SZNOY v Minister for Immigration - [2010] FMCA 510

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNOY v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 510

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation that Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to identify one of his claims and failed to deal with his claims cumulatively – allegation that Tribunal had no jurisdiction to undertake review as letter advising applicant of his review rights did not specify all locations where a review application could be lodged.

Migration Act 1958, ss.66, 347, 412, 424A, 474, 494B, 494C
Migration Regulations 1994, regs.2.16, 4.10, 4.31

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZIIF v Minister for Immigration & Citizenship [2008] FCA 913
Hasan v Minister for Immigration & Citizenship (2010) 114 ALD 602
SZOFE v Minister for Immigration & Citizenship [2010] FCAFC 79
Minister for Immigration & Citizenship v SZIZO (2009) 238 CLR 627

Applicant:

SZNOY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3102 of 2009

Judgment of:

Cameron FM

Hearing dates:

29 April, 13 July 2010

Date of Last Submission:

13 July 2010

Delivered at:

Sydney

Delivered on:

20 July 2010

REPRESENTATION

Counsel for the Applicant:

Mr P. Reynolds

Solicitors for the Applicant:

Parish Patience

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3102 of 2009

SZNOY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of Nepal where, he claims, he was an active member of the Rastriya Prajatantra Party (“RPP”). He claims that his involvement in the RPP, his support for the Nepalese monarchy and his position as a former Gurkha soldier in the British Army made him a target of the Maoists. He claims that the Maoists attacked him and asked him to provide them with “donations”.
The applicant claims to fear persecution in Nepal because of his political opinion and because of his status as an ex-Gurkha.
After his arrival in Australia on 6 February 2007, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 20 July 2007. The applicant then applied to the Refugee Review Tribunal (“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.
The Tribunal decision the subject of these proceedings is the third such decision relating to the applicant. There was a previous Tribunal decision signed on 19 November 2007 which was quashed by the Federal Court on 25 November 2008. On 12 April 2009 the Tribunal as secondly constituted again affirmed the decision of the delegate. That decision was quashed by this Court on 10 August 2009.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
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 5 – 23 of the Tribunal’s decision (Relevant Documents (“RD”) pages 252 – 270). Relevant factual allegations are summarised below.

Protection visa application

The applicant made the following claims in his protection visa application:
a)he had been involved with the RPP, a monarchist political party in Nepal, since 1992 and was one of the most active monarchists. He was known in political circles across the country and Maoist party cadres knew him wherever he went in Nepal;
b)he was attacked twice in 1996 (in Beni) but survived despite dangerous wounds. Thereafter, he moved to Kathmandu where he worked as a head cook in a hotel from 1997 until February 2007. He continued to visit Beni during this period as his family home and all his properties were located here;
c)his house in Beni was destroyed in March 2004 during a Maoist rebel attack on the Beni police post, army barracks and government offices;
d)Maoist rebels and Seven-Party Alliance activists threatened him many times to pressure him to not support the RPP and the king. When the king was overthrown it became almost impossible for him to stay in Nepal. The Seven-Party Alliance which had deposed the king was taking revenge on the RPP; many leaders were put in gaol and other members were brutally tortured;
e)he was attacked by Maoists on 12 August 2006 in Kathmandu. He was left for dead but was found by a neighbour and rushed to hospital;
f)Maoists attacked him again on 24 December 2006. He was found by a pilgrim the following morning and again rushed to hospital;
g)the Maoists believed that he had provided intelligence to the authorities leading to the arrest of Maoist cadres. He has been black-listed by the Maoists and fears that they will kill him if he returns to Nepal; and
h)the authorities are reluctant to take any action against the Maoists or to protect supporters of the monarchy as the new government has punished and sacked many government officials.
The applicant provided the Tribunal with documents purporting to confirm his membership of the RPP. He also provided an “Emergency Ticket” which stated that he had received medical treatment on 13 August 2006 as well as a document on hospital letterhead dated 24 December 2006 stating that he had been prescribed various drugs.

Tribunal as first constituted

At the first hearing before the Tribunal, on 16 October 2007, the applicant claimed that:
a)during the attack on his village in 1996 the Maoists entered his house and took him to their base camp where they beat him the whole night, leaving him unconscious;
b)in the August 2006 attack he was beaten very badly and was left unconscious. He was taken to the Sukraraj Hospital and has scars as a result of this attack;
c)he was also beaten very badly in the December 2006 attack. The Maoists who attacked him on this occasion threw him on the banks of the Bagmati River where he was found by pilgrims the following morning. He was taken to Sukraraj Hospital and could not go out for a month because of his injuries;
d)he was active in the RPP at the village level. He was targeted by the Maoists because he supported the monarchy and because, before this, he had spoken out against Maoists in his village;
e)his wife received several telephone calls threatening his life; and
f)the passports of all the high leaders of the RPP had been seized to prevent them from leaving the country.

Tribunal as secondly constituted

Pre-hearing submissions

In a letter dated 16 February 2009 the applicant claimed that he had received telephone calls from the Maoists asking him to join their organisation or, if he was unable to, to provide financial assistance. He claimed that the Maoists and the Young Communist League (“YCL”) continued to engage in human rights abuses against the RPP and royalists and he feared that they would use physical violence to “enforce extortion”. The applicant also submitted that he had particular fears arising from his profile as a former Gurkha.

Hearing

At the second hearing before the Tribunal, on 18 February 2009, the applicant claimed that he had gone into hiding after the attack in 1996. He claimed that during the next five, six or seven years he went from place to place, sometimes going to Beni and sometimes going to Kathmandu. He claimed that the Maoists would come to his home in Beni the moment they had some indication that he was in the village and, eventually, would have used their network of spies to locate him. He also claimed that the wounds which were inflicted on him as a result of the attacks had been minor.
At the hearing the applicant’s representative submitted that the applicant’s status as a former Gurkha put him in a slightly different position from many other people in Nepal. He submitted that Gurkhas had a prestigious public profile in Nepal and the applicant’s military service would have been known to people in his village, including his political opponents. He submitted that, in the circumstances, it was “quite understandable” that the Maoists would seek to solicit the applicant’s support for their cause and that the applicant’s rejection of them caused the Maoists to threaten and harass him.

Post-hearing submissions

Following the hearing, and in response to a s.424A notice issued by the Tribunal, the applicant’s representative produced a letter dated 22 March 2009 purporting to be from a doctor at the Sukraraj Hospital. That letter stated that the applicant had been
… clinically evaluated along with through [sic] investigations for his complete health treatment on 12th August, 2006 and 24th December, 2006. He was found to be free from any disease or deformities. He is physically healthy and mentally clear.
The applicant also claimed in further submissions that he feared he would be harmed or even killed by Maoists or anti-monarchists. He further claimed that the political situation in Nepal was unstable and that the interim government was ineffective in its response to the risk posed by Maoists and anti-monarchists.

Tribunal as thirdly constituted

On 1 October 2009 the applicant appeared before the Tribunal for a third time. He made the following claims:
a)he did not receive any assistance when preparing his original application for a protection visa;
b)his passport only records the year of his birth (i.e. 1962). When he obtained his driver’s licence in Australia, “31 December” was added to his date of birth but his real date of birth was actually 22 August 1962. His December date of birth had only been used in Australia;
c)the letter from the Sukraraj Hospital dated 22 March 2009 recorded his date of birth as 31 December 1962 because, when he had asked for this document, he had told them that this was the date of birth as understood and accepted in Australia and had asked that it be included in the letter;
d)after leaving the British army and returning to his village, he joined the RPP, working for the district by doing social work;
e)his involvement in the RPP continued after he moved to Kathmandu but in a more secretive fashion;
f)he chose to side with Kamal Bahadur Thapa’s faction after the RPP’s split in 2006. He did not know that one of the main issues at the time concerned local government elections and could not provide much detail on this point as he had never taken part in the election and was, in reality, a military man;
g)he was not attacked by Maoists in his village. He then said that there was an attack but that it had not been serious and was more of a pushing and shoving. However, when the Tribunal put to the applicant that in his original application he had said that the Maoists had entered his house, taken him to their base camp and beaten him until his was unconscious, the applicant said that this had indeed happened;
h)he was attacked in Kathmandu on two occasions some time in 2001 or 2002;
i)when the Tribunal put to the applicant that, contrary to his claims, there was no evidence that members of the RPP had been persecuted in any way by the Seven-Party Alliance government, the applicant claimed that the media usually reported on the arrests of those “at the top” but did not report on the arrests of ordinary people at the lower level. In addition, the person who had assisted him with his original application may have exaggerated things;
j)there were many people in the district who respected his views and it may have been for this reason that the Maoists had asked him to join them. He did not mention this claim, or the claim that the Maoists had asked him for donations, prior to his statement to the second Tribunal dated 16 February 2009 because not everything had come to him at once. However, whatever he remembered he had consistently tried to submit;
k)it was generally assumed that someone who had served as a Gurkha in the British Army would have the money and the means to provide donations. It was for this reason that donations were constantly sought from these people and that if they did not pay they would be subject to some form of punishment. He himself had been targeted because he had been in the British Army, because he had been involved in social work at the village level and because of his involvement in the RPP;
l)the injuries he sustained in the first attack were minor and the person who had written his claims in English in his original application had exaggerated; and
m)he was not found by pilgrims following the second attack in December 2006 but by early morning joggers. The person who assisted him had written it down incorrectly.

The Tribunal’s decision and reasons

After discussing the claims made by the applicant and the evidence before it, the Tribunal again found that it was not satisfied that the applicant 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 (“Convention”).
The Tribunal accepted that the applicant had given evidence on four occasions and that, in the words of Weinberg J in SZIIF v Minister for Immigration & Citizenship [2008] FCA 913:
a person who is required to provide over and over again a detailed account of events long after they have occurred will almost certainly be unable to recount them in identical terms.
However, the Tribunal found that the contradictions in the applicant’s evidence, summarised below, were so great that they cast doubt on the truthfulness of his assertions:
a)at the first hearing before the Tribunal the applicant claimed that he was attacked by Maoists in 1996, that they entered his house, took him to their base camp and beat him the whole night, leaving him unconscious. However, when asked at the third Tribunal hearing about the problems he had had in his village, the applicant did not initially mention being attacked at all and when the Tribunal specifically referred to his previous claims the applicant stated that it had been more of a pushing and shoving;
b)at the second Tribunal hearing the applicant claimed that he did not feel safe in the five, six or seven years after he moved to Kathmandu in 1997, moving from place to place every one or two months. However, this was inconsistent with the evidence in his original application (and later confirmed by the applicant at the third Tribunal hearing), that he had lived at a single address in Kathmandu from March 1997 until his departure from Nepal in 2007 and had worked as the head cook in a hotel from June 1997 until February 2007; and
c)in his original application the applicant claimed that he was attacked by Maoists twice in 2006, a claim which he repeated at the first and second Tribunal hearings. However, at the third Tribunal hearing the applicant stated that these attacks occurred some time in 2001 or 2002. The Tribunal considered that, if he were telling the truth, the applicant would have been able to remember if these attacks had taken place in the year before, or five or six years before, he left Nepal.
The Tribunal also found that there were inconsistencies in the applicant’s evidence regarding the alleged attacks in August and December 2006, which again cast doubt on whether he was telling the truth:
a)the applicant claimed in his original application that he was “left for dead” following the first attack on 12 August 2006 but at the second Tribunal hearing said that he had suffered only minor injuries. Given that at the beginning of the hearing the applicant had said that he had received no assistance when preparing his application, the Tribunal did not accept the applicant’s explanation that his claims had been exaggerated in the visa application form by the person who had written them down in English. Further, at the first Tribunal hearing the applicant himself had said that he had been beaten very badly and left unconscious;
b)the applicant also claimed in his original application that he was attacked on 24 December 2006, was found by a pilgrim the following morning and then rushed to hospital. In support, he produced a document dated 24 December 2006 on the hospital’s letterhead. However, at the third Tribunal hearing the applicant claimed that he had not been found by pilgrims but by early morning joggers. Moreover, on the applicant’s account, he would have been taken to hospital on 25 December 2006 whereas the hospital record he produced was dated 24 December 2006;
c)the letter dated 22 March 2009 purporting to be from a doctor at the Sukraraj Hospital stated that the applicant was clinically evaluated on 12 August and 24 December 2006 and was found to be “physically healthy and mentally clear”, which did not support the applicant’s claims that on each of the two occasions on which he claimed he was attacked he was beaten so badly that he remained unconscious; and
d)the letter dated 22 March 2009 also gave the applicant’s date of birth as 31 December 1962 whereas he told the Tribunal that he had only used this date of birth in Australia. In the Tribunal’s view, the applicant’s explanation that he had asked the hospital to include this date of birth in the letter cast doubt on whether the letter was genuine.
In the Tribunal’s view, if, as he claimed, the applicant had decided to side with Kamal Thapa’s faction at the time of the RPP’s split, he could not have failed to be aware that one of the main issues at the time was that faction’s participation in the 2006 local government elections.
The Tribunal did not accept the applicant’s claims that leaders and members of the RRP had been put in gaol and/or tortured by the Seven-Party Alliance government or that their passports were seized to prevent them from leaving the country, noting that:
a)there are very active media organisations and numerous human rights bodies observing the situation in Nepal and what happens there is very well reported;
b)in this context, it was difficult to accept that such events, had they occurred, would not have been reported by independent sources; and
c)there was nothing in the material which the applicant or his representatives produced, and nothing in the material which was available to the Tribunal, to support the applicant’s claims in this respect.
In his original application the applicant claimed that he was one of the most active supporters of the monarchy in Nepal and was well-known in political circles across the country. However, at the third Tribunal hearing he attempted to downplay these claims, saying instead that he had been one of the most active supporters of the monarchy in the village and the district and was known by most people in politics at the district level. The Tribunal observed that the applicant’s claims that he was one of the most active supporters of the monarchy and that he was well-known throughout the country did not appear to be consistent with his own evidence concerning his involvement in the RPP. Even accepting the applicant’s account of his involvement in the RPP in his district, the Tribunal found it difficult to accept that he would have attracted such a level of attention that the Maoists would wish to pursue him wherever he went in Nepal.

The applicant’s original claim that the Maoists believed that he had provided intelligence to the authorities leading to the arrest of Maoist cadres was not, in the Tribunal’s view, consistent with his later-made claim that the Maoists had asked him to join their organisation.
In light of the problems it had with the applicant’s evidence, the Tribunal did not accept that he was a witness of truth.
The Tribunal decided to give “less weight” to the documents produced by the applicant than to its assessment of the applicant’s credibility, having had regard to the information available to it that forged documents are easily obtained in Nepal.
The Tribunal did not accept that the applicant was telling the truth about his claimed involvement in the RPP or, indeed, that he was ever a member of that organisation. It followed from this that the Tribunal did not accept that there was a real chance that the applicant would be persecuted by the government or by activists of the Seven-Party Alliance for reasons of his involvement in the RPP or his support for the monarchy if he were to return to Nepal. Given these findings, the Tribunal also did not accept that there was a real chance that the applicant would involve himself in political activity if he returned to Nepal.
Finally, the Tribunal did not accept that there was a real chance that the applicant would be persecuted for reasons of his profile as a former Gurkha, noting that he did not claim to have suffered any harm on this account and there was nothing in the independent evidence to suggest that he would be persecuted for this reason.

Proceedings in this Court

The grounds of the amended application were pleaded as follows:
1.The Tribunal committed jurisdictional error by failing to consider a claim and/or misconstruing a claim made to it.
Particular
(a)The Tribunal misconstrued the Applicant’s claims that he held a well founded fear of persecution on the basis of being a Monarchist in Nepal. The Tribunal rejected this claim on the basis that he was not a member of the RPP party (Tribunal Decision at paragraph 121), without comprehending that the claim to fear persecution by reason of being a Monarchist was a separate basis upon which he claimed to fear persecution. Rather, the Tribunal incorrectly construed the claim to be a Monarchist as an extension of the claim that the Applicant belonged to the RPP political party.
(b)Further and in the alternative, by reason of the Tribunal not separately dealing with the Applicant’s claim to fear persecution on the basis of being a Monarchist in Nepal, the Tribunal did not consider the claim in the sense of engaging in an active intellectual process in respect of it.
(c)Further and in the alternative, as a consequence of the Tribunal not correctly construing the Applicant’s claim to be a Monarchist (as distinct from his claim to be a member of the RPP), the Tribunal failed to consider whether the Applicant faced a well founded fear of persecution having regard to the totality of the Applicant’s claims (i.e. his claim to be a Monarchist in combination with his accepted claim to have been a Gurkha).
2.In the alternative, the Tribunal committed jurisdictional error by purporting to conduct a review under Part 7 of the Act in the absence of jurisdiction.
Particulars
(a)The letter sent by the delegate of the Minister to the Applicant purporting to notify him of his decision did not set out all the addresses at which an application for review to the Tribunal could be made.
(b)Therefore, the purported notification of the delegate’s decision did not comply with section 66(2)(d)(iv) of the Act and there was no valid notification of the delegate’s decision.
(c)As a consequence, the Tribunal’s jurisdiction was not enlivened, as such jurisdiction only commenced upon valid notification of the delegate’s decision as a consequence of the operation of section 412(1)(b) of the Act and reg.4.31 of the Migration Regulations 1994 (Cth).

Failure to identify claim of monarchism

In his protection visa application the applicant said that he had been one of the most active
monarchist supporters, that most people in politics would know him across the country and that the Maoist party cadres knew him very well wherever he went in Nepal… (RD 252-253)
He went on to say that the new government in Nepal was reluctant to protect “monarchist supporters” and that, as a result, Maoists could attack him without warning.
In his protection visa application form the applicant said that since 1992 he had been associated with the RPP which the Tribunal described as a monarchist party. At the first Tribunal hearing the applicant said that he had joined the RPP because he had faith in the monarchy.
The applicant submitted that his claim to be a monarchist was separate from his claims arising out of his membership of the RPP and said that the separate claim to fear persecution by reason of his monarchism had not been identified by the Tribunal as such. In submissions, counsel for the applicant pointed to numerous occasions in the course of the visa application and its subsequent reviews when the applicant expressed himself to be a monarchist or a royalist. For instance, amongst allegations made in his protection visa application form reproduced in the first Tribunal decision were the following:
Following several fatal attacks on me, due to my political opinion as King supporter, they are always threatening and giving me lots of times harassment to kill …
Maoists think I have done enough harm to their party to my political activity and belief with RPP that support King Gyanendra and his rule in Nepal. (RD 132)
And:
I was one of the most active royal supporters, who came into limelight …
It became worse when Kind Gyanendra was overthrown. That is, when the anti-King and anti-RPP sentiments became widespread. (RD 133)
The first Tribunal decision records the following exchange at the first Tribunal hearing:
The Tribunal asked the applicant why the Maoists were targeting him. The applicant stated “the reason I am being targeted is because I am a supporter of the King and Monarchy and I have been involved in anti-Maoist sentiment at village level and that is why I have been targeted. Even after relocating to Kathmandu, I was attacked twice, there is no protection in Nepal.” (RD 140)
In their written submissions to the Tribunal dated 16 February 2009 the applicant’s solicitors and migration agents said:
[The applicant’s] persecution arises from the Convention based grounds of political opinion as a Royalist and anti Maoist, and because of his status as a former Gurkha. (RD 173)
That submission was accompanied by a statement by the applicant dated 16 February 2009 in which he said:
I fled Nepal because it was inevitable that I would be seriously harmed even killed by the Maoists and anti-monarchists. I am a member of RPP and a strong supporter of the Monarchy. …
I am a strong supporter of the Monarchy. Now, there is no monarchical power in Nepal so I am afraid to go home because I will be seriously harmed or even killed by Maoists and those who severely oppose the Monarchy.
I will be extorted, kidnapped, harmed or killed by the Maoists and those who are opposed to the Monarchy because of my political opinion. … (RD 174-175)
The applicant wrote a letter to the Tribunal dated 23 March 2009 in which, amongst other things, he said:
I am telling the truth about my problems resulted from my political affiliation with the RPP and the Monarchy as I am devoted to the Monarchy. I am a former soldier of the brigade of Gurkhas. I am firmly committed to the Monarchy after I became the soldier in the British army of the brigade of Gurkhas. …
My mind is fully congested by the fear of being seriously harmed or even killed by Maoists and anti Monarchists if I am forced to return to Nepal due to the fact that I am a hardcore royalist and I cannot change my nature when it comes to the politics in Nepal. (RD 212-213)
Further, the applicant said at the second Tribunal hearing that he stood out in Nepal because he spoke out in favour of the monarchy. At the third Tribunal hearing he said that as an RPP member he had been involved in social work in his district and, being a follower of the king, he had done so to enhance the image of the king.
The applicant submitted that what the Tribunal had done was to deal with this claim as though the rejection of the RPP claims meant that his monarchist claims were necessarily to be rejected too. He submitted that the Tribunal misconstrued his monarchist claims as being entirely dependent upon the RPP claims and consequently failed to identify their separate character. In this connection, the applicant pointed to the Tribunal’s statement at para.96 of its decision:
In the present case, as I put to the applicant, I consider that there are good reasons for concluding that he is not telling the truth about his involvement in the RPP and the problems he claims to have had as a result.
The Tribunal went on to identify six reasons for that conclusion. It might be noted at this point that one of those reasons was that the Tribunal considered there to be inconsistencies regarding the extent to which the applicant was regarded as an active monarchist. However, submitted the applicant, it was not a question of how active a monarchist he was but whether he held pro-monarchy views. He submitted that conclusions about his level of activity did not amount to a finding concerning whether he was, in fact, a monarchist in circumstances where the Tribunal made no express finding on that particular issue.
The applicant’s claim, to the extent that it related to his monarchism, arose not out of his beliefs simplicter, but out of his actions which purportedly exemplified or manifested such beliefs. As the Tribunal recorded at para.25 of its decision, the applicant alleged that as a result of his military service he had faith in the monarchy and this had been why he had joined the RPP, also being influenced in his decision by his opposition to Communism.
The applicant’s various descriptions of his RPP activity demonstrate that his claimed fear arose out of his active support for the monarchy generally and King Gyanendra in particular, not out of abstract political beliefs. For instance, at the second Tribunal hearing he said that he had attended RPP programs and functions and had devoted his time to getting members of the public to join the RPP but that his activities had come to the attention of people who did not like the fact that he was a monarchist and who did not like him getting members of the public to join the RPP which was affiliated with the monarchy. At the third Tribunal hearing the applicant said that he had been a member and supporter of the RPP, being a supporter of the king, and that as an RPP member he had been involved in social work in order to enhance the image of the king. He also said that once he relocated to Kathmandu he continued his involvement with the RPP where he participated in meetings and consultations in order to develop plans related to, amongst other things, the king and the council and how to protect the king and the council. At various points in the articulation of his claims, the applicant referred to himself as an active monarchist. At no point was this activity differentiated from his RPP membership and plainly they were linked.
The Tribunal rejected all the applicant’s allegations concerning his RPP membership and his claimed activities associated with it because of the manifold inconsistencies and weaknesses in his various versions of relevant events. Thus, although the Tribunal articulated no specific finding concerning whether the applicant was a monarchist, its findings are to the effect that, should he have held such beliefs, they provided insufficient motivation for him to join the RPP or to become involved in its activities, this being the essence of his claim to fear persecution by reason of his political beliefs.
It is plain that the Tribunal’s principal emphasis on this occasion was to consider the applicant’s claims to have been a member of the RPP, given that this was the basis upon which the matter had been remitted to it for rehearing. Even so, that consideration was intertwined with the Tribunal’s consideration of the applicant’s claims to fear persecution by reason of his support for the monarchy, in respect of which a specific finding was made at para.121 of its decision (see [26] above). Because the applicant’s claim to fear persecution by reason of his political beliefs arose out of his activism, and because that activism was manifested through his membership of the RPP, it was by reference to his claimed RPP membership and activism that his claim to fear political persecution was considered by the Tribunal. The RPP claim was not separate from his monarchy-based claim; his RPP membership and activism were the expression of his monarchical views. Because the Tribunal did not accept that the applicant had been an RPP member or politically active in the way he alleged, it could conclude that there was no real chance, were he to return to Nepal, that he would be persecuted for reasons of his involvement in the RPP or for reasons of his support for the monarchy. Because the applicant’s claim was based on the practical manifestations of his claimed monarchism, a separate finding on whether he was subjectively a monarchist was not necessary and the absence of such a finding does not evidence a constructive failure to exercise jurisdiction.
For these reasons, neither the first nor the second particulars of the allegation support a conclusion that the Tribunal’s decision is affected by jurisdictional error.

Failure to identify claim to fear persecution by being a monarchist ex-Gurkha

The applicant submitted that the Tribunal failed to consider his composite claim to fear persecution because he was a monarchist who had been a Gurkha. It was submitted that the Tribunal failed to consider the applicant’s claims on a cumulative basis.
The relevant submission made to the Tribunal is recorded in para.125 of its decision record:
At the hearing before the second Tribunal the applicant’s representative submitted that a man of the applicant’s profile - which he submitted was that of ‘a low profile, relatively insignificant local person who had a profile as a Gurkha and who was a prominent, in his village, supporter of the royal family’ - would now have a problem if he were to return to Nepal.
In the next sentence of its decision record, the Tribunal said:
I do not agree.
As noted earlier in these reasons, the applicant’s claim regarding his monarchism was based on an alleged political activism which the Tribunal did not accept. In such circumstances, there was nothing to consider, in the context of the claim to fear persecution as a monarchist who had been a Gurkha, other than the applicant’s Gurkha-related claim. This the Tribunal clearly did. Even so, in considering the Gurkha-related claim, the Tribunal also expressly stated that it did not accept that the applicant had been involved in social work in his village or his district, work which the applicant had identified as having been undertaken in the interests of the monarchy’s public standing. Having earlier in its decision dismissed the applicant’s claims to fear persecution for reasons associated with his claimed monarchism, the Tribunal was not required to embark on a detailed explanation of its views concerning this claim which would only have been repetitive of the findings it had already made.
But, more fundamentally, the Tribunal’s recitation of the submission made at the second Tribunal hearing and its rejection of that submission (“I do not agree”) demonstrates that the third particular of the first allegation cannot be made out. Plainly, the Tribunal considered the applicant’s cumulative claim as a monarchist ex-Gurkha but rejected it in short form. The fact that it went on to express its reasons for this conclusion in a fashion which could be characterised as representing an individual or sequential consideration of the monarchism and Gurkha points does not alter this. The Tribunal’s reasons should not be examined with an eye keenly attuned to the perception of error and I do not conclude that the way the Tribunal expressed its reasons for its conclusion demonstrates that it failed to consider the submission put to it in the terms in which it was put.

Tribunal lacked jurisdiction

The second allegation made in the amended application was that because the departmental letter advising the applicant of the delegate’s decision failed to notify him of all the Tribunal addresses at which an application for review could be lodged, no valid notification of the delegate’s decision had been effected and thus the Tribunal lacked jurisdiction, a jurisdiction which, relevantly, was enlivened only if a valid notification of the delegate’s decision had occurred. In this regard, the applicant referred to ss.66(2)(d)(iv) and 412(1)(b) of the Act and reg.4.31 of the Migration Regulations 1994. They provide:
66 Notification of decision
…
(2)Notification of a decision to refuse an application for a visa must:
…
(d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state:
…
(iv) where the application for review can be made.
412 Application for review by the Refugee Review Tribunal
(1) An application for review of an RRT-reviewable decision must:
…
(b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; …
4.31 Applications
(1) For the purposes of paragraph 412 (1) (b) of the Act, each period stated in subregulation (2) is prescribed as the period within which an application for review of an RRT-reviewable decision to which the period applies must be given to the Tribunal.
(2) A period mentioned in subregulation (1) commences on the day on which the applicant is notified of the decision to which the application relates, and ends at the end of:
(a) in the case of an application given to the Tribunal by or for an applicant in immigration detention on that day — 7 working days (beginning with the first working day that occurs on or after that day); or
(b) in any other case — 28 days. …
An amendment to the application was sought after judgment was reserved following the first hearing day in these proceedings on 29 April 2010. The applicant obtained leave to reopen his case to amend his application, to adduce further evidence and to make submissions relying on the decision of the Federal Court in Hasan v Minister for Immigration & Citizenship (2010) 114 ALD 602 which had been delivered on 22 April 2010. The amended application was filed on 18 June 2010 but on 30 June 2010 the Full Court of the Federal Court delivered its decision in SZOFE v Minister for Immigration & Citizenship [2010] FCAFC 79 which, in an important and relevant respect, disapproved of the judgment in Hasan’s case. As a result, when the hearing in these proceedings resumed, the applicant properly conceded that this Court is bound by the Full Court’s decision in SZOFE although he nevertheless formally submitted that Hasan was correctly decided and that SZOFE was incorrectly decided.
The Minister submitted that the judgment of the Full Court of the Federal Court in SZOFE directly applied to the facts of this case and is binding on this Court.
In Hasan’s case, the appellants’ protection visa application had been refused by the ministerial delegate and notice of that decision was sent to the appellants’ authorised recipient by email on 28 October 2008. The notification letter advised the appellants of their review rights before the Migration Review Tribunal (“MRT”) and advised them that applications for review could be lodged at the MRT’s registries in Sydney and Melbourne, the addresses of which were given. However, there were three additional places at which an application for review could have been lodged, namely the registries at the Administrative Appeals Tribunal (“AAT”) in Brisbane, Adelaide and Perth. On 19 March 2009, nearly five months after the delegate’s letter was sent, the appellants lodged with the MRT an application for review of the delegate’s decision. On 24 June 2009 the MRT held that it did not have jurisdiction to review the delegate’s decision because the review application had been received outside the period prescribed by reg.4.10(1)(a). North J held that the ordinary and natural meaning of s.66(2)(d)(iv) is that the notification of the delegate’s decision must state all places where an application for review may be lodged and rejected a posited alternative meaning that the notification need only stipulate any place where an application for review may be lodged, saying that this would have some possibly unfair, inconvenient, irrational or unjust results.

North J was then called upon to determine what relief was appropriate. His Honour considered reg.4.10(1)(a), a provision similar to reg.4.31 which applies in the current proceedings. Regulation 4.10(1)(a) prescribed for the purposes of s.347(1)(b) the period within which an application for review was to be given to the MRT. That period “starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received”. His Honour expressed the relevant issue in the following terms:
The regulation appears to establish an envelope of time with a beginning and an end. It seems to require that the application be given to the Tribunal within that envelope. On this view, an application given after the end of the period would not comply with the requirement. Similarly, an application given before the start of the period would not comply with the requirement. On this construction (the plain meaning construction), in the present case the period for giving an application to the Tribunal has not commenced to run. It will only do so when the Minister notifies the appellants in accordance with s 66(2)(d)(iv). It would follow that, the application which has been filed by the appellants does not comply with the requirements of the regulation in that it was given before the time for lodging had commenced. (at 608 [29])
His Honour concluded that the grammatical reading of s.347(1)(b) and reg.4.10(1)(a) required that an application for review be given to the MRT after the start of the prescribed period but before the end of that period and that this was the correct construction. This meant that as the application for review given by the appellants on 19 March 2009 was given before the prescribed period commenced, the MRT had not been entitled to embark on the review.
In SZOFE, the relevant facts were set out in the decision of Emmett J who said:
The Applicant is a citizen of Cameroon. She arrived in Australia on 15 January 2009. On 27 February 2009, she applied for a protection (Class XA) visa under the Act. On 22 May 2009, a delegate of the Minister decided to refuse to grant a visa to the Applicant (the Delegate’s Decision). By letter of 22 May 2009 (the Notification Letter), sent to the Applicant by registered post to her residential address in Harris Park, a western suburb of Sydney, the Minister’s delegate informed the Applicant that her application for a protection visa had been refused …
On 2 June 2009, the Applicant lodged by hand, at the Sydney registry of the Tribunal, an application for review of the Delegate’s Decision. By letter of 3 June 2009, the Tribunal acknowledged receipt of the application for review. The Tribunal then embarked on a review of the Delegate’s Decision. By letter of 26 June 2009 addressed to the Applicant at her Harris Park address, the Tribunal invited the Applicant to appear before the Tribunal on 29 July 2009 to give evidence and present arguments relating to the issues arising in her case. The Applicant accepted that invitation. (emphasis included) (at [2]-[3])
Following a hearing, the Tribunal decided to affirm the delegate’s decision not to grant the applicant a protection visa.
SZOFE then commenced judicial review proceedings in this Court and, amongst other things, alleged that the Tribunal’s decision was vitiated by jurisdictional error because the Tribunal had no jurisdiction to entertain her application for review of the delegate’s decision. The claim was particularised as follows:
·    The Tribunal’s jurisdiction to review the Delegate’s Decision only arose once the Applicant had been notified of the Delegate’s Decision in accordance with s 66 of the Act.
·    Under s 66(2)(d)(iv) of the Act, notification to the Applicant of the Delegate’s Decision was required to state all locations where an application for review could be made, not some.
·    The Notification Letter only stated two locations where an application for review could be made, whereas there were three further locations that were not stated in the Notification Letter, being the registries of the Administrative Appeals Tribunal in Brisbane, Adelaide and Perth.
·    In the circumstances, the Notification Letter did not comply with s 66(2)(d)(iv) of the Act and, therefore, was invalid.
·    As a consequence, there was no valid notification of the Delegate’s Decision and the Tribunal’s jurisdiction to review the Delegate’s Decision was therefore not enlivened. (emphasis included) (SZOFE per Emmett J at [20])
Because of the very substantial number of other cases that would be affected if this ground were to be made out, the proceedings were transferred to the Federal Court where the Chief Justice determined that the proceeding should be heard at first instance by a Full Court of three judges.
The departmental letter advising SZOFE of the delegate’s decision informed her that an application to the Tribunal for review of the delegate’s decision could be lodged at either of the Tribunal’s registries in Sydney or Melbourne. She was not told that, under arrangements between the Tribunal and the AAT, applications for review could also be lodged at AAT registries in Brisbane, Adelaide and Perth. The applicant had always given, as her residential address in Australia, a suburban address in Sydney and when she lodged her application for review in the Tribunal she did so at its Sydney registry.
In SZOFE’s case the leading judgment was delivered by Buchanan and Nicholas JJ who found that it was clear that no prejudice had been suffered by the applicant from the failure to draw her attention to the possibility that an application for review might be lodged at the AAT’s registries in Brisbane, Adelaide or Perth. Their Honours said:
The applicant’s argument can only succeed if the procedural direction in s 66(2)(d)(iv) is first interpreted as requiring notification of all possible places of lodgement (whether with the RRT directly or through the AAT) to all potential applicants for review regardless of where they reside. Furthermore, the argument can only succeed if such a requirement is seen as fundamental to the exercise of any jurisdiction by the RRT even if a potential applicant is effectively notified of a decision and, in response, files an application for review in the required manner and within the required time. Neither premise should be accepted. (at [65])
In SZOFE, Buchanan and Nicholas JJ expressly disagreed with what North J had said in Hasan’s case, in so far as his Honour stated a general rule about the requirements of s.66(2)(d)(iv), stating that it is necessary to have regard to the particular circumstances of each individual case in order to determine whether jurisdictional error has resulted from an alleged failure to comply with a statutory requirement. In SZOFE it was held that whether an applicant is denied an effective or adequate opportunity to make an application for review will depend on all the circumstances of the case and it was neither necessary nor desirable to attempt to answer such questions in the abstract.
Buchanan and Nicholas JJ said that the case before them was an example of the necessity to test the question whether jurisdictional error could result from the alleged failure to comply with a statutory requirement by reference to the particular circumstances of the case in question. Their Honours found that the failure to draw SZOFE’s attention to the facility of lodging an application at an AAT registry in Brisbane, Adelaide or Perth did not constitute jurisdictional error in the circumstances. Their Honours said that the judgment of the High Court in Minister for Immigration & Citizenship v SZIZO (2009) 238 CLR 627 has:
… expressly drawn attention to the need to evaluate the practical consequences of failure to comply with procedural obligations under the Act. It is no longer possible, if it ever was, to speak of “imperative obligations” under the Act without specific attention to the purposes they are intended to serve. If the asserted failure to comply with s 66 is tested in that manner then the proposition that in all cases potential applicants for review must be advised of all places at which an application might be lodged, or to which it might be sent, cannot be sustained. The consequences of an alleged lack of information need to be assessed in a particular case. (at [67])
Consequently, Buchanan and Nicholas JJ rejected the applicant’s contention that the Tribunal had no jurisdiction to deal with the application for review which she had lodged on 2 June 2009. Their Honours also stated that, in the circumstances of that case, any lodgment of a review application with the Tribunal prior to the commencement of the period prescribed in reg.4.31 would not have been ineffective to initiate a review by the Tribunal because no adverse consequence of any kind would have been visited upon the applicant by the Tribunal’s early receipt of the review application.
In this matter, the applicant’s protection visa application advised a suburban Sydney address as his then current residential address in Australia. That application also identified a Sydney suburban post office box as the applicant’s then current postal address in Australia. It has not been suggested that either of these details changed in the period prior to the department’s letter of 20 July 2007 advising the applicant of the delegate’s decision on his visa application. The department’s letter was addressed to the applicant at his Sydney suburban post office box address. On 15 August 2007 the Tribunal received, at its Sydney registry, the applicant’s application for review.
In his notice disputing facts dated 22 June 2010, responding to the applicant’s notice to admit facts dated 17 June 2010, the Minister admitted that in the relevant period the Tribunal had registries at identified addresses in Sydney and Melbourne, had an agreement with the AAT that applications to the Tribunal could be lodged at AAT registries in Brisbane, Adelaide and Perth and admitted that these were “locations where an application for review to the Refugee Review Tribunal could be made”.
I am bound by the statements of the law concerning the operation of s.66(2)(d)(iv) made by Buchanan and Nicholas JJ in their joint judgment in SZOFE. Given this, I conclude in the particular circumstances of this case, first, that the applicant was not denied an effective and adequate opportunity to make an application for review and, secondly, that the wording of the department’s letter of 20 July 2007 did not vitiate the notification intended to be effected by that letter. This has the result that the Tribunal had jurisdiction to entertain the application for review, subject to the application having been made within time. As to the latter issue, accepting that the department’s letter of 20 July 2007 was sent by registered post on that day as indicated by the handwritten notation and registered post sticker reproduced at RD 89, the combined effect of s.66(1), reg.2.16, s.494B(4), s.494C(4), s.412(1)(b) and reg.4.31 is that the letter is taken to have been received by the applicant on 31 July 2007 and that he had until 28 August 2007 to lodge his application for review with the Tribunal. As already noted, the application was lodged on 15 August 2007 and was thus made within the prescribed time period.
As the applicant’s application to the Tribunal was made within the prescribed time period and the Tribunal otherwise had jurisdiction to deal with it, the second ground of the amended ground 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 sixty-four (64) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date: 20 July 2010