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MIGRATION - Refugee Review Tribunal - application for review of decision affirming the decision of a delegate of the Minister not to grant a protection visa to the applicant - factual error in judgment not sufficient to taint the Tribunal's perception of the applicant's credibility sufficient to render decision unsafe - applicant who wishes to prove procedural unfairness must provide evidence by way of affidavit or transcript of proceedings.

SZDLR v Minister for Immigration [2004] FMCA 831 (3 November 2004)

SZDLR v Minister for Immigration [2004] FMCA 831 (3 November 2004)
Last Updated: 26 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDLR v MINISTER FOR IMMIGRATION
[2004] FMCA 831




MIGRATION - Refugee Review Tribunal - application for review of decision affirming the decision of a delegate of the Minister not to grant a protection visa to the applicant - factual error in judgment not sufficient to taint the Tribunal's perception of the applicant's credibility sufficient to render decision unsafe - applicant who wishes to prove procedural unfairness must provide evidence by way of affidavit or transcript of proceedings.




Judiciary Act 1903 (Cth), s.39B

Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11

Applicant:
SZDLR




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG 1294 of 2004




Delivered on:


3 November 2004




Delivered at:


Sydney




Hearing date:


3 November 2004




Judgment of:


Scarlett FM




REPRESENTATION

Solicitor for the Applicant


Mr Newman




Solicitors for the Applicant


Newman & Associates




Counsel for the Respondent:


Mr Kennett




Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) The Application is dismissed.

(2) The Applicant is to pay the Respondent's costs in the sum of $4000.00.

(3) Transcript of reasons required.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG 1294 of 2004

SZDLR



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the Applicant.

2. The Applicant arrived in Australia from Nepal on 15 October 1995. On 12 January 1996 he lodged an application for a protection visa. In that application he said that he had been an active worker of the Nepali Congress Party since his student life and he referred to his fear of being killed by political opponents. He stated that as an active worker of the party he had been experiencing threats from the communists. He believed he would eventually be killed if he continued to live in Nepal.

3. A delegate of the Minister refused his application for a protection visa so he sought a review of that decision by the Refugee Review Tribunal. That decision was made on 15 July 1998. Since then I understand that the Applicant has been part of class action litigation which has gone on for some years and that the matter was eventually remitted to the Federal Court. The Applicant has commenced his own individual proceedings.

4. As I indicated earlier the question of delay was not a matter that would sway the Court greatly in making a decision. The Applicant said that he had not been a member of the party but had been an active member of it. He had been a covert worker for the party spying on other organisations. His cover was blown and he decided to flee the country.

5. The Tribunal on hearing his evidence found his story vague and unconvincing and did not accept it. The Tribunal was not satisfied that any act of violence that had occurred or was likely to occur would amount to persecution in the convention sense and the Tribunal was not satisfied that the Applicant was a person to whom Australia had an obligation under the Refugees Convention.

6. The Applicant has obtained legal advice and I have had the benefit of a written outline of submissions prepared by the Applicant's solicitor Mr Newman. I have also heard oral submissions from Mr Newman this morning. I have also had regard to a written outline of submissions on behalf of the Respondent and I have heard oral submissions from Mr Kennett of counsel.

7. The written submissions on behalf of the applicant takes issue with a section of the decision of the Tribunal relating to the Applicant's involvement with a group known as the Mandal or Mandale. There was some evidence that this organisation had been described as an anti leftist vigilante group at some stage. Mr Newman in his oral submissions pointed out that this was an inaccurate generalisation.

8. There was a reference to a report in a Nepali newspaper of 26 June 2003 relating to that group. A copy of that report was sought to be tendered but I formed the view that I should not accept the tender as the article did not come into existence until some years after the decision made by the Tribunal.

9. Nevertheless it was a thrust of the Applicant's application that the Tribunal was confused by this particular term and formed an erroneously view of the Applicant's credit which led to a serious effect on the way in which the Applicant's evidence was received and considered by the Tribunal.

10. In the written submissions I was also referred to the decision of Abdalla v Minister for Immigration & Multicultural Affairs (1998)

51 ALD page 11. That decision was handed down by the Full Court about a month after the decision that is in question. I will spend more time dealing with the Abdalla shortly.

11. Finally, in the written submission there was a reference to the Applicant having given evidence of his attempts to obtain assistance from the police for his protection due to his fears of violent persecution for his beliefs and there is a reference to an essay by one Peter Kasler entitled:

Police have no duty to protect individuals -

which article pointed out that the number of police in the United States would not be able to protect 240 million Americans from upwards of 10 million criminals and that it is a fact of law and of practical necessity that individuals are responsible for their own particular safety and that of their loved ones. Police protection must be recognised for what it is, only an auxiliary general deterrent. I think that comment would probably apply in virtually any country that has a police force.

12. The Respondent's written submissions referred to the Tribunal's reasonings and the Tribunal's lack of belief of the persuasive nature of the Applicant's evidence. The written submission also referred to the Applicant's criticisms of the Tribunal's conclusion that the kind of vilification and violence the Applicant might face as a known Nepali Congress supporter would not amount to persecution in the relevant sense. That particular issue was described as an alternative basis for the Tribunal's conclusion because the Tribunal had rejected the Applicant's claims as a whole having described the evidence as vague and unconvincing, and in any event even if the Tribunal had not rejected those claims the violence which the Tribunal might have been possible on the alternative view was said to be sporadic, spontaneous and would not constitute a recurring pattern of violence towards a person on a convention ground.

13. I was fortunate to hear a perceptive submission from the Applicant's solicitor, Mr Newman, about the Tribunal's decision. To my mind the thrust of the submissions was that the Tribunal had reached an erroneous conclusion which was used to damn the Applicant's evidence. It was submitted that if you erroneously destroy the credibility of a witness on an important issue, that lack of credibility could well taint the whole of the witness's evidence. It would follow, therefore, that the decision of the Refugee Review Tribunal was unsafe. This in fact was the main submission that the way that the Tribunal had formed a view adverse to the Applicant's credit on a particular issue was such to have destroyed his credibility on a mistaken basis.

14. There was also another issue relating to a point in the decision of the Refugee Review Tribunal where it was submitted that a reference to a fact relating to the Mandal or Mandale group of individuals referred to a contention by the Tribunal that that group had ceased its operations in 1989. That point it was argued was not borne out by the evidence before the Tribunal and it raised the ominous suggestion that the Tribunal had acted in a way that constituted breach of procedural fairness by undertaking further research after the hearing and not putting those issues to the applicant. If there is of course a breach of that nature the finding would follow that there was a failure of jurisdiction.

15. The reply or response to that submission by Mr Kennett of counsel dealt with four issues. The apparent error relating to the nature of the Mandal people and their description. The question of procedural fairness. The importance of whether the Applicant was in fact a member of the particular party which he claimed to support, and what Mr Kennett described as the Abdalla issue, the issue of violence.

16. First of all I was referred to two important parts of the country information. One of those was a pr�cis of a research report from a Canadian group from the Immigration & Refugee Board Documentation Centre in Ottawa. That appears on page 139 of the Court book.

17. The reference to the Mandal or Mandale group was that they were government paid agents sneaked into student ranks to terrorise the politically conscious students. Further, that the Nepalese government had banned the group in 1979 but on February 12, 1990 students who had organised the celebration of Nelson Mandela's release were attacked by police and members of the Mandale group. There is a reference to a report of June 1992 from Amnesty International describing the Mandale as a vigilante group attempting to restrict communist anti monarchist activities in Nepal. A statement was made that Mandale members are known to attack or harass potential dissidence in order to prevent them from carrying out further political activities. The Amnesty report of 1992 is also part of the country information.

18. What Mr Kennett submitted is that the Canadian pr�cis may well be an inaccurate reflection of the Amnesty report. If it is an error, it is an error of fact and would not be a basis for the Court to overturn the decision. He went onto say that even if the Refugee Review Tribunal got the facts wrong, that was not a legal error and would not be therefore a reviewable error.

19. Turning to the question of procedural unfairness, Mr Kennett made the point that there was no transcript of the proceedings, nor was there an affidavit by the Applicant to show that material referred to in the decision was not shown to him or it was not raised in proceedings before him.

20. It of course is difficult to prove a negative but the Applicant's case relied purely on submissions and an analysis of the wording of the decision. Mr Kennett submitted that the claim of a lack of procedural fairness had not been made out.

21. The third point of course was the importance that the Tribunal placed on whether or not the Applicant was a member of the particular party, the Nepali Congress Party. In my view, the question of whether or not the Applicant was a member of the party or an active supporter of the party does not effect the decision to any significant degree. To my mind nothing turns on it. The finding and the reason in the decision at page 84 of the Court book is as I quote:

His claim regarding membership of the NC has been reduced to a claim about back room support. At the same time it has been amplified from being about active party work to espionage.

22. Of course Mr Newman has pointed out, there is no contradiction in that and that if one was in fact operating under cover, as it was suggested in the Applicant's evidence, then one would certainly not carry any identification saying that one was a member of the party and one would not allow one's name to be on a register of members of the party if that information could be available to other people. In any event I do not consider that a great deal turns on that point.

23. The final issue of course that Mr Kennett referred to was the Abdalla issue. The decision that is before me was handed down about a month before the Abdalla decision. The evidence was that the Applicant's wife had reported someone had thrown a stone at the window of the house and she had kept the parties' child home from school for a week, was not of itself sufficient to support a claim about a threat to the family's security. At page 85 of the Court book the Tribunal said that:

Even at face value the claims about the broken window and about the need to keep the child home from school for one whole week in three years did not satisfactorily support the overall claim about a threat to the family's security. The Applicant and his wife do not appear from their evidence to have any way of knowing who broke the window.

24. The Abdalla decision is to my mind an important decision. It was a decision of the Full Court of the Federal Court and it is of course one that is binding on the Federal Magistrates Court. As I said, it is reported in 51 Administrative Law decisions at page 11 and the relevant passage as far as it appears to me, as I was referred to by Mr Kennett is on page 20.

25. What the Full Court said about a recurring pattern of violence or systematic violence is this, and I quote:

Where there is a recurring pattern of violence towards a person on a convention ground, there is no reason why such conduct may not constitute "persecution". Clearly, persecution involves more than a random act. To amount to persecution there must be a form of selective harassment of an individual or of a group of which the individual is a member. One act of selective harassment maybe sufficient. The fact that a recurring pattern can be loosely described as communal violence or even civil war does not mean that it cannot amount to persecution. It is necessary to examine the situation further in an attempt to determine the purpose which gives rise to the violence or danger. The decision in respect of whether recurring communal violence amounts to persecution depends on whether there is a purpose behind the recurring pattern which is referrable to a convention ground.

26. In the case before me the Applicant had given evidence that some person, identity unknown, had thrown a stone at the window of the family house after the Applicant had left. The Applicant's wife was worried and kept the parties' child home from school. Certainly, the concern about damage to one's house is understandable but there is certainly not the evidence there of a selective harassment of a particular family referrable to a convention ground. The Applicant just does not know who threw the stone or why.

27. The issue of a factual error by the Tribunal is one that has caused me some concern. In his submission in reply Mr Newman referred me again to page 83 of the Court book setting in the decision of the Refugee Review Tribunal. The reference to whether or not the Mandal group was a vigilante group or whether it had developed into a political party is a matter of conjecture.

28. What the Tribunal went onto say, however, in the third paragraph on page 83 of the Court book was this:

In any event, the Mandal operated only before 1989. The Applicant claimed that he had been spying on leftists since 1989. When asked if he ever infiltrated communist groups he said he did not but merely "made friends" with individual communists.

29. Mr Newman referred the Court to the fact that there was no reference in either of the pieces of country information to which I have previously referred to the date 1989 whatsoever. I have read through both documents clearly. Indeed, Mr Newman's submission is correct. There is no evidence to support the finding or the statement on page 83 that the Mandal operated only before 1989. It does not appear in either the Amnesty International report which commences on page 96 of the Court book nor does it appear in the Immigration & Refugee Board Documentation Centre document, the Canadian document, which appears on page 139 of the Court book.

30. Whether the Tribunal made an error in the date or whether as Mr Newman suggests may have happened the Tribunal had looked at some other piece of evidence is to my mind not possible to decide on the basis of the material before me. As I said, Mr Kennett has pointed out, there is no affidavit from the Applicant nor is there a transcript of the evidence. It is quite clear, however, that the reference to the date 1989 is just wrong. There is just no evidence to support it.

31. Is that sufficient to establish an inference that the Tribunal's view of the entirety of the evidence or the credibility of the evidence of the Applicant was so tainted as to register his findings unsafe? I am not of a view that what is before me allows me to make that finding. It is a giant leap to do so. To my mind the Tribunal has made an error of fact, it is an error that is quite clearly there but a factual error is not of itself sufficient to find a reviewable error for the purpose of these proceedings.

32. The evidence relating to the Mandal or Mandale people is vague and unsatisfactory in any event. The reference to those people in the Canadian Immigration & Refugee Board document appears to be, as Mr Kennett submitted, an inaccurate coverage of the Amnesty International document. There is no doubt about that. When one looks at the Amnesty document it is quite clear that the Canadian document is again wrong. It is just not right. There is very little by way of reference to the Mandales in the Amnesty document. That which there is found at page 108 of the Court book.

33. Mr Newman pointed out to the Court quite correctly that the description of Mandales as vigilantes is not a characterisation by Amnesty International itself but a characterisation of a particular witness who was quoted in the document. What the witness said was:

When I refused to comply with the order of the Bada Hakim he sent many Mandales (vigilantes) with police to threaten me. They even threatened that I would be shot and disposed of in the jungle, never to be found or recognised by anybody.

34. The reliability of this evidence and its bearing on the proceedings generally is not very high at all. The Amnesty document was written in 1992. The statement by the doctor given to Amnesty about the incident referred to is a statement of an incident that was many years old by the time of the report. Because the paragraph begins in the witness's statement:

This incident to which I was a witness occurred in (indistinct) in 1963.

35. The witness went on to tell Amnesty about other matters that occurred between 1963 and 1973 but the evidence as a whole has very little bearing on what the situation is in or was in Nepal at the time that the applicant sought a protection visa in 1995, at the time that he left Nepal.

36. To my mind what the Court must do is look at the findings and reasons of the Tribunal. They are set out at pages 84 and 85 of the Court book. Those findings and reasons I would summarise in this way. The murder of a member of parliament would be an act of persecution which could reasonably be regarded as convention related but his death does not indicate a real chance that the applicant would also be persecuted.

37. The Tribunal found that the Applicant's claims were vague and unconvincing, whilst the claim relating to membership of the party or being an active party worker to my mind is not decisive one way or another.

38. The Applicant's evidence about an attack upon him was incongruous with country information about the impulsive nature of inter party violence in Nepal. The Applicant was seen to have very little familiarity with up to date developments in politics in Nepal and the Tribunal referred to the fact that he remained at the same address for two months after he received a threat to his life.

39. The Applicant's evidence about engaging police protection was seen to be unconvincing. The Applicant's evidence about the broken window and the need to keep the child home from school for a week did not support his claim about a general threat to the family's security as the Applicant and his wife did not appear to know who broke their window in the first place.

40. In the alternative, even if the Applicant and his wife were supporters of the party and the local communists knew about them, it is possible that they might suffer sporadic spontaneous acts of vilification and violence but that happens at a spontaneous and grass roots level and it is not systematic and does not come within the definition of convention related selective harassment as set out in Abdalla.

41. The finality is that the Tribunal considered the Applicant's evidence to be unreliable and was not satisfied accordingly that he or his family faced a real chance of convention related persecution in Nepal.

42. Taking that into consideration, the inaccuracies about the evidence of the Mandal group does not amount to a sufficient concern about the method in which the Tribunal approached the Applicant's evidence to constitute a reviewable error. If it was an error of fact, which it appears to be, it is neither more nor less than an error of fact and it is not a legal error.

43. The reference to 1989 could well be an error but is not in the absence of other evidence sufficient to support the proposition that there was other research done by the Tribunal upon which the Tribunal based its adverse decision which the applicant was not given the opportunity to comment on.

44. The submission that the error by the Tribunal so tainted the Tribunal's view of the credibility of the Applicant's evidence that the Applicant's evidence was not properly considered is not to my mind made out. I am of a view that there is no reviewable error and I dismiss the application.

45. In my view costs follow the event.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V Lee

Date: 17 November 2004
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