SZOVZ v Minister for Immigration

[2011] FMCA 278

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOVZ v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 278

MIGRATION – Review of decision of RRT – where Tribunal not satisfied that applicant was an active member of a particular political party – request for justice – musings upon what is required by justice in migration matters.

Migration Act 1958 (Cth), ss.424(1), 424A(1)

Minister for Immigration v Citizenship v SZMDS (2010) 240 CLR 611

Applicant: SZOVZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2710 of 2010

Judgment of: Raphael FM

Hearing date: 30 March 2011

Date of Last Submission: 30 March 2011

Delivered at: Sydney

Delivered on: 30 March 2011

REPRESENTATION

For the Applicant: In person

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $3,850.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2710 of 2010

SZOVZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant, who is a citizen of Nepal, arrived in Australia on 22 April 2009 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 22 April 2010.  On 5 August 2010 a delegate of the Minister refused to grant a protection visa and on 3 September 2010 the applicant applied for a review of that decision from the Refugee Review Tribunal.  The applicant attended a hearing before the Tribunal which, on 17 November determined to affirm the decision not to grant him a protection visa, and handed that decision down on 18 November. 

2. The ground upon which the applicant claimed he was a person to whom Australia owed protection obligations was the convention one of political opinion.  In a statutory declaration annexed to his PVA [CB 25 - 27], the applicant claimed to have been a member of the RPP from 2006 to December 2008 and an active member of the party from February 2008 to March 2009.  He said that he had left Nepal because he repeatedly got threats from Maoists because of his involvement with the party and his refusal to obey their instructions.  He said that in March 2009 a group of Maoists came to his house and asked him to come out to speak with them.  Although he did not wish to do this they took hold of him and took him into the jungle near his village.  He said that he agreed to join the Maoist party within a month and accepted their demand that he disown his membership of the RPP and give up his support of the monarchy.  Because of this incident the applicant felt very unsafe within his village.  He said that he had a prominent anti-Maoist political profile as a result and that the Maoists killed six of his friends who were members of the RPP in October 2006.

3. He came to Australia on a false passport believing that he would be safer here.  The applicant told the delegate that after the incident with the Maoists in which he was threatened, he moved to Kathmandu and stayed with his uncle who arranged for his travel to Australia.  He also told the delegate that this was the only occasion on which Maoists had come to find him.  When the matter came before the Tribunal it questioned the applicant about his claims and discussed with him in some detail his position within the RPP.  These matters are set out at [CB 73 - 75].

4. Essentially, the Tribunal noted that during the course of its questioning the applicant changed his story about his membership of the RPP claiming, after questions about the membership card that he had produced, that he was not a member of the RPP but a member of another party called RPP - Nepal.  And that this was the reason why he was inaccurate in naming the office holders of the RPP.

   “Asked why he had described himself to the DIAC and his written claims as a “prominent anti-Maoist” he said that the RPP was anti-Maoist.  I told him that the description of his RPP activities at the Tribunal hearing did not seem to indicate he was prominent, and asked him to clarify in what way he considered himself to be so.  He responded that he was Hindu, and he did not believe in killing cows.  But in his village the Maoists killed cows, and beat people.  He was very opposed to this.  His parents followed the monarchy, so he did.”  [CB 46]

5. The Tribunal put to the applicant certain independent country information that it had concerning the RPP and about the activities of Maoists within Nepal in recent times.  It asked the applicant why he believed that if he returned to Nepal, he would be in danger.  And he indicated that this was because he followed the monarchy and the Maoists did not.  He also indicated that he would be asked for money by the Maoists.  He told the Tribunal that he could not have remained in Kathmandu because there were many Maoists there and he would have continued to support the monarchy in that city.  And so his uncle had told him that it was not safe to remain.

6. In the Tribunal’s findings and reasons that commence at [CB 81] the Tribunal points to a number of serious inconsistencies which it found with regard to the applicant’s claims, particularly his claim to be a member of the RPP.  It noted that the applicant had changed his evidence as to the name of the party to which he belonged, stating:

   “In my view, he made the belated claim that he was a member of the RPP-Nepal to explain why he was unfamiliar with the RPPs logo or slogan as reflected on the party’s website.”  [CB 82]

7. The Tribunal was not satisfied that the membership card which the applicant produced was the membership card of the RPP-Nepal or indeed any genuine membership card, given evidence provided by the applicant concerning the dates upon which this card had been issued.  And finally, it concluded that the applicant’s evidence concerning his activities as a prominent anti-Maoist was vague and not consistent and that cast further doubt on his reliability as a witness.  The Tribunal took the view that it could not be satisfied that the applicant was a member of any political party or actively involved in any political activities in his home town.

8. The Tribunal also concluded that the applicant had not been threatened by Maoists before his departure because such a threat was implausible if one rejected his arguments that he had been a politically active person.  It did not accept the claim that he had been taken to the jungle in March 2009 for that reason and also because the applicant appeared to be uncertain as to the true date upon which the incident allegedly occurred.  The Tribunal also noted the applicant’s one year delay in applying for a protection visa and took that into account in considering whether or not he had a well-founded fear of persecution.

9. At [88] [CB 82] the Tribunal said:

   “[88]As to his claim to be a monarchist, I am not satisfied that he is.  However I accept that he does not support the Maoists.  That is entirely consistent with the evidence above that political support for the CPN-M is moderate to low in B district from which I infer that he is one among most B residents to share this view.  This gives him considerable anonymity and in my view if he returned to B the chance is remote that he would face any serious harm by Maoists because he is not a supporter of the Maoists.

   [89]As to his claim that he might be pressured to make a “donation” to local Maoists because he will be assumed to have brought money from abroad, I note the evidence that Maoists are involved in the regular extortion of money from businesses, workers, private citizens and NGOs.  Therefore I accept it might occur in the applicant’s case.  However, given the apparently disinterestedly broad swathe of people approached for money by Maoists, I am not satisfied that a Convention reason would be the essential and significant reason for the harm feared by the applicant.”

10. On 16 December 2010 the applicant filed with this court an application for review of the Tribunal’s decision.  There were four grounds of application.  The first three would appear to be connected.  They are:

    “(i)I believe 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.

    (ii)It is not fair that 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.  I belong to the RPP political party.

    (iii)The Tribunal failed to consider my claim in the sense of engaging in an active intellectual process in respect to separately dealing with my claims.”

11. As Mr Smith says, in his helpful written submissions and said orally to me today, these three grounds seem to be putting forward an argument that the Tribunal was required to deal with two separate claims and that it conflated them.  I do not think that this is the case.  I quite accept that there may well be two separate claims in being a member of the RPP and being a monarchist, although the applicant made it clear in his evidence to the delegate and the Tribunal that the RPP was a monarchist party.  But I am quite satisfied that the Tribunal dealt with the claim of monarchist support independently of the claim of political support of the RPP.  That has been shown in the extracted parts of the Tribunal decision to which I have referred in these reasons.  It is perfectly permissible for the Tribunal to utilise its findings as to the applicant’s credibility in relation to his membership of the political party to conclude that his claims to be a monarchist and in danger of persecution may not stand up.  That is not conflating the two claims and it is all that the Tribunal did in its decision.  I am also of the view that there is no merit in the argument that the Tribunal did not engage in an active intellectual process in the manner in which it dealt with the claims.  It is quite clear from the Tribunal’s decision record that it examined each of the claims made by this applicant in some detail, considered those claims in the light of the independent country information which was to hand, discussed certain information with the applicant and based upon available evidence, came to its conclusions.  That is all that any Tribunal is required to do.

12. The final ground is expressed as:

    “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 of its statutory requirements in dealing with my case.”

13. The applicant did not particularise this claim in any manner although he was requested to do so at the directions hearing and was able to have done so in his oral submissions to me today.  The respondent in his written submissions makes a stab at what the applicant may have meant by this ground.  He notes, correctly, that there may be jurisdictional error where a decision maker forms an opinion that is so unreasonable that no reasonable decision maker could have reached such a view; Minister for Immigration v Citizenship v SZMDS (2010) 240 CLR 611 at [647-8] per Crennan and Bell JJ, but rightly also notes that there is nothing unreasonable in the Tribunal’s findings in this particular case.

14. The submissions then go on to deal with the possibility that the applicant is complaining about the Tribunal’s extensive use of independent country information and notes the provisions of ss.424(1) and 424A(1) of the Migration Act 1958 (the “Act”).  To my mind it is not necessary to attempt such a comprehensive dissection of this ground.  It is for the applicant to make it clear what he intends and for a court to opine upon what he might possibly have intended would risk falling into the very error which it has been set up to prevent.

15. Before me today the applicant stated that he believed the Tribunal’s decision was unfair, that the Tribunal believed that he was not a member of the RPP and it was not necessary for a person who was a member of that political party to have a detailed knowledge about it.  This latter statement may well be correct but the applicant in his claims alleged that he was not just a member of the party but an active one and it was perfectly reasonable for the Tribunal to expect a person who claimed to be an active member of the party, indeed so active that he had invoked the ire of the party’s political opponents, to know something about the party to which he claimed to have belonged, including its logo.

16. The fact that the applicant then changed his mind about which party he belonged to also influenced the Tribunal in its views in a way that this court cannot impugn.  Essentially, the applicant’s argument to me was one in respect of the merits of the decision and that is outside this court’s jurisdiction.  Finally, the applicant told me that he was a member of the RPP-Nepal, that he believed in the monarchy and that he needed justice. 

17. Of course, the demand for justice is heard from many mouths.  Frequently, it is a mistaken plea in that what is really being demanded is reconsideration or mercy (with which justice must always be tempered).  Justice is the provision by a court of the correct decision, no more and no less.  In my view the correct decision in this case is that the Tribunal did not fall into jurisdictional error in the manner in which it came to its decision and therefore the application must be dismissed.  I order that the Applicant pay the First Respondent’s costs assessed in the sum of $3,850.00.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  21 April 2011