SZROJ v Minister for Immigration - [2012] FMCA 1117

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZROJ v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1117

MIGRATION – RRT decision – Nepali student claiming political persecution – disbelieved by Tribunal – documents given no weight – no jurisdictional error identified – application dismissed.

Migration Act 1958 (Cth), s.36(2)(aa)

Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485

Applicant:

SZROJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1307 of 2012

Judgment of:

Smith FM

Hearing date:

21 November 2012

Delivered at:

Sydney

Delivered on:

21 November 2012

REPRESENTATION

Counsel for the Applicant:

Applicant In Person

Counsel for the Respondents:

Ms M Stone

Solicitors for the Respondents:

DLA Piper

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1307 of 2012

SZROJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia on a student visa in September 2008. The visa was cancelled in August 2010, but the applicant remained unlawfully in Australia until, on 24 November 2010, he lodged a protection visa application assisted by a solicitor.
A statement attached to the visa application set out the applicant’s claims to fear persecution if he returned to his country of nationality, Nepal. In his statement, he said that he had become an active member of the monarchist RPP Party in Nepal in December 2007, and had participated in political activities in support of the monarchy. He said “everyone knows me, that I am a Monarchist”. The applicant said that other political parties and “mostly Maoists” targeted the members and supporters of the RPP Party. He said:
While I was doing my studies, in the short term, I managed to avoid the attention of the Maoists for most of the time. In the month of August 2008, I told many students at the college where I was doing a bachelor degree that we must support the Monarchy and the Monarchy should not be re-established. I told that we should fight for the Monarchy to be respected across the nation.
After my speech at the college, a group of YCL attacked me around 6 pm on my way back home. I was badly hurt and I was hospitalised for 2 days leaving me with some physical injuries and threat that they would kill me next time if they find out that I am still supporting the Monarchy. Due to fear from the Maoists and Maoists YCL, I could not continue my study in Nepal.
I was hiding every day from being found out after the incidence. The fear of the beatings escalating again, made me realise that I couldn’t remain in Nepal. I lived in constant fear of persecution while I was in Nepal. I wanted that feeling to go away. I have been terrified by the Young Communist League, which the youth wing of the Maoist rebels. My political activity received resentment from the Maoists who asked me to put an end to my political activity for the Monarchy and RPP.
I fear harm in my country because of my political opinions. I am a political dissident and I am known to the Maoists and other anti-monarchists. I participated in pro-monarchy rallies and demonstrations in Nepal. I was required to give an undertaking not be involved in politics to support monarch leaflets.
I applied for an Australian student visa and it was approved. My parents and brother supported me financially so I came to Australia on a student visa on 05 September 2008.
I have travelled to Australia expressly with the intent of seeking protection. I waited long time to apply for protection because I did not know that I had to apply immediately after my arrival. I have suffered enormous physical, mental and emotional trauma.
The applicant submitted a number of documents about his studies in Australia and Nepal, but provided no corroboration of his claims to have been actively involved in politics and to have been persecuted as a consequence.
The applicant attended an interview by a delegate of the Minister on 17 November 2011. The delegate then made a decision on 8 December 2011 to refuse the protection visa application. In his reasons, the delegate noted the absence of corroborative evidence, and said that the applicant’s responses at interview “were lacking in veracity and substance”. The delegate noted that the applicant had already put in motion his application to come to Australia in June 2008, which was prior to the claimed events of August 2008. The delegate also noted a lengthy delay after the applicant’s arrival in Australia before he applied for protection. The delegate was not satisfied that the applicant was a pro-monarchist member of the RPP in Nepal or that he faced persecution for that reason.
The applicant applied for review by the Refugee Review Tribunal without appointing a representative.
He attended a hearing of the Tribunal on 11 April 2012. The hearing appears to have lasted for about three hours, and included the Tribunal taking evidence from the applicant’s sister by telephone, and then putting some matters arising from what the sister said back to the applicant pursuant to what the Tribunal said was “the procedure in s.424AA of the Act”. Neither party has tendered a transcript of the hearing, and there is no evidence before me casting doubt on the Tribunal’s description of the hearing, including its assertion that the Tribunal followed the statutory procedure in respect of information taken from the sister’s evidence.
It appears to me that all of the concerns which subsequently informed the Tribunal’s reasoning were fully explained to the applicant in the course of the hearing, and that he was given an opportunity to provide explanations and responses. This included drawing the applicant’s attention to the absence of corroborative documents, and to concerns about the applicant’s explanations for not having them.
The Tribunal said that at the end of the hearing:
66.The Tribunal agreed to receive any further submissions from the applicant by COB 18 April 2012, which it considered reasonable in the circumstances. In relation to any documents that he might submit, it alerted him to country information about the high incidence of document fraud in Nepal, including forged official document and the entry of false information on genuine documents, upon payment of a bribe or simply to help someone. It recommended that he provide full details about any documents he submitted, including their provenance. The Tribunal would consider what weight and meaning to attach to any document, in light of its overall assessment of his claims and evidence.
Subsequently, the applicant did send to the Tribunal two documents, but without any covering submission or explanation as to how they had been obtained. One of them, although in foreign script, was understood by the Tribunal to be a party membership card or record from the RPP Party, and the other was a recently dated reference letter which certified that the applicant “is an active member of our party from December 2007 to till date”.
The Tribunal made a decision on 16 May 2012, in which it affirmed the delegate’s decision.
In its “Statement of Decision and Reasons”, the Tribunal provided what appears to be a careful assessment of all the evidence. It noted that the applicant had spoken with some familiarity about the RPP Party, but said that this appeared “somewhat limited and patchy, although his period of absence from Nepal could explain this to some extent”.
The Tribunal referred to the concern arising from the chronology of the applicant’s applications for visas to travel both to the United Kingdom and Australia, before the events which he claimed had caused him to “flee abroad for his safety”.
The Tribunal considered the applicant’s sister’s evidence, which appeared not to provide very much support for the applicant’s account of events before he left Nepal which, according to her, had occurred shortly after she had herself returned to Australia from Nepal.
The Tribunal found that the applicant’s account of his political activities showed that he was “not actually speaking from direct personal experience”.
The Tribunal also said:
There is a sharp divide between the applicant’s claimed long-term political commitment to the RPP and his short-lived but intense activism in Nepal, on the other hand, and his evident lack of interest or contacts since mid-2008, on the other.
Among the Tribunal’s explanations for this finding, it referred to the applicant’s explanation for why he had ceased to follow politics in Nepal after coming to Australia. In this respect, it said:
73.…The applicant has, in effect, argued that he was actively involved in politics whilst at college in Nepal; that he was subject to physical violence, for no apparent gain; and that he is therefore disheartened. He suggested that his study and work in Australia may have been immediate preoccupations after his arrival in a new country. The applicant also claimed that he feels he has very little capacity to follow effectively or influence politics in Nepal, from the distance of Australia. The Tribunal has considered all these factors, but is concerned that the applicant appears to have reflected little on his (claimed) former political interests, and whether there might be ways of sustaining these (for instance, on-line, through like-minded people in Nepal or Australia, by simply keeping himself informed, or through other means)…
The Tribunal discussed the applicant’s reasons for his “lack of papers”, which it said were “problematic”. It then discussed the two documents submitted after the hearing as follows:
73.…The applicant submitted a ‘to whom it may concern’ statement, dated 17 April 2012, on what appears to be RPP letterhead, and an untranslated document that appears to be a membership card (including a membership number). Although the Tribunal alerted the applicant to country information about document fraud in Nepal, and the importance of explaining the provenance and other details of any documents submitted post-hearing, the Tribunal received no such further information. Even at face value, the letter from the ‘Chairman’ (not further defined) certifies that the applicant is an ‘active member of our party from Dec 2007 to till date’, an assertion that is plainly wrong given the applicant’s own evidence that he has not been involved with the RPP since leaving Nepal in September 2008. Similarly, there is no insight into who obtained these documents, and how they were able to overcome the applicant’s own problem in the RPP being unable to recognise him without his membership number details.
The Tribunal concluded:
74.In sum, the Tribunal considers that the applicant’s knowledge of the RPP was limited and uneven, and that it provides weak support for his claim to have been a long-term follower of the party and, for a short period, an activist. This evidence is far outweighed by significant concerns that the Tribunal has about his claimed political involvement. These concerns, considered cumulatively, lead to the Tribunal to not accept that the applicant had any association with the RPP in Nepal at all.
The Tribunal also referred to the applicant’s delay after arriving in Australia before making a protection visa application. It said that it did not find the applicant’s explanation of this, based on an asserted lack of knowledge of the availability of refugee protection, to be “persuasive”. It thought that this was inconsistent with evidence of his resourcefulness in his life in Australia and the presence of relatives in Sydney. The Tribunal said that the delay provided “additional evidence that he does not fear persecution in Nepal, but is rather seeking a basis to acquire permanent residency in Australia”.
The Tribunal referred to other aspects of the applicant’s case, and rejected all of his refugee claims, as a result of its finding that the applicant had no association with the RPP and its adverse opinion of his credibility. The Tribunal summarised its conclusions about the past and future:
80.In summary, and having considered the applicant’s claims and evidence as a whole, the Tribunal finds that he is not and never was a supporter or member of the RPP, or perceived as such, and that the Maoists have not targeted him or any family member in the past. It finds that he does not have a political opinion that will motivate him either to engage in political activities if he returns to Nepal, or that he would have to refrain from in order to avoid persecution. The Tribunal finds there is no real chance of the applicant being subject to persecution on the grounds of political opinion, or any other Convention reason.
The Tribunal said that it had also considered the alternative criteria for complementary protection, which are now provided under s.36(2)(aa) of the Migration Act 1959 (Cth), but concluded that these provisions did not apply, as a result of its findings that “the applicant will not suffer any harm in the future”. The Tribunal concluded that the applicant was not a person to whom Australia had protection obligations under any of the criteria for a protection visa.
The applicant now asks the Court to set aside the Tribunal’s decision, and to remit the matter for further consideration. I have power to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant should have been believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
The applicant’s grounds of his application are set out in his original application:
1.I argue that the Tribunal Member has committed a jurisdictional error because the Tribunal Member deprived me of natural justice and good faith in my case.
2.I argue that the analysis of the Tribunal Member in relation to my involvement with the Rastriya Prajatantra Party is wrong and my claims were inferentially overlooked. The Tribunal Member failed to satisfy the credibility test in dealing with my claims, thus my claims were adversely construed.
3.I argue that evidence that the Tribunal Member relied upon was unreasonable and inadequate the only inference was that the Tribunal applied the wrong test. I am a true victim of the impulsive decision made by the Tribunal member in my case.
The applicant has not filed any amended application or written submissions to elucidate the generality of these grounds. In the absence of particulars, I am unable to address them with any specificity.
I am able only to respond that, on my examination of the procedures which I have described above, I am not satisfied that there is any evidence of a denial of natural justice, insofar as this is provided for or required under the statutory procedures governing the Tribunal’s proceedings. I consider that the Tribunal did address the applicant’s case “in good faith”, and I can find no evidence which might satisfy principles of apprehended bias, if this is implicitly asserted in Ground 1.
Ground 2 was not specifically addressed by the applicant in his oral submissions before me, but he made some criticisms of the Tribunal’s reasoning. In particular, he suggested that it had not given proper weight to his corroborative documents, nor to his explanations as to why he had not followed Nepali politics after coming to Australia, and why there was a lengthy delay before he applied for protection.
However, it is clear to me from the Tribunal’s decision that it did consider all of the applicant’s evidence, including his explanations for these particular concerns.
It did consider his two documents submitted after the hearing, and did so in a context where the applicant had been given a clear warning that the Tribunal might assess any later submitted documents cautiously. In my opinion, the Tribunal’s assessment of the weight to be given to these documents did not reveal any defect which might provide jurisdictional error (see Minister for Immigration & Citizenship v SZNSP (2010) 184 FCR 485).
Doing the best I can to understand Grounds 2 and 3 in the light of the applicant’s submissions to me today, I think his criticisms amount to only an invitation for the Court to re-assess the merits of the matter, and arrive at different conclusions to those reached by the Tribunal. However, as has been explained to the applicant, the Court does not have power to do this.
I can find no evidence in the Tribunal’s reasons of any error of law concerning “the credibility test” or any other aspect of its decision-making. The Tribunal’s decision, in my opinion, was open to it in law, and the Tribunal provided logical reasons based on a foundation in the evidence before it.
Taking into account all that the applicant has said to me today, I am not satisfied that he has identified any jurisdictional error which might allow me to set aside the Tribunal’s decision and remit the matter. I must therefore dismiss the application.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 29 November 2012