SZORJ v Minister for Immigration

[2010] FMCA 949

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZORJ v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 949

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Nepal – applicant not believed – no reviewable error found – application dismissed – observations on the obligation to give reasons bearing on the Refugee Review Tribunal and the Independent Merits Review body responsible for the review of offshore decisions.

Minister for Immigration v SZLSP [2010] FCAFC 108
Minister for Immigration v SZMDS (2010) 240 CLR 611
Minister for Immigration v SZNPG [2010] FCAFC 51, (2010) 115 ALD 303
MZXSA v Minister for Immigration [2010] FCAFC 123
Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407
SZJSS v Minister for Immigration [2009] FCA 1577

Applicant: SZORJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2178 of 2010

Judgment of: Driver FM

Hearing date: 6 December 2010

Delivered at: Sydney

Delivered on: 6 December 2010

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2178 of 2010

SZORJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was made on 8 September 2010.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Nepal and had made claims of political persecution.  The following statement of background facts relating to the applicant’s claims and the Tribunal decision on them is derived from the Minister’s submissions filed on 1 December 2010. 

2. The applicant is a citizen of Nepal who arrived in Australia on 1 December 2009: court book “CB” 87[2], using a photo-substituted Nepalese passport in another person’s name containing a student visa: CB 89[21].  He applied for the protection visa on 21 January 2010: CB 1-41.  The delegate interviewed the applicant on 26 March 2010: CB 44-45, and refused the visa on 17 June 2010: CB 48-59.  The applicant applied to the Tribunal for review on 12 July 2010: CB 60-63.  The Tribunal held a hearing on 8 September 2010: CB 80-82.

3. The applicant claimed to fear persecution in Nepal, apparently by reason of his imputed political opinion.  As ultimately presented to the Tribunal, he claimed to have been studying in Kathmandu from 2006, and that, on a visit to his village had been taken away for one day in March 2007 by the Young Communist League (YCL), the youth wing of the Maoists, and made a member.  He claimed that they would ring him in Kathmandu and ask him to do things on their behalf.  He claimed to have decided to leave the YCL before he came to Australia, but had not told them.  Nevertheless he claimed to fear that the YCL would harm him.  See generally CB 89-93.

4. The Tribunal noted a number of difficulties and implausibilities with the applicant’s claims, including his limited knowledge of the YCL despite claiming to have been a member of it for two years and to have had repeated contact with YCL members; contradictions in his oral evidence as to how often he was in Kathmandu as opposed to his village; and contradictions between his evidence to the delegate that he faced continual harassment from the YCL and his evidence to the Tribunal that he was not harassed by them.  The Tribunal concluded that the Applicant was a student who lived and studied full-time in Kathmandu from 2006 to 2008, and was not involved with the YCL as he claimed.  The Tribunal accordingly concluded that the Applicant’s claimed fear of harm from the YCL because of his former involvement was not well founded.  See generally CB 95-96.

5. These proceedings began with a show cause application filed on 7 October 2010.  The applicant now relies upon an amended application filed on 30 November 2010.  I note that the applicant had the benefit of advice under the Minister’s panel advice scheme before the filing of that amended application.  The amended application contains five grounds:

   1. I argue that the Tribunal member has applied an arbitrary standard as to what an ordinary member of YCL would know.  The Tribunal member established that an initial disbelief of my credibility on one matter and failed to look at my entire evidence in a new light.  The substantial conclusion reached by the Tribunal member was poor justified.

   2. There was no basis whatsoever for the Tribunal member that all persons involved with the YCL would know where YCL members came from.  It is not my lack of knowledge about YCL but I have been undermined by the arbitrary view of the Tribunal member.  My argument also is that how the Tribunal Member was able to make a decision in my case on the same day when the hearing was conducted.  The Tribunal member did not consider my claims, problems and country information cautiously at the time of making or reaching the purported decision in my case as it is impossible to make a fair decision within a short period of time.  This is absolutely unfair.

   3. I argue that the Tribunal member’s decision in my case has been vitiated by an error of law as the evidence that the Tribunal member relied upon is so unreasonable or so inadequate the only inference is that the Tribunal member failed to satisfy all its statutory requirements in dealing with my case.

   4. The Tribunal member committed jurisdictional error by failing to consider a claim or misconstruing a claim made to it.  The Tribunal rejected my claim on the basis that I was not … involved with YCL or I was not forced to be involved with the YCL activities without comprehending that my claim to fear persecution by reason of being forced to be involved with YCL or be seriously harmed by YCL if I disown my membership or disobey them which was a separate basis upon which I claimed to fear persecution.  Rather, the Tribunal Member incorrectly construed my claim to be a member of YCL and a membership of particular social group as a forcefully recruited member as an [extension] of the claim that I belonged to the YCL.

   5.The Tribunal failed to consider my claim in the sense of engaging in an active intellectual process in respect of separately dealing with my claims. The Tribunal failed to exercise its jurisdiction by failing to consider and make findings in respect of my claims as it did not address the question of whether a person in my position was able to obtain adequate protection.  The essential contention in my claim was that the Tribunal failed to address and deal with the claim articulated by me that I had a well-founded fear of persecution based on my membership of a particular social group namely that I was a forcefully recruited member of the YCL.

6. I received as evidence the court book filed on 9 November 2010. 

7. I received as a submission the applicant’s affidavit which accompanied his original application.  The applicant’s affidavit contains an allegation of interpretation problems, apparently at the Tribunal hearing.  The affidavit also contains an allegation that the presiding member was intimidatory and overbearing.  No evidence has been advanced to support those allegations.  Neither did the applicant address them today in his oral submissions.

8. I made procedural orders in this case on 28 October 2010.  Those orders provided the applicant with the opportunity to file and serve evidence, including a transcript of the Tribunal hearing.  The applicant has not taken up that opportunity.  In the absence of evidence to support the allegations in the applicant’s affidavit, I give those allegations no credence. 

9. The Tribunal’s reasoning in relation to the applicant’s claims is contained at [70]-[81] of the Tribunal decision, reproduced at CB 95 and 96.  The Tribunal’s reasons are brief, direct and to the point.  As the grounds advanced by the applicant, in part, bear on that brevity, it is appropriate to incorporate the Tribunal’s reasons, in their entirety:

   I am satisfied that the applicant is …, a national of Nepal.

   His claims to fear harm in Nepal rely on his having been involved with the YCL, and to have left it.

   I do not consider plausible that he was involved with the YCL, for the following reasons:

   Firstly, he claims to have been involved with its members for a period of almost two years. However, although he was able to name its president, he knows nothing of its ideology and did not know from which organisation it drew most of its members. That is not consistent with his claim to have had repeated contact with YCL members.

   Secondly, he gave oral evidence to the Tribunal that he was living in Kathmandu from 2006 until August 2008, and was studying full time at college there. As to how often he had visited his village while a student, he said he had visited from “time to time”, by which he said he meant once a month, and would stay for a weekend, and in September 2008 he had gone back to live in his home town in …. However he later claimed that in the 6-7 month period from March 2007 he went to Kathmandu “from time to time”, but was mostly in the village and helping the YCL. This evidence is internally inconsistent, and I do not consider the latter claim plausible. I am satisfied that he was a full time student living in Kathmandu in this period.

   Thirdly, as an apolitical student based in Kathmandu, according to the evidence from the South Asia Terrorism Portal (2010) his background is not at all typical of the YCL membership.

   Fourthly, in his written claims to DIAC he stated that he was facing continuing harassment in Nepal because he had renounced the YCL. He told the Tribunal that he had not been harassed by the YCL for this reason in Nepal. Again his evidence has been internally inconsistent on this point, casting further doubt on the reliability of his account.

   Fifthly, in his oral evidence he said that he had been a full-time student at … in Kathmandu until September 2008, at which time he had graduated with a diploma in business. His ability to graduate is not consistent with his claim to have spent little time attending classes. I am satisfied that he was living and studying in Kathmandu from 2006 until September 2008, and was not involved in YCL-related activities.

   Finally, it is not consistent with his claimed fear of the YCL in … that he continued to visit his village there for weekends while a student, made no attempt to move house or change his telephone number while in Kathmandu, and returned to live in his village in September 2008. This conduct is far more consistent with an absence of fear of harm.

   Having considered all these factors, I am not satisfied, and do not accept, that the applicant was involved with the YCL in Nepal. As he claims to fear the YCL will harm him on return to Nepal because of perceptions of his opposition to it arising from this claimed past involvement with it, I consider the chance remote that the YCL will harm him, or have any interest in harming him.

   He does not claim to fear being persecuted in Nepal for any other reason.

   Therefore the Tribunal finds that the applicant does not have a well-founded fear of being persecuted in Nepal for the Convention reason of political opinion or for any other of the Convention reasons.

10. The Refugee Review Tribunal and the Independent Merits Review body (“the IMR”) dealing with offshore decisions have to deal with thousands of cases each year.  The Tribunal is subject to a code of procedure in relation to its proceedings.  The IMR is not.  However, I see no reason to distinguish between the obligations of the Tribunal under its code of procedure to make a decision with reasons, and a like obligation arising under the general law.

11. The reasons of an administrative decision maker may be fulsome to the point of prolixity, in some cases, or they may be brief.  The Tribunal’s obligation is to give attention to the matters raised by an applicant and to give the reasons that the Tribunal considers relevant.  Brevity, clarity and certainty are not jurisdictional errors.  There may be some point at which a paucity of reasoning by a decision maker may point to a jurisdictional error.  In my view, this is not that case. 

12. The first ground of review in the amended application, asserts that the Tribunal applied an arbitrary standard of political knowledge.  The Minister submits that the allegation of applying an arbitrary standard is not an independent ground of jurisdictional error, but might support an argument of irrationality, or illogicality.  Whatever may be the merits of that submission, I am not persuaded in this case that the Tribunal did apply an arbitrary standard of political knowledge.  The Tribunal was entitled to test the credibility of the applicant’s claims.  Those claims are discussed in adequate detail in the Tribunal’s reasons from [19]-[61] of its reasons.

13. The applicant’s knowledge of the YCL is dealt with particularly at [58]-[61].  It was central to the applicant’s claims that he had been involved with the YCL against his will and had been indoctrinated by them.  It was reasonable for the Tribunal to test the veracity of that claim by asking questions designed to draw from the applicant his knowledge of the YCL.  The Tribunal’s conclusion was that the applicant’s level of knowledge was superficial and was not consistent with his claims.  That conclusion was, in my view, open to the Tribunal on the material before it.

14. The second ground of review is in part an elaboration of the first claim.  There is, also in the second ground, an assertion that it was unfair for the Tribunal to make its decision on the day of the hearing.  Decision makers dealing with protection visa claims are dealing with issues of life and death concerning applicants.  There is much to be said for the view that decision makers should take a cautious approach to the determination of claims in those circumstances, but decision makers are also entitled over time to draw from the benefit of their experience.  That experience enables decision makers to determine what claims need further and detailed consideration and what claims do not.  Where at a hearing the Tribunal has reached a clear view on an application, there is no reason why the Tribunal should not make a decision on the spot.  The Court adopts the same approach.  Indeed, in this case it has.  I reject the second ground of review.

15. The third ground appears to be an allegation of Wednesbury unreasonableness.  That ground is addressed, to the extent that it was common with the original application, in the Minister’s submissions.  I agree with those submissions.

16. The Tribunal’s conclusion that the applicant’s claims of past involvement with the YCL was untrue is a finding of fact par excellence: Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. The Tribunal’s findings were open to it for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision, and there is generally no error of law in the Tribunal making a wrong finding of fact or engaging in unsound reasoning: Minister for Immigration v SZNPG [2010] FCAFC 51, (2010) 115 ALD 303 at [20] and cases there cited.

17. As I have already noted, the applicant claims that the Tribunal’s decision is unreasonable, and that it applied an “arbitrary standard” in questioning the applicant about his YCL membership.  As the applicant has not filed a transcript of the Tribunal hearing this claim has no factual foundation beyond the Tribunal’s own account of the hearing.  The Tribunal notes that the applicant did not know the YCL’s ideology (CB 92[50]) or from where it drew most of its members (CB 93[58]): CB 95[73].  There is nothing irrational about the Tribunal expecting that a person who claimed to have been a member of the YCL for two years and had frequent contact with YCL members would know such details.  Moreover, the applicant’s knowledge of the YCL was only one of a number of matters that led it to find he had had no involvement with the YCL.  As reasonable minds may differ about this conclusion it cannot be said to be illogical or irrational: Minister for Immigration v SZMDS (2010) 240 CLR 611 at [84], [86] per Heydon J; [131], [135] per Crennan and Bell JJ; see also Minister for Immigration v SZLSP [2010] FCAFC 108 at [30-42] per Kenny J; MZXSA v Minister for Immigration [2010] FCAFC 123 at [42-45].

18. Reasonable minds may differ as to the likely correctness of some other aspects of the Tribunal’s reasoning. In particular, the Tribunal’s reasoning that the applicant’s claim of not being able to attend many classes at his college in Kathmandu was inconsistent with him having graduated with a diploma, is debatable. However, this was one of six grounds upon which the Tribunal determined that the applicant’s claims lacked credibility. Considered cumulatively, the Tribunal’s reasoning discloses an approach which was open to the Tribunal on the material before it.

19. I am conscious that issues having some bearing on allegations of unreasonableness were considered by the High Court recently on appeal from the decision of the Federal Court in SZJSS v Minister for Immigration [2009] FCA 1577. The High Court has reserved judgment in that case. I understand that the particular issue of contention in that case is whether the Tribunal fell into error by failing to give proper, realistic or genuine consideration to corroborative evidence.

20. Whether one views the applicant’s grounds as raising a contention of Wednesbury unreasonableness or a failure to engage in an active intellectual process or a failure to give proper, realistic and genuine consideration to his claims, it is apparent, in my view, that the Tribunal’s reasoning, while brief, was adequate to deal with the applicant’s claims.  I reject to the third ground of review.

21. The fourth ground of review suggests that the Tribunal failed to deal with an element or an integer of the applicant’s claims.  I disagree with the proposition, if made, that the applicant’s assertion that he would be harmed as a consequence of disowning the YCL was raised as an independent ground of a fear of harm.

22. The applicant’s original protection visa claims were set out in a statutory declaration reproduced at CB 25. The applicant’s claim clearly was a fear of harm from the Maoists, in particular, the YCL being the youth wing of the Maoists. The applicant clearly asserted in paragraph 6 of the statutory declaration that he had decided to renounce the YCL and feared that he would be harmed or killed by the Maoists. That aspect of the applicant’s claims was discussed with him at the Tribunal hearing. In particular, at [52]-[56] of its reasons, CB 92, the Tribunal recounts the relevant discussion. In my view, the Tribunal’s findings and reasons informed by that discussion adequately dealt with the issue of renunciation. Fundamentally, as the Tribunal did not accept that the applicant had been involved with the YCL at all, he need not fear harm as a result of renouncing them. I reject the fourth ground of review.

23. In the fifth ground, the applicant asserts that the Tribunal failed to engage in an active intellectual process in respect of his claims.  In particular, the applicant asserts that the Tribunal failed to address the question of whether a person in his position was able to access adequate state protection.  The short answer to that assertion is that the Tribunal had determined that the applicant’s claims of past harm were false. Because the Tribunal did not accept that the applicant had suffered harm in the past, the Tribunal could readily conclude that the applicant did not have a well-founded fear of being persecuted in Nepal, for the reasons advanced, in the future. 

1. Because the Tribunal had no doubt in reaching that conclusion it did not need to consider whether the applicant would be able to access adequate state protection if his claims had been true. 

2. I conclude that the Tribunal decision is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed.

3. In consequence in the dismissal of the application, the Minister seeks an order for costs.  The Minister seeks costs fixed in the sum of $4,250.  The applicant did not wish to be heard on costs.  I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,250.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Driver FM

Date:  8 December 2010