SZLUF v Minister for Immigration
[2008] FMCA 919
•30 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLUF v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 919 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – s.430(1)(d) only requires the Tribunal to identify the evidence relied on in making findings on material questions of fact – it does not require the Tribunal to identify the source of that evidence. |
| Migration Act 1958, s.430 |
| Applicant: | SZLUF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3908 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 30 June 2008 |
| Date of Last Submission: | 30 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Young |
| Solicitors for the Applicant: | Simon Diab & Associates |
| Counsel for the Respondent: | Ms D. Watson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3908 of 2007
| SZLUF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Nepal, where he claims he was an active member of the Rastriya Prajatantra Party (“RPP”). He alleges that while in Nepal he supported the monarchy and that this resulted in him being harassed and physically attacked by Maoists.
The applicant claims to fear persecution in Nepal because of his political activity.
After arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on
20 July 2007. The applicant then applied to the Refugee Review Tribunal for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4–7 and 9–12 of the Tribunal’s decision (Relevant Documents (“RD”) pp 132–135 and 137–140). Relevantly, the facts alleged by the applicant are in summary:
a)he has been a member of the RPP since 1992. The RPP supported the monarchy in Nepal and when the regime was ousted, the applicant and other members of the party were persecuted, mostly by Maoist supporters;
b)he was one of the most active royal supporters and this brought him into the limelight. He was known in political circles across the country;
c)he has been blacklisted by Maoist Party cadres. They tried to kill him many times but he managed to escape and survive;
d)the Maoists believe that the applicant provided intelligence to the authorities resulting in Maoist cadres being arrested, and in some cases injured, by authorities during raids;
e)in the applicant’s home town where he was politically active originally, the Maoists mobilised their party resources against him and in 1996 he was attacked twice. The applicant fled to Kathmandu but continued to support the RPP and the king;
f)his entire village, including his house, was bombed and destroyed by the Maoists;
g)in February 2005 the applicant “came to light again” after the king took absolute power. He continued to receive many threats from Maoist rebels;
h)he went into hiding for several months after the king was overthrown. When he emerged from hiding, he was attacked on 12 August 2006 and 24 December 2006 while in Kathmandu;
i)the new government is comprised of Maoist supporters and the authorities in Nepal will not protect him; and
j)authorities in India have not been able to protect their citizens from Indian Maoists and moving to live in that country would not be a viable option for the applicant.
The applicant appeared before the Tribunal on 16 October 2007 and made the following additional claims:
a)the two attacks in 1996 occurred in his home village. The Maoists entered his house and took him to their base camp where he was beaten all night;
b)he could not speak openly against the Maoists after the attacks. He went to Kathmandu and only occasionally returned to his village;
c)
he was beaten about the head during the attack in August 2006.
In support of his claim, the applicant had submitted medical records to the department, which the Tribunal viewed. The Tribunal noted that the documents were photocopies, made no reference to how the head injury was sustained, were limited in detail and were completed in English. On this basis it gave the documents no weight;
d)he was only a village level member of the party; and
e)his wife had received several phone calls from the Maoists threatening his life.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the application is a person to whom Australia has protection obligations under the United Nations Convention Relating to the Status of Refugees 1951 amended by the Protocol Relating to the Status of Refugees 1967. The Tribunal’s decision was based on the following findings and reasons:
a)given the applicant’s claims that he has been an active member of the RPP for 15 years and that he was a high profile member, the Tribunal considered it fair and reasonable that the applicant would have a sound knowledge of his party and its political position;
b)in response to the Tribunal’s questions, the applicant was unable to state when the RPP was founded, what its three ideological pillars were, what economic policy it favoured or the name of the party which split from it in 2005;
c)based on his poor knowledge of the ideological and political position of the party, the Tribunal was not satisfied that the applicant was a member of the RPP; and
d)in light of these findings, the Tribunal concluded that the applicant had concocted his claims in order to apply for refugee protection in Australia, that he was not of interest to political groups or Maoists and had not been harmed in the past.
Proceedings in this Court
The grounds pleaded in the amended application in these proceedings were as follows:
1. The Second Respondent constructively failed to exercise jurisdiction by failing to have regard to the Applicant’s claims.
1A. In the alternative, the Second Respondent did not give proper, genuine and realistic consideration to the case and/or the claims of the Applicant.
2. The Second Respondent made a jurisdictional error by failing to consider the integers of the Applicant’s claims.
3. There was no evidence or other material to justify the finding by the Second Respondent that the Applicant had a poor knowledge of the ideological and political position of his party, the Rastriya Prajatantra Party.
The second respondent failed to have regard to the applicant’s claims
The particulars of the first ground are set out as follows:
The Applicant provided detailed claims and evidence in support of these claims. The Second Respondent did not have any regard to any of those claims and evidence instead the Second Respondent regarded the knowledge of the applicant of the ideological and political position of his party as inconsistent with a person of his political position. On this sole basis, the Second Respondent found that the Applicant was not a member of the Rastriya Prajatantra Party.
The applicant’s claim turned on his alleged membership of the RPP. The threshold issue which the Tribunal had to decide before it could consider whether the applicant’s claim to fear persecution was well founded was whether in fact he ever had been a member of the RPP. In this case, the Tribunal approached the applicant’s claim by considering first that threshold issue. It found against the applicant on that issue as the above summary of the Tribunal’s findings makes clear.
Having made such a finding in relation to this critical threshold issue, the Tribunal was under no obligation to take its considerations any further. The applicant argued strongly today that the Tribunal was under an obligation not only to consider the political issues raised by the applicant but also whether or not he had suffered the ill treatment which he claims to have endured. However, logically there was no reason for the Tribunal to do this. Once the Tribunal had concluded that the applicant’s claims concerning his political involvement were not accurate, it would have been otiose for it to have taken its consideration of his factual claims any further.
Tribunal did not give “proper, genuine and realistic consideration”
Turning to the second ground of review, which is numbered 1A, the allegation that the Tribunal did not give “proper, genuine and realistic consideration” to the applicant’s case is somewhat problematical.
To the extent that the issue of the Tribunal giving “proper” consideration to the applicant’s claims is an allegation that the Tribunal did not give consideration to the applicant’s claim, it has been dealt with in the reasons already given in respect of the first pleaded ground of review. To the extent that this use of the word “proper” involves concepts of propriety, that allegation is linked to the allegation that the Tribunal did not give genuine consideration to the applicant's claims.
Ostensibly the allegation that the Tribunal did not give “genuine” consideration to the applicant’s claims amounts to a challenge to the Tribunal’s bona fides. The applicant disclaims such an interpretation and I accept what he says. Even so, it is difficult to see how a challenge to the Tribunal’s genuineness of approach is anything other than a challenge to the good faith nature of its review.
In the written submissions filed on behalf of the applicant, the following appears at [15]:
The RRT was obliged to give genuine consideration to the Applicant's claims. To brand him a liar based on his alleged poor knowledge required evidence to show that his knowledge was poor. Yet the RRT produced no such evidence.
Whether the Tribunal was obliged to “produce” evidence will be a matter to be considered later in these reasons in association with the final pleaded ground of review. However, it can be said here that notwithstanding the disclaimer concerning the meaning of “genuine” in the context of this ground, the submission just quoted implies that the applicant was found to be untruthful without any evidence. To make such a submission suggests bias on the part of the Tribunal or a lack of good faith. However, for the reasons which follow, the Tribunal had sufficient evidence for the findings which it made.
The second respondent failed to consider integers of the applicant’s claims
The third pleaded ground relies on the particulars set out in relation to the first pleaded ground. Although there was some argument that the “integers” of the applicant's claims were in some way distinct from the “claims” referred to in the first pleaded ground, I do not accept that submission. The third pleaded ground is, in substance, merely a repetition of the first ground and, for the same reasons as given in respect of the first ground, is unsuccessful.
No evidence
The final ground appearing in the amended application is one in respect of which considerable submissions were made today. In relation to this ground, it should first be observed that the relevant finding, that the applicant’s lack of knowledge of the party to which he claimed membership was inconsistent with his allegations, was an inference drawn from the evidence which the Tribunal had and which it referred to in its decision. The Tribunal’s assessment did not require any other evidence. It was a logical conclusion based on the statements made by the applicant during the course of his evidence, the correctness of which statements were tested against information which the Tribunal held. The Tribunal was entitled to assess the applicant’s evidence in this way and to draw the inference which it did.
The applicant submitted that s.430 of the Migration Act 1958 required the evidence known to the Tribunal against which it tested the applicant’s statements, to have been set out or sourced in its decision. The passages causing concern to the applicant were as follows:
… The applicant was asked what year the Rastriya Prajatantra Party was established. The applicant stated that the party was formed in 2035 or 2036 BS on the Nepalese calendar. The evidence before the Tribunal indicates that the party was established in 2047 BS.
The Tribunal asked the applicant what the three ideological pillars of the party were, the applicant failed to identify the three ideological pillars of the party, namely nationalism, democracy and liberalism.
The Tribunal asked what economic policy the RPP favoured. The applicant stated the tourism industry, the evidence before the Tribunal indicates that the RPP favours free market forces.
The Tribunal asked the applicant the name of the party that split from the RPP in 2005. The applicant incorrectly identified it as being the RPP Kamal Thapa Party… (RD 142)
Section 430(1) provides as follows:
(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c)sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based.
The relevant paragraph on which the applicant bases his submissions is para.(d), which requires the Tribunal to “[refer] to the evidence or any other material on which the findings of fact were based”. The applicant submits that by not citing the source of the evidence referred to by the Tribunal, it breached s.430(1)(d). In fact, what the applicant is submitting is that the Tribunal should have identified the evidence of the evidence.
But to approach the question in this way is to approach it from the wrong direction. The preliminary issue which has to be addressed is the identification of the material findings of fact referred to in s.430(1)(c). The findings on material questions of fact as far as this issue is concerned were the findings that the applicant had a poor knowledge of the ideological and political positions of the RPP and that his claims had been concocted.
The evidence upon which those findings were based was the applicant’s oral evidence at the hearing and the evidence against which his answers were tested. Consequently, it was not necessary under s.430(1) for the Tribunal to go further and source its knowledge in the way that the applicant has submitted and for this reason, the final asserted ground of appeal is not made out.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated. Consequently the application will be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 30 June 2008
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