SZTPM v Minister for Immigration

[2015] FCCA 754

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTPM v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 754

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 the Tribunal failed to consider the applicant’s claims, did not believe the applicant, made a decision which was arbitrary and not made in good faith and made incorrect findings of fact.

Legislation:

Migration Act 1958, ss.36, 474

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

Applicant: SZTPM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3005 of 2013

Judgment of: Judge Cameron

Hearing date: 3 March 2015

Date of Last Submission: 3 March 2015

Delivered at: Sydney

Delivered on: 3 March 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms F. Taah of Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3005 of 2013

SZTPM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Nepal who arrived in Australia on 16 September 2010.  On 3 May 2012 she lodged an application for a protection visa with what is now the Department of Immigration and Border Protection (“Department”), alleging that she feared persecution in Nepal because of her lack of support for the Nepalese Maoist Party.  On 23 August 2012 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.  She 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 applicant’s factual allegations were summarised in para.5 of the Minister’s submissions in the following terms:

   The applicant claimed she was abducted by Maoists when she was nearly 14 and held her [sic] against her will for 7 years. She was forced to participate in the Maoists’ ‘high level programs’ including participating in ‘massive Maoists attacks in Beni’ and in cultural programs. Although she was allowed to contact her parents after 7 months of captivity, she claimed she was only able to visit them after the signing of the Comprehensive Peace Agreement (CPA) by the Maoists and the Nepali government. The Maoists however wanted her to work for the party and continued to hold her against her will. She claimed she escaped without their permission in September 2010. She fears being harmed by the Maoists and the authorities if she returns to Nepal. (footnotes omitted)

2. I adopt that summary of the applicant’s claims.

3. In para.24 of its reasons the Tribunal summarised the harm which the applicant claimed to fear as follows:

   The applicant claims that if she returns to Nepal the society, government, administration and Maoists will harm her and she may be subject to the death penalty because of her involvement with the Maoists.  She claims she will face trouble from the Maoists because she was involved with them since 2003 when she was abducted as a child and without their approval fled in September 2010.  She claims as she no longer wants to be part of the Maoist party or involved with them they will harm her.  She claims she has been listed as an enemy by the Maoists.  She also claims the society will dislike her as they dislike Maoists.  She claims she will have constant fear and there will be no freedom for these reasons.  She claims she faces a deep fear on her return, from both sides being the authorities and the Maoists.

4. In support of her application, the applicant also produced a translation of a Maoist membership certificate and photographs and CDs depicting her participating in Maoist activities.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal 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 s.36(2)(aa) of the Act.

2. The Tribunal accepted that the applicant had been abducted by the Maoists as a child in 2003 but did not accept that she had been held and monitored by them until her departure from Nepal in September 2010 or that, as a result, she had been listed as their enemy.  It found that the applicant was not truthful in her evidence that she was forcibly kept by the Maoists until her departure from Nepal on September 2010, escaped to come to Australia and, as a result, had been listed as an enemy of the Maoists.  The Tribunal noted that:

   a)independent country information indicated that the Maoists had voluntarily released all of their former child soldiers by February 2010;

   b)the applicant gave evidence that the Maoists had not visited her family home in search of her since her departure from Nepal in 2010, which in the Tribunal’s view was not consistent with the claim that she had fled the Maoists without their permission or that she had been consistently monitored by them;

   c)the applicant gave inconsistent evidence about the visits she had made to her family following her abduction in 2003;

   d)the applicant’s eighteen month delay in applying for protection in Australia was not consistent with her claim to fear persecution in Nepal; and

   e)the applicant gave evidence that the Maoist membership certificate had been issued to her in 2004 whilst the certificate itself indicated that it had been issued in 2008. In light of this inconsistency, and given that independent country information indicated that document fraud was prevalent in Nepal, the Tribunal found that the membership certificate was not a genuine document and placed no weight on it.

3. The Tribunal did not accept that the applicant would be harmed by the Maoists for declining their membership were she to return to Nepal, noting that:

   a)it could find no independent reports which stated that Maoists kidnapped people for refusing to join their party;

   b)the Department of Foreign Affairs and Trade had advised that it was not aware of any evidence of Maoist cadres physically harming former party members for changing their political affiliation and considered this to be unlikely; and

   c)independent country information indicated that political violence in Nepal had decreased and that clashes were infrequent.

4. For the same reasons, and as the Maoists were in government and in charge of the authorities, the Tribunal found that there was no real chance that the applicant would face serious harm from the government or the authorities were she to return to Nepal.

5. The Tribunal also found that there was no real chance that the applicant would face serious harm from society or from those opposed to the Maoists because of her previous involvement with them, noting that:

   a)the applicant had not made that claim to the Department;

   b)independent country information indicated that political violence in Nepal had decreased and that clashes were infrequent; and

   c)the applicant’s previous involvement with the Maoists only came about because she had been forced as a child.

Proceedings in this Court

1. In her amended application the applicant alleged:

   1.The Tribunal Member accepted that I was abducted by the Maoists while I was a child but the Tribunal Member gave no consideration as to my fear of harm at all and simply ignored me for my safety. There is a lack of natural justice in my case.

   2.The Tribunal Member did not want to believe me and did not believe me for my fear of harm on return to Nepal and the problems I faced in Nepal from the Maoists because I delayed in applying for a protection visa after arrival in Australia. I told the truth but whatever I said was ignored and given no consideration in my favour.

   3.The Tribunal Member failed to address and deal with my case in respect of the failure to consider my political opinion. I am very aggrieved by the Tribunal member’s purported finding that my Maoists Membership Certificate is not genuine and no consideration was given to my evidence at all.

   4.The Tribunal Member believed that I was not forcibly held or monitored by the Maoists until my departure from Nepal and the Maoists would not view me as an enemy of the Maoists on its arbitrary view rather than facts.

   5.This is completely unfair and injustice. My case should be treated with fairness and good faith. I am a true victim of the impulsive decision made by the Refugee Review Tribunal Member in my case.

2. At the hearing of this application, the applicant also submitted that although the Tribunal had found that the documents she had submitted were fraudulent, they had not been and, secondly, that the Tribunal had rejected her case because it thought that her documents were not genuine. 

Ground 1

1. The first allegation in the amended application was that the Tribunal did not consider the applicant’s claims to fear harm in Nepal.  The applicant did not identify what claim made by her was not considered by the Tribunal and, based on its decision record, it does not appear that any was. 

Ground 2

1. In the second ground of the amended application the applicant alleged that the Tribunal did not believe her because she had not sought a protection visa promptly on her arrival in Australia.  She further alleged that the Tribunal ignored her explanation of that delay. 

2. First, it is correct that amongst the matters which led the Tribunal to disbelieve the applicant was her delay in seeking protection.  However, it was open to the Tribunal to rely on that information in that way.  Secondly, the Tribunal did not ignore the applicant’s explanation for the delay, it simply did not find it to be persuasive.  Thirdly, the weight which the Tribunal gave to the evidence before it, including the applicant’s explanation of her conduct, was a matter for it.  The Tribunal gave sufficient reasons for its conclusion that the applicant’s explanation for her delay in seeking protection was not persuasive. 

Ground 3

1. In the third ground of the amended application the applicant alleged that the Tribunal had failed to consider her “political opinion” and her evidence, particularly her Maoist membership certificate. 

2. The summary of the Tribunal’s decision record set out earlier in these reasons demonstrates that the Tribunal did consider the applicant’s claim to fear harm because of her political opinion, namely, her lack of support for the Nepalese Maoists.  In doing so, it considered evidence presented to it by the applicant including her Maoist membership certificate.  The Tribunal gave adequate reasons for concluding that that document was not genuine.

Ground 4

1. The fourth ground of the amended application alleged that the Tribunal’s rejection of the applicant’s allegation concerning the Nepalese Maoists was an arbitrary one, reached without regard for the evidence.  I disagree.  The Tribunal’s reasons disclose a considered analysis of the applicant’s claims informed by information from other sources.  Its findings were not, in my assessment, arbitrary. 

Ground 5

1. In the fifth ground of the amended application the applicant alleged that the Tribunal had made an “impulsive decision” and had not made its decision on her review in good faith.  The Tribunal’s decision was not impulsive.  As observed already, it was the product of a considered analysis.  To the extent that the allegation of a want of good faith was based on that allegation, it too is not made out.  To the extent that the allegation of a want of good faith was based on any other matters, the applicant did not identify what they might be.

2. I find that the applicant has not proved the allegation made in the final ground of her amended application.

Ground 6

1. The allegation at the hearing of this application that the Tribunal wrongly said that the documents submitted by the applicant were fraudulent invites the Court to reconsider the evidence considered by the Tribunal, which it is not empowered to do in these judicial review proceedings.  As explained to the applicant at the hearing, it is the Tribunal’s role to find facts whereas the Court’s role is to ensure that the Tribunal has properly applied the law in the conduct of its review and in its decision-making.  For that reason alone, the first matter raised by the applicant at the hearing of this application is not made out.  However, two additional points should be made.

2. The Tribunal’s rejection of the Maoist membership certificate was based on adequate evidence, namely, the conflict between the date on the document and the date when the applicant said that it had been issued, and independent information indicating that document fraud was prevalent in Nepal.  Given that evidence, it was legally open to the Tribunal to conclude that the membership certificate was not genuine.  Additionally, the photographs and the CDs provided by the applicant to the Tribunal were not found by the Tribunal to have been fraudulent.  What it stated was that as it accepted that the applicant had been abducted by the Maoists, the photographs and CDs, which only went to prove that point, were of no particular relevance to it for the purposes of its decision.

3. As the Tribunal said:

   Nothing in this evidence presented adds to her claims that she was forced to stay with the Maoists up until September 2010, had to escape the Maoists in September 2010 and is viewed as an enemy as a result.  I therefore place little weight on these photographs and CDs as probative evidence with regard to these claims.

Ground 7

1. The second matter raised by the applicant at the hearing of this application was that the Tribunal had affirmed the delegate’s decision because of its view of the documents she had provided to it.  While it is true that the Tribunal’s assessment of the Maoist membership certificate was part of the reason for its decision, as the summary of the Tribunal’s decision record appearing earlier in these reasons discloses, there were several other bases for its conclusion.  Consequently, this allegation is not made out. 

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-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  1 April 2015