SZRQT v Minister for Immigration
[2012] FMCA 1183
•21 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRQT & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1183 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – applicants claiming political persecution in Nepal – applicants not believed in critical respects – whether the Tribunal decision was unreasonable and whether the Tribunal was biased considered. |
| Migration Act 1958 (Cth), s.424A |
| Minister for Immigration v SZMDS [2010] 240 CLR 611 SZRHS v Minister for Immigration [2012] FMCA 806 |
| First Applicant: | SZRQT |
| Second Applicant: | SZRQU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1591 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 16 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Young |
| Solicitors for the Applicant: | Shamser Thapa & Associates |
| Solicitors for the Respondents: | Ms L Buchanan Australian Government Solicitor |
ORDERS
The application as amended on 6 November 2012 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1591 of 2012
| SZRQT |
First Applicant
SZRQU
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (the Tribunal). The decision was made on 29 June 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are two applicants, who are a husband and wife. They are from Nepal and had made claims of political persecution. The following statement of background facts is derived from the submissions of the parties.
The applicants arrived in Australia at different times in 2008, the first applicant in August 2008 as a dependent of his wife, the second applicant, who arrived in January 2008 as the holder of a subclass 572 student visa. They both subsequently held further visas valid until 24 November 2010[1].
[1] Court Book (CB) 211-2, 216-235
The applicants applied for protection visas on 14 September 2010 with the assistance of a migration agent[2]. The first applicant made claims to fear harm and the second applicant applied as a member of the first applicant's family unit. Any references in this judgment to the applicant are references to the first applicant. Both provided statements regarding the claimed fears of harm. A delegate of the Minister refused to grant the visas on 14 November 2011[3].
[2] CB 1-153
[3] CB 181-193
On 28 November 2011, the applicants applied to the Tribunal for a review of the delegate's decision[4]. On 19 April 2012, the applicants attended a hearing of the Tribunal at which they gave evidence[5]. Subsequent to the hearing, the Tribunal wrote to the applicants seeking their comment on aspects of each others' evidence and upon country information regarding harm against those of upper castes, to which the applicants responded with a submission, further statements and news articles[6].
[4] CB 195
[5] CB 213
[6] CB 248-261
In summary, the first applicant claimed to fear persecution by reason of his political opinion, arising from his involvement with the Communist Party of Nepal (Maoist) (Maoist party). He claimed to have become involved with the party in 2000 assisting them with publishing a newsletter. He was arrested for this work in 2004 and detained until his wife secured his release, after which time he became the assistant to the Maoist leader. However, he claimed to have disagreed with members of the Maoist party after they took government in May 2008 as a result of which he was threatened with being killed and allegations made against him. It was due to fear of the threats received from the Maoists after 2008 that the first applicant claimed to fear harm along with his belonging to an upper caste and his opposing caste-based federalism in Nepal.
Tribunal decision
The Tribunal affirmed the decision of the delegate[7]. In doing so the Tribunal accepted that the applicants were nationals of Nepal[8]. Further, despite some concerns about the second applicant's lack of knowledge of the first applicant's involvement in politics until his arrest in 2004, the Tribunal afforded the applicants the benefit of the doubt and accepted their claims in relation to events up to the Nepalese elections in April 2008[9].
[7] CB 266-303
[8] see [173] of its reasons
[9] [174]-[175]
However, the Tribunal identified inconsistencies between the first and second applicant's evidence that gave rise to significant credibility concerns and led it to doubt the claimed events after April 2008. These concerned matters which it found were significant and straightforward where consistency could be expected, irrespective of nerves or stress[10]. These matters were:
·the first applicant gave evidence that one of the reasons for his wife's return to Nepal in February 2010 was to make enquiries about the level of interest the Maoists held in him, while the second applicant made no mention of this purpose and said the only reason was to see her children;[11]
·the second applicant gave evidence that she was visited by Maoists seven or eight times in February 2010 and received threatening telephone calls, and that she told the first applicant she was visited more than once, while the first applicant said that he could not say how many visits she received and made no mention of telephone calls;[12]
·the first applicant, when questioned by the Tribunal about interest shown to his family by Maoists since he left Nepal, did not mention that they had been asking his children about him, while the second applicant gave evidence that the children told both the first applicant and her about this over a joint phone call[13].
[10] conclusions at [199]-[205]
[11] [176]
[12] [180]
[13] [189]-[190]
The Tribunal also did not accept the explanations given for the applicants' delay in applying for protection visas and did not believe that if the first applicant had genuinely fled Nepal in fear of his life he would have made no enquiries about applying for protection for two years[14].
[14] [198]
Given these concerns, the Tribunal concluded that the applicants were untruthful in their evidence as to the reasons why the first applicant left Nepal and why they did not wish to return to Nepal. The Tribunal therefore did not accept that the first applicant was of adverse interest to the Maoists for the reasons claimed[15].
[15] [205] and [207], [228]-[229]
The Tribunal also considered whether the first applicant might face harm from others due to his past work for the Maoists but did not accept there was a real chance of persecution for this reason[16].
[16] [219], [232]
The Tribunal noted that the applicant and his wife expressed a fear of harm because they belonged to an upper caste[17]. However, the Tribunal rejected this claim based on country information and, insofar as this claim was that the Maoists would harm the first applicant due to his opposition to his caste or his opposition to caste-based federalism, real or imputed, the Tribunal also rejected the claim[18].
[17] see [110] and [209]
[18] [211]-[215]
The Tribunal also found that the second applicant did not have a well-founded fear of persecution[19].
[19] [233]-[236]
The Tribunal considered complementary protection but found that there were no substantial grounds for believing there is a real risk that either applicant will suffer significant harm in Nepal[20].
[20] [237]-[242]
Accordingly, the Tribunal found that the applicants did not satisfy the criteria for a protection visa and affirmed the delegate's decision.
The present application
These proceedings began with a show cause application filed on 23 July 2012. The applicants now rely upon an amended application filed on 6 November 2012. There are four grounds in that application:
1. The Second Respondent made a determination which was irrational, illogical, not based on findings or inferences of fact supported by logical grounds, and/or manifestly unreasonable and constituted a jurisdictional error.
Particulars
(a) The Second Respondent accepted the evidence provided solely by the First Applicant in relation to the First Applicant’s involvement in the Maoists Party of Nepal between 2000 and April 2008;
(b) The Second Respondent rejected all the evidence and claims provided by both the First Applicant and the Second Applicant in relation to events following the First Applicant’s departure from Nepal in August 2008; evidence and claims relevant to the First Applicant’s claim of fear of being persecuted for reason of membership of a particular social group or political opinion, and/or entitlement to complementary protection, making an adverse finding of credibility of both Applicants on the basis of the Second Applicant’s version being partially inconsistent with the First Applicant’s version;
(c) The Second Respondent used the adverse finding as to credibility referred to in particular 1(b) above to reject and/or refuse to give weight or consideration to evidence and claims provided solely by the First Applicant in relation to events between April 2008 and August 2008; events relevant to the First Applicant’s claim of fear of being persecuted for reason of membership of a particular social group or political opinion, and/or entitlement to complementary protection, there being no inconsistent evidence with that of the First Applicant, and in circumstances whereby the well of credibility had not been poisoned beyond redemption.
2. The decision of the Second Respondent is affected by jurisdiction[al] error in that it misapprehended the First Applicant’s claim of fear of persecution claim based on his political opinion of caste-based federalism in Nepal and thereby identified a wrong issue, asked itself the wrong questions and relied on irrelevant considerations.
Particulars
(a) The First Applicant’s claims of fear of persecution were distinct and cumulative and including a fear of persecution based upon his political opinion of caste-based federalism in Nepal.
(b) The Second Respondent considered whether the First Applicant’s fear was reasonable as a member of a particular caste, that is Chhetri, a claim not made by the First Applicant.
(c) The Second Respondent considered country information in relation to the persecution of individuals of the Chhetri caste in Nepal which was irrelevant to the claim made by the First Applicant.
(d) The Second Respondent relied upon the rejection of the claim as part of its finding as to the First Applicant’s credibility.
3. The Second Respondent made jurisdictional error by making a decision which was unreasonable, capricious or arbitrary in that the Second Respondent determined that the applicant had given untruthful evidence about events post 2008 because the evidence of his wife differed in some respects from his.
4. The Second Respondent made a decision which was affected by a reasonable apprehension of bias.
Particulars
a. The Second Respondent accepted the account of the applicant in relation to events up to and including the 2008 elections in Nepal and some of his evidence thereafter.
b. In assessing differences between the evidence of the applicant and that of his wife regarding her reasons for returning to Nepal and dealings with the Maoists when she was there, the second respondent adopted an eye attuned to finding the giving of false evidence by the applicant without considering the possibility that the applicant had been telling the truth as he recalled it.
Ground 2 was not pressed.
I received as evidence the book of relevant documents (court book) filed on 4 September 2012. Counsel for the applicant also tendered a transcript of the Tribunal hearing conducted on 19 April 2012. Although the transcript was not verified by affidavit, it is obviously a professionally prepared transcript by Auscript. I received it.
The applicant is concerned that while the Tribunal accepted his claims concerning involvement with the Maoists between 2000 and 2008 it rejected his claims concerning events from April 2008, largely upon the basis of inconsistency between evidence given by him and his wife about matters of detail.
The Minister denies that the Tribunal fell into any jurisdictional error.
Consideration
Grounds 1 and 3 – Was the Tribunal decision unreasonable, illogical, capricious or arbitrary?
The applicant claimed before the Tribunal to be a high profile and committed Maoist leader, close to the leadership of the party. This was a surprising (and improbable) claim as the applicant was a wealthy businessman in Nepal and, on his own account, his wife was ignorant of his own activities for the first four years of his involvement. It would, in my view, have been open to the Tribunal to reject the applicant’s entire account as a fabrication but, somewhat generously, the Tribunal was willing to give the applicant the benefit of the doubt, in relation to the period up to the elections in Nepal in April 2008 which brought the Maoist party to power.
The Tribunal was not so generous in relation to the applicant’s claims about the aftermath of the elections and his departure from Nepal. The applicant had claimed to have had minimal involvement in those elections and to have essentially dropped out of party activities. It was plainly necessary for the applicant to explain why, as a party leader, he had been invisible in the election which brought the party to power and why he played no role in the government formed after that election. The applicant claimed to have earned the enmity of the party because of differences with the party leadership and to have left Nepal for his safety. As noted above, the applicants gave inconsistent evidence in particular about the second applicant’s visit to Nepal in 2010, and about the interest shown in the applicant by the Maoists since he left Nepal. The Tribunal invited the applicants to comment on those inconsistencies (whether or not that invitation was strictly required) pursuant to s.424A of the Migration Act 1958 (Cth) by letter dated 29 May 2012. The applicants responded in the form of a submission from their representative dated 12 June 2012.
The Tribunal reached the following conclusions on the applicant’s credibility regarding events after the elections in Nepal in April 2008[21]:
[21] CB 296-297
In their statutory declarations (and in the representative’s submissions) both applicants said that they were under stress, were nervous and anxious at the hearing and so it was inevitable that there would be inconsistencies in evidence as they could not recall every detail of their claims when asked. The applicant said that they did not mention the word Maoists because of the physical and emotional harm caused by that group to the applicant and his family and he was trying to erase his past with them.
The Tribunal firstly notes that both the applicant and his wife gave evidence at the hearing without difficulty. The Tribunal is satisfied that they had a meaningful opportunity to present arguments and claims. Secondly, the inconsistencies discussed above and which caused the Tribunal to be concerned about the credibility of the applicant and his wife do not concern peripheral minutiae about which the Tribunal could allow for inconsistency.
The discrepancies in question relate to significant and straightforward aspects of their accounts. Accordingly, they could be expected to give consistent accounts on those matters regardless of being nervous, anxious and under stress (as most protection visa applicants are when they appear before the Tribunal). That is the case also regardless of the applicant’s negative feelings about his past association with the Maoists and the harm he claims he and his family suffered as a result.
The evidence of the applicant and his wife regarding her reasons for returning to Nepal, her dealings with Maoists when she was there and the interest shown in the applicant by Maoists since he left Nepal is inconsistent. Further, the inaction on the part of the applicant to make enquiries about how he could remain in safety in Australia and avoid returning to Nepal as discussed above was further indication that the applicant is not genuinely in fear of persecution.
All of these concerns considered together lead the Tribunal to conclude that the applicant and his wife have been untruthful in their evidence as to the reasons why the applicant left Nepal in August 2008 and why he (and his wife) do not wish to return there. During the hearing, the applicant claimed that in late 2011 Maoists gave their telephone number ot his mother and he offered to provide that to the Tribunal to call it. The Tribunal has elected not to call that telephone number as the Tribunal would have no credible basis on which it could be certain as to the identity of the person who has that telephone number.
Further, the credibility of the applicant and his wife as regards the claimed adverse interest taken in him by Maoists after the elections in April 2008 has been strongly discredited in view of the credibility issues discussed above. The Tribunal is satisfied that any telephone call to an unknown person, presumably in Nepal, will not overcome the Tribunal’s concern about his credibility arising from the issues discussed above.
The Tribunal therefore disbelieves the claims of the applicant and his wife that, for expressing his views about the Maoist led government he became of adverse interest to them; that he was accused of the various offences or allegations mentioned above; that he was treated as a target and there was a threat to his life; that the Maoists decided, planned or intended to take action against him including killing him; that he was warned about that by people in the party; that he was told not to criticise the party; that he went into hiding and left Nepal in fear for his safety; that he was not allowed to live at home with his children and told to remain at a YCL barracks; that since he left Nepal Maoists have visited his family including his wife or approached or telephone them about the applicant and alleged that he was a betrayer; that his wife returned to Nepal to find out about Maoist interest in him; that the Maoists wish to harm the applicant and that he does not wish to return to Nepal for that reason.
The Tribunal therefore accepts as credible the claims made by the applicant and his wife that:
·From 2000 until 2004 the applicant helped Maoists by disseminating information on behalf of leaders in the party by e-mail to journalists and others using a false name in the manner he claimed.
·In 2004 or after he was arrested and imprisoned for helping the Maoists, was the subject of Supreme Court orders for his release and was supported in that respect by certain organisations concerned with human rights.
·From 2006 until the elections in April 2008 he worked with and assisted the Maoist leader Prachanda as he claimed.
·After the elections the applicant performed no role in the Maoist led government, did nothing else for the party beyond attending some meetings and discussing politics with people from the party and expressing to them his disagreement with what the Maoists were doing in government in Nepal and as regards the policy of a federal system for Nepal.
·The applicant’s wife helped people in the local village when they needed it as was claimed by the applicant’s wife.
However, for the reasons given above, the Tribunal does not believe the applicant became of adverse interest to the Maoists because of his views about them or that they planned to harm him. The Tribunal finds that there is no credible evidence as to why the applicant left Nepal and why he does not wish to return there. There is no credible evidence that the Maoists have any interest in him or wish to harm him. On that basis, the applicant’s fear of persecution from Maoists is not well founded.
I accept the Minister’s submissions on these grounds.
There is no want of logic or unreasonableness in the Tribunal finding that in light of inconsistencies between the evidence of the applicants which related to “significant and straightforward aspects of their accounts [on which] they could be expected to give consistent accounts” that it did not accept the claims made. The applicants assert that no logical decision maker could make this finding, yet go on to submit that the inconsistencies in the evidence given merely tend to suggest an alternative finding[22] and that the Tribunal adopted a “worst possibility”[23]. Clearly, the finding that the Tribunal did make was one that was possible on the evidence before the Tribunal.
[22] See [21] of the applicant’s submissions
[23] See [29] of the applicant’s submissions
There is no want of logic in the Tribunal’s reasoning and its reasoning is not such that no decision maker would have reasoned in such a way[24].
[24] Minister for Immigration v SZMDS [2010] 240 CLR 611
Ground 4 – Was the Tribunal biased?
I accept the Minister’s submissions on this ground. The applicants contend that the Tribunal’s decision gives rise to an apprehension of bias but, as I have previously found, it is generally unproductive to look to reasons for decision when addressing a claim of bias as, of necessity, when a decision is made, the decision maker has made up his or her mind[25]. The applicant contends that bias is apprehended because the Tribunal found at [203][26] that both applicants had been untruthful in their evidence as to the reasons why the applicant left Nepal in August 2008 and why he and the second applicant do not wish to return there. However, it does not follow that because two people give inconsistent evidence, one of them must be truthful. The Tribunal was entitled to find, on the evidence before it, that both applicants were untruthful. It might have preferred the evidence of one over the other. It could also have found that it was unable to determine the truth because of the conflicting evidence and hence was unsatisfied that the applicant’s claims should be accepted. Several conclusions were open to the Tribunal and the adoption of an available alternative does not give rise to an apprehension of bias.
[25] SZRHS v Minister for Immigration [2012] FMCA 806 at [23]
[26] CB 296
There is, in my view, no basis for the assertion that a fair minded, properly informed lay observer would apprehend that the Tribunal member did not bring an impartial mind to the determination of the matter due to the Tribunal’s reasons regarding inconsistencies in the applicants’ evidence. Contrary to the applicants’ submissions, the Tribunal was clearly open to the possibility that the inconsistencies could be explained as it provided reasons why, in the particular circumstances, it did not accept the applicants’ explanations for those inconsistencies[27].
[27] See CB 296 at [199] ff
Neither is there anything in the transcript of the hearing conducted by the Tribunal to support the assertion of an apprehension of bias.
This ground therefore fails.
Conclusion
The applicants have failed to demonstrate any jurisdictional error in the decision of the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 21 December 2012