SZORO v Minister for Immigration
[2011] FMCA 84
•21 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZORO v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 84 |
| MIGRATION – Review of decision of RRT – where applicant claims Tribunal failed to deal with an integer of his claims and conducted itself in a manner consistent with apprehended bias – whether Tribunal misapplied dicta in Guitta Levy or MMM – whether remarks made about applicant’s credibility indicated apprehended bias. |
| Guitta Levy v Minister for Immigration& Anor [1998] FCA 1666 Applicant A v Minister for Immigration & Ethnic Affairs (1997) 142 ALR 331 Minister for Immigration and Ethic Affairs v Guo & Anor (1997) 191 CLR 559 SZHDL v Minister for Immigration& Anor [2008] FCA 356 Ling v Minister for Immigration & Anor [2004] FCA 1069 Re Refugee Review Tribunal; Ex parte H [2001] 75 ALJR 982 Minister for Immigration & Anor v SZJSS [2010] HCA 48 MMM v Minister for Immigration & Anor (1998) FCA 1664 |
| Applicant: | SZORO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2204 of 2010 |
| Judgment of: | Raphael FM |
| Hearing date: | 10 February 2011 |
| Date of Last Submission: | 10 February 2011 |
| Delivered at: | Sydney |
| Delivered on: | 21 February 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Turner Coulson |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,850.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2204 of 2010
| SZORO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Nepal who arrived in Australia in March 2007 as a student. He studied at a college in Sydney from May 2007 until February 2008. In May 2008 he was arrested, charged and convicted of a series of offences for which he was imprisoned for eighteen months. Upon his release from prison in November 2009 he was placed in immigration detention and he there applied for a protection visa. He is not currently in immigration detention.
The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations was that he feared, should he return to Nepal, that he would be persecuted for his Christian beliefs and his activities as a proselytiser. He claimed that he had been adopted at birth into a prominent family of the Newari tribe that was active on the Newari committee for Guthi. The Newaris were sympathetic to those promoting Hinduism within Nepal including some Hindu extremists such as the Shiv Sena group. The applicant claimed that his father’s sister had introduced him to Christianity of which she was a follower and from about the age of fourteen he attended bible studies with his cousins at the Gyaneshwor Church in Kathmandu. He claimed that he had converted to Christianity although he had not been baptised. It would appear that he did not tell his father about his abandonment of Hinduism prior to his death. Whilst his father was alive his mother refused to talk to him about Christianity although it appears he has had more contact with her since that time. The applicant claimed that his aunt had been ostracised by his extended family and the Newari Tribe but notwithstanding this he had spent much time with her as she was very close to his father and his mother had been involved in other Newari activities.
The applicant claimed that he carried out proselytising work for the Gyaneshwor Church including going to different parts of Nepal and talking to people about Christianity. He claimed that he would also talk to people who came to the church when church services were being held and in response to a suggestion from the Tribunal that his proselytising activity had been quite open the applicant indicated that his mother had not been keen to pursue the topic so long as he carried out his duties as a son which included attending certain Newari Hindu ceremonies. In response to a question from the Tribunal as to whether he had been detained, arrested or tortured by the Nepalese authorities the applicant responded that he along with other members of the church had been detained once at a checkpoint between Kathmandu and Pokhara by the army when a state of emergency had been enforced:
“He said they had been accused of carrying illegal pamphlets and trying to stir up the rebels but it had been nothing serious. He said they had let them go the next day with a warning but they had not given them back their pamphlets.” [73] at [CB 198]
The applicant had also told the department about an incident when he was detained by Maoists at a checkpoint in Thankot. The applicant indicated that being stopped at checkpoints was quite a common occurrence, people were generally harassed but provided you paid a small bribe and abided by the rules “it was not serious”.
The applicant claimed that his family was still very involved in the Guthi and Newari culture and his uncles were very much involved with Hindu extremists. He said that his uncles had threatened him and that people from Shiv Sena had monitored him and followed him where ever he was going. He said that he had been cornered by some Maoists who told him that he should not stop trying to defend the religion that ate cows as he was corrupting the younger generation. [78] at [CB 199]:
“[78]The applicant said that at certain times there had been people coming to his house saying that they had an official warrant for his arrest for being unpatriotic. He confirmed that these people had been Masoists. He confirmed that he claimed that he had been detained for nine or ten days by the Maoists in Lamjung somewhere around late 2005 or early 2006. He said that this had been the biggest mental and physical harm he had suffered up until that point. He said that before this they had had altercations on different occasions. He said that some of the villages to which they had gone had been ‘owned’ by the Maoists in the sense that everyone in the village had supported them. He said that if they told them not to preach the Gospel in such villages they had known to leave and on some occasions they had asked them to pay rebel taxes. He said that as long as they had done what they had been asked they had not suffered physical harm apart from punches and pushing but nothing serious.”
The applicant told the Tribunal that he got in touch with the Australian Nepali Christian community when he had been in jail in Bathurst and made claims about attending the Nepalese Christian Church in Granville. The Tribunal noted that in his protection application earlier and evidence he said that he had attended this church once a week but that after he had been questioned about this by the first Tribunal [the applicant appeared before one Tribunal which was unable to complete its work before ceasing to be a member] it was revealed that this had not been the case. The applicant had sworn a statutory declaration annexed to representations from RACS dated 25 May 2010 to the Tribunal in which at [9] [CB 130] he states:
“I did not attend the Nepalese Christian Church in Granville at least once a week. When I arrived in Australia I was very frightened, confused and traumatised after my sexual abuse and problems with the Maoists due to my proselytising activities in Nepal. As a result I was experiencing a spiritual crisis and suffering from mental health problems. I was lost and confused and had no support. In addition I was experiencing relationship problems and all these factors led me to be involved with drugs.”
During this time I did attend different church services in Australia. Due to commuting issues I would attend the church closest to my residence.”
The Tribunal questioned the applicant on a number of other inconsistencies in his evidence, one of which was that he had suggested that the Gyaneshwor Church in Nepal was part of the Church of England. The Tribunal had independent country information which made it clear that this was not the case. The applicant had also claimed that he had been sexually abused by a pastor at that church. He had taken this up with chaplains who he had met in prison. They had encouraged him to raise the issue with the Anglican Bishop in Singapore who appeared to have pastoral responsibility for Nepal. This he did. The applicant had also said that he was an Anglican. The applicant’s advisors explained these discrepancies by suggesting that as the only chaplains in the prison system were Anglican there had been an assumption that he was complaining about an Anglican pastor.
The applicant claimed that he would be the subject of persecution should he return to Nepal because he would take up proselytising activities and that proselytising was explicitly prohibited by the Interim Constitution in Nepal.
“[93]I put to the applicant that while proselytising was explicitly prohibited by the interim Constitution in Nepal there was nothing in the information available to me to suggest that anyone had been arrested and imprisoned for proselytising in recent years. The applicant said that if there had been a significant presence of foreign media there would have been a lot of reports but the medial was inclined towards the Hindu religion. He said that since Christians were very forgiving people the church did not encourage them to make a big deal out of it. I noted that there were a number of Christian campaigning organisations like the Voice of the Martyrs which reported incidents all over the world in which it was alleged that Christians had been harmed so it was difficult to accept that such matters would not be reported. I noted that many incidents had been reported from Nepal but none of these involved anyone being arrested or prosecuted for proselytising. The applicant said that Nepal was dominated by Hindus and he did not agree that there was no persecution happening.
[94]I noted that the application had been invied to produce further evidence after the previous hearing but he had not done so. I put to him that the church to which he claimed he had belonged, the Gyaneshwor Church, was one of a number of evangelical churches which carried on their activities quite openly in Nepal without apparent problems. I put to him that, according to its website, besides four main churches in Gyaneshwor, Lalitput, Jorpati and Gongabu it had 10 daughter churches in the Kathmandu Valley and more than 40 affiliated churches spread all over the country (see ‘About: Nepali Isai Mandali’, downloaded from accessed 3 August 2010). The applicant suggested that the fact that church was growing did not mean that it was not persecuted. I noted that the point was that the church was growing through people converting to Christianity. The applicant said that you also had to take into account growth through people marrying and having children. He reiterated that what happened in remote areas might not be reported in the media.”
After the discussion concerning the activities of the Gyaneshwor Church and whether there was any evidence that people involved with it had been threatened the Tribunal turned to another claim by the applicant that he would be ostracised by his family should he return.
[98]The applicant referred to the fact that the US State Department had said that people who converted from Hinduism to Christianity sometimes faced ostracism. I explained to the applicant that ostracism did not generally amount to persecution for the purposes of the Convention (see Guitta Levy v Minister for Immigration and Multicultural Affairs, unreported, Federal Court, Tamberlin J, 21 December 1998). The applicant said that he thought that the USA State Department had said that converts were sometimes ostracised but that they were generally not afraid to state their new religious affiliation in public (US State Department, International Religious Freedom Report 2009) in relation to Nepal). I put to the applicant that this did not suggest that people who had converted were persecuted.”
In the Tribunal’s Findings and Reasons which commence at [119] [CB 208], the Tribunal first deals with the applicant’s credibility in relation to the attendance at the Nepalese Christian Church. The Tribunal concludes that the applicant fabricated that claim and did not consider that his confession ameliorated the effect of his actions [112] [CB 209]. At [139] [CB 214] the Tribunal says:
“For the reasons given above I do not accept that the applicant is telling the truth about the problems he claims to have experienced because of his conversion to Christianity and his involvement in proselytising activities in Nepal. As referred to in paragraphs 122 and 123 above, I consider that it is clear that the applicant has been prepared to lie and fabricate evidence if he believes that this will be to his advantage.”
The Tribunal did accept that the applicant’s aunt was a convert to Christianity and that the applicant attended bible studies and church services at the Gyaneshwor Church. It accepted that the applicant considered himself to be a Christian from around 1997 and that he went on missions with other members of the church including one of his cousins from around December 2001 which involved him in going to different parts of Nepal and talking to people about Christianity.
“As I put to the applicant it appeared to me on the basis of his evidence that his proselytising activity was quite open this is consistent with the information available to me about the Gyaneshwor Church which, as I put to the applicant, is one of a number of Evangelical Churches which carry out their activities quite openly in Nepal without apparent problems.”
The Tribunal considered the applicant’s claims about persecution whilst he was in Nepal and concluded:
“I do not accept that being asked for bribes at checkposts or being stopped at a checkpost at a time when a state of emergency was in force amounts to persecution for the purposes of the Refugees Convention nor that the applicant and his travelling companions were in any way being singled out for reasons that their religion is Christian or because they were proselytising Christians or for any other convention reason.
As I indicated to the applicant in the course of the hearing before me I accept that proselytising remains against the law but there have been no reports in recent years of people being arrest or imprisoned for proselytising. … The mere fact that there is a law against proselytising will not amount to persecution unless there is a real chance that this law will be enforced having regard to the fact that there have been no reports in recent years of people being arrested or imprisoned for proselytising and that the Gyaneshwor Church is able to carry out its proselytising activities openly I do not accept that there is a real chance that the law against proselytising will be enforced against the applicant or that the applicant will be arrested, detailed or tortured by the Nepalese authorities for proselytising if he returns to Nepal now or in the reasonably foreseeable future.” [127-128] [CB 210]
The failing to deal with an integer claim
On 15 September 2010 the Tribunal determined to affirm the decision under review and on 18 November 2010 the applicant sought review of that decision from this court. The applicant filed in court, through his counsel, an Amended Application in which there were two grounds of application specified. The first was:
“1. The Tribunal failed to deal with each integer of the applicant’s claims.”
The applicant’s argument in this regard is concise.
“[14]The Tribunal accepted that the applicant may have been ostracised because of his conversion to Christianity but found that ostracism did not amount to persecution, CB 213 para 138
I note once again that ostracism by itself will not generally amount to persecution for the purposes of the Convention (see Guitta Levy, referred to above).”
It is well that the whole of [138] insofar as it refers to ostracism is extracted:
“[138]As I noted in the course of the hearing before me, the applicant has said that his aunt – his father’s sister – is a convert to Christianity and while he has said that she has been ostracised by her extended family he has not suggested that she has otherwise been persecuted by her extended family or by the Newari tribe or caste. This is consistent with the independent evidence which suggests, as referred to above, that converts from Hinduism to Christianity sometimes face ostracism in Nepal but they do not generally face greater harm (US State Department, International Religious Freedom Report 2009 in relation to Nepal). As I put to the applicant, his extended family might not like his conversion but I do not accept that there is a real chance that they will chop him into little pieces as he has claimed. I note once again that ostracism by itself will not generally amount to persecution for the purposes of the Convention (see Guitta Levy, referred to above). So far as the applicant’s involvement in proselytising activities is concerned I note once again that the independent evidence referred to in paragraph 132 above suggests that, as I put to the applicant, the vast majority of the congregation at the Gyaneshwor Church are converts and the members of the church apparently carry on their proselytising activities openly which does not suggest that they fear being persecuted. I do not accept on the evidence before me that there is a real chance that the applicant will be persecuted by his extended family or by the Newari tribe or caste because of his conversion or his proselytising activities if he returns to Nepal now or in the reasonably foreseeable future.”
The applicant argues that as the applicant raised his ostracism the Tribunal was obliged to give it proper and realistic consideration by considering whether the particular circumstances raised by the applicant amounted to persecution. He argues that because the Tribunal misunderstood the effect of Guitta Levy it did not do this.
Guitta Levy v Minister for Immigration& Anor [1998] FCA 1666 was a case decided by Tamberlin J on 21 December 1998. It deals with claims made by a Christian Arab of Lebanese origin who married an Israeli Jew. When knowledge of their intended marriage became public:
“They were effectively estranged from their respective families.”
The applicant believed that an uncle of hers had intervened and caused her to lose her job in Israel. She believed that her uncle denounced her to the police as being an illegal resident and an associate of terrorists. This caused her to be taken in for questioning although she was later released. After their marriage was registered the couple moved from Tel Aviv to a village near Haifa but within six months the neighbours found out about her antecedents and the couple became the subject of minor harassment. They were talked about in the street and there were arguments with neighbours and some abuse. They were made to feel alienated. The applicant gave evidence about other difficulties she had as a Lebanese Christian living in Israel married to an Israeli Jew. These include problems with obtaining medical treatment, obtaining child minding services for her child and telephone calls threatening her and advising her to return to Lebanon with her son otherwise she would be harmed. The applicant believed these calls came from radical Jewish elements:
“The RRT accepted that the independent evidence supported the applicant's assertion that hostile attitudes towards mixed marriages were common in Israel. The RRT considered that mixed marriages, such as the applicants, contained an element of "association with the enemy" and might well attract even more unpleasant attention than other mixed marriages. It accepted that the treatment described by the applicant was discriminatory and systematic. It accepted that the applicant was justified in anticipating that it would occur again if she returned to Israel. It also accepted that the discriminatory harassment occurred by reason of the applicant's race and probably also arose because of her religion, and that the police were unable to prevent it. While the RRT had sympathy for the applicant and her family, it did not consider that the treatment was sufficient in its nature and extent to amount to persecution within the meaning of the Convention. It pointed out that the applicant and her husband acknowledged that they anticipated some hostile treatment, although not of the intensity they claimed to have experienced. It was noted that the applicant and her husband had lived with it for two years prior to their departure from Israel.”
Tamberlin J’s Judgment turned upon two matters, firstly whether or not the Tribunal was indicating that an applicant had to suffer actual physical harm in order to come within the convention. His Honour concluded that this was not the case and he did not believe that the Tribunal had so thought. He then considered arguments about the Tribunal’s findings that the telephone calls could be considered a form of persecution and noted:
“The RRT gave its reasons for reaching this view by reference to the fact that the calls had only commenced a few days shortly before the applicant’s departure and that there was no evidence of instances where such threats had been carried out. It is also apparent that the RRT did not accept that the degree of anxiety experienced by the applicant was sufficient to constitute “persecution”. This view was open to the RRT as the body charged with the task to determine the relevant facts.”
His Honour then went on to say:
“There is a further, important consideration in relation to the harassment experienced by the applicant in the present case and that is the fact that the hostility and telephone calls were at the instance of private individuals or groups. There is no suggestion that the government or official agencies were involved in the harassment. To a considerable extent, the hostility experienced by the applicant, apart from the telephone calls, resulted from the disapproval by both her own family in Lebanon, her husband's family in Israel and the social group within which she lived and moved. It is by no means a unique experience that where persons from different cultures, religions, races or traditions intermarry, there is a degree of social hostility manifested towards one or even both of the parties to the marriage for stepping outside traditional social, racial or religious norms. Generally speaking, such hostility would not properly be described as persecution in the context of a Convention concerning refugees, which is focussed, to a large extent, on the protection of core human rights. It is also important to bear in mind that when parties from different cultures, religions or traditions intermarry there can frequently be anticipated, as was the fact in the present case, that there will be social disapproval and hostilities shown to the parties.”
And then referred to the views expressed by McHugh J in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 142 ALR 331 at [354]:
“The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution. The object of the Convention is to provide refuge for those groups who, having lost the de jure or de facto protection of their governments, are unwilling to return to the counties of their nationality.”
It is true, as the applicant asserts, that the word “ostracism” is not mentioned anywhere in the Guitta Levy judgment. It is, however, my view that the Tribunal was thinking of the extracted paragraph from his Honour’s judgment that there would be social disapproval and hostility shown to persons who intermarry and interpreted those statements as applying equally to ostracism. My reading of the judgment is that Tamberlin J and the Tribunal were both equally clear that the important task was for the Tribunal to adequately assess whether or not the complaints being made amounted to persecution. If it could be said that in the instant case the Tribunal did not even consider the claims made by the applicant of his fear of ostracism because it believed that Guitta Levy in some way exempted ostracism from falling within the definition of persecution under any circumstances then I believe that the Tribunal would have made an error of law in the manner in which it considered the applicant’s claims which would constitute the jurisdictional error of not giving consideration to an element of his claim.
The evidence which the applicant puts forward about his concerns that he would be ostracised appears at [27] of his statement dated 9 December 2009 [CB 44]:
“[27]The majority of the Christian community became aware of my conversion but if anyone in my extended family discovered that I had converted to Christianity my life would be in danger. I would be beaten and serious harmed and forced to enounce my Christian faith.”
The reference to being cut to pieces is found at [43] [CB 47] of the same statement
“[43]My mother found out about my conversion to Christianity after my encounters with the Maoists. I would receive threatening telephone calls at home and they would tell my mother that they would cut me into pieces if I did not stop preaching Christianity. They told my mother to stop me from preaching Christianity. Members of the Communist Party in Nepal (Maoists) also came to my house and advised that they had a decree for my arrest. They told my mother that I was breaking the CPN’s laws and being unpatriotic due to my conversion to Christianity and preaching.”
But this appears not to involve ostracism rather a separate claim of fear of the Maoists. The Tribunal appears to have confused the two at [138] when it makes reference:
“As I put to the applicant, his extended family might not like his conversion but I do not accept that there is a real chance that they will chop him into little pieces as he claimed.”
On the other hand it may have been the applicant who confused the two claims because in a further statement sent to the Tribunal on 25 May 2010 he says at [42]:
“Whenever I talk about the word of God or Jesus Christ with my mother she either hangs up the telephone or threatens me if my uncle finds out about my conversion and proselytising they will cut me to pieces. If the rest of my family discovers that I have converted to Christianity I fear that the will seriously harm or kill me. I believe that my family will also inform the authorities about my conversion and proselytising when they find out and I will be arrested and detained as a result of practising my faith.”
I have not been provided with the transcript of the hearing before the Tribunal and therefore am unable to say whether the Tribunal stopped the applicant from talking about ostracism (because of its understanding of the Guitta Levy decision) or whether the applicant simply did not expand. The Tribunal had before it the applicant’s statements annexed to his PVA, it had listened to the applicant’s evidence of the departmental interview and his evidence before the first Tribunal, it had before it his further statement after the first Tribunal hearing and it is fair to say that in none of those documents was the question of ostracism taken up in any detail. It is of course for the applicant to make out his own case; Minister for Immigration and Ethic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J. I am not prepared to find without evidence that the Tribunal cut the applicant off in any discussion about ostracism, it seems more likely that when it was mentioned the Tribunal responded that the Guitta Levy case made such a claim difficult. The Tribunal reports that it explained to the applicant that:
“Ostracism did not generally amount to persecution for the purposes of the convention.” [emphasis added]
It did not say that ostracism never amounted to persecution. That would have been cutting the applicant off. I have no reason to believe that the applicant could not have expanded upon his claim about ostracism had he wished to. The Tribunal deals separately with the claim of being “cut to pieces”. That is not ostracism, that is direct persecution, albeit by non state actors. The Tribunal comes to the conclusion that it cannot accept the applicant’s evidence upon this.
Having considered the Tribunal decision so far as it refers to ostracism as a whole I am not satisfied that the Tribunal failed to consider an integer of the applicant’s claim.
The apprehended bias claim
The second ground upon which the applicant seeks review is that:
“The Tribunal’s decision was affected by apprehended bias.”
The applicant accepts that it would only be a very rare and extreme circumstance whereby bias on the part of the Tribunal could be established simply by reference to the reasons produced by the Tribunal; SZHDL v Minister for Immigration& Anor [2008] FCA 356, however he advances that claim in this case. The test for apprehended bias in the case of an administrative proceeding was articulated by Branson J in Ling v Minister for Immigration & Anor [2004] FCA 1069 echoing the decision of the High Court in Re Refugee Review Tribunal; Ex parte H [2001] 75 ALJR 982 at [28]. Her Honour said:
“The appropriate test to be applied in determining whether the conduct of the Tribunal gave rise to an apprehension of bias is that identified by the High Court in Re Refugee Review Tribunal; Ex Parte H [2001] HCA 28; 75 (2001) ALJR 982 at [28]. That test is whether a hypothetical fair-minded lay person, who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to have given rise to an apprehension of bias, might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided.”
The High Court itself affirmed the test in Minister for Immigration & Anor v SZJSS [2010] HCA 48 at [42].
In the instant case the applicant points to a number of matters found in the Tribunal’s decision. The first is found at [94 CB 202]. The Tribunal states:
“I noted that the applicant had been invited to produce further evidence after the previous hearing but had not done so.”
The applicant reminded the court that the applicant had provided a very detailed response to the Tribunal on 25 May 2010 [CB 121 – 143]. The respondent submits, and I accept, that the sentence indicating that the applicant had not submitted further evidence must be read in the context of the previous paragraph which related solely to the question of persons being arrested in Nepal for proselytising. It is clear that the Tribunal was aware of and considered the evidence submitted on 25 May when it discussed the possible persecution of proselytisers or converts at [103] and [104]. In the latter paragraph the Tribunal commenced:
“I noted again that he was welcome to do so [provide more information] but that this had been where matters had been left after the previous hearing and the material which had been submitted then did not really advance matters very much.”
At [128] the Tribunal said:
“As I indicated to the applicant in the course of the hearing before me, I accept that proselytising remains against the law but there have been no reports in recent years of people being arrested or imprisoned for proselytising. In their submission dated 25 August 2010 the applicant’s representatives referred to three case dating from 2000, 2003 and 2005 in which people had been arrested n the basis of accusations of proselytising. They submitted that as the law against proselytising remained on the statue book there was a reach chance that the applicant would face prosecution by the Nepalese Government. With respect, I do not accept that this follows. There mere fact that there is a law against proselytising will not amount to persecution unless there is a real chance that this law will be enforced: see MMM, referred to above. Having regard to the fact that there have been no reports in recent years of people being arrested or imprisoned for proselytising and that the Gyaneshwor Church is able to carry on its proselytising activities quite openly I do not accept that there is a real chance that the law against proselytising will be enforced against the applicant or that the applicant will be arrested, detained or tortured by the Nepalese authorities for proselytising if he returns to Nepal now or in the reasonably foreseeable future.”
MMM v Minister for Immigration & Anor (1998) FCA 1664 was a decision of Madgwick J concerning an applicant who alleged that he would be persecuted because of the existence of a Bangladeshi law which would penalise certain homosexual acts. His Honour considered whether such a law could create circumstances in which a person prosecuted thereunder might claim to have been persecuted by reason of his membership of a particular social group and concluded his findings on that aspect of the matter by saying:
“However, in this case, all that was shown was the existence of the law and no evidence of its enforcement. Nor was there any demonstration that in the moderately near future there was a real chance that the law might be pressed into service.”
I think that the Tribunal did not misunderstand the law when it made reference to MMM. When looked at as a whole it will be seen that the Tribunal’s decision insofar as it related to the alleged danger from proselytisation was one that came as a result of a thorough consideration of the evidence including independent country information and was available to it from that evidence. I do not accept that the Tribunal incorrectly assumed that the applicant had not provided further evidence. The Tribunal was entitled to take into account the proselytising activities of the Gyaneshwor Church to which the applicant had belonged and the lack of government interference therein. I am unable to see how it can be argued that the hypothetical fair minded lay person properly informed as to the nature of the proceedings might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided on this basis.
The second basis for the apprehended bias claim is some remarks made by the Tribunal about the applicant’s credibility. At [122] [CB 209] the Tribunal said:
“In the present case, as I put to the applicant in the course of the hearing before me, I do not accept that, as his representatives submitted, he is not someone who tells lies or fabricates claims. I consider it clear that the applicant fabricated the claim which he made in the statement accompanying his original application that he attended the Nepalese Christian Church in Granville at least once a week.
And at [139] [CB 214] the Tribunal opined:
“As referred to in paragraphs 122 and 123 above, I consider that it is clear that the applicant has been prepared to lie and fabricate evidence if he believes that this will be to his advantage.”
The applicant says that the Tribunal was only aware of the fact that the applicant did not attend the Nepalese Christian Church in Granville once a week because he had told it so in a statement made to the Tribunal on 25 May 2010 [CB 129]. In fact the situation is not quite as simple as that. The applicant had made the claims about attending the Nepalese Church in his original statement of 9 December 2009 [47] [CB 48]. He had an interview with the delegate but he did not resile from that statement at that time and he repeated it for the first Tribunal. The voluntary correction of the error came in very late in the day and while some may consider that perhaps the Tribunal expressed itself in strong language, the view it took of the applicant’s credibility was one that was available to it. The applicant says that there is a difference between lying and fabricating claims and that all he did was to make an error which he voluntarily corrected. The Tribunal clearly came to a different view. It saw that the applicant had made a claim which was untrue and which he had repeated until a late stage in the proceeding. This does not to my mind indicate the type of bias that would be found by the hypothetical lay observer.
The next complaint by the applicant he says contributes to the apprehended bias finding is the Tribunal declining to accept that the law against proselytising would be enforced against the applicant. The applicant’s own submissions on 25 August 2010 [CB 171] refers to a fear of persecution from non state actors such as Maoists, Hindu extremists, the applicant’s family and caste and provides details of alleged incidents of persons being harmed because of proselytising activity, however, there were two incidents in 2004 and an incident in 2007 that was not specifically referable to proselytising. Other information cited by the Tribunal indicated that there was no evidence of recent persecution and as the applicant attempted to associate the alleged persecution with the Gyaneshwor Church and his work there the Tribunal was entitled to obtain independent country information about what was actually going on with that church. It did this and came to the conclusion that he did not suffer as a result of its proselytising activities. Again I am of the view that all the Tribunal had done in this case was to disagree with the applicant. That is not an indicia of apprehended bias.
Finally, the applicant complains that the Tribunal’s reliance on the Guitta Levy and MMM cases, which he believes was incorrect, indicates a propensity to prejudgment. I have already discussed both of these cases. To my mind the Tribunal was entitled to take them into consideration. It is not prejudgment to listen to an applicant and conclude that his submissions fall within the purview of an existing case. It might be incorrect law but it is not apprehended bias.
Even if one was to look at all the allegations cumulatively there is no justification for an allegation of apprehended bias.
For the reasons expressed above I am unable to find that the Tribunal fell into jurisdictional error in the manner in which it reached its decision. The application is dismissed. The Applicant shall pay the First Respondent’s costs assessed in the sum of $5,850.00.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 21 February 2011
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