SZOUM v Minister for Immigration and Citizenship

[2011] FCA 595

FEDERAL COURT OF AUSTRALIA

SZOUM v Minister for Immigration and Citizenship [2011] FCA 595

Citation:		SZOUM v Minister for Immigration and Citizenship [2011] FCA 595
Appeal from:		SZOUM v Minister for Immigration and Citizenship [2011] FMCA 118
Parties:		SZOUM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number(s):		NSD 322 of 2011
Judge:		JACOBSON J
Date of judgment:		23 May 2011
Cases cited:		Htun v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 194 ALR 244 cited Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 referred to Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 referred to Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427 referred to SZOUM v Minister for Immigration and Citizenship [2011] FMCA 118 referred to Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38 cited
Date of hearing:	23 May 2011
Date of last submissions:	23 May 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	27
Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the First Respondent:	Ms M Stone of DLA Piper

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 322 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOUM
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JACOBSON J
DATE OF ORDER:	23 MAY 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 322 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOUM
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JACOBSON J
DATE:	23 MAY 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders made by Cameron FM on 1 March 2011 dismissing an application for judicial review of a decision of the Refugee Review Tribunal dated 22 October 2010: SZOUM v Minister for Immigration and Citizenship [2011] FMCA 118. The tribunal affirmed a decision of a delegate of the Minister not to grant the appellant a Protection (Class XA) visa.

2. The appellant is a citizen of Nepal.  He claimed to have a well founded fear of persecution on political grounds; his membership of a particular social group because of his support for a constitutional monarchy; and by reason of membership of the Rashtriya Prajatantra Party (“RPP”).  A delegate of the minister refused the application on 21 May 2010.  The appellant appeared before the Tribunal on two occasions, at which he gave oral evidence and presented arguments on determinative issues in his application. 

3. The Tribunal set out at [21] the relevant details of a statement made by the appellant which he lodged with his protection visa application.  The principal parts of the statement were that he joined the RPP party in April 2007; that he became an active member of the RPP from about February 2008; and that he voiced his political views in public during the Nepalese constituent assembly elections which were held on 10 April 2008.  He also claimed in the statement that he was attacked by the Maoists when he attended an event conducted by the RPP in Baglung, where he lived, in May 2008, and that he went to the nearest large town of Pokhara for treatment.  The appellant also said that he was a businessman based in Baglung, and that he paid money to the Maoists because otherwise they would harm him. 

4. The Tribunal went on to record in some detail at [23] the principal parts of the applicant’s interview with the department relating to his application for a protection visa, and it referred to the fact that there was certain documentary evidence contained on the department file.  The documentary evidence purported to corroborate the appellant’s claim.  The documents included a document entitled “Identity Card” and a document from the District Chairman of the Baglung District Committee of the RPP stating that the appellant joined the RPP after his uncle encouraged him to be involved. The documentary evidence also included a document from the chief of the Baglung District Hospital, relating to the alleged attack on the appellant when he claimed that his right hand was broken and that he was subsequently referred from the Baglung District Hospital to another hospital in Pokhara. 

5. The Tribunal also set out in some detail commencing at [27] the evidence given by the appellant at the first hearing.  The Tribunal then went on to record in greater detail what had occurred at the second tribunal hearing.  The importance of this material, which appears at [46] and following, is that the Tribunal raised with the appellant certain difficulties which it said it had in accepting his evidence, because of inconsistencies with the evidence that he had given at the departmental interview, and by reason of other inconsistencies to which it referred.

6. The Tribunal raised with the appellant the difficulty which it had in accepting his evidence that he had been attacked by the Maoists, and it went on to state that it may also find unreliable the contents of the medical evidence he provided to corroborate his claim that he was attacked. A significant part of the detail of the evidence at the second tribunal hearing commences at [54]. In the following paragraphs, the Tribunal raised with the appellant the difficulty that it had in accepting his evidence because of his lack of knowledge about the RPP and related matters. The Tribunal said at [55] that it may find the contents of two documents to be unreliable. The first was the identity card and the second was the document from the District Chairman of the Baglung District Committee. The appellant was asked whether he had any comments about those issues, and his reply is recorded at [56].

7. A further aspect of the appellant’s claims is referred to in the Tribunal’s account of what took place at the second hearing, as recorded in [60]. This paragraph deals with the appellant’s evidence that he was running a guest house in Baglung and that he had been targeted by the Maoists for contributions to their cause. The appellant responded by stating that ownership of the business was not the reason why the Maoists had targeted him, either previously or in the event that he returns to Nepal. He said that the Maoists targeted him, and would target him again, because he was a member of the RPP and supports the constitutional monarchy. The Tribunal then asked the appellant whether his evidence is that it was not the fact of his ownership of the guest house that made him the target of the Maoists, but it was his RPP and pro-monarchy political activities that made him the target. The Tribunal records that the appellant affirmed that this was his evidence.

8. The substance of the Tribunal’s reasons may be found, in particular, at [70], [72]­–[73]. It is sufficient to say that the Tribunal rejected the appellant’s key claims because it found that he was not a credible witness. The Tribunal did not accept that the appellant was ever a member of the RPP or that he was a supporter of the monarchy in his area.

9. In so finding, the Tribunal relied, in particular, upon the appellant’s lack of knowledge of basic details about political matters relevant to his factual claims.  Importantly, the Tribunal was not satisfied that the corroborative evidence submitted by the appellant outweighed the Tribunal’s concerns about his credibility. 

10. The appellant raised four grounds of review before the Federal Magistrate.  These are set out at [13] of the Federal Magistrate’s decision.  Before addressing the grounds of review, the Federal Magistrate set out the principal claims made by the appellant in his statement attached to his protection visa application as well as the salient aspects of his evidence on the first and second days of the hearing before the Tribunal. 

11. The appellant alleged in his grounds of review that the Tribunal had misconstrued his claim to have a well founded fear of persecution on the basis of being a monarchist.  The Federal Magistrate found that the Tribunal’s decision record demonstrated that this claim could not be made out.  The Federal Magistrate dealt with this, in particular, at [15]–[16].  His Honour observed that not only did the Tribunal refer to the applicant’s claim of monarchism in its summary of information, but it specifically considered that claim at [70] and [73] of its decision record, and rejected it.  The Federal Magistrate also observed that the Tribunal found against the appellant on his central claim to have been politically active in the interests of the RPP and the Nepalese monarchy.  His Honour said at [16] that:

    Having concluded that the appellant was not 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.

12. The appellant also contended before the Federal Magistrate that the Tribunal had failed to consider a claim, or misconstrued a claim, because it rejected his application without comprehending that he had a separate ground based solely upon his being a monarchist.  This was said to be a separate claim which was not considered by the Tribunal, however, the Federal Magistrate rejected this ground of review.  His Honour’s reasons are to be found at [18]–[20].  The substance of what his Honour said was that the Tribunal appreciated and gave distinct consideration to the appellant’s claims to be a monarchist, in particular, at [70] and [73]. 

13. His Honour also pointed out that although the issues of membership of the RPP and support for the monarchy were linked; they were nevertheless considered and addressed by the Tribunal separately.  The learned Federal Magistrate also said at [20] that while membership of the RPP may have necessarily involved support of the monarchy, and perhaps the appellant’s status as a businessman might have implied such support, the Tribunal did identify the appellant’s monarchism as a separate basis for his claims and dealt with the claim as such.  The only other relevant aspects of the application before the Federal Magistrate are dealt with under the headings “Ground 3” and “Ground 4” and I need not refer to those in my reasons.

14. The notice of appeal raises what purport to be three grounds of appeal against the Federal Magistrate’s decision.  The first is merely a statement that the appellant “sternly” disagrees with the judgment of the Federal Magistrate.  This is not a proper ground of appeal.

15. However, grounds 2 and 3, which are linked, do in my view raise grounds of appeal which fall for consideration.  The effect of what is said is that the Federal Magistrate failed to consider all of the appellant’s claims.  Clearly enough, failure to consider an integer of the appellant’s claim would constitute jurisdictional error:  see, for example, Htun v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 194 ALR 244 at [42].

16. I raised with the Minister’s legal representative three possible bases upon which it may be said that the Tribunal failed to consider all of the claims made by the appellant.  The first was that it rejected the evidence which I have described as corroborative evidence.  Any error in this regard may fall under a number of headings of jurisdictional error which seem to me to be sufficiently covered by grounds 2 and 3. 

17. However, the short answer to this question is to be found in two recent decisions of Full Courts of the Federal Court.  The first is Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485. In that case, North and Lander JJ (with whom Katzmann J relevantly agreed) said [37] that:

    The case establishes that the RRT does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of an applicant’s credit and then giving attention to the corroborative evidence. 

18. Their Honours continued at [38] by saying:

    The RRT would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence.

19. Plainly enough, in this case the Tribunal acted in accordance with the principles referred to above because it first assessed the appellant’s credit before going on to give attention to dealing with the corroborative evidence.  The Tribunal, as it was required to, weighed the corroborative evidence in the balance with all the other evidence.  It did not refuse to consider the corroborative evidence, and therefore did not, in my view, fall into jurisdictional error.

20. The second recent authority is a further decision of North, Lander and Katzmann JJ in Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303. North and Lander JJ observed at [26] that it was implicit in the reasoning of the Tribunal that it did not regard the documentary evidence in that case as genuine. Their Honours pointed out that:

    The brevity with which the Tribunal dealt with the corroborative evidence is unsatisfactory, but it did not justify the conclusion drawn by the Federal Magistrate that the RRT fell into jurisdictional error.

21. Those observations appear to me to be apt in the present case.  In particular there was no denial of procedural fairness because the Tribunal expressly put to the appellant at the second tribunal hearing its concerns about the documentary evidence and drew the appellant’s attention to the critical issues in the application.

22. It seems to me that another Full Court authority also supports the proposition that the Tribunal did not fall into error in rejecting the purportedly corroborative evidence: Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427 (“SZMOK”) at [59]–[61] and [68]. That case is authority for the proposition that it is not an error of law for the Tribunal to reject corroborative evidence on the basis of its view of an appellant’s credit: SZMOK at [59]. The Court went on to say at [68] that while the Tribunal has a duty to raise clearly with the applicant the critical issues on which a review may depend, there is no general rule that the Tribunal cannot make a finding that a document is not genuine without specifically referring to its concerns about the document.

23. The present case is one in which the Tribunal did put the critical issues to the appellant.  It did not specifically put to him that it considered that the documents were not genuine, although that is probably implicit in the findings that it made.  Nevertheless, for the reasons given by the Full Court in SZMOK, no jurisdictional error is to be found in the approach of the Tribunal on that question.

24. The other matters which I raised with the Minister’s legal representative were twofold.  The first was whether the Tribunal addressed all of the appellant's claims raised by what appeared to be corroborative evidence.  It seems to me that although this is not specifically referred to in the Tribunal’s reasons, the substance of that claim is predicated upon the basis of the appellant’s alleged membership of the RPP and his claim to be a monarchist.  The Tribunal’s rejection of those claims, based upon the appellant’s credibility, therefore disposed of any claim arising from his evidence in relation to the extortion of money.

25. The other possible failure to deal with all of the appellant’s claims seemed to me to be whether the appellant’s business operation could raise a claim of imputed political opinion: see, for example, Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38 at 49 per Sackville J. However, in my opinion, no claim of imputed political opinion was open in the present case because this possibility is raised and disposed of in [74] of the Tribunal’s reasons. As the Tribunal observed, the appellant gave clear evidence at the second hearing that his claim was based solely upon the fact that he was a member of the RPP and a pro-monarchist, not as a result of his connection with the guesthouse business.

26. That matter is also dealt with in [60] of the Tribunal’s reasons, to which I referred above.  There the Tribunal specifically records that the appellant confirmed that his claim to have a well-founded fear of persecution was made upon the basis of his membership of the RPP and pro-monarchy political activities, not upon the basis that he was the owner of the guesthouse.

27. For these reasons the appeal ought to be dismissed with costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:        23 May 2011