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[2007] FCA 261
Federal Court of Australia
2007-02-26
Heerey J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The appellant, a citizen of Nepal, sought judicial review in the Federal Magistrates Court of a decision of the Refugee Review Tribunal refusing to grant her a protection visa. The applicant was refused by Scarlett FM: SZGEU v MIMIA (No 2) [2006] FMCA 1731. The appellant now appeals to this Court. 2 Before the Tribunal, the appellant claimed persecution by Nepalese authorities and the Maoists. She claimed that she was a teacher who refused to teach Maoist principles at school and consequently was threatened and harassed by the Maoists. She said that one night Maoists assaulted her and her family and abducted her husband who is still missing. The appellant reported this incident to the police, but she continued to be threatened by Maoists. She claimed the police refused to help her as they suspected her husband was working for the Maoists and she was suspected of being a Maoist supervisor.
The RRT Decision 3 The Tribunal accepted that there was a Maoist insurgency in Nepal and that the appellant may fear that cross-fire of civil war but found that this did not constitute persecution, which involves systematic conduct aimed at an individual or a group of people. In relation to her personal claims, the Tribunal accepted that the appellant was a schoolteacher and that she was married but did not draw any conclusions as to her husband's whereabouts or as to his occupation. The Tribunal found that the appellant's story of her husband's abduction was a fabrication for reasons more fully set out its reasons. 4 The Tribunal considered that the other claims regarding the Maoists treatment of the appellant and her family were also fabrications. In its view the claims were vague, un-detailed and inconsistent. The Tribunal was unable to reconcile the appellant's ease of departure from Nepal with her being a target for arrest. It did not accept that the appellant left Kathmandu for the reasons claimed. The Tribunal noted that the appellant claimed she feared for her son and yet left him behind in Kathmandu. The Tribunal found that the appellant had misled it as to the steps she took to come to Australia; the reasons for this finding are set out in the Tribunal's reasons. The Tribunal was not satisfied that the appellant faced a real chance of persecution on any of the Refugee Convention grounds. 5 Before the Federal Magistrates Court, the appellant relied on a large number of grounds which are set out in [12] of the Magistrate's reasons. The Magistrate was of the view that there was no evidence, other than the appellant's oral claim, that because the interpreter was not physically present at the Tribunal hearing the appellant was hampered to such an extent that she was not able to give evidence and thus there was a failure to comply with s 425 Migration Act 1975 (Cth). The Federal Magistrate was not satisfied there had been a breach of procedural fairness or natural justice. The Tribunal had rejected the appellant's claims on the basis of her credibility. It was not necessary for the Tribunal to consider the question of relocation or state protection. Credibility was a factual finding which the Tribunal considered in detail and gave detailed reasons. In the Magistrate's view, these findings were open to the Tribunal on the evidence.
Appeal to the Federal Court 6 Before this Court, the notice of appeal stated: "(1) I do not agree with the purported judgment of Scarlett FM in my case because I believe the judge did not use all means at his disposal to produce the necessary evidence that the Tribunal is judicially correct on the part of its decision in my case. (2) I argue that the Federal Magistrates Court expressed reluctances in identifying the error of law in connection with the decision made by the Refugee Review Tribunal in my case. (3) I had not fully understood the questions which the Tribunal member had put to me. I was in stress of the moment that I had not been able fully to communicate appropriate answers to them and I could not express myself as intended because of the difficulty in assessing the credibility of evidence given through an interpreter by telephone at the hearing. A third inference is that I believe that as a result the procedure had not been satisfactory because it had not been wholly fair to me. (4) I contend that the Tribunal did not satisfy all its statutory requirements in dealing with my matter and it appeared that the Tribunal failed its duty to confer common law natural justice in determining my application." 7 In respect to ground 1, the Magistrate in my view afforded the appellant a reasonable opportunity to appear and present her case. He was not obliged to make her case for her, or to use all means at his disposal to produce the necessary evidence for her. The appellant had not established the factual foundation for a claim of jurisdictional error. 8 As to ground 2, I am satisfied the Federal Magistrates Court identified the alleged errors of law. It found that the inferences drawn by the Tribunal were open to it from the material before it. Its findings were essentially based on the appellant's credibility. Its findings were based on rational grounds and that arrived at after consideration of matters that were logically probative of the issue of credibility. There is no legal error, let alone jurisdictional error. 9 As to ground 3, the appellant has not tendered transcript evidence capable of persuading the Court that material errors heard in the interpretation of her evidence. I should record that the appellant, at the hearing of this matter, sought an adjournment to complete a transcription of tape. I rejected that application. It was made clear in the Magistrate's reasons, delivered on 21 November last year, that there was no record of the transcript of the hearing being available, see [15]. That was, understandably, relied upon by the Magistrate in rejecting the appellant's complaints as to the conduct of the hearing. The appellant has not taken reasonable steps to obtain a transcript of the hearing in the mean time. 10 Finally, as to fourth ground, there is no basis for the finding of non-compliance with the procedural code prescribed by Part 7, division 4 of the Migration Act 1975 (Cth). Common law natural justice is not applicable. 11 The appellant was clearly invited to the hearing and attended the hearing. The Tribunal obtained information relating to the appellant's application for a business visa and that information was provided to her in writing in accordance with s 424A(1). 12 At the hearing of this appeal, the appellant had further complaints about the hearing. She said the member disregarded her story and cut her short. Her case was "not looked at properly". For the reasons I already discussed, I am not persuaded that any jurisdictional error has been made out and the appeal will be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.
Associate: Dated: 26 February 2007 Counsel for the Applicant: The Appellant appeared in person
SZGEU
Minister for Immigration & Citizenship
[2006] FMCA 1731