SZDVO v Minister for Immigration and Citizenship

Federal Court of Australia|2008-05-08|Before: Wilcox J, Gilmour J

Introduction 1 This is an appeal from a judgment of the Federal Magistrates Court delivered on 22 January 2008 dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") signed on 2 February 2006 and handed down on 15 February 2007. The Tribunal had affirmed a decision of a delegate of the first respondent ("the Minister") refusing an application for a protection visa.

Background 2 The appellant is a citizen of Nepal who arrived in Australia on 24 September 2003. On 16 October 2003 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs. A delegate of the first respondent refused the application for a protection visa on 3 November 2003. On 26 November 2003 the appellant applied to the Tribunal for a review of that decision. 3 The Tribunal affirmed the delegate's decision on 22 April 2004. The appellant unsuccessfully sought judicial review of that decision in the Federal Magistrates Court. However, on 9 March 2006, Wilcox J allowed an appeal, set aside the Federal Magistrate's decision and remitted the matter to a differently constituted Tribunal. The matter was reconsidered by that Tribunal which again affirmed the decision of the delegate. 4 The appellant claimed to have a well-founded fear of persecution from the authorities and police because of his past history as a Maoist. 5 The appellant said he became a member of the Communist Party of Nepal in 2000 and was involved in secret meetings in various locations. He claimed that he organised various meetings and small conferences with those interested in joining the Maoist movement. He alleged that he was arrested by policein March 2002 and detained for five days during which time he was physically abused. He claimed that on the sixth day a Maoist group attacked the police post and while the police had abandoned their post, he was able to escape. The appellant alleged that in April 2002, while in an open meeting in Chapakot, the Nepalese army attacked, and that shots fired from a helicopter killed four of his friends. The appellant claimed that in 2003 the Nepalese Police had issued a warrant for his arrest due to his alleged Maoist activities. 6 He also claimed to fear persecution by the State, the Maoists and Hindu fundamentalists, by reason of his Christian religion; his conversion from Hinduism to Christianity and the duty to proselytize imposed on him by his religious beliefs and his renunciation of Maoism. The appellant, through his representative, claimed that the law in Nepal provides for fines and imprisonment for conversion and proselytizing. 7 The appellant claimed that in Australia he met Nepalese Christians who introduced him to the Christian faith. As a result he claimed to have converted from Hinduism to Christianity. He claimed he no longer believed in the Maoist philosophy.

The Tribunal's decision 8 The appellant attended a hearing before each Tribunal. At each he gave oral evidence. Each Tribunal found that the appellant was not a credible witness in certain important respects. 9 Relevantly, the Tribunal as reconstituted, did not accept that the appellant left Nepal because of the circumstances he described or that he genuinely feared harm from the authorities. It described the evidence he gave in these respects as less than truthful. The Tribunal found the appellant had fabricated his claims to have been a Maoist activist in Nepal. It therefore did not accept his claims that he had been detained or that an arrest warrant had been issued in respect to him in 2003. 10 The Tribunal accepted that the appellant had become involved with the Jesus Family Centre in Cabramatta. However, it did not accept that his involvement with the Jesus Family Centre was otherwise than for the purpose of promoting his protection visa application. The Tribunal disregarded those activities pursuant to s 91R(3) of the Migration Act 1958 (Cth) The Tribunal was not satisfied as to the genuineness of his apparent conversion to Christianity. Accordingly it did not accept that he would, on his return to Nepal, involve himself in Christian activities or would attempt to evangelise there.

Proceedings in the Federal Magistrates Court 11 The amended application contained three grounds of review: 1. The Tribunal made its decision on assumption without considering any fact related to my case and the information available. 2. RRT failed to consider Nepal is NOT SAFE for any human being especially for Maoist, government and Security forces are killing hundreds of innocent people each day. 3. The Tribunal fail to consider there is no real religious freedom in Nepal. 12 The appellant also provided further submissions on the day of the hearing which contained five grounds challenging the Tribunal's decision. The grounds assert that: (I) The Tribunal made its decision on assumption without considering any fact related to my case and the information available. (II) The Tribunal fail to consider the evidence that young man & women are subject to persecution by Security forces in Nepal regardless of their political belief. They are constituted as a particular social group. (III) RRT fail to consider Nepal is NOT SAFE for any human being especially for Maoist, government & Security forces are killing hundreds of innocent people each day. (IV) The Tribunal fail to consider there is no real religious freedom in Nepal. (V) The Tribunal fail to consider that I am a Christian convert and my life will be in danger in Nepal. 13 The Federal Magistrate found that the Tribunal's findings were open to it on the evidence, and held that no jurisdictional error had been established. The application was dismissed.

Appeal to this Court 14 The notice of appeal raises the same expanded grounds as those which were before the court below, set out under para [12] above.

Ground 1 15 This ground is unsustainable. It is evident from the detailed reasons of the Tribunal that it did consider the appellant's claims and gave close consideration to the evidence. In particular it concluded that the appellant was not a credible witness. For that reason it did not believe his claims. These were findings that were open to the Tribunal upon the evidence and there is nothing in the reasons which discloses jurisdictional error. The Federal Magistrate was not in error in rejecting this ground.

Ground 2 16 The Tribunal is under an obligation to consider any distinct claim for refugee status that has in substance been raised by an applicant and not abandoned: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [8]-[12]. However, the Tribunal is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 219 ALR 27 at [58]-[60]. While the Tribunal acts in an inquisitorial way, its function is to respond to the case that the applicant advances; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 per Kirby J at [78] and not to advance a case for the applicant; Abebe v Commonwealth (1999) 197 CLR 510 at 576 [187]; 162 ALR 1 at 51 per Gummow and Hayne JJ. 17 In similar circumstances in MZXGB v Minister for Immigration and Citizenship [2007] FCA 392 at [39]-[40] Lander J rejected a contention that the Tribunal had erred by failing to consider a claim that the applicant feared persecution as a member of a particular social group comprised of business people as it was never originally part of the appellants case. 18 The appellant did not make this claim when applying for a protection visa or when seeking review in the Tribunal. Nor did such a claim arise from the material before the Tribunal. The appellant's claim, advanced in clear terms by counsel, was that he feared persecution by the State authorities, by Hindu fundamentalists and by Maoists. The appellant claimed to fear persecution because of his political opinions related to his alleged history as a Maoist and because of his alleged conversion to evangelical Christianity. 19 In these circumstances, it cannot be said that the Tribunal was under a duty to consider a claim that the appellant had a well founded fear of persecution because of his membership of the social group comprised of young men and women. The Federal Magistrate correctly rejected this ground. It is without merit.

Ground 3 20 It is not the role of the Tribunal to consider whether, in the relevant country of origin, people, generally, are safe. The role of the Tribunal is to determine whether an appellant has a well founded fear of persecution for a particular Convention based reason, having regard to the claims made and any claims arising from the material before it. 21 In this case, the appellant claimed to have a well-founded fear of persecution because of his formerly held political opinion and association with Maoists and because of his more recent conversion to evangelical Christianity. These claims were considered by the Tribunal. The appellant's claims did not require the Tribunal to consider the general question of whether Nepal is a safe country for human beings. 22 The Tribunal found that the appellant was not a credible witness and had fabricated his claims about having been a Maoist activist. Again, it was not necessary for the Tribunal to consider whether Maoists, as a particular social group, have a well-founded fear of persecution in Nepal. As his Honour correctly held, the Tribunal's adverse finding on the question of the appellant's credibility was a finding of fact that was reasonably open to it. 23 There is no error apparent in the reasoning or conclusion of the Federal Magistrate in this respect.

Ground 4 24 The appellant contends that the Tribunal erred by failing to consider whether there is religious freedom in Nepal. Although the appellant claimed to have a well-founded fear of persecution because of his apparent conversion to Christianity, the Tribunal did not accept that his involvement with the Jesus Family Centre in Cabramatta was otherwise than for the purpose of promoting his protection visa application: s 91R(3) Migration Act. It was not satisfied that he was a genuine convert to Christianity. It followed that the Tribunal did not accept that the appellant would involve himself in Christian activities in Nepal. The question whether people who have converted to Christianity face a real chance of persecution in Nepal, did not arise. 25 There is no jurisdictional error apparent in the Tribunal's reasoning regarding this issue. Section 91R(3) requires that the Tribunal disregard evidence of conduct engaged in by an applicant in Australia unless it has been satisfied by the applicant that the conduct was engaged in otherwise than for the purpose of strengthening the applicant's refugee claim. An applicant therefore carries the burden of showing for the purposes of s 91R(3) that the evidence in question should not be disregarded: NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1536 at [26]. 26 The Federal Magistrate was not in error in this respect. This ground is not made out.

Ground 5 27 This ground of review is an extension of ground 4. The Tribunal did not fail to consider the appellant's claims as they related to his claimed conversion to Christianity. The Tribunal explicitly considered those claims, having regard to s 91R(3) of the Migration Act.

Conclusion 28 The appellant has not demonstrated any relevant error in the decision of the court below or any jurisdictional error by the Tribunal. The appeal should be dismissed. The appellant should pay the first respondent's costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate: Dated: 8 May 2008 The Appellant appeared in person:

Solicitor for the Respondents: Australian Government Solicitor

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