SZRRO v Minister for Immigration
[2012] FMCA 1172
•3 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRRO v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1172 |
| MIGRATION – RRT decision – Nepali claiming political persecution – disbelieved by Tribunal – no jurisdictional error found – application dismissed. |
| Migration Act 1958 (Cth), s.425 |
| Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, [2001] HCA 28 |
| Applicant: | SZRRO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1650 of 2012 |
| Judgment of: | Smith FM |
| Hearing date: | 3 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 3 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms D Watson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1650 of 2012
| SZRRO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant filed an application for a protection visa on 14 December 2010. The form said that he was assisted by Mr Dilip Janga Pun, who was not a migration agent. In the application, the applicant claimed the identity of a person shown in a Nepali passport, and claimed that he had entered Australia on a bogus passport in another name in September 2010. There was no evidence of this, and the bogus passport had been thrown away, according to the applicant.
Attached to the visa was an unsworn statement, in which the applicant claimed reasons for seeking protection against return to Nepal. He claimed to have joined a monarchist party in 1996. He said: “until November 2008, my involvement with the RPP was rather nominal. … I did not voice my political view in public before 2008 even though I wanted to support the monarchy. During that period, I did not have problems with the Maoists”.
The statement claimed that the applicant had become “politically active in our village” from November 2008, and that he distributed “a lot of leaflets. I was recruiting members. I held a rally in [his] district”. He also claimed:
I was demonstrating against the abolition of the Monarchy in March 2008. I was arrested and beaten by members of the Maoists party. I had to sign a paper not to get involved with the RPP and not to “do the politics”. I felt that I was very unsecure and I was followed and watched. My mother, wife, brothers and sisters were worried I would get involved in politics again and would get killed by the Maoists.
The Maoists had asked me to get involved with their organisation and to leave my membership with the Rastriya Prajatantra Party and become completely committed to Maoists. I had resisted. I was dedicated to the pro‑monarchy. I have been identified as a strong supporter of the Monarchy and consequently, I fear harm in my country because of my political opinions. I operated a hotel business named [guest house in his district] in partnership with my brother [named] and I paid the Maoists donations many times to operate the business. But the Maoists persisted in their demand for donations from me and brother.
The statement said that he decided to leave the country, after the Maoists asked him to give them “a large amount of money which I could not afford to pay them”. No documents supporting the applicant’s claimed history were ever presented to the Department or the Tribunal, except a passport in his current identity.
The applicant attended an interview by an officer of the Department of Immigration on 21 November 2011, and the delegate made a decision to refuse the visa on 28 November 2011. The delegate noted that the applicant’s passport had not been referred for document examination, but said: “for the purpose of this assessment the identity details appearing in the Protection visa application are accepted”. The delegate gave somewhat diffuse reasons for not being persuaded that the applicant had a genuine fear of harm, based partly on the lack of corroboration, and also current information about the situation in Nepal.
The applicant applied for review by the Tribunal without appointing a representative, and he attended a hearing of the Tribunal on 25 May 2012. A transcript of the hearing is not in evidence, but the Tribunal gives a detailed account of the applicant’s exchanges with the Tribunal member, which I accept.
It is unnecessary for me to detail the course of the hearing. The Tribunal canvassed the applicant’s situation in Nepal thoroughly with the applicant, and in the course of this he gave numerous inconsistent responses in relation to what he was telling the Tribunal, the contents of his visa application and its statement, and what he had told the delegate. The inconsistencies included significant matters as to when he joined the monarchist party, when and how he had been involved in its activities, when he had incurred financial demands from the Maoists, when he had ceased to conduct his business, and where he had been living leading up to his departure from Nepal. The applicant also showed ignorance about the outcome of the election in April 2008 in relation to the two monarchist parties.
At the end of the hearing, after the difficulties had been explained to the applicant, according to the Tribunal:
I put to the applicant again that I was having a little difficulty in believing that he was telling me the truth. The applicant said that he understood and that he was feeling quite awkward himself.
The Tribunal then explained more fully that the applicant’s protection claims might not be accepted, and according to the Tribunal:
54.The applicant said that he understood. He said that he was very nervous and that he had not been able to say all the things he had wanted to say or which he had intended to say. I noted that he had had the opportunity to tell his story on a number of occasions: he had given a statement, he had been interviewed by the officer of the Department who had made the decision on his application and he had given evidence at the hearing before me. I put to him that, as we had discussed, there were lots of inconsistencies in his evidence and it was difficult to accept that he was telling the truth. The applicant said that if he were given another opportunity to appear he would be better prepared. I noted that he had had ample notice of the hearing so he had had a proper opportunity to prepare. The applicant agreed. He repeated that he was very nervous.
The Tribunal made a decision on 24 June 2012 which affirmed the delegate’s decision. In its statement of reasons, after recounting all the evidence before it, the Tribunal gave “Findings and Reasons” in which it identified some of the more obvious inconsistencies in the applicant’s evidence.
The Tribunal said:
58.In the present case, as I put to the applicant in the course of the hearing before me, I have difficulty in accepting that he is telling the truth in the claims he has made regarding his involvement in the RPP or his political opinion as a monarchist or the problems he claims to have had with the Maoists in Nepal. I accept that, as the applicant said at the hearing before me, he was very nervous, but the impression he gave at the hearing was of someone trying to recall details of an application prepared for him by someone else and which did not reflect the truth of his own experiences. He reinforced this impression by his comment at the end of the hearing that if he were given another opportunity to appear before the Tribunal he would be better prepared.
The Tribunal concluded:
66.Making all due allowances for the applicant being nervous at the hearing before me, I do not accept, having regard to the numerous problems with his evidence to which I have referred above, that he is telling the truth about his involvement in the RPP, his claimed political opinion as a monarchist, or the problems he claims he had with the Maoists. I do not accept that the applicant is a ‘hardcore monarchist’ as he claimed in the statement accompanying his original application. I do not accept that he was ever a member of or campaigned for the RPP or the RPP (Nepal) led by Kamal Thapa, nor that he ever campaigned against the abolition of the monarchy in Nepal. I do not accept that there is a real chance that, if the applicant returns to Nepal now or in the reasonably foreseeable future, he will be involved in campaigning for the RPP, the RPP (Nepal) or for the restoration of the monarchy. I do not accept that the applicant faced demands from the Maoists for donations in connection with his guest house business, nor that he considered that he had to leave Nepal after the Maoists demanded a large amount of money which he could not afford to pay. I do not accept that there is a real chance that the applicant will be a victim of extortion by the Maoists if he returns to Nepal now or in the reasonably foreseeable future.
67.For the reasons given above I do not accept that there is a real chance that the applicant will be persecuted for reasons of his real or imputed political opinion (in favour of the RPP or the monarchy or against the Maoists) or his membership of any particular social group in Nepal such as small businessmen or owners of guest houses if he returns to Nepal now or in the reasonably foreseeable future. I likewise do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.
CONCLUSIONS
68.For the reasons given above I am not satisfied on the evidence before me that the applicant is a person to whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in paragraph 36(2)(a) or (aa) of the Act for a protection visa. There is no suggestion that the applicant satisfies subsection 36(2) on the basis of being a member of the same family unit as a person who satisfies paragraph 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in subsection 36(2) 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 am not satisfied with the decision made by the Refugee Review Tribunal Member because the Member made an error of law in my case by ignoring to look at the favourable and supportive evidence of my claims.
2.I argue that the Refugee Review Tribunal Member has placed material weight on my credibility by apprehended bias.
3.I argue that the Tribunal Member failed to conform to standards of procedural fairness.
These have not been explained or amplified by way of amended application, written submission or specific oral submissions.
In relation to Ground 1, I am unable to detect what the “favourable and supportive evidence of my claims” might be which the applicant asserts was ignored. In fact, on the Tribunal’s analysis, the applicant gave no credible and reliable evidence as a witness, and presented no corroborative evidence to overcome those difficulties. In my opinion, no jurisdictional error of substance is raised by Ground 1.
In relation to Ground 2, this is perhaps to be understood as making the contention that the Tribunal’s adverse opinion on the applicant’s credibility, and the reasons given by it for these findings, might disclose evidence of apprehended bias. In effect, this is what the applicant said to me today. However, when invited to explain why he felt that the Tribunal had considered his case without an open mind, he could refer only to a feeling that he did not have an opportunity to express himself as he would have wished to have expressed himself at the hearing.
I can understand that he might have that feeling, however, reading the Tribunal’s description of the hearing, I do not accept that he was denied an opportunity to put forward his evidence in a consistent and credible manner, nor that the Tribunal’s description of its questioning reveals any evidence of a closed mind at any point during the hearing and prior to the Tribunal making its decision.
Rather, in my opinion the description of the hearing shows the Tribunal performing its function to test the evidence presented by a visa applicant before arriving at a decision. I can find no evidence which might give rise to a relevant apprehension under principles referred to by the High Court in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, [2001] HCA 28.
Ground 3 was not further explained by the applicant at today’s hearing. As I have found above, the applicant was in my opinion given the opportunity to present his case to the Tribunal in the manner required by s.425 of the Migration Act 1958 (Cth). I am unable to detect any failure by the Tribunal to afford procedural fairness, in so far as its requirements are implicit in the provisions of the Migration Act.
For all the above reasons, I am not persuaded that the Tribunal’s decision was affected by any jurisdictional error, and I must therefore dismiss the application.
I certify that the preceding twenty‑one (21) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate:
Date: 10 December 2012
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