SZQGO v Minister for Immigration - [2011] FMCA 775

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQGO v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 775

MIGRATION – Review of RRT decision – protection visa – inquisitory nature of Tribunal – where Tribunal’s questions could only be answered with surmise – whether Tribunal’s questioning constituted jurisdictional error – Tribunal’s consideration of the timing of applicant’s protection visa application.

R v War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228
Selvadurai v Minister for Immigration & Ethnic Affairs and Another (1994) 34 ALD 347

Applicant:

SZQGO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1072 of 2011

Judgment of:

Raphael FM

Hearing date:

29 August 2011

Date of Last Submission:

29 August 2011

Delivered at:

Sydney

Delivered on:

29 August 2011

REPRESENTATION

Counsel for the Applicant:

Newman and Associates

Solicitors for the 1^st Respondent:

Minter Ellison

ORDERS

The application be dismissed.
That the Applicant pay the First Respondent’s costs assessed at the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1072 of 2011

SZQGO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Nepal. He arrived in Australia on 23 September 2008 as the holder of a student visa. The marriage dissolved. The applicant’s student visa, and therefore his right to remain in Australia, expired on 18 October 2010. On 11 October 2010 he lodged an application for a protection Class XA visa. On 6 January 2011 a delegate of the Minister refused to grant a protection visa and on 20 January 2011 the applicant applied for review of that decision from the Refugee Review Tribunal. The applicant appeared before the Tribunal which, on 21 April 2011, determined to affirm the decision not to grant him a protection visa.
The ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was that he was a Nepalese small business owner who supported the monarchy in that country. He had, he claimed, been the subject of some threats initially from Maoists but later from the UML, both of which parties tried to persuade him to join them and both of which parties, he claimed, demanded money from him and threatened him with violence over a lengthy period. The applicant gave evidence to the delegate and to the Tribunal about these donations which he said amounted to approximately 40,000 rupees to the Maoists and 50,000 rupees to the UML.
He told the Tribunal he was last threatened about the middle of 2007. At one stage he told that he had been threatened at gunpoint but at a later stage he said that those threatening him did not show any weapons.
At [53 CB 112] the Tribunal reports on some questioning of the applicant:
“I asked the applicant what he thought would happen to him if he returned to Nepal. He said that he did not feel that his life will be secure. He said there are a lot of political groups who are active and he will not be safe. I mentioned that the Maoists, UML and YCL were very dangerous groups, yet nothing had happened to him. He said he gave the impression that he was a neutral person who had no involvement with any parties. He said that may be the reason why he was not harmed and also because he helped them financially. I mentioned to the applicant that his brothers had not been harmed. He said he did not know about their situation. I mentioned that it would seem likely that he would hear if anything had happened to his brothers. He said they were not involved in the Monarchists’ movement like the applicant and his father. I mentioned that his father had not been harmed. He said it was perhaps because he is over 70.”
The Tribunal accepted a number of matters that had been put to it by the applicant apart from his nationality. It accepted that he and his father were supporters of the monarchy, that they attended gatherings and were involved in organising groups to attend programs and gatherings. It accepted that the applicant owned a hardware store in Nepal and that he was involved in the running of that business before coming to Australia and:
“The Tribunal accepts that he may have been approached by the Maoists and others over the years and asked for donations. However, it is the Tribunal’s view that the applicant is not credible on some key aspects of his claim. The Tribunal is not satisfied that the applicant left Nepal because of fear of a fear of persecution as described in his application and evidence before the Tribunal.” [61 CB 114]
The Tribunal then set out in dot form in three paragraphs those matters which it considered mitigated against its acceptance of the applicant’s claims. It noted that he had claimed to have been the subject of threats up to 12 or 13 years ago that if he did not stop supporting the monarchy and failed to join the Maoists his life would be in danger, and that he was threatened by Maoists up to 2006 and thereafter by the UML but found:
“The country information available to the Tribunal indicates that these organisations are extremely dangerous and it is extremely unlikely that the applicant would have escaped harm over a 12 or 13 year period if such threats had been forthcoming. When the Tribunal mentioned that the Maoists, UML and YCL were very dangerous groups yet nothing happened to him. He said that he gave the impression that he was a neutral person who had no involvement with any parties. He said that that may be the reason why he was not harmed and also because he helped them financially. The Tribunal is not persuaded by this explanation as to why he escaped serious harm over such a long period. The Tribunal does not accept that the applicant was threatened with serious harm or that he received several death threats from these groups.” [61 CB 114]
The Tribunal then discussed the donation of 50,000 rupees in 2007 and concluded that it did not happen because of the confusion in the mind of the applicant as to whether it was alleged to have occurred at gunpoint or not. Finally the Tribunal concluded that the fact that the applicant had not lodged a protection visa application (PVA) until just before his right to remain in Australia ran out left it of the view that he lodged the PVA not because he feared persecution but because he wanted to remain in Australia.
On 25 May 2011 the applicant, who is represented by Mr Newman, lodged an application with this court seeking review of the decision of the Tribunal. There were two grounds to the application. The first:
“The Tribunal asked the applicant to explain why it was over more than a decade he had not been harmed by extremist organisations who were in continuous contact with him. When the applicant replied with what could only have been a surmise, the Tribunal was dissatisfied. The interrogation of the applicant for information which could not conceivably have been in his possession was oppressive and constituted a jurisdictional error.”
In his helpful written submissions Mr Newman starts with a quote from ‘Alice in Wonderland’ in which the Queen of Hearts asks Alice who the gardeners are. But as they were lying on their faces and the pattern on their backs was the same as the rest of the pack she could not tell whether they were gardeners or soldiers or courtiers or if they were her own children:
“‘How should I know?’ said Alice, surprised at her own courage. ‘It’s no business of MINE.’”
Mr Newman’s point relies upon the assumed impossibility of responding to the question put by the Tribunal. It is certainly correct that had that question been asked in a court of law, where the rules of evidence apply, some strong objections to it might have been taken. Mr Newman continues his submissions by making reference to the views of Evatt J expressed in R v War Pensions Entitlement Appeals Tribunal (1933) 50 CLR 228 where his Honour remarked:
“Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, “bound by any rules of evidence.” Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer “substantial justice.””
I do not think myself that substantial justice was denied the applicant by asking him a question upon which, unless he had been told specifically by the terrorists why they were leaving him alone, he was only able to provide an answer of surmise. It is the Tribunal’s duty to elicit as much information as it can from an applicant to help it decide whether or not it can be satisfied that he is a person to whom Australia owes protection obligations. The applicant does not have to prove that he is but he must make the effort to satisfy the Tribunal.
Some Tribunals may have been satisfied by the response that the applicant gave. Some may have thought that it was quite reasonable. But this Tribunal did not. This Tribunal may have looked back beyond the immediate period to the 12 or 13 years of harm alleged to have been suffered by this particular applicant and given more weight to that than what occurred over the recent period. It is not really for this court to try and second guess what the Tribunal was thinking but, in my view, it could not be said that its response was so illogical that it fell into the commission of a jurisdictional error.
Mr Newman continued, in what I believe is an additional point in relation to the first ground, to attack the finding in the second dot point (of [61 CB 114]) that the applicant was not threatened by harm when he made his second donation of 50,000 rupees. But even Mr Newman accepts that there may have been some confusion about what the applicant said and that we do not have a transcript. It seems to me that even if the Tribunal was in error then it was an error, within jurisdiction and that this paragraph cannot be prayed in aid of the first ground of application.
The second ground of application was:
“The Tribunal refused to accept an explanation as to the applicant’s presence in Australia before the lodgement of the protection visa application was evidence that he did not fear persecution in his home country when there is no essential logical link between fear and requisite application and the Tribunal by linking the two fell into jurisdictional error.”
Mr Newman makes the point, with which I have some considerable sympathy, that many persons who rush to escape persecution do not make applications for protection immediately upon arriving in a safe country. In the applicant’s case, as with many others, there was no need for him to do so because he had the right to remain in this country with his wife under their student visas. If he had applied for protection at that stage the student visa may have been in danger. As Mr Newman says the applicant may not have known about protection visas nor had any reason to make inquiries of them.
But whilst I think that on occasion too much emphasis might be laid upon this point it is also quite clear that it is a matter that the Tribunal can validly take into consideration. In Selvadurai v Minister for Immigration & Ethnic Affairs and Another (1994) 34 ALD 347 Heerey J said:
“The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution. It is a rational consideration open on the material.”
Whilst I may not be bound by this decision, which was at first instance, it is one with which it would be difficult to disagree. It is a decision that has received considerable support and certainly no adverse criticism since it was made in 1994. The Tribunal in this case was entitled to take this matter into account and did not fall into jurisdictional error by doing so.
In those circumstances I am unable to find any grounds upon which the Tribunal erred and I am obliged to dismiss the application and order that the applicant pay the respondent’s costs which I assess in the sum of $4,500.00.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 7 October 2011