SZLMB v Minister for Immigration - [2008] FMCA 713

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLMB v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 713

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Tribunal failed to have regard to medical certificates provided by the Applicant in support of her claims.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; pt.8 div.2

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30
WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant:

SZLMB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3178 of 2007

Judgment of:

Emmett FM

Hearing date:

30 May 2008

Date of last submission:

30 May 2008

Delivered at:

Sydney

Delivered on:

30 May 2008

REPRESENTATION

Counsel for the Applicant:

Mr J. Young

Solicitors for the Applicant:

Mr S. Diab, Simon Diab and Associates

Counsel for the Respondent:

Ms V. McWilliam

Solicitors for the Respondent:

Ms J. Dinihan, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3178 of 2007

SZLMB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 13 September 2007 and handed down on 13 September 2007.
The applicant is a citizen of Nepal and claims to have a fear of persecution from Maoists by reason of her publicly expressed anti-Maoist views and her support of the Nepali Congress Party (“the Applicant”).
The Applicant arrived in Australia on 6 February 2007 having departed legally from Tia International Airport on a passport issued in her own name and a visitor’s visa issued on 10 January 2007.
On 19 May 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
On 14 May 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 12 June 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 13 September 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 10 October 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

Applicant’s protection visa application

In a statement provided in support of her protection visa application, the Applicant claimed she was in the Nepali Congress Party since she was at school and “strongly opposed the Maoists’ activities and their principle”. She claimed she and her husband had been subject to threats and attempted extortion since August 1998, resulting in her husband leaving for overseas in 2003. The applicant claimed that she requested her husband return as a result of threats from Maoists. The Applicant claimed that in September 2004 her husband returned at her request and gave money to the Maoists “due to the fear being killed”. The Applicant claimed that Maoists continued to terrorise and attack her. The Applicant claimed that in order to save her life she went to Kathmandu and lived with her brother for a year before she came to Australia.

The Delegate’s decision

On 14 May 2007, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention. The Delegate found the Applicant’s claims to be “general and mostly undated, lacking in detail and unsubstantiated by any evidence”. The Delegate found that the Applicant did not have a genuine fear of harm.
On 12 June 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. On 13 September 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

The Tribunal decision

The Applicant provided a number of documents in support of her review application including news articles that appear to have been obtained from the internet; a statutory declaration affirmed by the Applicant on 19 July 2007; medical certificates; country reports on the situation in Nepal; letters from her migration agent dated 8 June 2007 and 24 July 2007; a statutory declaration declared by the Applicant on 6 August 2007; and what appears to be a psychological assessment of the Applicant dated 30 July 2007.
On 28 June 2007, the Tribunal wrote to the Applicant informing her that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. On 3 August 2007, the Applicant attended a hearing and gave oral evidence with the Applicant’s brother-in-law who attended as a witness.
The Tribunal noted in its decision record that it discussed with the Applicant her family life; the history of interaction between the Maoists and the Applicant’s husband; her knowledge of the Nepali Congress Party; her previous claims; her move to Kathmandu; her consideration of moving to India; the delay between obtaining her travel documents and travelling to Australia; and, implausibilities and inconsistencies in the Applicant’s claims.
The Applicant’s brother-in-law gave evidence supporting the Applicant’s claims regarding her move to Kathmandu and the Applicant’s claims that her husband was a schoolteacher and had been asked for food and money often by the Maoists.
The Applicant’s claims and the decision of the Tribunal are accurately summarised by counsel for the First Respondent in written submissions as follows:
“10.On 24 July 2007, by her authorised representative (CB 64-65), the applicant submitted additional material to the Tribunal, comprising country information and a statutory declaration (signed on 19 July 2007) which largely repeated the claims made in her protection visa application (CB 84-86).[1] In addition, the applicant stated that:
[1]     The letter of the applicant’s representative indicated that the applicant’s claims as to why she fears return to Nepal could be found in the attached (translated) statutory declaration and its annexures (CB 128).
·    she was the wife of a school teacher, the latter being the prime target of the Maoists who had brutally murdered many of them. Having witnessed these atrocities, her husband resigned from his job and fled to Dubai in April 2003 (CB 84.5);
·    she made several complaints to the authorities, who did nothing, and instead threatened to put her into gaol for providing support to the Maoists (CB 84.8);
·    upon her husband’s return to Nepal (having given the Maoists some money), the Maoists came to her house and assaulted her claiming that she had lied to them about her husband not earning enough money to pay donations. She was so scared she could not remember anything for some time and was taken to the nearby medical hall for treatment [medical certificate attached (CB 87)] (CB 85.10);
·    She reported this to the police, but they did nothing. She was so scared, she stayed inside the house (CB 85.11);
·    When the Maoists came to her house again, they assaulted her stating that they would carry out physical punishment. She collapsed, and woke to find herself in a medical centre [medical certificate attached (CB 88)] (CB 85.12);
·    Her life was not safe as she was the main target in her family and the Maoists have a strong network all over the country. Some of her relatives tried to help her get out of the country (CB 85.16);
·    Despite the signing of a peace treaty, the Maoists have not stopped searching for those people who were against them in the past; they have not stopped kidnapping and killing those people as part of their ‘extermination policy’ (CB 85.18);
·    She thought of fleeing to India, but the Maoists are very active there (CB 86.19).
11. In the letter dated 20 July 2007, the applicant’s representative submitted that the authorities were incapable of providing any security to their citizens (CB 129), and that there is no option of relocation within Nepal or to a safe third country (including India, as the applicant did not have an existing legally enforceable right to enter and reside in India) (CB 130). The representative indicated that the applicant was missing her children and was thinking of returning to Nepal, but would not do so due to fear for her life (CB 131).
…
13. On 13 September 2007, The Tribunal affirmed the decision not to grant a protection visa (CB 168-178). It made the following findings:
a) The Tribunal did not accept the applicant’s claims that she was a supported of the Nepali Congress or that she spoke against the Maoists (CB 175.4).
i) The applicant had very limited knowledge of the Nepali Congress Party’s political objectives, ideology or its past achievements;
ii) While claiming that she spoke out in support of the Congress Party, she could not provide further details about what she told others about the Party (CB 175.5);
iii) She could only provide limited details as to what she said when she spoke out against Maoists;
iv) At the hearing, despite some prompting, the applicant did not directly raise the claims that she was targeted by the Maoists because of her support for the Party. This raised doubt as to her claim that she was a supporter of the Party and was targeted by the Maoists for that reason (CB 175.8).
b) The Tribunal accepted that the applicant’s husband worked as a school teacher between 1998 and 2003 (CB 176.1).
c) The Tribunal did not accept the applicant’s claims that she was harmed by Maoists because she was the wife of a school teacher, because she refused to give the Maoists money, or because she was against the Maoists (CB 176.1).
i) The applicant gave evidence that the Maoists did not harm her or her family between 1998 and mid 2004 (CB 176.3). If the Maoists were interested in harming the applicant, and if she was speaking out against them and refusing to give them money over a number of years, they would not have waited for almost six years to attack her or her family (CB 176.4).
ii) The applicant’s evidence that her husband and children continue to live unharmed in the same area after her claimed attack in 2004, and after the applicant went to Kathmandu and Australia, casts doubt on her claims that she was of interest to the Maoists (CB 176.5).
iii) If the Maoists were interested in harming the applicant, they would not have refrained from harming her husband who was present during the attack, or at least would have demanded to know the applicant’s whereabouts after she went to Kathmandu (CB 176.6).
iv) The applicant provided internally consistent evidence at the hearing as to when she left Itahari to move to Kathmandu. On either account (remaining in her village for more than one year before moving to Kathmandu, or remaining in Kathmandu for almost two years before taking steps to leave the country), the applicant’s evidence did not satisfy the Tribunal that she had a well-founded fear of being persecuted by Maoists in Nepal (CB 176.7 – 177.3).
d) The Tribunal was not satisfied that the medical certificates or the evidence of the applicant’s brother-in-law established that the applicant was harmed by Maoists in the past or that there was a real chance that the applicant would be persecuted by Maoists in the reasonably foreseeable future if she returned to Nepal (CB 177.4).
e) Accordingly, the Tribunal did not accept that the applicant was threatened by the Maoists; that she was physically attacked by the Maoists twice in 2004; that she had to leave her home village because of fear of harm from the Maoists; or, that she feared harm from the Maoists in Kathmandu (CB 177.5).
f) As the Tribunal did not accept applicant’s claims of past harm at the hands of the Maoists, the Tribunal did not accept that the Maoists would harm her in the future (CB 177.6).”

The proceeding before this Court

The Applicant was represented before this Court by Mr Young, of counsel.
By consent, leave was granted to the Applicant to rely on an amended application filed on 27 May 2008. Counsel for the Applicant withdrew grounds 1 and 2 of the amended application and confirmed to the Court that ground 3 was the only ground on which the Applicant relied.
Ground 3 of the amended application is as follows:
“The Second Respondent made jurisdictional error by failing to give consideration to medical certificates given by the Applicant save as to state:
a) the documents in themselves did not establish that the Applicant was attacked by Maoists; and
b) the Tribunal had concerns about other aspects of the Applicant’s evidence.”
Counsel for the Applicant stated that at the heart of the complaint in ground 3 was the following finding by the Tribunal:
“The Tribunal has had regard to the medical certificates provided by the [applicant] but is not satisfied that these certificates in themselves, establish that the applicant was attacked by Maoists as she claims.”
Counsel for the Applicant submitted that the Tribunal had failed to consider the medical certificates in its consideration of whether or not the Applicant had been attacked by Maoists as she claimed. Counsel for the Applicant submitted that the Tribunal was bound to consider the medical documents as corroborative of the Applicant’s claims in circumstances where the Applicant’s credibility had not been poisoned beyond redemption (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30).
In support of his submissions, counsel for the Applicant referred the Court to WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 at [27] and [32] where Lee and Moore JJ stated as follows:
“[27] …However, it will not be open to the Tribunal to stated that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error. (See: Minister for Immigration v Yusef [2001] HCA 30; (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at [82]-[85].”
“[32] …However, in the absence of material which impeached the appellant’s claims directly, the Tribunal could not make that determination without duly considering the weight to be given to material which tended to confirm the truth of her claims. In other words, if there was some material capable of supporting the claims and an absence of cogent material showing the appellant to have been untruthful in respect of those claims, it may be unsafe to regard the failure of the appellant to disclose the claims at the ‘entry’ interview as sufficient to establish that the claims were invented and it would follow that material corroborating the claims would have to be considered” (emphasis added).
Counsel for the Applicant submitted that the medical certificates were capable of supporting the Applicant’s claim to have been attacked and that the claim of attack was fundamental to her claim of being attacked by Maoists. Counsel for the Applicant submitted that the Tribunal did not make clear findings of untruthfulness by the Applicant or that it did not regard her as a credible witness. In the circumstances, counsel for the Applicant submitted that the Tribunal was bound to consider the corroborative value of the medical certificates in its deliberations of whether or not the Applicant was attacked by Maoists.
A fair reading of the Tribunal’s decision makes clear that the Tribunal had some difficulties with the Applicant’s claims. The Tribunal accepted that the Applicant’s husband worked as a schoolteacher between 1998 and 2003 as she claimed. However, the Tribunal did not accept any of the Applicant’s other claims.
In particular, the Tribunal did not accept that the Applicant was a supporter of the Nepali Congress Party or that she spoke out against the Maoists or that she was harmed by Maoists for that reason. The Tribunal found that the Applicant “demonstrated very little knowledge of the Nepali Congress Party’s political objectives, ideology or its past achievements.” The Tribunal noted that the Applicant told it that she did not know much about the Nepali Congress Party because she was only a supporter. The Tribunal found that, given the Applicant’s claims to have spoken to others about the Nepali Congress Party to inspire them to join it, the Tribunal would have expected her to have known more about the Nepali Congress Party’s key objectives and achievements. Similarly, the Tribunal found the Applicant could only provide limited details as to what she said when she spoke out against Maoists. Again, the Tribunal found that, in light of her claims, it would have expected her to be able to provide more information about what she said when she spoke out against Maoists.
The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for reasons of her support of the Nepali Congress Party or because she spoke out against the Maoists.
The Tribunal rejected the Applicant’s explanation that Maoists did not harm her between 1998 and 2004 because her husband appeased them by giving them money. This was because, on the Applicant’s evidence, the Maoists did not harm her while her husband was overseas and she was not giving them money. The Tribunal did not accept that Maoists would have waited almost six years to attack her and her family if they were interested in harming the Applicant and she was speaking out against them and refusing to give them money over a number of years. Accordingly, the Tribunal rejected the Applicant’s claim of past harm.
The Tribunal noted that the Applicant’s husband continued to live unharmed at the family home and did not accept the Applicant’s explanation that he was able to do so because he complied with Maoist demands. The Tribunal found that if Maoists had attacked the Applicant in October 2004 in the presence of her husband, they would not have refrained from attacking her husband or subsequently demanding to know her whereabouts.

The Tribunal found the Applicant’s evidence to be internally inconsistent as to when she left the family home and moved to Kathmandu. The Tribunal put the inconsistencies to the Applicant and noted her responses. The Tribunal found that, if the Applicant had a well-founded fear of persecution from Maoists, she would not have remained in her village for more than a year before moving to Kathmandu or elsewhere. The Tribunal did not accept the Applicant’s explanation as to why she remained in Kathmandu for two years without taking steps to leave Nepal if she had a well-founded fear of harm from the Maoists.
A fair reading of the Tribunal’s decision makes clear that the Tribunal comprehensively rejected the Applicant’s claims of persecution by Maoists because she was a supporter of the Nepali Congress Party or because she spoke out against Maoists, or that she was ever attacked by Maoists.
As stated above in these Reasons, the Tribunal’s findings were open to it on the evidence and material before it and for which it provided reasons, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
It is in the context of the findings referred to above that the Tribunal stated that it had regard to the medical certificates provided by the Applicant in support of her claims. However, the Tribunal was not satisfied that the certificates, in themselves, established the Applicant had been attacked by Maoists. The medical certificates noted that, on 2 October 2004 and 14 November 2004, the Applicant suffered injuries consistent with physical assault. The medical certificates do not identify the Applicant’s alleged attacker. The Tribunal found that, given its concerns about the Applicant’s evidence, it was not satisfied that the medical certificates and her brother-in-law’s evidence established that the Applicant was harmed by Maoists in the past or that there was a real chance she would be persecuted by Maoists in the reasonably foreseeable future if she were to return to Nepal.
In the circumstances, this was not a matter where “there was some material capable of supporting the claims and an absence of cogent material showing the appellant to have been untruthful in respect of those claims” (WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 at [32]). A fair reading of the Tribunal’s decision makes clear that the Tribunal’s rejection of the Applicant’s claims was open to it on the evidence and material before it and for which it provided reasons.
In the circumstances, even if the medical certificates were capable of supporting the Applicant’s claims of attack by Maoists, the Tribunal’s findings of its lack of satisfaction about the Applicant’s claims are findings of untruthfulness of the Applicant’s evidence.
Moreover, the Tribunal specifically stated that it “had regard” to the medical certificates but was not satisfied that “in themselves” they established that the Applicant was attacked by Maoists as she claimed. Such a statement is not consistent with the Applicant’s contention that the Tribunal had not considered the medical certificates.
Plainly, the medical certificates “in themselves” could not establish that the Applicant had been attacked by Maoists. The Tribunal’s finding in relation to the evidence of the medical certificates was open to it on the evidence and material before it and for which it provided reasons. It was a matter for the Tribunal to evaluate the evidence of the medical certificates in support of the Applicant’s claims of attack by Maoists. It did so and was not further satisfied that:
“the applicant’s evidence, the medical certificates and the applicant’s brother in law’s evidence established that the applicant was harmed by Maoists in the past or that there was a real chance that the applicant could be persecuted by Maoists in the reasonably foreseeable future if she returns to Nepal.” (emphasis added)
Those findings, about the medical certificates, referred to immediately above, taken together, make clear that the Tribunal considered the corroborative value of the medical certificates to the Applicant’s claim of attack by Maoists; both “in themselves”; and, taken together with the Applicant’s evidence and that of her brother-in-law.
A fair reading of the Tribunal’s decision makes clear that the Tribunal understood the Applicant’s claims; explored those claims with her at a hearing; put matters about which the Tribunal was concerned to the Applicant arising from her evidence and noted her responses; and, had regard to all material provided by the Applicant in support of her claims, including the medical certificates. At the heart of the rejection of the Applicant’s claims was the unsatisfactory nature of the Applicant’s evidence arising from her lack of knowledge about her political activities, the “limited details” of her claims and her inconsistent evidence.
As stated above in these Reasons, the Tribunal’s findings were open to it on the evidence and material before it and for which it provided reasons, including its adverse credibility findings.
The Tribunal applied the correct law to its findings in reaching its conclusion that it was not satisfied that the Applicant has a well-founded fear of being persecuted for a Convention-related reason and is therefore not a person to whom Australia has protection obligations under the Convention.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
Accordingly, the ground in the application is not made out.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 30 May 2008