SZLIK v Minister for Immigration and Citizenship

[2008] FCA 724

FEDERAL COURT OF AUSTRALIA

SZLIK v Minister for Immigration and Citizenship [2008] FCA 724

SZLIK v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 399 OF 2008

LANDER J
22 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 399 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLIK
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LANDER J
DATE OF ORDER:	22 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.

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 399 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLIK
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LANDER J
DATE:	22 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against an order of a Federal Magistrate of 5 March 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 31 July 2007 and handed down on 21 August 2007.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a Protection (Class XA) visa to the appellant.

2. The appellant is a citizen of Nepal who was born on 19 January 1968.  He arrived in Australia on 9 February 2007 and applied for a Protection (Class XA) visa on 7 March 2007.  On 2 April 2007 a delegate of the first respondent refused to grant the appellant a visa.  On 20 April 2007 the appellant applied to the Tribunal for a review of that decision.  Before the Tribunal, the appellant claimed to have a well-founded fear of persecution from Maoist insurgents.  The appellant claimed to have been a supporter of the Nepalese King through the National Democratic Students Association and to have opposed the Maoist insurgency from its inception in 1990.  He claimed that Maoists had demanded donations and curriculum changes in the school in which he was a teacher and that he had declined to follow their instructions.  According to the appellant, in July 2004 during celebrations for the King’s birthday, he was abducted, taken into a jungle in Raspat, beaten and tortured by Maoists along with other teachers but released when other villagers came to the scene.  He said his house was seized.  After the formation of a coalition Government including Maoists in April 2006, the appellant claimed that his problems intensified.  The appellant was allegedly sought by 10-15 Maoists at his sister’s house and his relatives were warned that if he returned to his school he would be killed.  The appellant claimed that policing resources in Nepal were insufficient to provide him with protection, leading him to seek asylum in Australia.

3. On 12 June 2007, at the hearing before the Tribunal, the appellant accepted that he had travelled to Japan in 2004 for 15 days.  He claimed that he did not make an application for asylum in Japan as someone had apparently told him that if he made such an application, he would be killed by the Japanese.  The appellant also travelled to Thailand in 2006 but did not remain as there was “no safety” there.

4. The Tribunal rejected the appellant’s claims finding him not to be a witness of truth.  The Tribunal found that the appellant’s account of his past experiences lacked consistency.  The appellant’s account of whether he had been abducted changed in terms of how many other teachers had accompanied the appellant at the time.  These differences could not be explained by difficulties in translation, and the Tribunal found that these inconsistencies suggested the claims of his past experiences had been fabricated.  The Tribunal found further inconsistencies in his account of the circumstances of his family in Nepal, specifically regarding the date on which his wife and children had ceased living at home, as different dates separated by up to a year were given.

5. The Tribunal also found that the appellant’s travel to Japan and Thailand in 2004 and 2006 was inconsistent with the actions of a person fearing harm.  The Tribunal accepted that the appellant was educated and found his reasons for return to Nepal implausible.  It did not give weight to supporting evidence adduced by the appellant and felt that the material only asserted matters which the Tribunal did not believe to be true.

6. The Tribunal therefore rejected the appellant’s claims and did not accept that he had ever been of interest to any political or insurgency group in Nepal.  While noting that independent evidence suggested continued unrest in Nepal, the Tribunal’s adverse findings on other aspects of the appellant’s claim led it to conclude that there was no risk of harm to a person such as the appellant.  It therefore found that the appellant did not hold a well-founded fear of persecution for a Convention reason.

7. On the appellant’s application to the Federal Magistrate filed on 17 September 2007, the appellant claimed:

   1.The Tribunal misunderstood the facts of the appellant’s application;

   2.The Tribunal was biased and rejected the appellant’s claims without probative evidence;

   3.The Tribunal failed to investigate the central issues of the appellant’s application even though that information was readily available to the Tribunal through its resources; and

   4.The Tribunal made an error of law by making a decision to suit itself.

8. In relation to ground one, his Honour found that the Tribunal decision record suggested the Tribunal had addressed and rejected the issues raised by the appellant on the basis of an adverse credibility finding.  This was a finding of fact and evidence existed to support the conclusion: W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[65].

9. In relation to ground two, his Honour found that there was no evidence of bias.  His Honour noted that a mere fact of an adverse finding in the Tribunal’s reasons did not amount to bias: VFAB of 2002 v Minister for Immigration and Multicultural Affairs (2003) 131 FCR 102 at [21].

10. In relation to ground three, his Honour found that no obligation rests upon the Tribunal to conduct its own enquiries to investigate the appellant’s claims. While that power does exist under ss 424 and 427 of the Migration Act 1958 (Cth) (the Act), the power is discretionary: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [42]-[43].

11. In relation to ground four, his Honour found that the allegation that the Tribunal had “[made] a decision to suit itself” was merely a further allegation of bias or bad faith on the part of the Tribunal and had no basis in fact.

12. The appellant’s notice of appeal filed in this Court raises three grounds.

13. First, the appellant contends the Federal Magistrate should have found that the Tribunal failed to properly consider documents provided to the Tribunal and breached s 425 of the Act by failing to give the appellant the opportunity to be heard on the documents. The Tribunal should have put these issues clearly in the s 424A letter.

14. Secondly, the Federal Magistrate should have found that the Tribunal erred in its assessment of the facts and failed to apply the test in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. The appellant’s claims were rejected due to minor differences not subject to proper assessment. In its assessment of credibility, the Tribunal misapplied the “Guo and Rajalingam principles in the assessment of evidence”.

15. Finally, the appellant contends his Honour should have found that the Tribunal failed to apply the test of social group in relation to the appellant’s claim and failed to address the appropriate integers of the appellant’s claims.

16. The appellant elaborated upon those grounds in his outline of submissions.  At the hearing, the appellant mainly addressed the merits of the Tribunal’s decision.

    Ground One

17. The appellant’s application for a Protection (Class XA) visa failed because he was not believed.  The Tribunal was entitled to consider his claim and to analyse those claims for their internal consistency.  It was not obliged to uncritically accept his claims: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.

18. During the hearing, and indeed in the s 424A letter which followed, the Tribunal identified a number of inconsistencies between the appellant’s written claims and oral evidence. The appellant responded to the s 424A letter by letter of 6 July 2007. The Tribunal was again not obliged to uncritically accept those responses. It again was entitled to have regard to those responses against the previous evidence provided to the Tribunal, both in writing and orally.

19. The Tribunal was not under an obligation in so doing to provide the appellant with a running commentary of his evidence during the hearing or a running commentary in relation to its consideration of his written response to the s 424A letter: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48].

20. The appellant provided the Tribunal with evidence which he said corroborated some aspects of his claim, including certificates that he was a teacher who had been the subject of threats and who was forced to live outside his village.  The certificates were said to be given by the Nepal Maoists Victims (sic) Association and the Adarsa Phalante Village Development Committee Office.

21. The Tribunal said in its reasons:

    In the Tribunal’s view, this material, whilst supportive of the applicant’s claims has no real weight.  It is not sufficient to alleviate the concerns that the Tribunal has referred to above about his own capacity to provide evidence about his circumstances over time.

22. The authenticity of the documents or the veracity of the information contained in the documents was not the issue upon which the Tribunal rested its decision.  The Tribunal simply disbelieved the appellant because of the inconsistencies between his written claims and his oral evidence.  It identified comprehensively the various matters which it did not accept.  It gave three reasons for disbelieving the appellant: the inconsistency in relation to the 2004 incident between his oral evidence and written evidence; his account of when he left the family home and his account of when his wife left the family home was inconsistent; and the fact that he travelled to Japan and Thailand and returned was inconsistent with his claims.

23. The Tribunal was under no obligation to accept the corroborative evidence in preference to its findings of inconsistency.  Nor was it obliged to give any further reasons as to why it gave the documents little weight: Re Minister for Immigration and Multicultural Affiars; Ex parte S20/2002 (2003) 198 ALR 59 at [12]-[13].

    Ground Two

24. It was not inappropriate for the Tribunal to assess whether the appellant was likely to be subject to persecution if he were to return to Nepal by reference to his claims of past persecution: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575-577.

25. Logically, where a Tribunal is called upon to predict what might happen in the future, the Tribunal needs to inquire into what has happened in the past and, in some cases, what might have happened since the visa applicant has left his or her country of nationality.

26. Ground two really is no more than a call for this Court to assess the merits of the appellant’s claim.  That is not for this Court but a matter peculiar to the Tribunal: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36.

    Ground Three

27. This ground ignores the findings made by the Tribunal.  The Tribunal said:

    Considered overall, it is the view of the Tribunal that the applicant has not been truthful about his past activities, employment or experiences when pursuing this claim.  The Tribunal does not believe that the applicant has been employed as a teacher in Nepal, nor that he has ever had any association with any political group.  The Tribunal does not believe that he has ever been of interest to any political or insurgency group in Nepal, nor that he has ever been harmed in that country in the past.

    There is evidnece (sic) of continuing political instability, resulting in the most serious abuses of human rights, in Nepal.  There is also evidence that this has in the recent past been directed at groups which the applicant claims membership.  However, as the Tribunal does not believe those claims, the Tribunal is not satisfied that the applicant has in the past, or on retrun (sic), be of adverse interest to any person or group.  The Tribunal does not believe that there is any risk of harm to the applicant for reasons of his membership of a particular social group, being a teacher, or political opinion, being a supporter of the royalty and involved with a political party.  Nor does the Tribunal believe the applicant is at risk of harm for any other Convention reason.

28. Having made those findings, the Tribunal was not obliged to consider every possible social group of which the appellant might be a member because it found that the appellant had not suffered any persecution of any kind.  In those circumstances, it did not need to speculate on a claim that the appellant was persecuted for reason of his membership of Monarchist Teachers.  Whether or not there was a particular social group of that kind was irrelevant having regard to the finding that he did not suffer any persecution.

29. However, in any event, he did not make that claim that he was a member of a social group of Monarchist Teachers before the Tribunal.  For that second reason also, ground three must be rejected.

30. The appeal must be dismissed with costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:       22 May 2008

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the First Respondent:	Mr J Mitchell
Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	19 May 2008
Date of Judgment:	22 May 2008