FEDERAL COURT OF AUSTRALIA

SZOVZ v Minister for Immigration & Citizenship [2011] FCA 863

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs in the sum of $2,500.

Note:    Entry of orders is dealt with in Rule 39.32 Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The appellant is a Nepalese citizen, who claims to have a real fear of being harmed by anti-monarchists and Maoists if he were to return to Nepal. For this reason he applied to the first respondent (“the Minister”) for a protection (class XA) visa but his application was rejected by the Minister’s delegate. Upon a review of that decision on the merits, the second respondent (“the tribunal”) affirmed the Minister’s decision. The appellant then applied to the Federal Magistrates Court for the respondents to show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of the tribunal’s decision. The federal magistrate ordered that his application be dismissed with costs. From that order he appeals to this Court.

Background

2    The appellant travelled to Australia on an allegedly false passport issued in August 2005, arriving here on 22 April 2009. The passport bore a different name. Attached to it was a valid vocational education and training sector visa (TU-572). In his application for a protection visa, made exactly twelve months later, he said he left Nepal in order to save his life because of “problems with the Maoist” and submitted a statutory declaration to back up this claim.

3    In the statutory declaration the said he Maoists had made threats on his life and liberty. He said he joined the Rastriya Prajatantra Party (“RPP”) in the Baglung district of Nepal on 15 January 2006, partly because it was a pro-monarchy party and he was a strong supporter of the monarchy. He said that from the time he joined until December 2008 he was “an ordinary member” of the RPP but later became an active member, acquiring a high profile. He said he left Nepal because he was repeatedly threatened by Maoists, who demanded he stop taking part in politics and disown his membership of the RPP. He said he was targeted by them because of his active involvement in the RPP and his “outspoken support of the monarchy”. He said that anti-Maoists and supporters of the monarchy had been harassed, intimidated, kidnapped, and at times killed by Maoists. He reported on a specific occasion in March 2009 when he was visited at home by a group of Maoists, who took him to the jungle near his village and asked him to join them. He said that they demanded that he disown his membership of the RPP and support them. He intimated that this was part of a strategy, which involved sending Maoists who were members of the Young Communist League (YCL) to rural areas to secure an election victory, by punishing and intimidating opponents. Although he did not report any specific threat to himself, he said he was fearful they could kill him on the spot if he refused. He claimed that in October 2006 Maoists had killed six of his friends who were also members of the RPP because they opposed them and he was afraid he would suffer the same fate. He indicated that he humoured them and played for time. He said he reported the event to the police in the local capital, Baglung, but they did nothing to help him. He said he began to feel very unsafe. He said he moved to Kathmandu to live with an uncle, who arranged for him to travel to Australia. He described the current situation in Nepal as “highly volatile”.

4    He said he could not relocate within Nepal and live safely anywhere else in the country as violent Maoist attacks have occurred elsewhere against pro-monarchist supporters. He claimed he could not live in India because he had no “legally enforceable rights” to do so.

5    He also claimed that as a result of his “prominent anti-Maoist political profile” the Maoists had continued to threaten him since March 2009.

6    He explained that he took time to apply for the protection visa because he had no prior experience of dealing with government in Australia.

7    He also submitted documents purporting to be a signed membership card (“Active Membership Identity Card”) and an English translation of it, a membership receipt and an English translation of it, and a reference from a man holding himself out as President of the RPP Baglung District work committee, apparently corroborating his claims. He said the card was issued on 16 January 2006 but the English translation stated that it was issued on 31 December 2008. He told the Minister’s delegate at an interview that his uncle had sent the documents by courier two weeks before the interview.

Eligibility for a protection visa

8    To qualify for a protection visa the appellant first had to satisfy the Minister (and then the tribunal) that he was a person to whom Australia has protection obligations under the Refugees Convention (that is, the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951) as amended by the 1967 Protocol (collectively, “the Convention”): s 36(2) of the Act. This means that he had to show that he had a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and that owing to that fear he was outside the country of his nationality and unable or unwilling to avail himself of its protection. See Article 1A(2) of the Convention.

9    Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in another country apart from Australia: s 36(3) of the Act. Moreover, s 91R(1) provides that the Convention does not apply unless:

(a)    the reason(s) for the fear is/are the essential and significant reason(s) for the persecution; and

(b)    the persecution involves serious harm to the person; and

(c)    the persecution involves systematic and discriminatory conduct.

10    The problem the appellant faced was in fulfilling the first criterion, namely that he was a person to whom Australia has protection obligations under the Convention.

The tribunal hearing

11    The appellant appeared before the tribunal on 12 November 2010 to give evidence and present arguments. He was assisted by a Nepalese interpreter.

12    At the hearing numerous inconsistencies emerged between what the appellant had represented in his visa application and supporting documents and what he told the tribunal. They included the following. He claimed in his application and to the delegate that he was a member of the RPP but he told the tribunal that he was a member of the RPP-Nepal, a splinter group of the RPP. Yet, the membership card he had produced (which he had initially claimed proved he was a member of the RPP) he now claimed was a membership card of the RPP-Nepal and contained a printing error. He first claimed to have only been issued with one membership card, then two, and also claimed that he had been issued with the card he had produced when he joined in 2006, though the date it bore showed it was issued in 2008. These discrepancies caused the tribunal to form the view that the documentary evidence concerning the appellant’s political activities was not reliable. In evidence he was unable to correctly describe or draw the logo of either the RPP or the RPP-Nepal. The tribunal concluded that his claim that he was a member of the RPP-Nepal was made to explain why he was unfamiliar with the RPP’s logo or slogan. The tribunal described his oral evidence as “vague” and inconsistent with his claim to be a “prominent anti-Maoist”, a claim, it said, which cast further doubt on his reliability as a witness.

13    The tribunal referred to independent country information, which revealed a decline in the level of violence against political opponents of the Maoist leadership, although it noted that there were reports of isolated acts of brutality including against pro-monarchists by some cadres, particularly the Young Communist League, after the Communist Party of Nepal (Maoist) won government in 2008. The Tribunal also acknowledged that there was continuing political instability in Nepal. Nevertheless, because of the inconsistencies, it was not satisfied that the appellant was a member of any political party or actively involved in any political activities in Baglung, that he had been threatened by Maoists in Baglung, that he had left Nepal in fear for his life or that he was a monarchist. As a result, it concluded that he was not a person to whom Australia has protection obligations under the Convention and so does not satisfy the criterion for a protection visa in s 36(2)(a) of the Act.

The proceeding before the federal magistrate

14    The application before the federal magistrate raised four grounds. They are (without alteration):

1.    I believe that the Tribunal member has misconstrued my claims that I have a well founded fear of persecution on the basis of being a Monarchist in my country.

2.    It is not fair that the Tribunal rejected my claim on the basis that I was not a member of the RPP party without comprehending that my claim to fear persecution by reason of being a Monarchist was a separate basis upon which I claimed to fear persecution. Rather, the Tribunal Member incorrectly construed my claim to be a Monarchist. I belong to the RPP political party.

3.    The Tribunal failed to consider my claim in the sense of engaging in an active intellectual process in respect to separately dealing with my claims.

4.    I argue that the Tribunal member’s decision in my case has been vitiated by an error of law as the evidence that the Tribunal member relied upon is so unreasonable or so inadequate the only inference is that the Tribunal member failed to satisfy all its statutory requirements in dealing with my case.

15    The federal magistrate dealt with the first three grounds together, considering that they were apparently connected. His Honour embraced the Minister’s interpretation of them as amounting to a contention that the tribunal was required to deal with two separate claims but instead conflated them. He rejected the contention. He said that he accepted that there might well be two separate claims – one that he was a member of the RPP, the other that he was a monarchist. Nevertheless, he said he was satisfied that the tribunal dealt independently with the claims. He said:

It is perfectly permissible for the Tribunal to utilise its findings as to the applicant’s credibility in relation to his membership of the political party to conclude that his claims to be a monarchist and in danger of persecution may not stand up. That is not conflating the two claims and it is all that the Tribunal did in its decision. I am also of the view that there is no merit in the argument that the Tribunal did not engage in an active intellectual process in the manner in which it dealt with the claims. It is quite clear from the Tribunal’s decision record that it examined each of the claims made by this applicant in some detail, considered those claims in the light of the independent country information which was to hand, discussed certain information with the applicant and based upon available evidence, came to its conclusions. That is all that any Tribunal is required to do.

16    In the case of the last ground, his Honour noted the appellant’s failure to particularise the claim and referred to the Minister’s attempt to come to grips with it. He accepted the submission from the Minister that there might be jurisdictional error where a decision-maker forms an opinion that is so unreasonable that no reasonable decision maker could have reached such a view, but there was nothing unreasonable in the tribunal’s findings in this particular case. He also intimated that it was unnecessary to speculate any further about what the appellant might have been trying to say for it was for him to make clear what he intends.

17    Finally, his Honour referred to what the appellant told him, namely, that:

he believed the Tribunal’s decision was unfair, that the Tribunal believed that he was not a member of the RPP and it was not necessary for a person who was a member of that political party to have a detailed knowledge about it.

18    His Honour accepted that a member of a political party need not have a detailed knowledge of it, but noted that the appellant’s claim was that he was an active member whose conduct had invoked the ire of his political opponents. He said that it was “perfectly reasonable” for the tribunal to expect that such a person would know something about the party to which he claimed to belong, including its logo. He also noted that the tribunal was influenced by the fact that the appellant “changed his mind” about which political party he belonged to. He concluded that the appellant’s argument sought to canvass the merits of the tribunal’s decision, something which, he said, was beyond the jurisdiction of the Court. He held the tribunal did not fall into jurisdictional error and dismissed the application.

The appeal

19    The appeal is in the nature of a rehearing but, to succeed, the appellant needs to show error on the part of the federal magistrate: SLMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 129 at [11].

20    The appellant pleads the following grounds (without alteration) in his notice of appeal:

l.    I am not satisfied with the purported judgment of the Federal Magistrates court in connection with the Tribunal’s decision in my case that the learned Federal Magistrate erred by failing to find that the Tribunal had committed jurisdictional error by failing to consider a claim and/ or misconstruing a claim made to it. I believe the learned Federal Magistrate expressed reluctances in discerning the error of law on the part of the Tribunal’s decision in my case.

2.    I argue that his honour Magistrate expressed reluctances to discern the fact that the Tribunal failed to satisfy all its statutory requirements in dealing with my claims and it did not refer to its duty to confer common law, natural justice in determining my application.

3.    I contend that the Tribunal had failed to exercise good faith, and to make a bona fide attempt to exercise its power to review the delegate’s earlier decision which had been also adverse to me relying in large measure in that regard upon the Tribunal’s consideration of the report. I believe that the Tribunal was incorrect in concluding first, that the Tribunal’s failure to deal with certain report on country information, and secondly the Tribunal’s approach to its assessment of the reliability of my evidence did indicate a lack of good faith on its part.

4.    I believe that the Tribunal’s decision was affected by jurisdictional error. The Tribunal significantly misstated the effect of important country information. In addition, it presented unsupported, unreasonable and capricious adverse conclusions to justify its decision, and failed to address significant evidence, which it did not reject, providing support for my claims. Moreover, its reasoning and conclusion ignored the substantial support given to my claims by the country information. These errors establish the jurisdictional error of failing to take into account the actual contents of relevant material. In the context of its other reasoning, it tended to point to a failure by the Tribunal genuinely to assess the evidence favourable to me, and a propensity to adopt illogical or unbalanced reasons for rejecting my evidence.

21    The third reference to the tribunal in ground 3 is obviously intended to be a reference to the federal magistrate.

22    None of these grounds can succeed. The federal magistrate’s decision was correct. Jurisdictional error has not been shown.

23    The federal magistrate rightly rejected the contention that the tribunal had failed to consider the appellant’s claim that he was a monarchist. His Honour quoted in his reasons [88] of the tribunal’s reasons which begins with the sentence:

As to his claim to be a monarchist, I am not satisfied that he is.

24     The Minister, in his submissions, speculates that ground 1 may be an allegation of bias, actual or apprehended, on the part of the federal magistrate but rightly contended that there was no proper basis for either. As for the criticism of the federal magistrate in ground 2 for failing to refer to the duty of the tribunal to “confer common law or natural justice when determining the application”, I would say two things. First, the appellant did not complain of a denial of natural justice and the material does not support it anyway; the first issue aside, his complaint was with the outcome, not the process. Secondly, as the federal magistrate observed (at [17]) when the appellant made a plea for justice before him (a plea repeated in this Court):

[T]he demand for justice is heard from many mouths. Frequently, it is a mistaken plea in that what is really being demanded is reconsideration or mercy (with which justice must always be tempered). Justice is the provision by a court of the correct decision, no more and no less.

25    Nor is there anything to suggest a lack of good faith on the part of the tribunal or that its decision reflected anything but a bona fide exercise of its power to review the delegate’s decision. The approach of the tribunal to the assessment of the appellant’s credibility, as the federal magistrate said, was entirely orthodox.

26    The tribunal referred to evidence of Constituent Assembly election results in Baglung, which showed that the CPN-M failed to win any of the three constituencies. The inferences the tribunal drew from that evidence were that political support for the CPN-M was “moderate to low” in Baglung and that the appellant was one of a majority of residents in the district who did not support the Maoists. It concluded that this would give the appellant considerable anonymity, so that if he were to return to Baglung the chance is remote that he would face any serious harm from the Maoists because he was not a supporter of them. The other reference was to evidence concerning a widespread practice of extortion by Maoists. The appellant had informed the tribunal that he might be pressured into making a “donation” to local Maoists because he would be assumed to have brought money from abroad. The tribunal said it was prepared to accept that this might have occurred but, because the practice was apparently indiscriminate, it could not be satisfied that the reason for it was a Convention reason.

27    These were compelling inferences. It was no misstatement of the effect of independent country information. In any event, however, the inferences the tribunal draws from independent country information is a matter for the tribunal alone. Even if the tribunal had misstated the effect of that information in the way the appellant contends, that would be an error within jurisdiction, not a jurisdictional error. As the Full Court said in NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11]-[13]:

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.

…

Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.

28    As for the remaining contentions, the federal magistrate’s conclusions, which appear at [15] above, were supported by reasons. On no view could they be described as capricious. The tribunal was entitled to find that the appellant was not a credible witness, whatever support there was for aspects of the appellant’s claims in the country information, and it was not open to the federal magistrate to interfere with that finding.

29    The appellant made no submissions in writing. At the hearing of the appeal he was unable to support any of the claims made in the notice of appeal and made it abundantly clear that his sole grievance was that he was not believed. That is no basis for setting aside the tribunal’s decision. The effect of s 474 of the Act is that the tribunal’s decision may only be overturned for jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476. None having been shown, the application was bound to fail and so too the appeal.

Conclusion

30    The appeal must be dismissed. The appellant should pay the Minister’s costs. The Minister sought an order for fixed costs pursuant to O 62 r 4(2)(c) of the Federal Court Rules (“the old rules”). He relied on an affidavit sworn by Oliver Jones on 1 August 2011. The same day the Federal Court Rules 2011 (“the new rules”) commenced. The new rules repealed the Federal Court Rules: Rule 1.03. The new rules apply to a proceeding started before 1 August 2011 or a step in a proceeding if the step is taken on or after 1 August 2011: Rule 1.04 (1) and (2). It is debatable whether the application for costs can be described as a step in the proceeding and neither party addressed the question. The Court has the power to order that the old rules apply: Rule 1.04(3). Here, there is no relevant difference between O 62 Rule 4(2)(c) and the equivalent rule in the new rules: Rule  40.02(b). In the absence of any argument, I think the proper course is to order that the old rule applies but to note that the outcome would be no different if the new rule were invoked. The appellant did not oppose the making of such an order and there seems to be no good reason not to accede to the Minister’s request. The power to award fixed costs (or a lump sum) is not constrained; the sum sought ($2,500), representing, according to the affidavit, 65% of the costs incurred and likely to be incurred, is not obviously excessive. I will therefore order that costs be paid in the sum of $2,500.

Associate:

Dated:    3 August 2011