SZLZN v Minister for Immigration
[2008] FMCA 1328
•12 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLZN v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1328 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 425 |
| Abebe v The Commonwealth of Australia (1999) 197 CLR 510 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 SZATG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 215 ALR 358 |
| Applicant: | SZLZN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 393 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 12 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 September 2008 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Ms S Sirtes |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $4,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 393 of 2008
| SZLZN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal handed down on 22 January 2008 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of Nepal, arrived in Australia in February 2007 and applied for a protection visa in April 2007. The application was refused and he sought review by the Tribunal.
The applicant attended a Tribunal hearing. The Tribunal also wrote to him under s.424A of the Migration Act 1958 and he responded to that request for information. In support of his application the applicant provided a number of documents to both the Department and to the Tribunal and also responded to a request for information from the Department.
The applicant claimed in his protection visa application that he was a teacher who had established a school that became affected by Maoist revolutionaries when he was forced to make a donation to them in January 2001. He claimed that thereafter he was frequently asked for further money and to provide shelter. He claimed he was threatened physically and mentally and that some of his friends were treated badly and even killed. A faction or splinter group from the Maoists who became Ultras or insurgents also started to ask for donations and threatened him with physical violence. He claimed that he was unable to obtain help from the government in relation to such actions or protection from the government. His school had collapsed. He claimed that in 2005 he had to “run” to India to take shelter in his relatives' houses but that he had been traced there and came back to Nepal. He claimed to fear the people and organisations he had complained of who were now in government in Nepal and that he may be victimised again and may lose his life.
In support of his application the applicant also claimed that the Ultras had located him while he was in India and made threats against him so he fled to another part of India. He claimed that some two months after he returned to Nepal he was located by the Ultras and attacked, hit and threatened with weapons. He managed to escape by offering money, went into hiding and finally was able to travel to Australia.
While the matter was still before the Department, in a further letter in support of his application, the applicant claimed that a female teacher he had employed had turned out to be the wife of a Maoist. He claimed that there had been demands and threats of violence, that he had been required to double her salary and then had been asked for donations. He also claimed that the teacher's husband had broken into his office and demanded money and shelter and threatened him with violence. The applicant claimed that two of his neighbours were killed by the Ultras after receiving death threats. He stated that when he went to the police to report the assault he found that the police chief was the brother of the teacher’s husband who had threatened him.
The applicant provided documentation in relation to his qualifications and situation in Nepal, including a document headed, “Kathmandu Metropolitan City Office” addressed, “To Whom It May Concern”, said to be from the Secretary of a ward of Kathmandu Metropolitan City notifying that the applicant was associated with the education field and referring to the value of his contribution in that area. It continued:
In our country due to political instability and emergency of ultras, Nepalese people are facing problems in many sectors. Since last couple of years, reputed people are victimized by insurgents in the name of donation, physical torturement (sic), terror and that is very much known even by international community too. Those who are involved in education sector are highly suffering from their torture. In the same way [the applicant] is suffering from the terror of ultras. Inspite (sic) of his sincere attempts, he is not feeling safe. Due to that, he has taken a shelter in his Uncle's house [at named location] …. Fortunately, he is going to observe his nephew’s Bratbanda Ceremony to Australia. Since his sister is in Australia, you are highly requested to let him stay there for some time according to the law of your country.
In addition the applicant provided the Department with a document on letterhead of the All Nepal Revolutionary Association and an English translation he had made of this letter that he claimed he had received “regarding financial support”, which stated:
Dear Principal [applicant’s name], please accept regards from our Maoist Revolutionary Organisation. [Applicant’s name] its been several times you are refuting us to support in our movement (sic). Because of your non cooperative behaviour we are really very sad and are in high resentment. We people want to have real peace and development in this country and for that we are ready to sheen (sic) anything on the contrary you don’t seem to be ready to support us financially and insist on following democratic method of teaching. In short you seem to be avoiding us. We have kept your name in black list who don’t support us. Henceforth, as soon as you receive this letter, do inform our area commander ‘Sujan’ regarding your financial supporting intention. Even after this warning, if we could not get support from your side, you will be solely responsible for any kind of physical action.
The application was refused by a delegate of the first respondent who found that the applicant had a right to enter and reside in a safe third country, being India. The applicant sought review by the Tribunal. The Tribunal wrote to the applicant under s.424A of the Migration Act1958 (Cth) by letter dated 19 September 2007 putting to him information about what was said to be a delay in his departure from Nepal after his Australian visa was granted and delay in his application for a protection visa. It also put to him that after going to India he had returned to Nepal and had resided in Nepal before travelling to Australia and that there may have been inconsistent information between what he provided in his initial protection visa application and what he provided in a later statement and letter to the delegate in June and July 2007. The Tribunal indicated that this may cause it to question his credibility and the authenticity of his claims.
The applicant commented on these items of information by letter received by the Tribunal on 12 October 2007, providing explanations for the delays referred to by the Tribunal, in particular in relation to his departure from Nepal. He claimed that he had provided information to the Department over time as he remembered it and that he was subject to stress. He indicated that he had been unable to provide an official translated copy of the letter from the “All Nepal Revolutionary Association”. He provided details of addresses that he had lived at and a medical certificate dated 26 July 2007 that referred to the results of a CT scan of his spine.
The applicant attended a Tribunal hearing. The only evidence before the Court of what occurred in the hearing is the Tribunal reasons for decision.
In its reasons for decision the Tribunal outlined the claims made by the applicant in his protection visa application and in the subsequent communications with the Department and in his responses to the s.424A letter. It then described the evidence given by the applicant and the questioning by the Tribunal in the course of the Tribunal hearing. It set out in some detail issues that it raised with the applicant in the course of the hearing about aspects of his claims and his responses to those concerns. The Tribunal stated that it raised with the applicant issues such as why he waited until 2005 to go to India if attacks had started before that time; his inability to remember particular dates; why he travelled to India in 2005 if there were no physical attacks on him at that time; and why he then returned to Nepal from India. The Tribunal recorded that at various times it indicated to the applicant that the concerns that it raised may cause it to conclude that he did not have a genuine fear of persecution either in the past or for the future.
The Tribunal also discussed with the applicant aspects of the supporting documentation, the time at which it was provided and details of what was contained in that documentation.
After referring to country information in relation to the situation in Nepal the Tribunal assessed the claims of the applicant as against Nepal. It accepted that he was a national of Nepal. However, the Tribunal found the applicant to be evasive and vague. It found that while he essentially claimed that he was subjected to extortion, threats and violence by Maoists and Ultras and that he feared persecution from those groups in the future, his evidence in that respect had been confused. It found that he gave a vague description of the harm he had suffered prior to physical attacks in 2006 and that he could not recall dates of alleged attacks or periods of his residence at various addresses. It gave an example of his lack of recollection as to the time he had lived at a particular place.
The Tribunal also expressed concern that the applicant's claims became more detailed and elaborate with each new submission. In particular, when applying for the protection visa he had not mentioned that he was pursued in India or that one of his teachers had connections with the Maoists. It did not accept the applicant’s explanation that he did not know how to present his application, because he had provided a detailed statement with the application and there was no obvious reason why such significant matters were omitted from it. It found that this caused it to question the applicant's credibility.
The Tribunal accepted on the basis of the documents presented by the applicant that he worked as a teacher and was founder and principal of a school in Kathmandu. It also accepted, having regard to the evidence before it, that he was approached by the Maoists or the Ultras who demanded money from him. However it did not accept that the Maoists or the Ultras harassed, threatened or otherwise persecuted him for his refusal to give donations and offer shelter, for his rejection of their doctrines or for any other reason. It gave reasons for that conclusion. It rejected his claim of persecution from the Maoists because it considered his conduct to be inconsistent with the existence of such persecution and with the existence of a genuine fear of persecution. In particular, it noted that the applicant claimed problems started in 2001, yet he did not take steps to depart Nepal until 2005. While it had regard to his claim that until then he did not think the threats were serious and that the problems escalated by 2005, it also had regard to the fact that he had presented the letter from the “All Nepal Revolutionary Association” said to have been dated as early as 2002 which referred to physical harm and he had claimed to have experienced regular and continuous harassment, intimidation and some form of physical violence between 2001 and 2005. He had ultimately claimed that before 2005 he had been pushed off his bike and threatened and that money was demanded and while he said there was no other harm, he had claimed he had been harassed by threats and being taken by the collar and pushed, from 2001 on.
The Tribunal was of the view that it was not apparent why the applicant considered such actions had escalated and why it was only in 2005 that he decided to take the threats seriously. It found that the material he had presented and his claim that he was pushed, threatened and intimidated, indicated that if his claims were accepted, he would have been threatened with and at the risk of physical violence as early as 2001. The Tribunal did not consider it plausible that the applicant would have remained at his place of work, continued normal life and made no effort to avoid the problem until 2005 in the face of such threats and harassment.
The Tribunal was also concerned that the applicant had returned to Nepal after residing in India for a few months. It had regard to his explanation that he thought the insurgents would have calmed down and that his aunt and uncle in India were unable to support him, but noted that it was only after further questioning that the applicant referred to being threatened while in India. It found that this reason appeared to have been added as an afterthought in the applicant’s oral evidence. It was not referred to in his initial application for a protection visa. The Tribunal also found the applicant had not explained to its satisfaction why he decided to return to Nepal where the danger originated.
The Tribunal did not accept that the applicant left India because he was experiencing harassment or threats there or because he was fearful to remain in India. It was of the view that he was more likely to have left India due to economic pressures. It found that the applicant’s return to Nepal indicated that he was not genuinely fearful of serious harm in Nepal.
The Tribunal also expressed concern about the delay in the applicant’s departure from Nepal after the claimed attacks in 2006. It noted that he had not made any inquiries or attempts to leave after he started to receive threats in 2001 and that it was not until late 2006 that he sought to travel to Australia. It found the fact that the applicant remained in Nepal and did not attempt to leave the country where he claimed his life was in danger, indicated that he did not have a genuine fear of persecution while in Nepal.
The Tribunal found that the combination of its concerns about the delay in the applicant’s departure from Nepal to travel to India after first experiencing threats, his return to Nepal from India after only a few months and the delay before he came to Australia as well as its concerns about his overall credibility caused it to find that the applicant did not have a genuine fear of persecution in Nepal. It found that he did not have a well-founded fear of persecution for any Convention reason.
The Tribunal was of the view that a person who was subject to the level of intimidation and threats the applicant claimed to have experienced would have a genuine fear of such harassment. However as it found that he did not have a genuine fear of persecution, it rejected his claims that he was in fact threatened, harassed or intimidated by the Maoists, that he was physically harmed or otherwise a target of the Maoists or Ultras. It found that while the demands for money may have been made, that did not amount to serious harm and did not give rise to the events the applicant described. It also found that the applicant would not be such a target in the future and that there was no real chance that he would face persecution for a Convention reason if he were to return to Nepal now or in the reasonably foreseeable future.
The Tribunal noted that the applicant had provided a number of documents in support of his claims, including various documents from Nepal and x-rays from Australia, but as it had formed the view that the applicant was not a credible witness, it gave these documents little weight. It also noted that the applicant's x-rays did not indicate the cause of any ailments from which he was suffering and found that they did not support his claim that it was as a result of an attack on him. The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations.
The applicant sought review by application filed in this Court on 19 February 2008. He filed a supporting affidavit annexing a copy of the Tribunal decision, indicating that he would speak the truth and not hide anything from the Court. At the start of the hearing today and at later times in the hearing he raised issues in relation to his claims which in effect sought merits review. However, as I endeavoured to explain to the applicant, merits review is not available in this Court.
The application contains two generally expressed and unparticularised claims, although these were developed to some extent in oral submissions. The first is “I am not satisfied with the suggestion of RRT regarding seeking shelter in India.”
This ground appears to suggest that the Tribunal made a finding that the applicant could relocate to India. However the Tribunal did not make such a finding. Rather it found that the applicant did not have a genuine fear of persecution for any Convention reason in Nepal. On that basis it was not necessary for it to consider the issue of relocation either internally or to a third country.
It is the case that the Tribunal recorded that in the course of the hearing there was a discussion of the possibility that the applicant might relocate to India, but the fact that the Tribunal raised such a possibility with the applicant does not demonstrate jurisdictional error. This ground is not made out.
The second ground is that the Tribunal “does not seem to be mindful about my fear of death in Nepal.” Insofar as this ground seeks merits review, it does not establish jurisdictional error.
If it is intended to be a contention that the Tribunal did not consider the applicant's claim to fear death in Nepal, such ground is not made out. In its reasons for decision the Tribunal summarised the applicant's claims as put at various times in the course of the proceedings before the Department and at the Tribunal hearing; including his claim about fearing for his life, his references to matters such as neighbours having been killed, his claim that when he went to India he was fearful for his life and other claims that he made through the course of the hearing in that respect.
However the Tribunal did not accept the applicant’s claim of either past persecution by the Maoists or that he would be targeted as claimed in the future. Specifically, the Tribunal found his conduct to be inconsistent with the existence of the persecution which he claimed had occurred in the past and with a genuine fear of persecution. It found that he had not explained satisfactorily why he decided to return to Nepal from India where the danger he claimed to fear originated and that this indicated that he was not genuinely fearful of serious harm in Nepal. It also found that the fact that he remained in Nepal after returning from India and after claimed attacks in 2006, notwithstanding that he claimed his life was in danger, indicated that he did not have a genuine fear of persecution while in Nepal. In those circumstances, the claim that the Tribunal failed to consider the applicant's claims in relation to a fear for his life is not made out.
The Tribunal is not obliged to accept the claims made by an applicant. It is for an applicant to advance his own case and to put arguments before the Tribunal in support of his contention that he has a well-founded fear of persecution for a Convention reason and then for the Tribunal to decide whether the claims are made out (see Abebe v The Commonwealth of Australia (1999) 197 CLR 51at 187 per Gummow and Hayne JJ).
Further it is not part of the Tribunal's function to make good a case which the applicant has not articulated. The function of the Tribunal is to respond to the claims and material put before it by the applicant. As Beaumont J stated in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 the Tribunal is not required to engage in “an uncritical acceptance of any and all allegations” made by an applicant and is “not required to accept a claim merely because positive evidence to the contrary is absent” (see SZATG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 215 ALR 358 at [36]). It cannot be said that the Tribunal in this case failed to make a finding in relation to the applicant's claim to fear for his life, either on the basis of his claims about what occurred in the past or his claims about the future.
In oral submissions the applicant reiterated his claim that his life was at risk, that there was no protection in Nepal and that this had not been looked at by the Tribunal. The Tribunal did in fact consider this aspect of his claims, but was not satisfied as I have set out above. In those circumstances it was not necessary to address the availability of state protection. This claim does not establish jurisdictional error.
The applicant also contended in oral submissions that the Tribunal had erred in the manner in which it had regard to the fact that he had been to India, that he had gone there to hide and returned to Nepal and that this was not given importance by the Tribunal. Insofar as this contention takes issue with the Tribunal's discussion with the applicant at the hearing of the possibility of relocation as set out above, the Tribunal did not and did not have to make a finding on relocation. Insofar as the applicant intended to take issue with the Tribunal consideration of his claims about what he said occurred in India, in discussing its concerns about the applicant's return to Nepal after residing in India for a few months the Tribunal addressed his explanation, including his claim that he was threatened while in India. However it regarded such claim as an afterthought and found that he had not explained to its satisfaction why he decided to return to the country where the danger he claimed to fear originated. As indicated, it did not accept that the applicant left India because he was experiencing harassment or threats there or was fearful to remain there and found that his return to Nepal indicated that he was not genuinely fearful of serious harm in Nepal.
The Tribunal considered these issues. The applicant's contention that they were not taken seriously takes issue with the merits of the Tribunal decision and the fact that the Tribunal did not accept his claims. However of itself that does not establish jurisdictional error.
More generally the applicant took issue with the Tribunal's rejection of his credibility. It is well established that findings on credibility are the function of the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405).As McHugh J stated in that case, paraphrasing slightly, if the decision-maker has stated that he or she does not believe a particular person, no detailed reasons need to be given as to why that particular person was not believed. The Tribunal must give the reasons for its decision, not the subset of reasons why it accepted or rejected individual pieces of evidence.
There is no obligation on the Tribunal to accept submissions or claims of an applicant as credible and indeed no obligation on it to put to the applicant its provisional reasoning in relation to credibility. In fact in this case the Tribunal did put to the applicant a number of concerns under s.424A of the Act and, as is apparent from its account of the Tribunal hearing, raised with the applicant areas of concern, including dispositive issues in the sense in which it was required to do so under s.425 of the Act (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152).
There is nothing in the material before the Court to suggest that the Tribunal in any way failed to comply with its obligations to invite the applicant to a hearing. In that respect I note that on the first occasion when the hearing was scheduled the Tribunal adjourned the hearing to arrange an interpreter to assist the applicant. On the next occasion, when the applicant indicated he was unable to give evidence on that day due to the recent death of his mother, the Tribunal again adjourned the hearing. The applicant ultimately attended a hearing at which he gave evidence and presented arguments with the assistance of an interpreter.
Another matter raised by the applicant in oral submissions was the Tribunal treatment of the letter of support and the letter that he claimed came from the Maoist organisation. He claimed initially that the Tribunal had ignored the letter from the ward municipality of the Kathmandu Metropolitan City Office which specified that he was suffering from the terror of Ultras and that in spite of his sincere attempts he was not feeling safe. Issue was also taken with the concerns the Tribunal expressed in the hearing in relation to the date of that letter.
There was some questioning in the Tribunal hearing in relation to how the applicant received that letter, its date and the source of information in relation to the matters contained in that letter.
It is apparent from the manner in which the Tribunal summarised the evidence and what occurred in the hearing that it was aware of that letter. It is also apparent from its findings and reasons that it did not fail to have regard to it in the manner contended. It accepted on the basis of documents presented by the applicant (which would include this letter) that he worked as a teacher and was founder and principal of a school in Kathmandu. It also accepted - and that is relevant also to the document that was said to be a translation of a letter that he had received from the Maoist Revolutionary Organisation - that the applicant was approached by the Maoists or the Ultras who demanded money from him. It found however, that while the demand for money may have been made, that did not amount to serious harm and did not give rise to the events described by the applicant.
The Tribunal did not accept the other claims made by the applicant and in particular did not accept that he had a genuine fear of persecution in Nepal or that he was a credible witness. It was in light of its view that he was not a credible witness that it gave the documents from Nepal little weight. However it did not find that the documents were not genuine and did in fact accept some of the applicant's claims consistent with what was contained in aspects of those documents.
I note in particular in relation to the document from the “Kathmandu Metropolitan Office” that insofar as it attested to what occurred to the applicant, it was expressed in general terms, referring to those who were involved in the education sector suffering from torture by insurgents in the name of donation and claiming that the applicant was suffering from the terror of the Ultras in the same way and was not feeling safe. The fact that the applicant provided a document which contained such statements and the document which he said was a translation of a letter received from the Maoist Revolutionary Organisation is not such as to compel the Tribunal to accept either the contents of those documents or, more generally, that the applicant had a genuine fear of persecution on the basis that he claimed.
The Tribunal did not ignore the documents submitted by the applicant, but rather found they were not such as to overcome the conclusions that it had reached in relation to the applicant's credibility. The Tribunal's earlier findings in that regard were such that it did not find the documents so persuasive as to overcome those credibility difficulties. In particular, the Tribunal was not satisfied on the basis of those documents taken together with the applicant's other evidence of the genuineness of his fear of persecution.
The applicant reiterated, as I have indicated, aspects of his claims and in particular that he had suffered fear in the past. He expressed concern that the Tribunal had concentrated on errors such as his inability to recollect particular dates. He endeavoured to provide an explanation for such errors. Had the Tribunal made its findings purely on the basis of the applicant's difficulty in recollecting particular dates then that might be a matter of concern. However while that factor was one of the factors referred to by the Tribunal, it is clear from the Tribunal decision as a whole that that was not the sole basis for its reasons for decision.
The applicant's contentions about the conduct and the conclusions of the Tribunal might be seen to raise an allegation of bias or apprehended bias. As the applicant is self-represented I have considered this possibility. However there is nothing in the material before the Court to establish actual bias in the sense considered in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. Nor is apprehended bias established from the perspective of the appropriately informed lay observer as considered in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982. It is of course a rare and extreme case in which bias would be established simply by reference to the Tribunal reasons for decision and this is not a case in which it is established that the fact finding of the Tribunal has been conducted in a manner such as to result in a reasonable apprehension of bias.
Finally, the applicant contended that the Tribunal could have made investigations about what had happened at the school where he was the principal and taken such matters into account in assessing his credibility. However this is not a case in which the circumstances are such as to establish that the Tribunal was under an obligation to make inquiries. While it has power to do so, there is no general duty on the Tribunal to make inquiries. There is nothing in the material before the Court to indicate that the Tribunal undertook to make any such inquiries or that the circumstances are akin to those considered by Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR. I note that the Tribunal accepted the claims of the applicant in relation to his position as the teacher and principal of the school. Beyond that, the material before the Tribunal and the circumstances were not such as to make the need for further inquiry in relation to which there was no apparent impediment obvious, so that its failure to inquire might have been taken to indicate that the applicant was denied a fair proceeding in the manner considered in Applicant M164 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16.
More generally, the applicant's contention that the Tribunal did not look at his answers does not establish jurisdictional error. Rather it amounts to a complaint that the Tribunal did not accept his evidence.
As no jurisdictional error has been established the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and the Minister seeks costs in the sum of $4,600. The applicant indicated that he had a lack of money. That is not in all the circumstances a reason for departing from the normal principle that the unsuccessful applicant should meet the costs of the respondent. Nor does it warrant waiver of his liability for costs as the applicant suggested. The applicant’s lack of funds may however be a matter to be taken into account by the Minister in determining when and how to seek to recover any such costs. The amount sought is appropriate in light of the nature of this and other similar matters and having regard to the provisions of the Federal Magistrates Court Rules.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 26 September 2008
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