SZMDR v Minister for Immigration & Anor - [2008] FMCA 1197

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMDR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1197

MIGRATION – RRT decision – Nepali teacher claiming persecution by Maoists – claims disbelieved by Tribunal – no failure to address separate integer of claims – no evidence that Tribunal did not give proper, genuine and realistic consideration – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth)

Minister for Immigration, re; ex parte Applicants S134/2002 (2003) 211 CLR 441
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1
SZIAY v Minister for Immigration [2006] FMCA 1680
SZIIF v Minister for Immigration & Citizenship [2008] FCA 913

Applicant:

SZMDR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 940 of 2008

Judgment of:

Smith FM

Hearing date:

15 August 2008

Delivered at:

Sydney

Delivered on:

15 August 2008

REPRESENTATION

Counsel for the Applicant:

Mr J Young

Counsel for the First Respondent:

Ms T Quinn

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 940 of 2008

SZMDR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia in October 2006 from Nepal on a visa given to her to accompany her husband on legal business in Australia. He, however, did not accompany her, but remained in Kathmandu.
On 2 November 2006, the applicant made an application for a protection visa. She attached a statement and various documents to explain why she feared returning to Nepal. She referred to obtaining teaching qualifications in India, and then returning to Nepal to work as a school teacher. She did not set out a clearly narrated chronology of subsequent events, but said at the beginning of her statement:
I have a fear of persecution in Nepal. I left Nepal because I got threats from the Maoists who were demanding donations and persisted in their threats which forced me to change my address. I received a constant threat on my life from the Maoists and I have already been targeted by the Maoist mass jury.
She referred to Maoist harassment generally in Nepal. She did not claim that teachers were particularly at risk of being targeted by Maoists, as a reason for herself fearing their attentions. Rather, her statement said:
My personal history of political involvement which is intended to show how I will be regarded as an opponent of the Maoists and a target for their persecution: I am an ordinary member of National Democratic Party. I have been participating in all activities of the party for its betterment. I was involved in the democratic reform. I had a strong belief on the National Democratic Party, this affiliating myself in the Nepalese Multiparty democracy. I am suffering from the Maoist terrorist. The Maoists approached me on 24^th April 2000 and demanded 2 lakh rupees (AUD $3750.00) and threatened that if refused to give them the said amount, I would be killed. I could not pay because I was a school teacher of low income. I nonetheless agreed to pay the Maoists the amount required in instalments. They captured my house and took away all my harvest from my village. The Maoist told me that it was the decision of their committee as the Maoists insisted on doing so. On 27 April 2006, the Maoists abused me and said that if I did not pay the money they were requesting from me they would be obliged to take physical action against me. It was impossible for me to act according to their wish. I was facing a financial crisis. My physical and mental stress gradually climbed to an unbearable level.
The applicant claimed that after the 2006 Maoist demand, she made several reports to the authorities, and requested a political party, the RPP, the Human Rights Commission, the Bar Association and the local district council, "to protect me from being harmed". She said these people were unable to protect her, so “I made the decision to flee Nepal in search of protection”.
The documents provided to the Department of Immigration included corroboration that she had teaching qualifications and had held teaching employment in several schools. They also included statements purporting to be from the Bar Association, the district council, and the Human Rights Commission, corroborating the applicant's claims to have made complaints to them. The applicant also presented, with a translation, a letter on letterhead of the Maoist Party dated 22 August 2006 addressed to the applicant at a secondary school in Kathmandu. This made the demand:
We ask you to give us the half portion of your property located at (location) which has been in our control since 2000, to give up the Monarchist Party National Democratic Party (Nationalist) that you have involved with immediately and to give us the amount of RS3,50000.00 (3 lakhs and 50,000 Rupees in letters of alphabet) for the welfare of our party and advancement of the new power within the period of two months according to our party decision it is a final time to warn you.
A delegate considered this material, and made a decision on 25 January 2007 refusing to grant a protection visa. The delegate considered that the documentary evidence submitted was “completely unconvincing”, and was not satisfied that the applicant had substantiated her claim of a well-founded fear of persecution. The delegate identified inconsistencies in the claims and documents submitted by the applicant. The delegate also referred to a new peace deal with the Maoists which had recently been made, and considered that the applicant would be able to return to Nepal and continue to live in Kathmandu without fear of harm or mistreatment.
The applicant appealed to the Tribunal, and gained the assistance of a solicitor. She did not present more documentary evidence, but attended a hearing on 23 January 2008. She has not presented a transcript of the tapes of the hearing, although given an opportunity to do so. I am therefore left with the Tribunal's description of what happened at the hearing.
Towards the start of the hearing, the Tribunal said:
The Tribunal asked the Applicant how the 22 August 2006 Maoists’ letter came to be delivered to her. In reply, she said it was sent to her school in Kathmandu. She said there were 18 teachers at the school and that three of them received letters She said she did not know why just three received letters of demand like hers. She said she did not know what she had in common with the other two teachers who received such letters. She said she did not know what happened to the other two, or what they did, or what anyone did about the situation.
Soon after making these statements, the applicant contradicted herself, by saying that her husband had told her that the other two teachers, "were not at the school any more". She later contradicted herself as to her knowledge of the circumstances of the other two teachers which might account for their being targeted by Maoists. This occurred, when the Tribunal tried to explore why the applicant might have been singled out, rather than her husband who earned much more money as a lawyer.
In the course of responding to these questions, the applicant is recorded as giving evidence that she had knowledge about the circumstances of the other two teachers, which might explain why all three had been targeted:
The Tribunal again asked the Applicant why the Maoists were not pursuing her husband in her absence and she said her husband had different political beliefs from her own. She said he supported the UML party (United Marxist Leninists). The Tribunal asked the Applicant how and why her husband’s support for the UML made him immune from the Maoists. In reply, she appeared to evade the point, saying she used to report Maoists activities and speak against donations. She said that all three of the teachers who received letters from the Maoists were opponents of the forced donation process.
The Tribunal reminded the Applicant that earlier in the hearing she had said she did not know what she had had in common with the other two teachers. In response, she said that she thought the Tribunal had been talking about each person’s respective political views. The Tribunal put to her that it had not limited her response at the time to having to be a response about political opinions.
The Tribunal then reminded the Applicant that it had asked her how and why her husband’s support for the UML made him immune from the Maoists. The Tribunal put to her that she had not answered that question. She said she had addressed this question on its point when she said that she personally had opposed the Maoists demanding donations. She said that her husband carried on, keeping things to himself.
The applicant had also suggested that she had been singled out “because she and her parents were members of the RPP”. The Tribunal questioned her to discover her knowledge of that party, and also about her claims that the Maoists had appropriated her property. It said:
The Tribunal asked the Applicant why the Maoists would demand that she give up her membership of the RPP when, according to her evidence at the hearing, she did not appear to have much knowledge of the RPP. In reply, she said she did not have much knowledge, and that the primary reason for the Maoists’ interest in her was that she did not heed the demands for money and property.
The Tribunal questioned the applicant about various aspects of the documents which she had submitted, and their consistency with other documents and with evidence given by the applicant. The Tribunal put to the applicant independent country information stating that forged documents and fabricated testimony was easy to obtain on demand in Nepal. The Tribunal followed the procedure under s.424AA, which is not now challenged, when putting these and other matters to her for comment.
The Tribunal handed down a decision on 20 March 2008, affirming the delegate's decision. In its statement of reasons, it set out the applicant's evidence in the documents given at the hearing in a manner which, in my opinion, shows that it was fully alive to all that she had put to it. It then discussed the evidence under the heading, “Findings and Reasons”.
The Tribunal accepted that the applicant was a school teacher, and had worked in that job in a district in Nepal before moving with her family to Kathmandu, where she also had worked as a teacher from around 2000. The Tribunal accepted that the applicant was married to a lawyer who worked in the business sector in Kathmandu, and that she had children who were in the care of her parents in Nepal.
The Tribunal then discussed the documents presented by the applicant, and the applicant's oral evidence. It said that this showed “confusion” as to the status of the property which she claimed was the subject of Maoist demands. There were inconsistencies about whether there had only been threats to seize the property, and whether it had been seized entirely, or whether only part of it had been seized by Maoists. The Tribunal identified other concerns about the applicant's evidence on how she had obtained and presented some of the documents purporting to corroborate these claims. The Tribunal said:
The applicant gave an unconvincing and unimpressive account as to why the Maoists would demand that the applicant hand over to them the same half of a property that in the letter they say that they have already had under their control since 2000.
The Tribunal thought that one of the documents might be genuine, and it established that the applicant still owned the relevant property. The Tribunal concluded that it would give no weight to any of the other documents, including the alleged 22 August 2006 letter from the Maoists.
It then said that there were “other reasons” for finding that “the applicant's claims about Maoist threats and intimidation were unreliable”. It found these reasons in her evidence responding to the Tribunal’s questions which explored why she and two other teachers at her school were targeted by the Maoists in 2006, as she claimed. The Tribunal said:
When the Tribunal asked the Applicant to discuss her claim about the August 2006 threats in the context of the environment in which she lived and worked at the time, her claims lacked credible detail to such a degree that they were situated, as it were, in a factual vacuum. This was particularly noticeable when the Tribunal asked the Applicant about the other teachers at her Kathmandu school in 2006 who, she said, were also targeted by the Maoists. She initially showed no awareness as to why the three, including her, were singled out amongst all the other teachers at her school. She did not convey any credible indications of interest in how the other teachers had fared in the face of harassment they and she supposedly faced as a singled-out targeted group of teachers, all working in the same school, where the other teachers had not been similarly targeted. She was inconsistent as to whether or not she knew what had happened to the other two teachers. The Tribunal is of the view, on the evidence before it, that the Applicant improvised her eventual account of the steps she took to find out what happened to the other two teachers, and that she did this only because the Tribunal had disclosed to her its concerns about the apparent lack of curiosity she initially displayed, at the hearing, as to the fate of her similarly-threatened, or similarly-pressured, colleagues.
The Tribunal referred to the two different reasons that the applicant had suggested to explain why the Maoists decided to demand donations from her. It explained why it did not regard either reason as credible or consistent, and also noted that her evidence about her claimed association with the RPP party was vague and confused. The Tribunal said:
In these ways, the applicant undermined her own explanations as to why the Maoists would have taken and maintained an interest in her and not in other people such as her husband. This leaves the Tribunal without a credible explanation from the applicant as to why the Maoists are alleged to be so keen to extract money and property to which the applicant has access, but not pursued their money and property demands with her husband, whose name and domicile are claimed to be known to them.
The Tribunal said that on the evidence before it, it did not accept that she had any significant contact or involvement with the RPP, the National Democratic Party or any other party. It did not accept that she had any significant political affiliations or views at all.
Towards the end of its reasoning, the Tribunal said:
The tribunal is conscious that the Applicant appeared to place some emphasis in her claims on having been a school teacher. However, whereas the Applicant was a school teacher, and whereas school teachers could reasonably be regarded as members of a “particular social group” in Nepal (namely, school teachers), the implied distinction does not have any significance in the present case. This is because the Applicant claimed, albeit inconsistently, that a “political opinion” factor set her and the other two similarly-affected teachers significantly apart from the rest of the staff at her school and, as discussed in detail above, also because her claims about having been intimidated and/or persecuted by the Maoists lack consistency and credibility.
The Tribunal concluded generally:
The Tribunal finds the Applicant an unreliable witness in the present review. The Tribunal is not satisfied that the applicant faces a real chance of Convention related persecution in Nepal. The Tribunal is not satisfied that her claimed fear of convention related persecution is well founded. The Tribunal is not satisfied that the applicant is a refugee within the meaning of the Convention.
The applicant now asks the Court to set aside the Tribunal's decision and to remit the matter for reconsideration. I can only make these orders if I am satisfied that the Tribunal's decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant's history should be accepted, nor whether she qualifies for a protection visa or any other permission to stay in Australia.
The applicant was represented today by counsel who relied only upon an amended application which was filed in Court. It contains three grounds. The first ground was as follows:
1The Second Respondent made jurisdictional error by failing to consider a claim made by the applicant, i.e. a well founded fear of persecution on the basis of the Convention ground of particular social, namely, school teachers in Nepal which group was found by the Second Respondent to be a particular social group for the purposes of the Convention.
I have difficulty understanding this ground, since, in my opinion, manifestly the Tribunal did address whether the applicant would be at risk by reason of membership of a group of people being school teachers in Nepal. It did so in the paragraph at the end of its reasoning which I have extracted above, where it said that “The Tribunal is conscious that the applicant appeared to place some emphasis in her claims on having been a school teacher”.
It is clear from the Tribunal’s earlier reasoning that it approached the applicant's evidence on the basis that principally, or essentially, her claims were that she feared persecution by Maoists by reason of political opinions which were imputed to her by Maoists, as a result of her associations with a political party or her expression of political opinions hostile to the Maoists. In my opinion, this reflected a proper appreciation of the material before it. Counsel for the applicant did not challenge the reasoning of the Tribunal which addressed that claim.
However, counsel submitted that the material before the Tribunal also raised a separate claim requiring separate attention by the Tribunal as an "integer" of her refugee claims. A jurisdictional obligation to address all integers of a refugee claim is well-established, but as was pointed out in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1 at [60], the Tribunal “is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it” (see also Re Minister for Immigration, ex parte Applicants S134/2002 (2003) 211 CLR 441 at [1], [28] and [31]).
In my opinion, the material before the Tribunal did not clearly raise any separate claim by the applicant that she was at any particular risk by reason of the fact that she was a school teacher. She certainly did not claim this ‘expressly’, and presented no general information which indirectly raised such a claim. However, I accept that it was appropriate for the Tribunal to refer to that question, if only to explain why it did not regard the applicant’s characteristics as a teacher as significant in its assessment of her refugee claims. It is reasonable to assume that the Tribunal was also conscious that in other Nepalese cases, at least in earlier years, there had been general country information suggesting that in some circumstances teachers had been targeted by reason of their membership of that profession.
Counsel for the applicant argued that in the paragraph where the Tribunal referred to a possible significance of the applicant’s “having been a school teacher”, the Tribunal did not actually deal with that issue on its merits, and that it therefore constructively failed to deal with the issue. As I understood his argument, he submitted that it was not open to the Tribunal to reject a claim by the applicant to be at risk as a school teacher by relying upon its rejection of the applicant's claim that she had received threats from Maoists with the other two school teachers by reason of their known or perceived political opinions.

However, I do not accept that it was not open to the Tribunal to treat the applicant's possible risk as a school teacher as answered by its consideration of her principal claims. I consider that it was open to the Tribunal to approach it in this manner, particularly because this is how the applicant herself had presented her evidence about the threats received by her and two other teachers at her school. In effect, the Tribunal was making the point that the applicant’s characteristics as a school teacher had not been put forward by her as a separate reason why she had been targeted by Maoists or why she would be at risk if she returned to Nepal.
This is what I would understand the Tribunal to have meant when it said “the implied distinction does not have any significance in the present case”. As it then explained, her membership of the group of school teachers was not put forward as a separate reason for being targeted by the Maoists in 2006. Rather, she had claimed that there was a ‘political opinion factor’ which had set her and two other teachers apart from school teachers and had exposed them to targetting.
The Tribunal also gave a second reason for not accepting that the applicant was at risk as a school teacher, which was that “her claims about having been intimidated and/or perceived by the Maoist lack consistency and credibility”. In effect, the Tribunal also rejected a separate claim, if it had been raised on the evidence, because it had rejected the applicant’s claims to have been targeted by Maoists for any reason.
I am therefore not persuaded that the Tribunal made any error such as is discussed in NABE, and is contended in this ground.
Grounds 2 and 3 of the amended application are as follows:
2.The Second Respondent made jurisdictional error by failing to give proper, genuine and realistic consideration to the applicant’s case and to afford her the hearing to which the law entitled her.
3.The Second Respondent made jurisdictional error by treating as inconsistencies in her personal account of past persecution, differences in evidence by the applicant in speculating about the motives of her persecutors or what the persecutors perceived as the applicant having in common with the targets of persecution.
Counsel's submissions in support of these two grounds relied upon his attack on the paragraph of the Tribunal’s reasons, in which the Tribunal adverted to the applicant’s emphasis on being a school teacher. However, as I have explained, I cannot find in this paragraph evidence that the Tribunal did not give ‘proper, genuine and realistic consideration to the applicant’s case’, and I consider that its reasoning was open to the Tribunal on the material before it.
Counsel’s submissions also extended to an earlier element in the Tribunal's reasoning, in which it drew conclusions adverse to the applicant's general credibility from her responses to its questioning which attempted to identify why three out of the 18 teachers at her school might have received threats from the Maoists, as she claimed. I have extracted the relevant evidence about this above, and have also summarised how the Tribunal dealt with that evidence.
Counsel argued that the Tribunal had applied a process of reasoning which was ‘unreasonable’ in a jurisdictional sense, because the Tribunal found against the applicant's credibility because it found inconsistencies in her speculations about the reasons for Maoists targeting people, being a matter of which it was unreasonable to expect her to have actual knowledge and to be able to explain.
However, I do not consider that this accurately characterises how the Tribunal reasoned, when drawing adversely from her evidence given in response to its questions which explored the circumstances in which the Maoists' demand of August 2006 had been received. The Tribunal did not seize upon any inconsistencies in speculations of the applicant, but identified genuine and cogent inconsistencies in matters of history given by the applicant, being her knowledge as to the background circumstances of the other two teachers and herself. The applicant had given inconsistent evidence on a number of factual matters, in which she claimed to have knowledge. I consider that the evidence before the Tribunal allowed it to identify these inconsistencies, and to rely upon them when assessing the applicant’s credibility.
I do not accept that the Tribunal’s reliance on these inconsistencies in support of its adverse credibility finding takes its decision into the territory identified by Weinberg J in SZIIF v Minister for Immigration & Citizenship [2008] FCA 913. In that case, a Tribunal had built an adverse credibility finding on a variety of inconsistencies in evidence given by an applicant over four years on seven separate occasions. His Honour characterised the general inadequacy of the Tribunal's reasoning:
[97] Had the inconsistencies that T3 identified been both real and substantial, one might well understand how it arrived at its conclusion. Even then, it would have been highly desirable for T3 to have stated expressly that it had taken into account the dangers associated with drawing sweeping conclusions from what on any view was a mere handful of discrepancies.
[98] However, when one adds to the mix the fact that none of the inconsistencies identified were properly analysed, several seemed to have misstated the appellant's earlier position, and some involved summaries taken out of context, the entire process appears to have gone badly wrong. To use the language of Gummow J in NAIS, the Tribunal did not give "proper, genuine and realistic" consideration to the appellant's case. He was not afforded the hearing to which the law entitled him.
In the present case, I would not arrive at a conclusion that the Tribunal's reasoning, provided in its statement of reasons, reveals that “the entire process appears to have gone badly wrong”.
Nor would I find in the challenged parts of the Tribunal’s reasoning the evidence which, in exceptional cases, has allowed a Court on judicial review to conclude that a Tribunal did not give proper, genuine and realistic consideration to matters arising for its attention when performing its statutory duty to review a delegate's decision. Counsel for the applicant referred me to my own discussion about the relevant principles in SZIAY v Minister for Immigration [2006] FMCA 1680 at [5] – [8].
I am not persuaded that the Tribunal's reliance on the identified difficulties with the applicant's evidence given at the hearing can be characterised as ‘capricious’, ‘irrational’, ‘perverse’ or ‘unsupported by the evidence’, such as to allow me to conclude that it did not in fact perform its function or that it had made any other jurisdictional error.
Moreover, the elements in the Tribunal's reasoning which were attacked by counsel for the applicant, formed only part of its reasons for finding that the applicant was an unreliable witness. As I have sketched above, there were other elements in how the applicant presented her claims, including difficulties with the documents she had presented, which the Tribunal identified as separate reasons pointing towards its adverse conclusion on the credibility of her refugee claims.
Taking into account all of counsel's written and oral submissions, I am not persuaded that any jurisdictional error has been shown to have affected this Tribunal's decision of the type invoked by grounds 2 and 3 of the amended application.
For the above reasons, I must therefore dismiss the application.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 28 August 2008