SZNTN v Minister for Immigration

[2009] FMCA 1037

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNTN v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1037

MIGRATION – Review of decision of Refugee Review Tribunal decision – Tribunal considered all claims and integers – Tribunal made findings open to it – choice and use of country information a matter for the Tribunal – Tribunal put applicant on notice of issues – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), s.430

Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
NABE v Minister for Immigration Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
NAHI v Minister for Immigration and Multicultural Affairs [2003] FCAFC 10
Applicant NABD of 2002 v Minister for Immigration and Multicultural Affairs [2005] HCA 29; (2005) 216 ALR 1
NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2

Applicant: SZNTN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1729 of 2009

Judgment of: Nicholls FM

Hearing date: 15 October 2009

Date of Last Submission: 15 October 2009

Delivered at: Sydney

Delivered on: 15 October 2009

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: -

Counsel for the Respondents: Mr J P Knackstredt

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 21 July 2009 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1729 of 2009

SZNTN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made on 21 July 2009 under the Migration Act1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 June 2009, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The applicant is a citizen of Nepal. He arrived in Australia on 27 September 2008. He applied for a protection visa on 7 November 2008. This application, including a statement in support, is reproduced in the bundle of relevant documents, which I will refer to as the Court Book (“CB”) in this matter (CB 1 to CB 34).

Claims to protection

1. Given the nature of the claims, it is important to understand exactly what the applicant put forward as his claims. These included that, as a student, he was an active member of a particular party in Nepal (the Rastriya Prajantantra Party – “RPP”), that the Maoists who were active in Nepal began to affect affairs in his village from about mid 1997, and that from 1998 Maoist activists began intimidating villagers and targeting those who were regarded as wealthy and high profile people, including members of the RPP.

2. The applicant claimed that in 2000 the Maoists asked for a large sum of money from his father, who was also an RPP member, and money from two others, all of whom refused to contribute the amount. A Maoist court ordered them to pay the amount within a particular time. The applicant’s father left the village. The other two did not leave the village and were killed.

3. Further, in 2003 a Maoist court ordered the seizure of two thirds of the land of the applicant’s family. The applicant claimed to have opposed this, and to have subsequently been kidnapped, and taken to an undisclosed location where he was kept for three days. He was beaten and tortured, and he only secured his release after signing a document which stated that he had willingly provided this land.

4. Following this, there was an increase in police activity and patrol in his local area. The Maoists removed themselves from the village, but he claimed to have been subsequently accused by the Maoists of reporting the kidnapping to police, which had resulted in the increased patrols. A message was sent to the applicant that a Maoist court had issued an order that he be killed.

5. The applicant left the village after the Maoists had attacked the local police station and went to Kathmandu. He later heard that after attacking the police station the Maoists began searching for the applicant individually. He claimed that his parents received threatening telephone calls from Maoists after their house was located in Kathmandu, and he moved to rental accommodation as a result.

6. Ultimately, the applicant claimed that he had been accused by the Maoists of spying against them, and had been accused of being, in a sense, responsible for the death of two Maoists who had been killed, it appears, as a result of police and army activity.

7. He further claimed that a Maoist leader from his village located him, that he mentioned the court order to kill the applicant, that this Maoist leader told him that they would be lenient if the applicant cooperated with the Maoists, that the applicant agreed to a subsequent meeting, but decided that the risk was too great and instead ceased his employment and moved his accommodation.

8. He then learned from his uncle that the Maoists continued to look for the applicant and he decided to come to Australia after he received threatening telephone calls. In all, therefore, the applicant’s claims were that if he were to return to Nepal he would be killed by the Maoists.

The delegate

1. The Minister’s delegate was not satisfied that the applicant had a well-founded fear of persecution if he were to return to Nepal (CB 89 to CB 98).

2. The delegate pointed to inconsistencies in the information provided by the applicant, and that the applicant had claimed at an interview with the delegate that the two Maoists, for whose death he was held responsible, had actually been killed in 2001. The delegate also noted that the applicant did not indicate that during his kidnapping in 2003 the Maoists raised the issue of the deaths of the colleagues and that it was not until the applicant was in Kathmandu many years later that he claimed this issue was raised by the Maoists.

3. Further, the delegate noted that the applicant was unable to be specific about when he was visited by the Maoists and the nature of the demands that were made.

4. The delegate rejected the applicant’s factual account relating to the deaths of the two Maoist comrades, and rejected that a Court had issued an order in relation to the applicant, or that he was visited by a Maoist leader in Kathmandu. The delegate was moved to this rejection due to the lack of detail provided by the applicant. In particular, the delegate found that it was implausible that the Maoists would seek the applicant in Kathmandu many years after the deaths of the two members.

5. Further, the delegate found the applicant’s claim of being kidnapped lacked specific details and, at times, that his account was contradictory, and noted that, despite his claimed fear, he remained in the village even after an order was said to have been issued for him to be killed.

The Tribunal

1. The applicant applied for review by the Tribunal on 2 March 2009 (CB 102 to CB 106). He was invited to, and did attend, a hearing before the Tribunal on 23 April 2009 (CB 108). The Tribunal’s account of what occurred at the hearing is set out in its decision record ([29] at CB 154 to [54] at CB 159).

2. The Tribunal accepted some aspects of the applicant’s factual claims. For example, it accepted that he was an active member of the RPP while he was a student, and it also accepted the applicant’s evidence that when he returned to his village he was still a party member, but was not able to do much work for the RPP because he devoted his time to working on the family farm.

3. Because it accepted the applicant’s evidence in this regard, the Tribunal did not place any weight on a document which the applicant had provided from the chairman of the RPP, as it found that what was stated in that document was inconsistent with the applicant’s oral evidence, and that the applicant did not satisfactorily explain these differences when he was questioned. But in spite of this, the Tribunal preferred the applicant’s own account in relation to this matter ([61] at CB 161).

4. The Tribunal further accepted that the applicant and his family were asked for donations and shelter from Maoists in his village and even that the Maoists took part of the applicant’s family’s land.

5. Further, it accepted that the applicant and his family had left their property in the village and moved to Kathmandu as a result of the general security situation that existed in that area in Nepal at the relevant time ([62] at CB 161).

6. However, the Tribunal did not accept that the applicant or his father were specifically targeted. Nor did it accept that the applicant’s father had to leave the village in 2000 to avoid harm for refusing to make the donation. In coming to this view, the Tribunal considered general information available to it regarding the ruthlessness of the Maoists and their human rights abuses and determined that if that were the case then the applicant: “would not have been able to remain running the farm and living there in the area as he said he did …” ([63] at CB 161).

7. Further, the Tribunal did not accept that the applicant was kidnapped and held as he claimed. The Tribunal made that finding because the applicant gave little detail of what occurred, and provided only what the Tribunal described as general responses ([63] at CB 161 to CB 162).

8. In addition, the Tribunal did not accept the applicant’s claim that he left his village in 2003 because he was specifically targeted by the Maoists. When the Tribunal questioned the applicant as to “whether anything in particular happened to him in 2003 which caused him to leave his village when he did”, the applicant was reported to have indicated that he had been kidnapped and that his land had been seized, but he made no reference to the claim that the Maoists had issued a court order to kill him or, indeed, of the claimed incident of Maoists attacking the police station near him which was said to have subsequently caused his immediate departure. The Tribunal concluded that if the applicant’s claims in this regard were true: “… he would have mentioned this reason for leaving his home/village in 2003 at the hearing without being prompted by the Tribunal” ([64] at CB 162).

9. Further, the Tribunal did not accept the applicant’s claim that he and his family did not live in the house that they owned in Kathmandu because they feared harm from Maoists, or that the applicant was able to avoid harm in Kathmandu because Maoists could not find him there, having lived at the same address between 2003 and 2008. The Tribunal considered that it was inconsistent with the applicant’s claims that Maoists were looking for him in Kathmandu that he was able to live at the same address and work in Kathmandu for about five years without being located, and the Tribunal considered that, when this was put at the hearing, the applicant did not give “a reasonable or plausible explanation” ([65] at CB 162).

10. The Tribunal did not accept that Maoists were searching for the applicant in Kathmandu, or that the applicant was approached by a Maoist leader from his village while working at his uncle’s office. Nor did the Tribunal accept that this Maoist leader, and others, went to find him at his uncle’s office while he was absent on leave.

11. The Tribunal considered two letters, one dated 8 May 2009 from the applicant’s uncle and the other dated 7 May 2009 from a “person described as an advocate from Kathmandu”. It did not give any weight to these documents for two reasons. First, they were written after the Tribunal hearing in which the Tribunal’s concerns were discussed, the clear implication there being that they had been contrived, or at least created, for the purpose of addressing the Tribunal’s concern. Second, because one was written by the applicant’s uncle, a relative who the Tribunal considered would not be objective in this matter and the other by a person, as the Tribunal said: “… who stated in the document that he was given the information about what he says happened to the applicant from the uncle” ([65] at CB 163).

12. The Tribunal similarly rejected as being unreliable the document provided by the applicant which was said to be from the Nepal Communist Party.

13. The Tribunal also considered that if the applicant was of such interest to the Maoists that they issued a letter to him in November 2003 and that they were actively searching for him in Kathmandu then he would not have been able to live and work in Kathmandu, as he claimed, for five years ([66] at CB 163).

14. Ultimately, therefore, the Tribunal, while accepting some elements of the applicant’s factual claims, rejected, for the reasons that it gave, the key and central parts of the applicant’s claims to fear specific harm from the Maoists. It accepted that the applicant was concerned by the general political situation in Nepal, but for the reasons that it gave, it did not accept that he left Nepal or that he feared to return because of harm from Maoists, because of his political opinion, or because he was from a wealthy family. Having rejected, therefore, the key and central parts of the applicant’s claims that went to the issue of the fear of persecutory harm, the Tribunal found that it could not be satisfied that there was a well-founded fear of persecution for a Convention reason, and therefore affirmed the delegate’s decision on that basis.

Application before the Court

1. The application that has been put before the Court contains three grounds. It is important to record exactly what is said:

   “1. RRT did not consider all evidences submitted in making its decision.

   2. RRT made decision without considering relevant facts provided to it.

   3. RRT made error in law in making its decision”.

Hearing before the Court

1. The applicant appeared in person before the Court. He was assisted by an interpreter in the Nepali language. Mr J P Knackstredt appeared for the Minister. He also drafted written submissions which were provided to the Court on behalf of the Minister.

2. The applicant was given the opportunity to make submissions to the Court. In essence, he had nothing of substance to say in relation to the central and critical matter for consideration before this Court today, that is, whether the Tribunal’s decision is affected by jurisdictional error.

3. Before the Court the applicant stated (after it had been explained to him that the purpose of the hearing today was to explore whether, in effect, the Tribunal had made a legal mistake) that it was up to the Tribunal as to what mistakes were made, and that the Tribunal was not satisfied when he had told it what he said was the whole story. The applicant stated that there seemed to be differences with what he said was reality. He concluded by saying that he did not know why the Tribunal was not satisfied with what he had said. It was clear that the applicant had not obtained a translation of the Tribunal’s decision record.

4. When the Court noted with the applicant that it appeared from the material before the Court that he had close relatives in Australia who have been here for some time, the applicant confirmed that a sibling indeed was a permanent resident of Australia. The applicant was unable to explain why he did not obtain their assistance in understanding the Tribunal’s reasons. He said that his relatives did not have time.

5. While the Court is most sympathetic to persons who come to this country seeking protection, it must be said that it is an extraordinary situation to come to this Court asserting an error on the part of the Tribunal, to put the Minister to the expense of having to respond to the application (and that is, in effect, putting the Australian taxpayer to that expense), in circumstances where an applicant claims to fear for his life, and then to tell the Court that his close relatives in Australia did not have enough time to at least translate an important document for him that specifically, and centrally, is critical to his claim for protection in this country.

6. In any event, turning to the grounds, such as they are, grounds which remain in the barest of form and unsupported by any submission or evidence, despite the opportunity that was provided to the applicant at the first Court date in this matter on 12 August 2009.

Consideration

Ground One

1. Ground one asserts that the Tribunal did not consider all of the evidence submitted by the applicant in making its decision. No particulars are provided. As I have said, the applicant was unable to assist further at the hearing today before the Court as to what evidence was not considered. I should just say that, given that the applicant has not had the Tribunal’s decision record translated, let alone explained to him, it is difficult to see how the applicant can make such an assertion.

2. Nonetheless, as I have already referred to at some length today, the Tribunal’s decision record reveals, by its setting out of the applicant’s evidence, both oral and documentary, that it understood both the elements and ambit of the applicant’s claims. As I have already said, it accepted some of the applicant’s factual claims, but rejected key and central elements. This was because it found the applicant’s evidence to be lacking in credit in this regard. The Tribunal considered the applicant’s documentary evidence that he had provided in support of his claims. As I have already said, it gave no weight to these documents because of inconsistency with the applicant’s own evidence, and concerns about their reliability.

3. It is, of course, the case that the Tribunal must consider all claims and all aspects or, as it is said, integers of claims put to it, or claims that can be said to clearly arise on the material before it (Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 and NABE v Minister for Immigration Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263).

4. If what is implied by the applicant’s ground is that the Tribunal failed to deal with a claim or an aspect of a claim as expressed, or clearly arising, from the applicant’s evidence, then I cannot see that any such claim can succeed on what is before the Court. As I have already set out at length, the Tribunal dealt comprehensively with all of the applicant’s claims.

5. Further, if what is meant by this ground is that the Tribunal failed to specifically mention some piece of evidence in its analysis, then I note in this regard that s.430 of the Act, and in particular, sub-ss.430(1)(c) and (d) only require the Tribunal to set out the evidence and materials on which its findings are based. But, in any event, as I have already said, I cannot see that any piece of evidence put before it has been overlooked by the Tribunal.

6. In the absence of any particularity whatsoever and in the circumstances presented to the Court, at best the applicant’s complaint that the Tribunal did not consider his evidence may be seen as being put in the sense that it did not accept key and central parts of it. When seen in that light, it is not for this Court to engage, as is said, in merits review of the Tribunal’s findings. I refer here to such authorities as Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259.

7. The Tribunal’s findings, on what is before the Court, were all open to it, and it gave cogent reasons for its findings. That the applicant was not believed in certain key respects was a finding by the Tribunal, as has been described as the decision-maker “par excellence” (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 per McHugh J). Importantly, these were findings within the exercise of its jurisdiction.

Ground Two

1. Ground two, as expressed, and without particularity, does not really advance the applicant’s case beyond what has already been addressed above. What is stated in the application with the reference to relevant facts is, even at the very best, encompassed within the evidence presented which was the complaint in ground one.

2. If, however, this is to be taken as some reference to country information available to the Tribunal, beyond that referred to in the applicant’s adviser’s submissions that were made to the Tribunal, then the complaint also does not succeed on this basis. 

3. In this regard the Tribunal did make a general reference to country information about Maoists, which had been included in the delegate’s decision ([18] at CB 152). It is clear that the Tribunal did have regard to this general country information and, on this basis, accepted the applicant’s factual claim that he and his family were asked for money and shelter by the Maoists.

4. Partly on this basis, it also further accepted that the Maoists took part of his land. Importantly, it was part of the Tribunal’s reasoning in accepting that the applicant and his family moved to Kathmandu in 2003 “… because of the general security situation with the Maoists activities in their area” ([62] at CB 161).

5. But it must be said, as is quite clear, that ultimately, the use of, and weight to be placed on, country information is, of course, a matter for the Tribunal (see NAHI v Minister for Immigration and Multicultural Affairs [2003] FCAFC 10 at [11] to [13], Applicant NABD of 2002 v Minister for Immigration and Multicultural Affairs [2005] HCA 29; (2005) 216 ALR 1 at [8] per Gleeson CJ, NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419 at [81] to [84]). Even when viewed liberally, this ground also does not assist the applicant.

Ground Three

1. Ground three is a general assertion of an error of law on the part of the Tribunal. No particulars whatsoever are provided. In the absence of any particularity whatsoever, I can only agree with the Minister’s submissions that this ground is without merit, and it should be rejected on that basis. But even beyond that, on any plain reading of the material that has been put before the Court, I cannot discern any relevant error and, indeed, that means I cannot discern jurisdictional error in what the Tribunal has done.

2. The applicant was offered, and participated in, a fair hearing. He was given the opportunity to put his claims and evidence both at the hearing and, indeed, in writing, and did so both before and after the hearing. He was assisted by an adviser who was a registered migration agent (CB 117), who made submissions on his behalf both orally and in writing. Having regard to the Tribunal’s decision record, it considered these submissions. The Tribunal’s unchallenged account of what occurred at the hearing, and I say unchallenged because the applicant has brought no evidence to dispute what the Tribunal itself said had occurred at the hearing, reveals that the applicant was put on notice as to the Tribunal’s concerns about his evidence. (See, in particular, [38], [40], [41], [43], [44] and [45] of the decision record at CB 155 to CB 157.)

Conclusion

1. In all, it is the case that for the applicant to succeed before this Court today, the Court would need to discern, at least, some jurisdictional error on the part of the Tribunal. Having looked at all the material before the Court, and I must say bearing in mind that, notwithstanding his having taken no action of substance on his own behalf to assist his cause before the Court, I nonetheless looked carefully to see whether any jurisdictional error could be discerned beyond the bare assertions made in the application. But I cannot discern any such error. As is said in the Minister’s written submissions, accordingly, this decision with reference to Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 is a privative clause decision, and the application is therefore dismissed.

Costs

1. In my view, an order for costs should be made in this case. The applicant has come to this Court with his application, as is his right. However, in exercising that right, he has put the Minister to some expense in responding to that application. The applicant has said, when given the opportunity today, that he has no job, no money and, as I understood him, was reliant on his brother even for the amount that was paid as part of the administrative costs in making the application to the Court. In my view, a lack of funds is not a sufficient reason against the making of the order in favour of the successful party in the normal course. I will make that order.

2. As to the amount, as I told the applicant earlier, the test is clearly whether the amount sought is a reasonable amount in all the circumstances. One guide to what is reasonable is what is set out in the relevant Schedule to the Rules of this Court. In that regard, I note that the amount sought is well below the maximum amount that could have been sought under the Rules. But I am also guided more generally by what is reasonable in the particular circumstances of this case. In this regard I note that multiple copies of the Court Book have been prepared and filed and served, the attendances by a solicitor on a number of occasions before the Court, the preparation, filing and serving of a formal response, written submissions and, indeed, the appearance by counsel today. Having regard to all those matters, I am satisfied that the amount sought is a reasonable amount, and will make the order fixed in that amount.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: C Darcy

Date: 23 November 2009