SZLAI v Minister for Immigration & Citizenship

Tribunal Decision 5 The Tribunal did not accept a number of key aspects of the appellant's claims. It formed the view that the appellant was an unreliable witness and ultimately found that the appellant lacked a well-founded fear of persecution in Nepal. 6 The Tribunal accepted that the appellant had run away from her husband by an arranged marriage and had then stayed with another man by whom she became pregnant. It also accepted that this man had become abusive. The Tribunal gave her the benefit of the doubt that he had forced her to work as a prostitute. 7 The vagueness of the appellant's evidence led the Tribunal to reject her contention that the father of her child had continued to threaten her at her village after 2000. It did not accept that this was plausible as they had not previously been married, she had departed his family home, and he had nothing further to fear from her since his association with a lower caste woman had been severed by the appellant herself. 8 The Tribunal did not accept that Maoists insurgents had demanded protection money from her, both because she had failed to raise this significant issue in her protection visa application and because she was unable to give a convincing account of what happened to her. 9 Although it accepted that the appellant might face some social discrimination and rejection due to her status as a single mother in Nepal, the Tribunal did not accept that this would constitute serious harm. Nor did it accept, on the basis of country information, that she would face persecutory harm simply for reason of her membership of a lower caste. The Tribunal noted that while the treatment of women in Nepal appeared to be "not good," US State Department reports noted that there were more than 20 NGO's in Kathmandu addressing women's issues. It accordingly found that, taking into account all evidence available and the fact that the appellant had not been harmed for some 6 years before leaving Nepal, the possibility that the appellant would suffer Convention-related persecution from the authorities or the community did not exist.

Proceedings before the Federal Magistrates Court 10 There were two grounds below: (a) The Tribunal failed to consider all integers of the applicant's claim. (b) The Tribunal's decision was affected by apprehended bias. Neither ground was upheld. The challenge was, overall, a request for merits review upon questions of fact. His Honour found that the Tribunal had clearly considered the integers of the appellant's claim and accordingly had not committed jurisdictional error. 11 The primary judge also rejected the ground of claimed apprehended bias as being, in effect, wholly without foundation in fact or law.

The Notice Of Appeal 12 The notice of appeal raised the following grounds of appeal: 1. I am not satisfied with the purported judgment of the Federal Magistrate in connection with the Tribunal's decision in my case that I believe the Federal Magistrate expressed reluctances and failed to discern the error of law on the part of the Tribunal's decision in my case, whereas the decision had been affected by an error of law the Tribunal refused my application for a protection visa. 2. I have considerable concern as to whether the Federal Magistrate has done justice to my actual claim for refugee status in relation to the Tribunal's decision. I argue that the Tribunal has postulated that I don't even face the more generic problems with my former so-called husband, boyfriend and the Maoists. Such an analysis is wrong so it surely required a more thorough analysis in the first instance and then an extremely truncated analysis. I consider the analysis of the country information in the circumstances to be inadequate. The question is whether such inadequacy amounts to jurisdictional error. 3. The Tribunal's decision was affected by jurisdictional error. The Tribunal significantly misstated the effect of Nepalese culture and the integers of my claims. 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 to my claims by the country information in the context of family matter and domestic violence. 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. 4. The Tribunal failed to consider carefully and meticulously the nature of Nepalese culture and the failed state. It is not true that I can avoid the harm, as I will not be a person of interest to my so-called former husband, boyfriend and other relatives or the Maoists in Nepal. Hostilities in our relationship have not yet ended, so it is inevitable that I am still at risk of being seriously harmed, or possibly killed by my so-called former husband, boyfriend and their relatives anytime directly or indirectly. It is not a good reason that I cannot be believed in my claim that my ex-boyfriend had forced me to work as a prostitute just because I did not mention it at the Tribunal hearing. 5. I was very nervous and stressful and momentarily absent in my mind and also I was speaking through the Nepalese interpreter at the Tribunal hearing. Given the nature of the Tribunal hearing, I should expect to be sufficiently able to tell everything as the Tribunal member as the Tribunal member expected at the Tribunal hearing. 6. It is wrong decision that I was not truthful in my claim that my ex-boyfriend continued to come to my village and threaten or harm me after 2000 just because I was vague and I did not tell in details. The Tribunal member cannot be confident that my claims are not real whereas they are. There is no evidence that my claims are not genuine, so it had substantially relied on the mind of the Tribunal member no matter how I explained my real problems. The tribunal member deprived me of natural justice in my case and failed to consider all integers of my claims. 7. The structure of the decision clearly showed the Tribunal member did not complete its required review function. Given the Tribunal's statement of reasons as a whole, the absence of any pertinent findings and discussion about my claims implied that it was overlooked by the Tribunal member. 8. I argue that the Tribunal member intentionally expressed reluctances in considering my case to be valued for the purpose of Convention reason and failed to recognize the necessity in applying the definition of "refugee". The decision in my case not made by reference to subject matter, scope and objects of the Immigration Act. This is unfair and injustice. 13 The grounds, for the most part, constitute a challenge to findings of fact by the Tribunal rather than an articulation of demonstrable error on the part of the Federal Magistrate. Further, the grounds are argumentative in nature. Generally they concern the appellant's apprehended fear of harm from her former boyfriend, who was the father of her child, as well as her husband and the Maoists. They are replete with criticism, in the most extreme terms, of the reasoning and conclusions of the Tribunal and to a very limited extent by the Court below. They do not however descend to relevant particulars. Furthermore, none of these grounds was the subject of review by the Federal Magistrate other than, in the broadest terms, ground 2, which challenges the conclusions reached in relation to problems which allegedly existed in respect to the Maoists. Nonetheless I propose to deal with the substance of the complaints.

Grounds 2-4 and 6 14 The thrust of these grounds is that the Tribunal failed to adequately consider the country information concerning Nepalese culture in relation to the appellant's apprehended fear of being harmed by her former husband, boyfriend and other relatives or Maoists in Nepal. These grounds were the subject of extensive written submissions. 15 It is clear from the Tribunal's decision record that it did have regard to the country information before it. This included information concerning domestic violence towards women in Nepal. While the Tribunal accepted that the appellant may face discrimination and some social rejection because of her situation as a single mother in Nepal, it did not accept that she would face serious harm for reasons of her ethnicity, caste status, or her status as a single mother. It noted that the treatment of women in Nepal was not ideal and that domestic violence was widespread, but concluded that the appellant had been able to live in Nepal for 6 years without suffering any serious harm. The Tribunal therefore was not satisfied that there was a real chance the appellant would suffer persecution in a Convention sense from the authorities or the community. 16 These grounds also contend that the Tribunal conclusions, having regard to the country information, were illogical. This is not available as a ground of review: NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 at [25]; W404/01A of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 255 at [35]. 17 These grounds, to a considerable extent, challenge findings of fact made by the Tribunal. Such a merits review is not available to the appellant: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40. Credibility findings which were adverse to the appellant were made. This was open to the Tribunal: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407. 18 The claim that the Tribunal significantly misstated the effect of the Nepalese culture and the integers of the claim is not particularised. It is not evident from the Tribunal's reasons that country information was misstated, or misunderstood. 19 The appellant also claims that there was a failure of natural justice. This has not been particularised and necessarily therefore fails. 20 I can find no relevant error. These grounds fail.

ground 5 21 This ground of appeal is not particularised beyond assertions on the part of the appellant that, at the Tribunal hearing, she was nervous, stressed and momentarily absentminded. It is not said in what way she was forgetful. This matter was not raised before the Federal Magistrate. There is also complaint that there was some difficulty in giving evidence through an interpreter. It is also unparticularised. 22 No relevant error was demonstrated. Accordingly this ground also fails.

ground 7 23 The appellant claims that the "structure of the decision clearly showed the Tribunal member did not complete its required review function" and that her claims were overlooked by the Tribunal. The appellant points to the alleged absence of any pertinent findings and discussions about her claims to support this ground of appeal. The complaint is without foundation. The reasons of the Tribunal canvass the appellant's claims, set out the relevant evidence, make findings of fact to which was applied the relevant law and set out its conclusions in respect to the review. No jurisdictional error has been established.

ground 8 24 This ground of appeal complains that the Tribunal member "intentionally expressed reluctances in considering (the appellant's) case". It is, I infer, a complaint of actual bias. Any claim of bias must be firmly and distinctly made and clearly proven; Minister for Immigration & Multicultural Affairs v Jia Le Geng (2001) 205 CLR 507 at [546]. The appellant has not provided any particulars to support such an assertion. None are discernible from the reasons of the Tribunal. This ground also fails. 25 The appellant also claims that Tribunal failed to apply the law and or failed to apply the facts to the law. In particular the Tribunal in effect, is said to have arrived at its conclusions upon an incorrect construction of "refugee" as found in the Migration Act 1958 (Cth). In fact the Tribunal considered at length the meaning of 'refugee' as defined in Article 1 of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees. I can discern no error in this regard. The ground was not developed in oral submissions. There is no basis to this ground of appeal. 26 The appellant, in her written submissions, raised, in effect, further matters which could arguably be said to arise from the very generalised grounds of appeal. I will deal with these in turn. 27 The first of these submissions is as follows: The Tribunal made no specific finding as to whether hiding would lead to avoidance of an adverse reaction from my ex-boyfriend because either it was unlikely to come to the notice of him and his relatives, or because the authorities were concerned about my safety. Since these issues are not dealt with, it inferred that the Tribunal Member did not consider them to be material, when they were. Thus there was a failure to have regard to relevant material which was so fundamental that it went to jurisdiction. 28 The appellant did not raise this claim during the hearing before the Tribunal. The Tribunal is not required to speculate on claims that did not squarely arise from the materials before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 at [58]; SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at [19]. In any event, the Tribunal did not accept the appellant's claim that her ex-boyfriend continued to abuse her after the birth of their child over 6 years ago and the Tribunal was not satisfied that there was a real chance that she would suffer harm from him or his family in the future. 29 The second of these submissions is as follows: The Tribunal committed a jurisdictional error in finding that my claim to be a member of anti- Maoists group was not raised prior to the review application and was therefore fabricated for the purposes of the visa application. The claim of membership of the anti-Maoists group was an articulation of my attitude towards disobeying the Maoists and did not involve any new facts. The Tribunal failed to consider all the possible ways in which I made my claims. 30 The Tribunal's finding was based on the fact that the appellant's evidence was not credible. It found that her encounters with the Maoists were vague and lacked detail. This finding was open to it. The Tribunal is obliged to consider any distinct claim for refugee status that arises from the materials before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 219 ALR 27 at 44. Its role is not to advance a case for the appellant: Abebe v Commonwealth (1999) 197 CLR 510 at 576 [187]. 31 For these reasons the appeal should be dismissed. 32 At the hearing before me on 6 May 2008, the first respondent provided an affidavit of Ms Miriam Mafessanti, a solicitor employed by the solicitors for the respondents, sworn 6 May 2008. This affidavit was sworn in support of an application for costs fixed in the amount of $2,600 pursuant to Order 62, rule 4(2)(c) of the Federal Court Rules. A copy of this affidavit was provided to the appellant. Ms Mafessanti deposes that the solicitor-client costs in the matter total $3,499.50. She deposes to her belief, based on information provided by Mr Ziad Chami, a solicitor who has had responsibility for the taxation of costs in more than one hundred matters for the first respondent during the previous six years, that upon taxation of costs in this Court, the first respondent will generally recover: (a) 50% of professional costs; (b) 100% of disbursements representing the retention of counsel; and (c) an amount referable to item 29 Schedule 2 of the Federal Court Rules for the disbursements representing the preparation of the appeal book. 33 Based on this, she states that costs in this matter would likely be taxed at a figure of approximately $2,600. I am satisfied that costs fixed in that amount should be paid by the appellant to the first respondent. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate: Dated: 7 May 2008 The Appellant appeared in person.