SZLHI v Minister for Immigration and Citizenship
[2008] FCA 1092
•24 July 2008
FEDERAL COURT OF AUSTRALIA
SZLHI v Minister for Immigration and Citizenship [2008] FCA 1092
Migration Act1958 (Cth)
Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30
SZLHI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 468 OF 2008
REEVES J
24 JULY 2008
DARWIN
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 468 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZLHI
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
REEVES J
DATE OF ORDER:
24 JULY 2008
WHERE MADE:
DARWIN
THE COURT ORDERS THAT:
The appeal be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 468 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZLHI
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
REEVES J
DATE:
24 JULY 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
This is an appeal against a judgment of Federal Magistrate Scarlett delivered on 19 March 2008 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’). The Tribunal’s decision was delivered on 16 August 2007 and affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.
BACKGROUND – SUMMARY OF FACTS
The appellant is a citizen of Nepal who had travelled to Thailand, Malaysia, Singapore and Germany in his capacity as the managing director of the “Nepal Export Gallery” in Kathmandu, prior to coming to Australia. He arrived in Australia on 9 January 2007 on a tourist visa and lodged an application for a protection visa a few weeks later, on 20 February 2007. A delegate of the first respondent refused that application on 2 April 2007 and on 30 April 2007 the appellant applied to the Tribunal for a review of that decision.
The appellant lodged a statement which set out the basis of his claim to fear persecution in Nepal. Essentially, the appellant claimed that as he and his family were active supporters of the National Democratic Party (‘the RRP’) and also the monarchy in Nepal he was targeted by ‘maoist terrorists’(or Nepal Communist Party supporters). He stated that he received two letters of demand from Maoists, one for NRS800,000 in September 2004 and another for NRS500,000 in March 2006, both of which threatened him with violence if he did not pay.
The appellant asserted that he did not pay any money to the Maoists and that he received further threats and was assaulted by a large group of Maoists in November 2006 as he came over a bridge on his motorbike. He stated that he was beaten badly (at a time when he had already obtained his Australian visa) and left for dead; but that his father had him treated in hospital under the guise of him having been injured in a traffic accident. He stated this was because “Maoist were calling at my home and threatening that if anybody informed to police then they will kill all the family members”. The appellant said that he subsequently tried to get help from the “police administration” but they would not help him. He stated that he had to leave Nepal, and leave behind his aged parents, and his wife and young daughter, because the Maoists would “never forgive” him.
THE TRIBUNAL’S DECISION
The appellant attended a hearing before the Tribunal on 17 July 2007 and presented evidence, including his passport, details of his company, a photograph of himself using crutches, a letter from his treating hospital and articles about Maoist activity in Nepal. The Tribunal’s Decision Record reports the appellant saying at the hearing that he “feared harm from the Maoists because they suspected him to be an informant and because he had refused to cooperate with them by giving them donations” but that it “was only when he was attacked in November 2006 that he felt compelled to leave his country”. The Tribunal records that it put to the appellant at hearing that, given he was not an informant, it remained unconvinced that he had the sort of profile that would bring him to the attention of Maoists.
The appellant provided further documentation to the Tribunal after the hearing, namely a photocopy and translation of his membership card for the RRP as well as a letter to substantiate his political activities, the letters of demand from Maoists, several articles on Maoist activity in Nepal, a print out of a blogg site and a statement by the appellant (in the terms described above).
In the ‘Findings and Reasons’ section of its Decision Record the Tribunal stated that it “does not accept that the [appellant] was or is of adverse interest to Maoists because the Tribunal does not accept the basis upon which the [appellant] asserts that he is of adverse attention of the Maoists”. And further, “[g]iven the paucity of the [appellant’s] oral and written evidence as to his involvement in the RRP and supporter [sic] of the monarchy the Tribunal does not accept that the [appellant] is more than a passive supporter of the RRP”. The Tribunal further noted that the appellant had returned to Nepal from abroad, repeatedly, despite the alleged threat of harm, and found this to be inconsistent with any subjectively held fear of persecution.
The Tribunal accepted that the appellant had required hospitalisation in November 2006 but did not accept that this was the result of a Maoist attack. It found that given the claimed number of attacks and the alleged motivation for them, it was implausible that the appellant would survive or suffer only low level injury. Further, the details in the letter from the appellant’s treating hospital indicated that his injuries were the result of a road accident. Although the appellant claimed that his family asked the hospital to give that explanation for his injury to avoid publicity, the newspaper article provided by the appellant to substantiate the attack stated that “family sources have said the Maoists had demanded a big donation amount…”. The Tribunal found the articles and letters of demand to be “contrived and self-serving in content” and did not give them any weight.
For these reasons, the Tribunal did not accept that the appellant held a well-founded fear of Convention-related persecution in Nepal and it affirmed the delegate’s decision.
THE FEDERAL MAGISTRATE’S DECISION
The appellant’s counsel filed an amended application for review in the Federal Magistrates Court at the hearing on 19 February 2007. The grounds of the application as amended were as follows:
(1)The Second Respondent made a jurisdictional error by failing to discharge its duties and conduct the review as required by Part 7 of the Migration Act 1958;
(2)The Second Respondent made jurisdictional error by failing to give a proper, genuine and realistic consideration in the decision of the claims and evidence; and
(3)The Second Respondent made jurisdictional error by failing to deal with the Applicant’s claims and their component integers; and/or failing to give proper, genuine and realistic consideration of the Applicant’s claims in respect of the Applicant’s claim that he had been targeted by Maoists because he refused to provide them with financial assistance.
At the hearing before Federal Magistrate Scarlett, counsel for the appellant, Mr Young, only relied on the third ground. Mr Young submitted that the Tribunal had failed to generally consider the fact that the appellant had been targeted because he refused to provide financial assistance to the Maoists and failed to give weight to the letters of demand by the Maoists. He submitted that in dealing with some particulars of the claim and not the claim as a whole the Tribunal had fallen into jurisdictional error.
The Federal Magistrate considered all the submissions against the Tribunal’s Decision Record and concluded:
“I do not see how it can be said that the Tribunal has not considered the integers of the applicant’s claim. He claims to fear harm from the Maoists because he had not contributed to their cause financially and claimed that he had been threatened and beaten up accordingly. The Tribunal did not accept the fact that he had been physically harmed and did not accept the documentary evidence of the threats. The Tribunal just did not believe his claim. The Tribunal did not believe the parts of the claim nor the claim as a whole. I am not satisfied that the applicant’s ground for relief has been made out, and I am not satisfied that the Tribunal fell into jurisdictional error”.
His Honour dismissed the application for want of jurisdictional error.
GROUNDS OF THE PRESENT APPEAL
The notice of appeal filed in this Court on 8 April 2008 raises the following two grounds:
1. His Honour erred by failing to find that the Second Respondent made jurisdictional error by failing to deal with the Appellant’s claims and their component integers in that the Second Respondent failed to consider the Appellant’s claim he had received threatening letters (from the Maoists) in November 2006 which had been a contributory factor in his decision to leave Nepal.
2. His Hour[sic] erred by failing to consider the basis of jurisdictional error put forward by the Appellant in the Amended Application and noted by his Honour at [9] of the judgment.
No further particulars were provided.
At [9] of the Federal Magistrate’s reasons for judgment his Honour sets out the third ground of review which, as noted at [10] above, was the only ground of review pursued before him. It is similar to ground one of the notice of appeal (above) in that it complains about a failure to consider all of the “component integers” of the appellant’s claims. However, it adds the words “and/or failing to give proper genuine and realistic consideration of the applicant’s claims …”.
THE CONTENTIONS
At the hearing of this appeal before me, Mr Young appeared for the appellant and Ms Sirtes appeared for the first respondent. Both counsel had earlier filed an outline of written submissions. In his written submissions, Mr Young submitted that “the RRT did not give proper, genuine and realistic consideration to the appellant’s claims that he has been targeted by Maoists and in particular that he had been attacked by Maoists in November 2006 because he refused to provide them with financial assistance.” Mr Young submitted that this had occurred because the Tribunal had made no comprehensive credibility finding against the appellant, yet it had dismissed the appellant’s corroborating material out of hand, as being “of no weight”. He submitted that this was contrary to the High Court’s decision in Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 at [12] per Gleeson CJ and [49] per McHugh and Gummow JJ.
Mr Young also submitted that the Tribunal had overstated and rejected the appellant’s unsworn evidence about the attack by a group of Maoists in November 2006 and its aftermath.
In his oral submissions, Mr Young submitted that the November 2006 attack was critical to the appellant’s claims because that was the event that led him to leave his country and eventually seek asylum in Australia. He submitted that the Tribunal did not make an overall finding rejecting the appellant’s credibility and that its statements that it did not accept various aspects of the appellant’s evidence or claims did not amount to such a finding. In those circumstances, Mr Young submitted that the Tribunal was obliged to consider the corroborating documents provided by the appellant. He submitted that those documents included the newspaper article, the letters of demand from the Maoists and the report of the B & B Hospital. Mr Young submitted that in saying that it gave these documents “no weight” the Tribunal had failed to give ‘proper, genuine and realistic’ consideration to them. It followed, so he submitted, that the Tribunal had failed to properly consider a component integer of the appellant’s claims and therefore committed a jurisdictional error.
In her written submissions, Ms Sirtes submitted that the import of ground one of the notice of appeal before this Court was that the component integer relating to the Maoists’ extortion claims had not been considered by the Tribunal. She submitted that this was not borne out by consideration of the Tribunal’s decision at the end of the penultimate page of the Tribunal’s Decision Record. Ms Sirtes submitted that the Federal Magistrate’s specific findings (at [17] of his reasons) that the Tribunal had considered this and other related aspects of the appellant’s claim, were correct. In relation to the appellant’s claim that no weight was given to his supporting documents, Ms Sirtes submitted that the Tribunal had considered those documents and decided to give them no weight for the reasons stated in the Tribunal’s Decision Record. She submitted that the weight to be placed on documents of this kind is a matter for the Tribunal.
In her oral submissions, Ms Sirtes submitted that before the Federal Magistrate the appellant had directed its submissions entirely to the question of whether the Tribunal had properly considered the component integer relating to the Maoists’ extortion claims and that the appellant’s counsel was now attempting to change his position before this Court by relying upon the component integer relating to the November 2006 attack.
When I clarified this with Mr Young, he stated that whilst the appellant did not resile from its reliance upon the Tribunal’s failure to consider the Maoists’ extortion claims, the ground the appellant relied upon before this Court was that the Tribunal had failed to properly, genuinely and realistically consider the component integer of the appellant’s claims relating to the November 2006 attack, as outlined by the Federal Magistrate (at [17] of his reasons for decision).
Returning to Ms Sirtes’ oral submissions, she submitted that the Tribunal did not reject the appellant’s supporting documents out of hand, but instead considered them and rejected them for the reasons stated in the Tribunal’s Decision Record. As to the appellant’s credibility, she submitted that it is clear from the ‘Findings and Reasons’ section of the Tribunal’s Decision Record that the Tribunal had made an adverse finding about the appellant’s credibility when it used the expressions such as “ambivalent”, “lacking in substance”, “unconvincing and lacking in coherency” to describe the appellant’s evidence.
In summary, Ms Sirtes submitted that the attack in November 2006 was properly considered by the Tribunal and, while it may not have dealt with every minute aspect of it raised by the appellant, that does not amount to error on its part, let alone jurisdictional error.
CONSIDERATION
As I understood the ground of appeal that was ultimately refined in oral submissions before me, it amounted to a claim by the appellant that the component integer that the Tribunal had failed to give “proper, genuine and realistic” consideration to, was the attack in November 2006 as outlined at [17] of the Federal Magistrate’s reasons, particularly the concluding sentences as set out at [12] above.
On the penultimate page of the Tribunal’s Decision Record in the ‘Findings and Reasons’ section, the Tribunal stated:
The Tribunal does not accept that the applicant was attacked by Maoists on 11 November 2006. The Tribunal makes this finding on the basis that it finds the applicant’s evidence about this event to be unconvincing and lacking in coherency in the following ways.
The Tribunal then sets out its reasoning to support the conclusion that the appellant’s evidence about this event was “unconvincing and lacking in coherency”. In summary, its reasons were as follows:
a)Because of the motive (extortion and concerns that he was a police informant) and the number of attackers (earlier estimated at eight to ten) it was “anomalous” that the appellant had survived the attack and that his main injury was a broken leg and not, for example, head injuries;
b)The letter from the B & B Hospital, said to provide evidence that the appellant was hospitalised after the attack, in fact stated that the appellant’s injuries were the result of a road accident. The appellant’s explanation for this was that his family had told the hospital this to avoid attracting attention from the Maoists;
c)The news article from the Chitwan Sandesh Weekly newspaper dated 20 November 2006, said to provide evidence of the attack, gives the date of it as 26 July 2006. Moreover, in direct contradiction of the explanation the appellant gave for the hospital letter stating that his injuries were the result of a road accident (see (b) above), the article states: “family sources have said the Maoists had demanded a big donation amount and had also threatened to kill if the amount was not given”.
In my view, with the exception of the first sentence which partly refers to the news article (above), the balance of the final paragraph of the penultimate page of the Tribunal’s Decision Record is directed to the Tribunal’s consideration and rejection of the three letters that the appellant claimed the Maoists had sent to him seeking money. The Tribunal makes it clear in that paragraph that it rejected those three letters because they appeared to replicate each other and because:
Given the dubious nature of these documents and in light of the unsatisfactory nature of the applicant’s oral evidence about his claims to have been threatened by Maoists the Tribunal does not give weight to these documents and the Tribunal does not accept that the applicant was pursued or threatened by Maoists to donate to their cause.
It follows that the statement that the Tribunal “does not give weight to these documents” is only directed to those three letters and not to the B & B Hospital report or the Chitwan Sandesh Weekly newspaper article. In my opinion, those documents are dealt with separately in the earlier paragraphs of the Tribunal’s Decision Record (see above).
Once the Tribunal’s reasons are assessed in this way, it is quite clear that the Tribunal gave ‘proper, genuine and realistic’ consideration to the appellant’s claim that he was attacked by Maoists on 11 November 2006, including his oral evidence about that event and the documentary evidence he provided which was said to support this claim. The Tribunal clearly rejected both the appellant’s oral evidence and the documentation submitted apparently in support as “unconvincing and lacking in coherency” for the reasons that it gave.
Finally, it is clear that the Tribunal also ‘properly, genuinely and realistically’ considered the appellant’s claims about the extortion letters from the Maoists and independently rejected them for the reasons stated.
It is therefore apparent that the Tribunal did not fail to consider the component integers of the appellant’s claims as identified by the appellant. I therefore entirely agree with the Federal Magistrate’s summary at [17] of his reasons as discussed above.
For these reasons, this appeal must be dismissed.
I certify that the preceding thirty three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate:
Dated: 24 July 2008
Counsel for the Appellant: Mr J R Young Counsel for the First Respondent: Ms S A Sirtes Solicitor for the First Respondent: Clayton Utz
Date of Hearing: 22 July 2008 Date of Judgment: 24 July 2008
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