SZOXY v Minister for Immigration
[2011] FMCA 285
•27 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOXY v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 285 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – allegation that the Tribunal’s decision was affected by jurisdictional error by reason that the decision was not supported by the evidence – the Tribunal failed to consider the claims made – the Tribunal failed to act in good faith – the Tribunal failed to assess the evidence properly – the Tribunal assessed the applicant’s credibility incorrectly – the Tribunal relied on the wrong evidence. |
| Migration Act 1958, s.474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Citizenshipv SZMDS (2010) 240 CLR 611 |
| Applicant: | SZOXY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 38 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 27 April 2011 |
| Date of Last Submission: | 27 April 2011 |
| Delivered at: | Sydney |
| Delivered on: | 27 April 2011 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 38 of 2011
| SZOXY |
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 as a result of his involvement with the RPP he was subject to threats and harassment from Maoists.
The applicant claims to fear persecution in Nepal because of his political opinion.
After his arrival in Australia on 2 March 2010, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 24 September 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; 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 4-8 of the Tribunal’s decision.
The applicant made the following claims in his protection visa application:
a)he was an active and committed member of the RPP in Nepal. Because of his involvement with the RPP, he was threatened and harassed by Maoists;
b)his house was raided in 2008 and he was attacked in December 2009;
c)six of his RPP friends were killed by Maoists and he feared that he would face similar harm in the future because of his political activities; and
d)the authorities will not protect him from the Maoists.
The applicant was interviewed by a delegate of the Minister on 27 August 2010. He submitted documents relating to his educational background and three photographs with images of himself which he claimed had been taken at political rallies in Nepal. The delegate commented that the photographs appeared to have been altered and subsequently submitted them to the department’s Document Examination Unit (“DEU”). By a report dated 22 September 2010, the DEU advised that the photographs were composite images with evidence of manipulation, essentially stating that the applicant’s head had been inserted into the photographs after they had been taken.
At the departmental interview, the applicant stated:
a)the photographs he submitted were genuine and had been taken during RPP political rallies in Nepal;
b)he was an active member of the RPP from 2006 until he left Nepal in 2010 and had been particularly active between 2006 and 2008;
c)after 2008 he was the treasurer of the local branch of the party; and
d)he would be seriously harmed by Maoists in Nepal because of his active involvement with the RPP.
The applicant attended a hearing before the Tribunal on 13 December 2010. At that hearing, he made the following additional claims:
a)the photographs he submitted to the department were genuine. He had attended political rallies and had taken some of the photographs himself;
b)he was a member of the Rashtriya Prajatantra Party-Nepal (“RPP-N”), a splinter party of the RPP established in 2006;
c)he had limited access to information in his village. He said that information from external sources might not reflect the actual situation in Nepal or specifically his village, that information on the internet is not reliable and that it would be unfair for the Tribunal to rely on that information in assessing his claims; and
d)Maoists were still targeting members of the RPP-N. Friends in the party had disappeared, presumably killed by the Maoists, and he feared similar harm.
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’s decision was based on the following findings and reasons:
a)the Tribunal was not satisfied that the applicant had given a truthful account of his circumstances in Nepal. It formed the view that the applicant had fabricated the claims relating to his involvement in the RPP-N in Nepal. In this regard, the Tribunal found that the applicant had limited knowledge of the RPP-N’s history, aims and its prominent members in Parliament. It was of the view that a committed and active member of the party with a four-year involvement with the party would have had information regarding these aspects of the party. The Tribunal did not accept the applicant’s claim that he had limited access to information because he lived in a small village, finding that the information expected of the applicant was not unique or obscure and was basic information that would be commonly known by a member involved with the party. The Tribunal found that the applicant had contrived these claims and did not find his claim to be a member of the RPP-N in Nepal to be credible;
b)the Tribunal accepted the DEU advice that the photographs submitted by the applicant had been altered to insert his image after the photographs had been taken. Consequently, the Tribunal found that the photographs had been fabricated by the applicant to support his claim that he had attended political rallies in Nepal. The Tribunal did not accept that the applicant had attended those rallies and found that the photographs had been fabricated to enhance his application; and
c)in view of its finding that the applicant was not a member of the RPP-N, the Tribunal did not accept his claims that he was targeted by Maoists because of his involvement with the RPP-N or that he would face harm in the reasonably foreseeable future for the same reason. The Tribunal did not accept as credible the applicant’s claim that he had been or would be a person of interest to Maoists in Nepal for reasons of his political opinion.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.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. My evidence before the Tribunal was inferentially adversely construed against my claims. This is injustice.
2.I argue that the Tribunal member failed to complete the exercise of jurisdiction embarked on as it made a decision without having considered all the claims. The use of evidence by the Tribunal member is so illogical in considering the circumstances of my safety in Nepal. I argue that the Tribunal member did not act in good faith in my case as the Tribunal member had not carefully addressed my claims.
3.It is contended that jurisdictional error is evident in the way in which the Tribunal failed to make a proper genuine and realistic assessment of the real risk of serious harm in the light of the country information. I fled Nepal in search of protection because I felt that it was inevitable that I would be harmed or killed by the Maoists. Credibility should not be an issue in my case as I explained my problems in a lucid manner.
4.The structure of the decision clearly showed the Tribunal member did not complete its required review function. Given the Tribunal’s statement of reasons as a whole, the absence of any pertinent findings and discussion about my claims implied that it was overlooked by the Tribunal member.
5.There is no evidence that the Tribunal member can be confident that documents in support of my application are not genuine whereas they are. My evidence before the Tribunal was inferentially adversely construed against my claims. This is injustice.
At the hearing in these proceedings the applicant also submitted that the Tribunal had erred by:
a)relying on country information rather than on the evidence which he had given; and
b)by deciding his review by reference to information sourced from the internet rather than by reference to what he had said.
Ground 1
The first ground of review challenges the adequacy and probative quality of the evidence relied upon by the Tribunal and seeks thereby to demonstrate error on the Tribunal’s part. It also seeks to challenge the Tribunal’s treatment of that evidence. Challenges to the adequacy of evidence will only succeed if there is no evidence to support a particular finding, a circumstance which does not obtain in this case. Here, it was open on the evidence for the Tribunal to find, as it did, that the applicant had fabricated the factual basis of his claims to have a well-founded fear of persecution for a Convention reason.
The allegation of unreasonableness can be seen to be an assertion that the findings of fact reached by the Tribunal were, in essence, illogical. However, a conclusion that the Tribunal’s decision is affected by jurisdictional error by reason of illogicality
… must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. (Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at 647-648 [130] per Crennan and Bell JJ)
Given the findings of the DEU on the authenticity of the photographs submitted by the applicant and the deficiencies in his oral evidence to the Tribunal, it could not be said that it was unreasonable or illogical for the Tribunal to not be satisfied that the applicant had a well-founded fear of persecution based on his claimed political opinions and activities.
As to the allegation that the Tribunal drew adverse inferences from the evidence, that is no more than a challenge to the findings of fact made by the Tribunal. In proceedings such as these, the Court is not empowered, except in exceptional circumstances which do not exist here, to review the Tribunal’s factual findings. Consequently, this allegation, together with the other elements of the first ground of the application, does not disclose a basis on which the Tribunal’s decision should be set aside.
Ground 2
The second allegation in the application is to the effect that the Tribunal did not conduct the review in good faith, which is demonstrated by its illogical treatment of the evidence, and as a result failed to deal with all his claims and to do so carefully. Although this ground largely rises and falls on the allegation that the Tribunal failed to consider all the claims which the applicant made, he failed to identify which claims made by him were not considered by the Tribunal. In this regard, no challenge was made to the accuracy of the Tribunal’s decision so it can be taken to be an accurate record of the proceedings before it and an accurate summary of the applicant’s interview with the Minister’s department prior to the decision to refuse his visa application. I also accept the Tribunal’s summary of the applicant’s claims made at the time of his visa application to be accurate. That being so, the Tribunal’s decision demonstrates that the Tribunal was aware of and considered the claims which the applicant made.
The assertion that the Tribunal did not act in good faith and failed to consider the applicant’s claims carefully is not supported by the evidence. The applicant’s claims were not complex or particularly detailed. The Tribunal’s decision shows that it dealt with them with appropriate seriousness. The allegation of lack of good faith and want of careful consideration is really a complaint that the Tribunal did not accept what the applicant had said. The Tribunal was entitled to do this and, on the evidence, was justified in doing so. As a result, to assert that the Tribunal’s treatment of the evidence was illogical is no more than an emphatic disagreement with the conclusions which the Tribunal reached on the evidence before it. A finding of illogicality requires the Court to find that only one conclusion is open on the evidence but the Tribunal did not come to that conclusion, that the Tribunal’s decision was simply not open on the evidence or there was no logical connection between the evidence and the inferences or conclusions drawn: SZMDS at 649-650 [135] per Crennan and Bell JJ. None of those circumstances exist in this case. The conclusions which the Tribunal reached were open to it on the evidence and logically so. Consequently, the second ground of the application does not disclose jurisdictional error on the Tribunal’s part.
Ground 3
The third ground of the application alleges that the Tribunal failed to make a proper, genuine and realistic assessment of the risk of harm allegedly faced by the applicant and reached an incorrect finding as to his credibility. The allegation concerning the nature of the Tribunal’s assessment of the applicant’s claim to fear harm in Nepal is a challenge to the Tribunal’s fact finding based on an implied allegation that it failed to conduct a bona fide review. I do not accept this allegation. The Tribunal’s decision records that it analysed the applicant’s claims in light of the evidence advanced in their support and concluded, for the reasons which it gave, that the claims were not to be believed.
The fact that the applicant’s evidence may have been lucid, as he alleges, does not mean that it was cogent. In my assessment, the Tribunal undertook a thorough analysis of the evidence advanced in support of the applicant’s claims in light of other information available to it, in particular the DEU report on the authenticity of the photographs which the applicant had submitted, and reached conclusions, including the finding concerning the applicant’s credibility, which were reasonably open to it. For these reasons the third ground set out in the application does not disclose a basis upon which the Tribunal’s decision should be set aside.
Ground 4
The fourth ground of the application alleges that the Tribunal overlooked some or all of the applicant’s claims and that this can be discerned from the structure of its decision, in particular from the absence of relevant discussion and findings. This ground is essentially a repetition of aspects of the second ground of the application and fails for the same reasons that that ground fails. A consideration of the Tribunal’s decision, as summarised earlier in these reasons, reveals that it did not overlook, but rather made findings on, the factual allegations made by the applicant in support of his claim to fear persecution from Maoists in Nepal.
Ground 5
The fifth ground of the application challenges the Tribunal’s findings on the genuineness of the documents which the applicant submitted and the inferences which the Tribunal drew from the evidence. It must be taken that the documents to which this ground relates are the photographs which the applicant submitted. The Tribunal’s findings on the genuineness of those photographs were open to it, particularly as the applicant advanced no evidence which had the effect of undermining the correctness of the technical analysis undertaken by the DEU. The fact that the Tribunal inferred that the applicant’s evidence in connection with those photographs could not be relied upon does not disclose error. It was a finding which was reasonably open in the circumstances.
Grounds 6 and 7
The first additional allegation made by the applicant at the hearing, that the Tribunal erred by relying on country information rather than on the applicant’s evidence, amounts to a challenge to the Tribunal’s fact finding. The Tribunal is entitled to make its own decisions about what evidence it will rely on and what weight is to be accorded to particular evidence. But in any event, it was not country information which determined the outcome of the applicant’s review to the Tribunal but the inadequacies in the applicant’s own evidence, which reflected adversely on his claim to political involvement, together with the report from the DEU which said that the photographs which he had submitted were not genuine.
The second new allegation made at the hearing, that the information on which the Tribunal’s decision was based was sourced from the internet rather than from the applicant, raises the same issues as the first additional allegation made at the hearing and fails for the same reasons.
Conclusion
Jurisdictional error on the part of the tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 4 May 2011
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