to forming the opinion.
In SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 at [19], Mansfield, Selway and Bennett JJ stated:
…If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355-357. If the decision of the Tribunal was `Wednesbury' unreasonable or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister of Immigration & Multicultural Affairs; ex parte Applicant S20/2002 (2003) 190 ALR 59 ‘S20’ at 62, 67, 76, 90-91.
The applicant’s argument advanced in respect of the headmaster’s letters is that the Tribunal was perverse or irrational to give them no weight after accepting they were from the relevant schools. I believe that this issue has been adequately ventilated above and the Tribunal’s reasoning does not demonstrate any lack of logic or irrationality. I agree with Ms Wong’s submission that want of logic or irrationality does not suffice to demonstrate jurisdictional error: NACB (supra).
I am satisfied that the Tribunal has adequately set out its reasons demonstrating that it gave genuine consideration to the headmaster’s letters and clearly stated the reason why it gave them no weight. I am satisfied that this compliant of illogicality or irrationality cannot be sustained and this ground should be dismissed.
Conclusion
The Court has had the benefit of detailed written and oral submissions presented by Counsel representing both sides. I have formed the view that the arguments raised on behalf of the applicants cannot be sustained and should be dismissed, with the applicants paying the first respondent’s costs.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 11 September 2009
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