FEDERAL COURT OF AUSTRALIA

SZANK v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1478

MIGRATION – refugees – claim of persecution based upon membership of political party – Refugee Review Tribunal (‘RRT’) did not accept that members of the Party were subject to persecution – no error demonstrated in the RRT’s reasoning – appeal dismissed

Federal Court of Australia Act 1976 (Cth) s 25(1A)

Migration Act 1958 (Cth) s 36(2)

M51 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 887 cited

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 applied

SZANK v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 961 OF 2004

HELY J

19 NOVEMBER 2004

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     The appellant is a citizen of Nepal who arrived in Australia on 14 March 2002.  He applied for a Protection (Class XA) visa on the ground that his life was in danger in Nepal due to his membership of, and propaganda activities which he had undertaken for the Communist Party of Nepal, Unified Marxist-Leninist Group (‘the Party’).  That application was refused by the Minister’s delegate, whose decision was affirmed by the Refugee Review Tribunal (‘the RRT’) on review.

2                     The RRT accepted that the appellant joined the Party either in late 2000 (as he claimed during the hearing on 28 November 2002) or in late January 2000 (as he claimed in his original statement prepared on 23 April 2002).  However, the RRT:

-                     rejected the appellant’s claim made at the hearing that he was detained by the police in March 2000 and again in May 2000 by reason of his involvement with the Party;

-                     found that there was no independent evidence to suggest that members of the Party are targeted by the authorities in Nepal, and at least implicitly rejected claims made by the appellant that he faced persecution by the authorities by reason of his involvement with the Party; and

-                     found that since the ‘leaders of the Maoists launched a ‘Peoples War’ in early 1996, the authorities have targeted ‘Maoists’ as terrorists’, but there was no evidence that the authorities target members of other Communist parties, such as the Party, or that they mistake members of such parties for Maoists.  

3                     The RRT made the following finding with respect to the Party (at 15):

‘The CPN (UML) is a major, legal and mainstream political party that participates in the democratic process in Nepal.  Although currently in opposition, it has been part of coalition governments in the past.  The applicant accepted this evidence, but claimed in essence that because it is a Communist party its members are suspected by the authorities to be Maoists.  I do not accept this generalised claim, which finds no support in the independent evidence before me.  Nor was the applicant able to offer any documentary evidence to support his claim.’

4                     The appellant applied to the Federal Magistrates Court for judicial review of that decision.  That application was dismissed by Raphael FM on 2 June 2004.  The appellant appeals to this Court from that decision.  By direction of the Chief Justice pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the appeal was to be heard by a single judge.

5                     On the hearing of this appeal, the appellant appeared for himself with the assistance of an interpreter, but without the benefit of legal representation.  Unsurprisingly, given the difficulties to which the appellant was subject, the Notice of Appeal which the appellant prepared does not expose any recognisable ground of appeal beyond generalised assertions of error on the part of the Federal Magistrate and the RRT.

6                     The appellant lodged a written outline of his submissions in support of his appeal.  The outline included the following:

‘3.        I make the following submissions to the Court in relation to the jurisdictional error that I believe in my case to assist the court in its deliberations:

4.         I insist that I have a ground for review of the decision in my case because the decision maker failed to recognise and implement the necessity in applying the definition of “a refugee”.

5.         I believe that the decision involved an error of law when my protection visa application was refused but the Federal Magistrates Court expressed reluctances to rectify the error.  I am a genuine refugee but I am not entitled to a protection visa according to the Tribunal.  This is injustice.

6.         The evidence given by me was given frankly and without embellishment.  I presented my story in a lucid manner and I submit that credibility should not be an issue.

7.         I submit that my claim of persecution arise from the Convention based reason of my political activities.  The Tribunal can not be confident that I can avoid in any meaningful or long term sense the problems resulting from my previous political activities that I have advised to the Tribunal I fear.

8.         I found that the Tribunal hadn’t looked at important evidence (Country Information) properly.

9.         I believe that the Tribunal has not followed proper administrative procedures in handling my case.

10.       I maintain the chance that I am subject to adverse treatment can not be said to be “a far-fetched possibility”.  I maintain that the chance of me being harmed to be sufficiently real for the purposes of the Convention.

11.       In terms of the prospect of my real chance of being harmed, I instruct that as to the immense difficulty I anticipate in terms of relocating, seeking to re-establish my life, and seeking to support myself in a different area of Nepal.  It is my request my matter be afforded the opportunity again to attain a hearing before the Refugee Review Tribunal in order to further clarify my claims and respond to any queries of the decision maker.  In Chan’s case, the High Court adopted the phrase “a real chance”.

12.       The essence of the real chance test is to determine if there is a real chance that the appellants would be persecuted on a Convention ground.  The real chance test is not concerned with the proof of or preference to alternate faeces on the balance of probabilities.  Rather, once the facts indicate that the possibility of persecution in not remote, there will be a real chance for the purposes of the test unless it is disproved.’

In his oral submissions, the appellant added a contention that the RRT relied upon country information which was not true, and which was not relevant to the situation in the district of Nepal in which the appellant lived.

7                     The essence of the appellant’s claim in this Court is that the RRT failed to accept that he feared harm from the authorities in Nepal because he was suspected of being a Maoist activist, or as linked with the Maoists, by reason of his membership of the Party.  At the hearing before the RRT he was asked to detail specific problems which he had encountered with the authorities in this regard.  His response was that he was detained for three days in March 2000 when he was putting up posters, and for one day in May 2000 as the result of a Party meeting.

8                     The RRT did not accept the appellant’s evidence in this respect, because (at 14):

‘It is simply not plausible that the applicant would fail to refer to such detentions in his written statement to the Department, and yet provide details of lesser police interest …  In addition it is highly unlikely that the police in Nepal could have mistaken him for a Maoist given the nature of the party activities he claims to have been involved with when detained …’

In addition, as I have noted above, the RRT found there was no independent evidence to suggest that members of the Party are targeted by the authorities in Nepal.

9                     The appellant repeated in evidence before the RRT the claim made in his original statement that in October 2001 the police threatened that if he did not disappear, they would kill him.  He also told the RRT that a friend who introduced him to the Party was killed by the authorities four weeks before the RRT hearing.  The RRT put to him that there was no objective country information to suggest that members of the Party are targeted by government authorities.  The appellant replied that he was trying to organise such information, but had not yet been able to do so.

10                  Although the RRT included a section in its reasons for decision headed ‘Independent Evidence before the Tribunal’, none of the evidence there quoted bears upon the question of whether members of the Party are targeted by the authorities in Nepal.  Nor is there in the material there quoted support for the RRT’s finding with respect to the Party quoted in par 3 above.  The appeal papers contain various reports under the heading ‘Country Information’, but my attention was not directed to anything in those reports which would support the RRT’s conclusion, although I asked counsel for the Minister to refer me to any such matter.

11                  However, in the delegate’s decision the following appears (at 6):

‘2.        Available information indicates that the Communist Party (UML) is the main opposition party which participates freely within the democratic process in Nepal [CX56089: Premier calls cross-party forum on policy towards Maoists: Reuters Business Briefing, sourced from BBC Worldwide Monitoring .:10 AUG 2001].  There is no evidence which supports a finding that members of the Communist Party (UML) have a well founded fear of persecution on account of their membership of that party.  The applicant has provided no evidence that would elevate his profile beyond an ordinary member.’

12                  It should be borne in mind that on 14 May 2002, before the delegate’s decision, the Department wrote to the appellant advising him of matters which might lead to the rejection of his application for a protection visa.  Those matters included:

‘2.        Available information indicates that the Communist Party (UML) is the main opposition party which participates freely within the democratic process in Nepal [CX56089: Premier calls cross-party forum on policy towards Maoists: Reuters Business Briefing, sourced from BBC Worldwide Monitoring: 10 AUG 2001].  There is no evidence which supports a finding that members of the Communist Party (UML), have a well founded fear of persecution on account of their membership of that party.  You have provided no evidence that would elevate your profile beyond an ordinary member.

3.         Although you claim to have been harassed and threatened, you have provide (sic) no evidence or detail to substantiate a claim that you have experienced persecution on account of your political opinion.

4.                  You have provided no evidence or detail to substantiate a claim that you would be targeted by the authorities on account of your political opinion.’

13                  In any event, it was a matter for the RRT to decide whether it accepted the appellant’s claims as to the harm to which he was exposed by reason of his membership of the Party.  The RRT did not accept those claims, for reasons which it gave.  That was a course which was open to it.

14                  The Country Information before the RRT may not have directly contradicted the appellant’s claims, but it was open to the RRT to conclude that it provided no support for those claims, and that this was a matter of significance in their assessment.  As noted above, the appellant was notified in the Department’s letter of 14 May 2002 of the information on which the RRT ultimately relied, and of the need for the appellant to provide evidence or detail in support of his claims, which was not forthcoming.  If the appellant wished to contend that the information was, for some reason, irrelevant to the situation in his district, then it was for him to advance information and materials on the question.

15                  In a supplementary outline of submissions lodged after the hearing, the appellant put the following matters to me in relation to the RRT’s reliance upon Country Information:

‘2.        I shouldn’t be having this difficulty in getting accepted as a refugee.  The real situation is concerning the Maoist insurgency and the degree of insecurity especially in Myagdi district of Nepal where I come from.  It is nothing like the picture given to tourists and overseas diplomats.

…

4.         I am the victim of the incorrect information about my country.  The RRT relied far too much on Country Information and media reports.  It also has relied too much heavily upon cross examination of me to highlight seeming inconsistencies and memory lapses and then to discount my evidence on that basis.

…

6.                  I find fault with the RRT decision in my case concerning its use of the country study information and realise the a generalised account of political and social affairs that related only to capital and major cities of the country reported by an Embassy may be accurate enough for the purpose of informing capitals but it is quite inapplicable to the life and circumstances of a villager such as myself and acting on it can result injustice and tragedy.’

16                  I cannot accept these submissions, because it was a matter for the RRT to decide what weight should be given to ‘country information’ as part of its fact finding function.  The question of the accuracy of country information, and its relevance to a person in the position of the appellant, is one for the RRT, not the Court.  In NAHI v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 the Full Court said (at [11]):

‘By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence.  By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant.  There can be no objection in principle to the Tribunal relying on “country information”.  The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function.  Such information as the Tribunal obtains for itself is not restricted to “guidance”, as the appellants submitted.  It may be used to assess the credibility of a claim of a well-founded fear of persecution.  It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on “country information” that is not true.  The question of the accuracy of the “country information” is one for the Tribunal, not for the Court.  If the Court were to make its own assessment of the truth of “country information”, it would be engaging in merits review.  The Court does not have power to do that.’

17                  Subject to one possible qualification, I agree with the conclusion of the Federal Magistrate that the appellant was given every opportunity to establish that he was entitled to the status of a refugee, and that the RRT did not commit any jurisdictional error in coming to the conclusion that the RRT was not satisfied that the appellant satisfied the criterion set out in s 36(2) of the Migration Act 1958 (Cth) for a protection visa.

18                  The possible qualification is that one of the appellant’s claims made at the hearing before the RRT was that he feared harm from the police and the army by reason of the fact that a friend who introduced him to the Party was killed by the authorities ‘four weeks ago’ – that is, four weeks before 28 November 2002.  The RRT does not refer to this claim in the section of its decision headed ‘Findings and Reasons’, which raises at least a question in my mind as to whether the RRT’s failure to make a specific finding on this claim is indicative of jurisdictional error: see, for example, M51 of 2002 v Minister For Immigration & Multicultural & Indigenous Affairs [2003] FCA 887 at [17] – [19].

19                  However, earlier in its reasons, when summarising the claims made by the appellant at the hearing, the RRT said (at 9):

‘At least one of his party friends has recently been killed by the police.  The Tribunal put to him that there is no objective country information to suggest that members of the CPN (UML) are targeted by government authorities.  He replied that he was trying to organise such information, but had not yet been able to do so.’

20                  A fair reading of the RRT’s decision is that it did not accept the appellant’s claim in this respect, because it did not accept that members of the Party are targeted by the authorities in Nepal.

21                  For the reasons given above, pars 4-8 (inclusive) of the appellant’s submissions do not establish reviewable error.  The appellant has not identified any respect in which the RRT failed to follow proper administrative procedures, hence par 9 of the submissions fails.  Paragraphs 10-12 of the appellant’s submissions address the ‘real chance’ test.  In its reasons for decision, the RRT correctly summarises the ‘real chance’ test in the paragraph commencing ‘fourth’ in the section of its reasons headed ‘Definition of a Refugee’.  Although this section of the reasons is ‘boilerplate’, the appellant has not established that the RRT applied an impermissible test.

22                  The appeal must therefore be dismissed with costs.

Associate:

Dated:              19 November 2004