SZMHU v Minister for Immigration - [2008] FMCA 1243

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMHU & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1243

MIGRATION – Review of RRT decision – where applicant provided newspaper article as corroborative evidence – where Tribunal made inquiries as to the veracity of the document – where letter pursuant to s.424A Migration Act 1958 (Cth) sent to applicant regarding these inquiries – where Tribunal concluded applicant’s claims lacked credibility – where Tribunal found inconsistencies in applicant’s evidence – whether a mistake of fact went to an integer of the claim – whether inquiries made by Tribunal amounted to “information” within s.424A.

Migration Act 1958 (Cth), s.424A

Minister for Immigration vYusuf (2001) 206 CLR 323
SZKTI v Minister for Immigration [2008] FCAFC 83
SZKCQ v Minister for Immigration [2008] FCAFC 119

First Applicant:

SZMHU

Second Applicant:

SZMHV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1325 of 2008

Judgment of:

Raphael FM

Hearing date:

25 August 2008

Date of Last Submission:

25 August 2008

Delivered at:

Sydney

Delivered on:

25 August 2008

REPRESENTATION

Applicant in person

Counsel for the Respondents:

Mr M. Cleary

Solicitors for the Respondents:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the first respondent’s costs assessed in the sum of $4,350.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1325 of 2008

SZMHU

First Applicant

SZMHV

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicants are a husband and wife, both citizens of Nepal. They arrived in Australia on 22 April 2007 and applied to the Department of Immigration & Citizenship for protection (class XA) visas on 1 June 2007. On 24 August 2007 a delegate of the Minister refused to grant the protection visas and the applicants sought review of that decision from the Refugee Review Tribunal.
The applicants were represented and appeared before the Tribunal together with their adviser. There was correspondence between the Tribunal and the applicants relating to certain documentation produced by the applicants. On 18 April 2008 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 29 April 2008.
The grounds upon which the first applicant claimed to be a person to whom Australia owed protection obligations was that he was a businessman in Nepal originally in his home city of Pokhara and, for a short period before his leaving the country, in Kathmandu. He ran a shop selling clothing and some other goods imported from China. The male applicant was from a well-to-do family and claims that he was identified by the YCL, an off-shoot of the Maoist movement, as a person who could be ‘persuaded’ to donate money to their cause. He claimed that whilst in Pokhara the business did make contributions which were extorted from it but that there was a claim for a very large sum of money finally made which the applicant refused to pay.
He claimed that on 20 January 2007 whilst he was at home some Maoists came into his house and grabbed him, painted his face black, and took him around the city and the market for four or five hours, publicly humiliating him. The matter was reported to the police by the applicant's parents who, together with his wife, had been removed from their own house and placed in another house. It seems that the police provided some assistance by breaking the locks that had been placed on their house, allowing them back in.
The applicant moved with his wife to Kathmandu, but the extortion continued and in March 2007 he was asked for a ransom of two million Nepalese Rupees on threat of his life. He could not pay and determined to leave the country.
The applicant provided as corroboration of his story an extract from a newspaper which appeared to have been published online, known as the “Pokhara Hotline”. The extract from the newspaper provided by the applicant was dated at 21 January 2007 and has a photograph of the applicant in it and an article about him being punished because of his refusal to donate to the YCL. The photograph allegedly shows the applicant with black powder on his face and being a “King supporter/businessman”.
The Tribunal sent the article to the Department of Foreign Affairs & Trade, who made investigations and advised the Tribunal that the article had not been published in the paper on 21 January 2007. The applicant responded to the s.424A letter written to him on 9 January 2008, which had advised him of the response received from DFAT and provided him with a copy of what was claimed to be the actual front page of the newspaper for that date, with a statutory declaration indicating that he was a subscriber to the paper and that he received it on 21 January 2007 at his home. He states at paragraph 6 of the statutory declaration [CB140]:
“I am not sure if anyone associated with the Pokhara Hotline Newspaper had arranged to print extra few copies on the instructions of Maoists to defame or embarrass me.”
And at paragraph 7 [CB140]:
“I have requested clarification from Managing Director of Pokhara Hotline who has provided me with a reference letter confirming that the newspaper article to be genuine and true. Annexed and marked “A” is a facsimile copy of the same.”
The faxed document is found at [CB141].
The Tribunal took up through DFAT the veracity of this document from the editor and DFAT obtained information from the editor that the document was false. That is evidenced in a facsimile sent to the Australian Embassy in Kathmandu and found at [CB144]. The applicant was advised of Mr Sharma's response by a further letter under s.424A sent to him, which included a copy of that response.
The reply from the applicant was [CB145]:
“The applicant concedes that at least one of the letters (23/01/2008) dated 22/2/2008 received by the RRT from Pokhara Hotline, signed by Madhav Sharma should be fake. We are instructed that the applicant has been trying to verify the authenticity of the documents he had obtained through his family members and submitted to the Tribunal.”
The applicant then sent a statutory declaration to the Tribunal in which he said, inter alia [CB148]:
“3. I have been informed by Mr Dhakal [his agent in Nepal] that the Editor of Pokhara Hotline Mr Madhav Sharma, asked for NRs300,000.00 (approximately AUD6000.00) to authenticate his previous reference. I've been informed that the Editor has been involved in such business for a while. Mr Dhakal did not agree to pay the money, as I told him not to pay any money.
4. Since he did not get the money he must have tried to discredit me by sending the above facsimile.”
The Tribunal's decision commences at [CB174] with a statement that the Tribunal had formed a view that the applicant's material claims lacked credibility and could not be accepted. The first point made by the Tribunal was that initially the applicant had said that the incident in which his face had been tarred took place on 28 January 2007 but his passport had indicated that he had not returned to Nepal until 31 January 2007 from a trip to Thailand.
The applicant subsequently lodged a statutory declaration with the Tribunal in which he claimed that the date he was taken by the Maoists was 20 January 2007 and that the original statement, which had been prepared by his brother in Nepal, had been mistaken. The Tribunal found that explanation implausible, as it found the whole idea that the applicant's statement would be written by his brother in Nepal.
The Tribunal then went on to consider the submission of the newspaper article [CB175]. It set out the history of the communication between the Tribunal, DFAT and the applicant about this and at [CB176] rehearsed the statutory declaration that I have already extracted. There is here what I perceive to be the first of a number of rather unfortunate misunderstandings articulated by the Tribunal. My reading of the first paragraph at [CB176] is that the Tribunal is noting the applicant accepts the first letter from Mr Sharma in support of him was fake. But I do not think that that is what the applicant has said. I think that he is saying that one of the two dated letters was fake but has not told the Tribunal which one he believes it is. In any event, the Tribunal came to the conclusion that the explanation given by the applicant that Mr Sharma had set out to discredit him because he was not being paid for the first reference is one that the Tribunal is entitled to come to on the evidence. The Tribunal pointed out [CB176]:
“There was no reason for the first-named applicant or Mr Dhakal to seek or obtain a second letter from Mr Sharma “authenticating” his first letter until after the first-named applicant became aware that the authenticity of the letter was in issue … The Tribunal is of the view that it is highly implausible that Mr Sharma would have advanced knowledge that the Australian Department of Foreign Affairs and Trade were going to contact him, the purpose for which they were going to contact him, that he then contacted Mr Dhakal and had a conversation with him in relation to a bribe or that Mr Sharma would then have gone to the extraordinary lengths of changing his letterhead, the details on his letterhead and his signature in order to discredit the first-named applicant.”
The Tribunal concluded that the extract from the newspaper produced in support of the applicant's claim was not genuine, and that the letter produced by the applicant from Mr Sharma was equally false.
The Tribunal was also concerned about the time which the applicant had taken to lodge his claim for a protection visa. The Tribunal was well aware of the date upon which the applicant arrived (22 April 2007) and the date upon which the application for a protection visa was made (1 June 2007) [CB177] but it miscalculated how long this time was, saying it was lodged “over four months after his arrival in Australia”. This, the Tribunal said, “indicated that if he had a real fear for threats on his life and for his safety he would have lodged the application earlier.”
The Tribunal then stated [CB177]:
“When considering the evidence as a whole the tribunal finds that there are a number of inconsistencies and contradictions between the first named applicant's written evidence and his oral evidence as well as internal inconsistencies and contradictions in the oral evidence given by the first-named applicant at the hearing. The tribunal also finds that the first-named applicant has submitted three fraudulent documents to the tribunal. These issues raise serious concerns in relation to the first-named applicant's credibility. For the reasons referred to above the tribunal finds that the first-named applicant is not a witness of truth and was prepared to fabricate his claims and his evidence to give him the profile of a refugee.”
I take it that the inconsistencies it refers to include the one about the date on which the incident in Pokhara occurred. The reference to the three fraudulent documents includes the translation of the newspaper as a fraudulent document as well, as indicated by the Tribunal at [CB176].
The Tribunal goes on to consider the applicant's claims that he was perceived and treated as a rich businessman who is therefore a royalist sympathiser and an anti-Maoist. It did not consider that businessmen in Nepal constituted a particular social group for the purposes of the Convention but accepted that there might be some targeting of wealthy landowners or businessmen with anti-Maoist political affiliations by the YCL. However, it noted that the applicant did not claim to be a royalist or to have anti-Maoist political affiliations and so concluded that he was not at risk of being perceived to be a royalist or to have anti-Maoist political affiliations or of being specifically targeted by the YCL. The Tribunal concluded that there was no real basis for his claims to fear persecution and that he would not be involved in royalist or anti-Maoist activities should he return to the country or be perceived as doing so, and therefore there was no real chance that he would be at risk of persecution for reasons of membership of a political social group, political opinion, or imputed political opinion, should he return to Nepal.
The Tribunal commented upon the applicant's wife's evidence, which it did not accept made any contribution towards corroborating the applicant's [CB 177]. The applicant wife was not a person who had submitted her own claims for refugee status, having completed Form D.
The applicant was initially represented in relation to these proceedings and on 23 May 2008 a solicitor filed an application and supporting affidavit. The first ground of the application was that the Tribunal constructively failed to exercise its jurisdiction by failing to have regard to the applicant's claims. The particulars are set out as follows:
“The Applicant provided detailed claims in evidence in support of his claims. The Second Respondent did not have any regard to any of those claims and evidence instead the Second Respondent heavily relied on its own assumptions and created credibility issues. The applicant made application for a protection visa within 6 weeks from date of his arrival in Australia … In its findings and reasons, the Second Respondent raised credibility issue by stating that the applicant would have lodged his application as soon as his arrival [sic] if he had threats for his life in Nepal and emphasized on its own knowledge saying that the protection visa application was lodged over four months after his arrival in Australia. This is totally wrong … This mistake of fact indeed led to the jurisdictional error because it corroborated in adverse finding and credibility issue.”
I quite accept that the Tribunal erroneously calculated the period between 22 April and 1 June 2007 as four months. This is a mistake of fact. But it is not a mistake of fact that goes to an integer of the claim. Such a mistake does not constitute a jurisdictional error: see Minister for Immigration vYusuf (2001) 206 CLR 323 at [84].
To the extent that the first ground goes further than the error of fact discussed above, that is, makes a point that the Tribunal is not entitled to go to credibility issues without considering the claims and evidence, I would firstly say that I do not believe that the Tribunal has done this and secondly that the Tribunal has every right to assess the claims and evidence which supports those claims after it has given a general view of the credibility of the applicant. This is frequently done and is no more than the Tribunal carrying out its duties as a finder of fact.
In this case the grounds upon which the Tribunal came to the conclusion that the applicant was not a credible witness were independent of the claims that he made. Those related to his treatment and his fears because he was a wealthy shop owner. The Tribunal's conclusions about his credibility arose out of its finding that the corroborative evidence had been manufactured.
The second claim made by the applicant was that the Tribunal had made a jurisdictional error by failing to consider the integers of the applicant's claims. In the particulars he states:
“The applicant in his Statutory Declaration stated that the Maoists may have instructed the Pokhara Hotline newspaper to print extra few copies covering the incident that took place on 20 January 2007 to defame and embarrass the applicant. The second Responded [sic] misinterpreted the applicant's claims stating, "The Tribunal is of the view that it is highly implausible that the Maoists would be aware that the applicants have lodged an Application for a protection visa that the applicants have lodged with the Tribunal a copy of a newspaper" … This is a blatant error of ignoring the applicant’s claim. The applicant has provided an explanation as to what could have occurred on 28 January 2008 [sic], when he was in Nepal.”
One is not helped in dealing with this application by the quality of its authorship. One would not normally complain if this had been done by an applicant whose knowledge of English is poor. But in this case the document was prepared by a solicitor of the Supreme Court, or at least it is claimed to have been. If it was not prepared by such, he should not have signed the document.
I accept that there is some confusion in the Tribunal's mind about the newspaper article, but that is not confusion about the essential element which brought it to the conclusion that the claim was not credible. The Tribunal has consulted through DFAT the publisher of the newspaper and has been satisfied from his response that the extract produced by the applicant was false.
It is also satisfied that the letter allegedly supporting the applicant's position about the newspaper article was also false. These are the essential matters. It is these that form the basis of the credibility finding. These are not matters which are the integer of the applicant’s claims. The integers of the applicant’s claims are that he is a person to whom Australia owes protection obligations by virtue of his being a person persecuted by the YCL and likely to be further persecuted should he return. That matter was thoroughly considered by the Tribunal, which concluded that it could not accept his evidence that he was such a person because, inter alia, the corroboration of that claim had been falsely produced.
Finally, the applicant claims that:
“The Respondent made jurisdictional error by failing to comprehend the Convention nexus of the Applicant's claims:
Particulars:
The Second Respondent blatantly ignored the applicant's claims of being a member of particular social group and political opinion in that the applicant claimed to be a businessman perceived as a Monarch supporter and spread anti-Communism ideology etc were not assessed.”
My remarks concerning the grammatical difficulties encountered by an application in this form previously made extend also to this particular. The Tribunal did in fact consider at some length the claims which the applicant says have been "blatantly ignored". It did so at [CB178] in the paragraph already extracted, and it makes reference to the applicant's imputed views at [CB166] in the first paragraph. I am satisfied that the Tribunal was well aware of all the Convention-related claims made by the applicant and considered them as required.
The applicant appeared before me and stated that the way in which the Tribunal had “made him lose the case” was wrong. He referred to the error in the dates and that he had submitted all the required documents to the Tribunal and told the Tribunal all the events that had occurred in his life. After Mr Cleary had spoken for the Minister, the applicant told me that he was a supporter of royalty and that he did not agree with the Maoist philosophy. He felt that the Tribunal had been misled (or misled itself) because the incidents he had described were true. All these matters refer to the merits of the applicant's claim and not to the manner in which the Tribunal reached its conclusions and are therefore seeking an impermissible merits review.
I did raise with the respondent whether or not the information that had come out of DFAT was the type of information considered by the Full Bench of the Federal Court in SZKTI v Minister for Immigration [2008] FCAFC 83 or that considered in SZKCQv Minister for Immigration [2008] FCAFC 119. In the latter case the Court held per Stone and Tracey JJ at [4]:
“For the appellant to understand why the information provided in response to the High Commission’s enquiry might be relevant to the review he needed to understand the context in which that information was given; in other words he needed to be informed of the questions to which the two gentlemen were responding. There can be no doubt that it was “reasonably practicable” for the Tribunal to give him the questions. Without them the appellant’s capacity to comment on the responses was severely compromised”.
I think that this case could be distinguished from SZKCQ because here the information provided by the DFAT was crystal clear, and the basis upon which it had been obtained, namely the letter from the editor of the newspaper, was provided to the applicant. There is nothing more that the applicant could have gained from knowing what questions were asked of the editor by DFAT. In my view the s.424A letters sent by the Tribunal in regard to the false documents amounted to a full compliance with that subsection and the applicant would clearly have understood why the information referred to in the letters was relevant to the review.

In these circumstances I am unable to assist the applicant in providing review of the Tribunal's decision. The application is dismissed. The applicant shall pay the first respondent's costs which I assess in the sum of $4,350.00.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 3 September 2008