SZRRM v Minister for Immigration

[2013] FCCA 263

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRRM v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 263

Catchwords:
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 it made incorrect findings of fact, failed to make findings on certain factual issues and breached s.425 of the Migration Act 1958.

Legislation:
Migration Act 1958, ss.36, 425, 430, 474

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZRRM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1645 of 2012

Judgment of: Judge Cameron

Hearing date: 15 April 2013

Date of Last Submission: 15 April 2013

Delivered at: Sydney

Delivered on: 15 April 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,100.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1645 of 2012

SZRRM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Nepal who arrived in Australia on 10 June 2010.  On 16 September 2010 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.  On 21 November 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.

2. 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.

3. For the reasons which follow, the application will be dismissed

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-12 of the Tribunal’s decision.  Relevant factual allegations are summarised below.

Protection visa application

1. The applicant made the following claims in his protection visa application and in a statutory declaration accompanying that application:

   a)in April 2008 he joined the Rastriya Prajatantra Party (“RPP”) in his home area because of his father.  He began undertaking activities for the RPP and was active in telling people about the importance of the monarchy;

   b)people in his home area supported the Maoists. The Maoists had asked him to join them but he refused;

   c)from May 2008 the Maoists and anti-monarchists intimidated, harassed and assaulted him because of his support for the monarchy;

   d)in March 2010 the Maoists abused, assaulted and threatened to kill him if he continued to support the RPP.  He defied them and continued his activities and they continued to threaten him.  He reported them to the police but no action was taken. Out of fear, he moved to Kathmandu and stayed there until he left Nepal;

   e)he fled Nepal because he did not want to support the Maoists and to save his life. He used a false passport to travel to Australia;

   f)if he returned to Nepal he would actively participate in publicising the RPP and the monarchy.  He would engage in opposition to the Maoists; and

   g)he feared that he would be harmed or killed by Maoists or “hard-core” anti-monarchists.  The authorities would be unable to protect him.

2. In support of his application the applicant provided the department with:

   a)a document purportedly issued by the RPP on 11 November 2011 stating that his father became an active member of the RPP on 10 June 1999 and had been actively involved with the party since its establishment in his district; and

   b)a document purportedly issued by the RPP on 11 November 2011 stating that the applicant had officially become a member of the RPP on 9 June 2008 because he had had faith in the party since its establishment in his home district and had been actively involved with the party.

Tribunal review

1. The applicant made the following additional claims at a Tribunal hearing on 15 June 2012:

   a)his father commenced political activities for the RPP when he, the applicant, was seventeen or eighteen years old.  His father became a member of the party in 1999 or 2000 and received his photo identity card about two or three years after that;

   b)he began working for the RPP in 2007, eight or nine months before the elections which were held in April 2008 and continued his political activities almost until the point he left Nepal.  He went to other villages with two assistants and spoke to people about the party and attended party meetings in his village.  Prior to that he travelled with his father when his father accompanied party leaders or members to gatherings;

   c)before the elections he was only a supporter of the RPP and became an official member seven or eight months after the elections.  The applicant then said he became a member two months after the elections.  He received a party identity card about three or four months after the elections;

   d)five or six months before the elections the Maoists asked him to join them;

   e)a year after the elections a group of six or seven Maoists attacked him in his home.  He was injured and was hospitalised for a week. The applicant later said that he was attacked in March 2010, two years after the elections.  A month and a half after that attack he was again attacked on his way home.  He was not severely beaten but was threatened that if he did not support his attackers’ party he and his family would suffer consequences.  He knew that it was the Maoists who had attacked him because after the attacks they telephoned him and told him that they had attacked him twice;

   f)he complained to the police about the two attacks and they said that they would investigate but did not;

   g)he was never attacked by any group other than the Maoists, although anti-monarchy parties had oppressed and threatened him.  The statement in his statutory declaration that he was attacked by anti-monarchists was because of his language barrier and a translation error which occurred when his roommate typed his declaration from Nepali to English;

   h)in November 2009 he sent his wife and children to live in Kathmandu partly because of the threats from the Maoists while he remained in his village.  The applicant then said that his wife and children were still in his village when the first attack occurred.  They left for Kathmandu before the second attack. His wife and children returned to his village in June 2011 because his parents needed someone to take care of them;

   i)about ten or fifteen days after the second attack he went to live in Kathmandu with his wife and children before travelling to Australia a month and a half later;

   j)after his arrival in Australia his wife and father told him that the Maoists had been looking for him in December 2010 and February 2011;

   k)he attended political gatherings in Australia but was reluctant to do so because he felt that he would be looked down upon for travelling to Australia on a false passport; and

   l)inconsistencies in the chronologies he provided might have arisen from his confusion between dates in the Gregorian and Nepali calendars.  He might also have made mistakes at his interview with the delegate because he was under stress and had not been mentally prepared.

2. Following the hearing, the applicant sent to the Tribunal a letter dated 19 June 2012.  In it he claimed that he had been nervous at his interview with the delegate and could have made mistakes changing dates from the Nepali calendar to the Gregorian calendar.  He also claimed that after the delegate’s decision he became depressed, had difficulty sleeping and was nervous at the Tribunal hearing but that the account he gave to the Tribunal was the correct one.

The Tribunal’s decision and reasons

1. 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 s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)for the following reasons, the Tribunal found that the applicant was not a witness of truth and that his accounts of events on which his protection claims were based were false:

   i)the applicant gave inconsistent evidence about when he was first attacked by the Maoists.  He initially told the Tribunal that this occurred one year after the 2008 elections but when a chronological inconsistency in another aspect of his accounts was put to him, the applicant said that the first assault had occurred approximately two years after the 2008 elections.  The Tribunal did not believe that the applicant’s failure to give consistent evidence on this issue could be explained by feelings of nervousness or by being under stress and was sceptical of the applicant’s claim to have been confused about dates in the Gregorian calendar, given that he used dates from the Gregorian calendar in his statutory declaration and on some occasions during its hearing.  The Tribunal found that as the first attack was a significant event which eventually led to the applicant leaving Nepal, he could reasonably have been expected to give consistent evidence about when it occurred.

   ii)in his statutory declaration the applicant claimed that he was assaulted by a large group of anti-monarchists but said at the Tribunal hearing that he had never been assaulted or attacked by people from anti-monarchist parties. The Tribunal did not believe that this discrepancy was a genuine mistake on the applicant’s part or on the part of the person who wrote his declaration in English.  The Tribunal found that if the applicant had been attacked by the Maoists on two occasions and, as he claimed, the Maoists had confirmed this in telephone threats, then he would have specifically mentioned it in his statutory declaration;

   iii)the applicant gave inconsistent evidence about when he became a member of the RPP. In his statutory declaration he claimed that he joined the party in April 2008 but at the Tribunal hearing said he became a member eight or nine months before the April 2008 elections.  The Tribunal found that the applicant’s explanation that he was only a supporter of the RPP before the elections and did not become a formal member until after the elections was a fabrication designed to conceal the inconsistency in his evidence; and

   iv)the applicant gave inconsistent evidence about when his wife and children moved to Kathmandu and when they returned to their village. The Tribunal noted that the applicant claimed at his interview with the delegate that his family went to Kathmandu after he left Nepal and were still living there at the time of his interview but said at the Tribunal hearing that they went to live in Kathmandu after he was first attacked and before he left Nepal, and returned to his village in June 2011 well before the interview with the delegate.  The Tribunal found that this inconsistency could not be explained by the applicant’s nervousness at his interview with the delegate, by him not being mentally prepared or by confusion about dates in the Nepali and Gregorian calendars;

   b)based on its concerns about the applicant’s credibility, the Tribunal disbelieved the applicant’s claims that he or any member of his family had supported and undertaken activities for the RPP in Nepal; that he or any member of his family had been approached, harassed or assaulted by Maoists; that he and his family left his village because of difficulties with the Maoists or any other group or person; and that he left Nepal because of difficulties with the Maoists or any other group or person.  The Tribunal also disbelieved the applicant’s claims that he had attended political gatherings in Australia and that he would be politically active if he returned to Nepal, finding that there was no credible evidence to support those claims;

   c)the Tribunal found that the two documents purportedly from the RPP claiming that the applicant and his father were members of the party did not overcome its concerns about the applicant’s credibility and it gave them no weight.  The Tribunal found that hearing evidence from the person who brought the documents to Australia about how the documents were brought to Australia would not overcome its concerns about the applicant’s credibility;

   d)while noting that the applicant had used a false travel document to travel to Australia, the Tribunal found that this did not demonstrate that the reasons he gave for leaving Nepal were true; and

   e)in relation to the applicant’s claim that after the delegate’s decision he felt depressed, had difficulty sleeping and was nervous at the Tribunal hearing, the Tribunal found that the applicant had understood its questions and was able to give evidence and present arguments in support of his claims.  The Tribunal was satisfied that any nervousness on the applicant’s part or despondency about the delegate’s decision did not explain or excuse its concerns about his credibility.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.The Refugee Review Tribunal Member proceeded on an erroneous factual conclusion as it inferred that my claims about my involvement with the Rastriya Prajatantra Party and my views in favour of the Monarchy were not true when they were.

   2.The Tribunal Member erred in failing to make findings on several material questions of fact which went to substance of my claims as to whether I faced persecution in Nepal.

   3.I argue that I was denied procedural fairness based on the Tribunal’s findings that I lacked the credibility and the rejection of the authenticity of documentary evidence.  I was not aware of the concerns of the Tribunal that I needed to address.

   4.I was not given an opportunity to respond to the all-embracing credibility concerns held by the Tribunal member. It followed that the decision of the Tribunal was affected by jurisdictional error.

2. At the hearing of this application, the applicant also submitted, in effect, that the Tribunal’s conclusion that documents he had submitted were not genuine was based on a perceived discrepancy concerning the person who was said to have brought the documents to Australia and that this discrepancy could be explained, thereby falsifying the conclusion which the Tribunal reached on those documents.

Ground 1

1. The first ground of the application argued that the Tribunal’s finding that the applicant’s claims of political involvement were false was the wrong decision and that, in fact, his claims had been true.  This allegation invited the Court to find that the applicant was politically involved, as he alleged to the Tribunal, and to set the Tribunal’s decision aside for that reason.  The Court cannot do that.  Its powers are limited to determining whether the Tribunal made a jurisdictional error, not whether it made a factual finding with which the Court might disagree.  As the first ground does not identify jurisdictional error on the part of the Tribunal, it is not made out.

Ground 2

1. The allegation made in the second ground of the application, that the Tribunal failed to make material findings of fact, misunderstands the fact-finding obligation imposed on the Tribunal. That obligation, highlighted by s.430 of the Act, is to make intermediate findings of fact which can support the conclusion which the Tribunal ultimately reaches on whether it is satisfied that an applicant meets the criteria for the grant of a protection visa.

2. In this case, the Tribunal’s conclusion was based on its finding that it did not believe the applicant, which finding was itself based on antecedent findings that the applicant’s account was dotted with significant inconsistencies about important events.  Those findings were sufficient foundation for its ultimate conclusion that it was not satisfied that the applicant satisfied the criteria for the grant of a protection visa.  For this reason the second ground of the application is not made out.

Ground 3

1. The third ground of the application impliedly alleged a breach of s.425 of the Act which, amongst other things, requires the Tribunal to ensure that an applicant before it is aware of the issues which will be determinative of the review. The delegate’s decision in this case was not set aside because the Tribunal concluded that there were inconsistencies in the applicant’s various allegations concerning when he had been attacked, who had attacked him, when he became a member of the RPP and when his wife and children lived in Kathmandu. According to its decision record, the Tribunal put these discrepancies to the applicant and told him that because of those matters it might find that he was not a credible witness. The applicant did not dispute the accuracy of the Tribunal’s decision record.

2. These facts satisfy me that the Tribunal discharged its obligation to alert the applicant to the issues determinative of the review, with the consequence that the third ground of the application does not disclose jurisdictional error on the Tribunal’s part.

Ground 4

1. The fourth ground of the application is, in substance, a repetition of the third ground.  For the reasons given in relation to the latter ground, this allegation, too, is not made out.

Ground 5

1. The applicant submitted at the hearing of this application that the Tribunal reached the wrong conclusion in relation to the documents he submitted, finding that they were not genuine, because it was unaware that the person who brought them to Australia might have travelled under a name unknown to the Minister’s department and, thus, the fact that the department could not identify him in its movement records was not a basis to reject the documents’ authenticity. 

2. Those submissions misunderstood the Tribunal’s findings.  First, the Tribunal did not make a finding that the documents were not genuine, rather it gave them no weight.  Secondly, and in any event, the Tribunal did not find them persuasive because of its concerns with the applicant’s credibility generally, not because of the way they were alleged to have come to Australia. 

3. For these reasons, the additional ground raised at the hearing of this application does not disclose error on the Tribunal’s part. 

Conclusion

1. Jurisdictional error on the part of the tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  10 May 2013