SZRMT v Minister for Immigration and Anor
[2013] FMCA 190
•26 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRMT v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 190 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal gave undue weight to certain evidence and made an arbitrary decision. |
| Migration Act 1958, ss.36, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 |
| Applicant: | SZRMT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1126 of 2012 |
| Judgment of: | Cameron FM |
| Hearing date: | 19 March 2013 |
| Date of Last Submission: | 19 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 26 March 2013 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1126 of 2012
| SZRMT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Nepal who arrived in Australia most recently on 11 January 2011. On 3 May 2011 he lodged an application for a protection visa with the Department of Immigration and Citizenship, alleging that he feared persecution in Nepal because of his political opinion and because of his intercaste marriage. On 14 July 2011 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. He 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 4-19 of the Tribunal’s decision. Relevant factual allegations are summarised below.
Protection visa application
The applicant made the following claims in a statement accompanying his protection visa application:
a)he was an active member of the Maoists in 2005 but came to disagree with their violent practices. He fled to Kathmandu when he came into conflict with the area commanders;
b)he met his wife in Kathmandu. They decided to marry in secret because they were from different castes;
c)he came to Australia [in December 2008] as a dependent of his wife, who had been granted a student visa;
d)he returned to his home town in Nepal in October 2010 because he wanted to disclose his marriage to his family and to his wife’s family. However, when the Maoists learned that he was back they demanded money from him and “forcefully” asked him to re-join the party, causing him to flee to Kathmandu. His father told him that the Maoists issued death threats against him;
e)when he told his family about his marriage they were angry. As for his wife’s family, they accused him of eloping with their daughter and threatened to kill him if they found him;
f)when he returned to Australia [in January 2011] his wife ended their relationship; and
g)he feared harm in Nepal from his wife’s family and from the Maoists.
Review application
The applicant appeared before the Tribunal on 7 November 2011, 8 December 2011 and 17 April 2012. On the first hearing day he made the following additional claims:
a)he started attending Maoist events in 2003 whilst studying at a private institution. He later said that he was not very active in the beginning, namely in 2006/2007, but was active until 2008;
b)he moved to Putalisadak, Kathmandu, in January 2008 to hide from the Maoists. He later said that he had had an argument with his area commander in February/March 2008 at which point he fled to Kathmandu before the Maoists could attack him;
c)he met his wife in Putalisadak. They married some time around 28 to 31 May 2008 and then moved to Dillibazar (in Kathmandu). The applicant returned to his home village to register the marriage;
d)after their arrival in Australia [in December 2008], he and his wife lived at an address in Rockdale for approximately two months. He then went to work on a farm, returning occasionally to another address in Rockdale where his wife was living. They remained at the latter Rockdale address until his visit to Nepal in October 2010;
e)he returned to Nepal in October 2010 because he wanted to tell his family about his marriage in person and because he wanted to find out what the Maoists’ situation was;
f)he was approached by the Maoists ten or twelve days after his arrival in Nepal. Instead of returning to Australia at that point, he fled to Kathmandu because he wanted to wait for the chance to tell his parents about the marriage. However, when it was not possible for him to go back to his village, he told his parents by telephone, approximately one and a half months later;
g)his parents disowned him when he told them about the marriage because they did not consider it acceptable for him to marry someone from a lower caste;
h)his wife’s brothers discovered where he was staying in Kathmandu and beat him up;
i)he did not go home (to the second Rockdale address) when he returned from Nepal because he knew that his wife was no longer living there. His wife’s friends told him a few days after his arrival that she had left that address. He then said that he had called his wife’s friends from the airport;
j)when his wife found out through her friends that he had returned to Australia, she contacted him to tell him that she did not have any intention of living with him again. He then said that three or four days after his return, he met some of his wife’s friends while he was out walking. They gave him his wife’s telephone number, following which he spoke to her on the telephone and she told him that she did not intend to live with him; and
k)he did not apply for protection until May 2011 because he was hoping that he and his wife would reconcile and that, through her, he would have a visa. He waited until the last moment to apply for protection.
On the second hearing day, 8 December 2011, the applicant submitted a translated copy of his marriage certificate which indicated that his marriage had taken place on 30 April 2008 and had been registered on 25 May 2008. He also submitted a copy of an application for divorce filed jointly with his wife on 11 August 2011, relevantly specifying that they separated in June 2009.
On the second hearing day the applicant’s brother gave evidence in support of the existence of the applicant’s marriage.
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”) or under the complementary protection provisions of s.36 of the Act. The Tribunal’s decision was based on the following findings and reasons:
a)the applicant gave inconsistent evidence about when and where he lived in Kathmandu before coming to Australia. In his protection visa application the applicant claimed that he had lived in Putalisadek from May to December 2008. However, at the Tribunal hearing he said that he had lived in Putalisadek from about January/February 2008 until his marriage in May 2008 whereupon he moved to Dillibazar with his wife. The applicant also said at the Tribunal hearing that he did not live in Kathmandu before 2008, although he claimed in his protection visa application that he lived in Satdobato, Kathmandu, from May to June 2001 and also studied there from June 1989 to June 2001;
b)the applicant also gave inconsistent evidence about where and for what periods he lived in Australia. In his protection visa application he claimed that he lived at an address in Rockdale from December 2008 to November 2009 whereas he told the Tribunal that he had only lived there for about two months, following which he worked on a farm and then occasionally returned to a different address in Rockdale. The applicant also stated at the hearing that he lived at the second Rockdale address until his departure for Nepal in October 2010 whereas in his protection visa application the applicant stated that he lived there until January 2011;
c)in the Tribunal’s view, the applicant’s reasons for not returning to his home in Rockdale after he came back to Australia were not credible and appeared to be inconsistent with him being in a relationship with his wife. He also gave inconsistent evidence about when he found out that he wife was no longer living there and about how he contacted her after he returned to Australia;
d)at the Tribunal hearing the applicant said that he and his wife were married some time between 28 and 31 May 2008. However, according to the marriage registration certificate he submitted to the Tribunal, the marriage took place on 30 April 2008 and was registered on 25 May 2008. The Tribunal noted that the applicant did not explain this inconsistency or raise any concerns about returning to his village in May 2008 to register the marriage;
e)the applicant gave inconsistent evidence about what happened to him when he told his wife’s family about their marriage. In the statement submitted with his protection visa application the applicant said that her family threatened to kill him if they found him. However, at the Tribunal hearing the applicant said that his wife’s family knew where he was living in Kathmandu and had beaten him;
f)the applicant gave inconsistent evidence about his involvement with the Maoists:
i)the applicant told the Tribunal that he began attending Maoist events in 2003/2004 whilst studying at a private institution. However, he indicated in his protection visa application that he had finished his studies in June 2001;
ii)the applicant also told the Tribunal that he was not very active in the beginning, which he said was in 2006/2007, but that he was active in 2008. However, in the statement accompanying his protection visa application the applicant said that he was an active participant in 2005; and
iii)the applicant claimed at the hearing that he had an argument with his area commander in March 2008 and then fled to Kathmandu, which was different from his earlier evidence to the Tribunal, that he fled to Kathmandu in January 2008, and from the information in his protection visa application, that he had lived in Kathmandu from May 2008;
g)in the Tribunal’s view, the applicant’s action in returning to Nepal in October 2010 and his failure to return to Australia after he was allegedly targeted by the same group of Maoists ten or twelve days later was inconsistent with his claimed fear of harm there;
h)the applicant claimed that he telephoned both families and told them about the marriage about one and a half to two months after he fled to Kathmandu. However, in the Tribunal’s view he did not explain why he would do this if, as he claimed, his reason for returning to Nepal was to tell them in person;
i)the applicant and his wife each declared in their application for divorce that they separated in June 2009, which was clearly inconsistent with the applicant’s claimed reasons for returning to Nepal in October 2010 and the harm he claimed to have experienced there from his wife’s family;
j)the applicant’s evidence about his relationship with his wife, including details about her studies and how they managed their household while they were together, was vague and lacking in detail;
k)given its concerns about the truthfulness of the applicant’s evidence, the Tribunal placed no weight on the evidence of the applicant’s brother, particularly as it was mostly based on what the applicant had told him, lacked detail and included inconsistencies with the applicant’s evidence and with the information provided in the application for divorce; and
l)in the Tribunal’s view, the applicant’s delay of over two years before making his protection visa application was inconsistent with his claim that he left Nepal for reasons of persecution, as was his further delay of four months after he returned to Australia in January 2011.
For those reasons, the Tribunal found that the applicant was not a witness of truth and had not given a truthful account of his circumstances in Nepal. The Tribunal did not accept that the applicant was involved with the Maoists or had ever been targeted by them. Further, the Tribunal did not accept that the applicant had been in a genuine intercaste marriage with his wife such that it gave rise to his family disowning him or led to him being targeted by his wife’s family.
Proceedings in this Court
In his application commencing these proceedings the applicant alleged:
1.An arbitrary decision was made without proper verification of claims.
2.Importance was given only to dates rather than the claims itself.
3.Decision was made on speculation and not based on evidence.
Grounds 1 and 3
The first and third grounds of the application make allegations which recall the issues discussed by Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189 in a statement which was quoted with approval by Gleeson CJ and Gummow J in Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 529 [62]:
It is a general principle of law, applied many times in this Court and not questioned by anyone in the present case, that a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself ... The courts, while claiming no authority in themselves to dictate the decision that ought to be made in the exercise of such a discretion in a given case, are yet in duty bound to declare invalid a purported exercise of the discretion where the proper limits have not been observed.
Essentially the applicant alleges in the first and third grounds of the application that the Tribunal did not conduct a true review because its decision was arbitrary and capricious rather than thoughtful and reasoned and that by failing to address itself to its statutory task the Tribunal constructively failed to exercise its jurisdiction.
The applicant has not identified how the Tribunal’s conclusion that it was not satisfied that he met the criteria for the grant of a protection visa was flawed in the manner alleged. A review of the Tribunal’s reasons, as summarised earlier in these reasons, does not disclose a want of consideration or reasoning on the Tribunal’s part. It set out the various elements of the applicant’s claims, and the evidence proffered in support of them, and addressed those claims in a logical and cogent manner. Far from reaching an arbitrary or capricious result, the Tribunal based its decision on an analysis of the claims, evidence and arguments advanced by the applicant, an analysis which was then the foundation of clearly expressed findings of fact which, in turn, provided a rational basis for the Tribunal’s ultimate conclusion and decision on the review. For those reasons, the first and third grounds of the application are not made out.
Ground 2
The second ground of the application implicitly alleges that the Tribunal wrongly gave greater weight to the inconsistencies in the applicant’s account than to other aspects of his evidence, specifically evidence supportive of his claim to fear persecution in Nepal. Understood in that way, the second ground of the application is an invitation to the Court to review the Tribunal’s factual conclusions. The Court cannot do that; its role is limited to identifying whether the Tribunal has properly applied the law and, if not, to remitting the matter to the Tribunal to be considered afresh.
As the Court cannot review the Tribunal’s factual findings, the second ground of the application does not disclose a basis upon which the Tribunal’s decision should be set aside.
Other
At the hearing of this application, the applicant also argued that what he had told the Tribunal was true, even if he had been unable to produce a lot of evidence, and that the Tribunal was not in a position to doubt him. He said that he had had experiences which led him to fear persecution in Nepal and the Tribunal could not decide what had happened simply by reading the newspapers or listening to the news.
This argument is the same in substance, if not in detail, as the argument advanced in relation to the second ground of the application. It must also fail for the same reasons as the second ground.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 26 March 2013
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