SZOUM v Minister for Immigration
[2011] FMCA 118
•1 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOUM v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 118 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to consider one element of the applicant’s claim to fear persecution in his country of nationality, failed to deal properly with evidence corroborative of his claim to fear persecution, failed to engage in an active intellectual process with regard to his claims, based its decision on evidence which was not sufficient to support that decision, erred because it did not believe him and reached a decision which was not logical. |
| Migration Act 1958, s.474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZOUM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2525 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 1 March 2011 |
| Date of Last Submission: | 1 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 1 March 2011 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,300.00.
The applicant have four months to pay the costs ordered in Order 2.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2525 of 2010
| SZOUM |
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 Rashtriya Prajatantra Party (“RPP”). He claims that he was subsequently attacked by Maoists following which he was forced into hiding.
The applicant claims to fear persecution in Nepal because of his political opinion and his membership of a particular social group arising out of his membership of and participation in the activities of the RPP.
After his arrival in Australia on 10 November 2009, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 21 May 2010. 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.
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 4 – 15 of the Tribunal’s decision.
The applicant made the following claims in a statement attached to his protection visa application:
a)he is a monarchist;
b)he joined the RPP in April 2007 but did not become an active member until February 2008;
c)during the Nepalese elections held in April 2008 he voiced his political views in public. He encouraged villagers to the join the RPP in his area and in doing so often spoke out against the Maoists;
d)he was attacked by Maoists in May 2008. Thereafter, he became fearful for his safety and rarely went out;
e)he operated a business in Baglung and, as such, was viewed by the Maoists as a source of financial support. From about mid-2007 he was forced to make regular “donations” to the Maoists. He could not complain because they would harm him;
f)in September 2009 the Maoists demanded more money. When he could no longer put them off he assessed his security situation and concluded that his life was at risk from the Maoists, its militia (the YCL) and other anti-monarchists. He fled Nepal with the assistance of an agent who arranged a false passport for him; and
g)if he returns to Nepal he will be extorted, kidnapped, harmed or killed because of his political opinion and he cannot get protection from the authorities because they are too afraid of the Maoists.
The applicant provided the Minister’s department with various supporting documentation including business records, letters of reference from the RPP and hospital records pertaining to injuries which he purportedly sustained as a result of physical assaults.
The applicant appeared before the Tribunal on 8 September 2010 and 14 October 2010. On the first hearing day the applicant made the following additional claims:
a)he started a business in Baglung in 1994;
b)during the elections he took part in campaign work on behalf of the RPP. Amongst his activities, he occasionally went on stage and spoke in favour of the monarchy and the RPP candidates. His pro-monarchy views became so unpopular that he was placed at risk of persecution;
c)after the attack in May 2008 until the time he left Nepal in November 2009, he mainly stayed in hiding and engaged in limited political activity;
d)he decided to leave Nepal in about September 2009 after the Maoists demanded a large sum of money. Prior to this demand his family had not been aware that he had been giving small amounts of money to the Maoists since mid-2007. However, he thought that if he gave the Maoists this large amount they would continue to ask for more money so he decided to tell his family. They, in turn, decided that he should leave Nepal; and
e)his business is now being run by members of his family who have never been targeted by the Maoists. The Maoists targeted the applicant because he was a monarchist and an RPP member but his family are quite neutral so the Maoists have no reason to target them.
On the second hearing day the Tribunal put to the applicant various inconsistencies in his evidence and invited him to comment. Those inconsistencies included:
a)at the departmental interview the applicant claimed that he began his business in 2007-2008 but in his protection visa application form he indicated that he had been the owner of the business since 1994. When questioned about this inconsistency at the departmental interview, the applicant stated that the person who had filled out his form had made a mistake and confirmed that he had started his business in 2007-2008. However, according to business records which he later submitted in support of his application, the applicant had been the taxpayer for that business since 1995. He subsequently claimed that he had made an error at the departmental interview and had in fact started his business in 1994 or 1995 after he finished his studies;
b)at the departmental interview the applicant claimed that he had always told his wife and parents about the donations he gave to the Maoists. However, at the Tribunal hearing he said that he did not tell any of his family members about the donations until September 2009 when the Maoists demanded a large sum of money;
c)the applicant claimed at the departmental interview that he had been attacked by the Maoists because he was an RPP leader but at the Tribunal hearing he claimed that he knew very little about the RPP and the elections in his area as he only followed orders from “above”; and
d)the applicant claimed that he had been actively involved in the April 2008 election campaign in Baglung but his knowledge of political leaders around the time of the election was lacking, including the names of candidates, the results of the election and basic details about seats being contested.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal 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 did not accept that the applicant was ever a member of the RPP or that he was known in his area as a supporter of the monarchy. In rejecting his central claim the Tribunal noted the following:
a)the applicant’s evidence, as discussed at the second hearing, was inconsistent and implausible and this raised doubts about his credibility as a witness;
b)he did not know basic details about the RPP’s leadership or the elections in his area, information which, in the Tribunal’s view, the applicant would have known had he been actively involved in the elections in Baglung as he claimed; and
c)the corroborative documents which the applicant submitted to the department did not outweigh the Tribunal’s concerns regarding his credibility as a witness.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.It is contended that the Tribunal member has misconstrued my claims that I have a well founded fear of persecution on the basis of being a Monarchist in my country. 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.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 a member of the RPP party without comprehending that my claim to fear persecution by reason of being a Monarchist was a separate basis upon which I claimed to fear persecution. Rather, the Tribunal Member incorrectly construed my claim to be a Monarchist and a membership of particular social group as a businessman as an extension of the claim that I belonged to the RPP political party.
3.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.
4.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.
In his oral submissions the applicant also said that the Tribunal had erred by not believing that he was a member of the RPP and did not look at his case in a “basic” way.
Ground 1
The first part of the first allegation in the application asserts that the Tribunal misconstrued the applicant’s claims to be a monarchist. It is unclear what this is meant to mean, but it might best be understood as an allegation that the Tribunal did not consider the applicant’s claim that one of the reasons he said he feared persecution was because he was a monarchist. However, the Tribunal’s decision record discloses that this claim cannot be made out. Not only did the Tribunal refer to the applicant’s claim of monarchism in its summary of the information before it, it specifically considered that claim at [70] and [73] of its decision record and rejected it.
The second element of the first allegation is that the Tribunal found that because one element of his claim lacked credibility, this tainted its consideration of other aspects of his claim. However, this misunderstands the significance of the Tribunal’s adverse credit finding. The Tribunal found against the applicant on his central claim to have been politically active in the interests of the RPP and the Nepalese monarchy. Having concluded that the applicant was not to be believed in respect of these allegations, it was properly open to the Tribunal to be unconvinced by other evidence purportedly corroborative of that central allegation.
In this regard, the Tribunal gave separate consideration to the documents the applicant submitted but found that they did not outweigh its adverse view of his credibility. Significantly, the Tribunal also expressly considered all the applicant’s claims cumulatively as well as individually. In the circumstances, the Tribunal’s conclusion that the purportedly corroborative evidence was insufficiently persuasive to displace its adverse view of the applicant’s credibility did not reflect error.
Ground 2
The second allegation in the application is to the effect that the Tribunal failed to appreciate that his claim to have been a monarchist was a separate claim requiring individual consideration by the Tribunal. However, as has been noted in relation to the first ground of the application, the Tribunal did exactly that. At [70] and [73] of that part of its decision under the heading “Findings and Reasons” the Tribunal said that it did not believe that the applicant was either a member of the RPP or known as a supporter of the monarchy and did not accept his claimed RPP activities and support of the monarchy.
Although these two issues were plainly linked they were nevertheless considered and addressed by the Tribunal separately. In his second allegation the applicant sought to make out a claim that the Tribunal saw his support for the monarchy only as an extension of his claimed RPP membership and of his position or status as a businessman, to the extent that being a businessman may have made him a member of a particular social group. However, I am satisfied that the Tribunal did distinguish between these various alleged aspects of the applicant’s life in Nepal.
While membership of the RPP may have necessarily involved support of the monarchy, and perhaps the applicant’s status as a businessman might also have implied such support, the Tribunal nevertheless did identify the applicant’s monarchism as a separate basis for his claims to fear persecution, and dealt with it as such. For these reasons, the second ground of the application is not made out.
Ground 3
The third ground of the application alleges that the Tribunal failed to engage in an active intellectual process in that it failed to deal with the applicant’s claims separately. In this regard, it should be observed that the applicant’s claims which have been summarised earlier in these reasons were not particularly complex. They turned on his allegations of political activity related to the RPP and his support of the monarchy, and to the actions of the Maoists which these activities allegedly brought about.
Those matters were identified by the Tribunal and dealt with in its decision. Other matters which the applicant raised, such as the injuries he claims to have suffered and his role as businessman, were also acknowledged by the Tribunal and dealt with in a manner which indicates that the Tribunal did consider them and the significance which they might have had for the applicant’s claim to fear persecution in Nepal.
The fact that the Tribunal is obliged to engage in an active intellectual process does not mean that the Court may set aside the Tribunal’s decision because its own consideration of the facts might have led it to a conclusion different from the Tribunal’s. The Tribunal was obliged to turn its mind to, and to consider, the claims made by the applicant. I find that it did that and for that reason, the third ground does not disclose jurisdictional error on the Tribunal’s part.
Ground 4
The fourth ground of the application alleges that the evidence relied upon by the Tribunal was so inadequate that, by basing its decision on it, the Tribunal erred. Intending no disrespect, this ground misunderstands the role of the Tribunal and the task it must perform. Its duty is to determine whether it is satisfied that an applicant meets the criteria for the grant of a protection visa. Consequently, much of the information at its disposal will be what is presented to it by the applicant bringing the review. If the information is insufficient to satisfy the Tribunal that the applicant meets the criteria for the grant of the visa sought, then the Tribunal has no option under the Act but to affirm the decision of the delegate. It is not a question of the Tribunal being in possession of evidence which contradicts an applicant’s claims, although the Tribunal may have such evidence and rely on that in reaching its decision, but of the applicant satisfying the Tribunal that the criteria for the grant of the visa have been met.
But in any event, the evidence which the Tribunal decides to rely upon when reaching its decision is, absent vitiating factors which are not present in this case, a matter for it. Fact finding is the Tribunal’s task and the Court cannot substitute its views of the facts for the Tribunal’s. As to the evidence relied upon by the Tribunal in this case, most of it was information which the applicant supplied himself. Other information was country information. It was open to the Tribunal to rely on all that information and it was also open on that evidence for the Tribunal to make the findings it made.
Oral Submissions
The first matter raised by the applicant in his oral submissions was that the Tribunal did not believe him and erred as a result. This submission invites the Court to disagree with or review the Tribunal’s assessment of the applicant’s credibility. However, findings on credibility are matters par excellence for the Tribunal and are not properly the subject of judicial review. The Court cannot set aside the Tribunal’s decision because it disagrees with the Tribunal’s assessment of an applicant’s credibility.
The second ground raised by the applicant in his submissions was that the Tribunal did not look at his case “from basic point of view”. What the applicant intends to mean by “basic point of view” is not clear, but I interpret it to mean that the Tribunal did not approach its consideration of the applicant’s claims in a logical fashion. However, a consideration of the Tribunal’s decision discloses that this allegation cannot be made out. The Tribunal did consider the claims which the applicant made and reached conclusions which were reasonably and logically open to it on the evidence.
Conclusion
For these reasons, I conclude that jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 8 March 2011
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