SZLIK v Minister for Immigration and Citizenship [2008] FCA 724

FEDERAL COURT OF AUSTRALIA

SZLIK v Minister for Immigration and Citizenship [2008] FCA 724

SZLIK v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 399 of 2008

LANDER J

22 MAY 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 399 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLIK

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LANDER J

DATE OF ORDER: 22 MAY 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 399 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLIK

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LANDER J

DATE: 22 MAY 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal against an order of a Federal Magistrate of 5 March 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 31 July 2007 and handed down on 21 August 2007. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a Protection (Class XA) visa to the appellant. 2 The appellant is a citizen of Nepal who was born on 19 January 1968. He arrived in Australia on 9 February 2007 and applied for a Protection (Class XA) visa on 7 March 2007. On 2 April 2007 a delegate of the first respondent refused to grant the appellant a visa. On 20 April 2007 the appellant applied to the Tribunal for a review of that decision. Before the Tribunal, the appellant claimed to have a well-founded fear of persecution from Maoist insurgents. The appellant claimed to have been a supporter of the Nepalese King through the National Democratic Students Association and to have opposed the Maoist insurgency from its inception in 1990. He claimed that Maoists had demanded donations and curriculum changes in the school in which he was a teacher and that he had declined to follow their instructions. According to the appellant, in July 2004 during celebrations for the King's birthday, he was abducted, taken into a jungle in Raspat, beaten and tortured by Maoists along with other teachers but released when other villagers came to the scene. He said his house was seized. After the formation of a coalition Government including Maoists in April 2006, the appellant claimed that his problems intensified. The appellant was allegedly sought by 10-15 Maoists at his sister's house and his relatives were warned that if he returned to his school he would be killed. The appellant claimed that policing resources in Nepal were insufficient to provide him with protection, leading him to seek asylum in Australia. 3 On 12 June 2007, at the hearing before the Tribunal, the appellant accepted that he had travelled to Japan in 2004 for 15 days. He claimed that he did not make an application for asylum in Japan as someone had apparently told him that if he made such an application, he would be killed by the Japanese. The appellant also travelled to Thailand in 2006 but did not remain as there was "no safety" there. 4 The Tribunal rejected the appellant's claims finding him not to be a witness of truth. The Tribunal found that the appellant's account of his past experiences lacked consistency. The appellant's account of whether he had been abducted changed in terms of how many other teachers had accompanied the appellant at the time. These differences could not be explained by difficulties in translation, and the Tribunal found that these inconsistencies suggested the claims of his past experiences had been fabricated. The Tribunal found further inconsistencies in his account of the circumstances of his family in Nepal, specifically regarding the date on which his wife and children had ceased living at home, as different dates separated by up to a year were given. 5 The Tribunal also found that the appellant's travel to Japan and Thailand in 2004 and 2006 was inconsistent with the actions of a person fearing harm. The Tribunal accepted that the appellant was educated and found his reasons for return to Nepal implausible. It did not give weight to supporting evidence adduced by the appellant and felt that the material only asserted matters which the Tribunal did not believe to be true. 6 The Tribunal therefore rejected the appellant's claims and did not accept that he had ever been of interest to any political or insurgency group in Nepal. While noting that independent evidence suggested continued unrest in Nepal, the Tribunal's adverse findings on other aspects of the appellant's claim led it to conclude that there was no risk of harm to a person such as the appellant. It therefore found that the appellant did not hold a well-founded fear of persecution for a Convention reason. 7 On the appellant's application to the Federal Magistrate filed on 17 September 2007, the appellant claimed: 1. The Tribunal misunderstood the facts of the appellant's application; 2. The Tribunal was biased and rejected the appellant's claims without probative evidence; 3. The Tribunal failed to investigate the central issues of the appellant's application even though that information was readily available to the Tribunal through its resources; and 4. The Tribunal made an error of law by making a decision to suit itself. 8 In relation to ground one, his Honour found that the Tribunal decision record suggested the Tribunal had addressed and rejected the issues raised by the appellant on the basis of an adverse credibility finding. This was a finding of fact and evidence existed to support the conclusion: W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[65]. 9 In relation to ground two, his Honour found that there was no evidence of bias. His Honour noted that a mere fact of an adverse finding in the Tribunal's reasons did not amount to bias: VFAB of 2002 v Minister for Immigration and Multicultural Affairs (2003) 131 FCR 102 at [21]. 10 In relation to ground three, his Honour found that no obligation rests upon the Tribunal to conduct its own enquiries to investigate the appellant's claims. While that power does exist under ss 424 and 427 of the Migration Act 1958 (Cth) (the Act), the power is discretionary: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [42]-[43]. 11 In relation to ground four, his Honour found that the allegation that the Tribunal had "[made] a decision to suit itself" was merely a further allegation of bias or bad faith on the part of the Tribunal and had no basis in fact. 12 The appellant's notice of appeal filed in this Court raises three grounds. 13 First, the appellant contends the Federal Magistrate should have found that the Tribunal failed to properly consider documents provided to the Tribunal and breached s 425 of the Act by failing to give the appellant the opportunity to be heard on the documents. The Tribunal should have put these issues clearly in the s 424A letter. 14 Secondly, the Federal Magistrate should have found that the Tribunal erred in its assessment of the facts and failed to apply the test in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. The appellant's claims were rejected due to minor differences not subject to proper assessment. In its assessment of credibility, the Tribunal misapplied the "Guo and Rajalingam principles in the assessment of evidence". 15 Finally, the appellant contends his Honour should have found that the Tribunal failed to apply the test of social group in relation to the appellant's claim and failed to address the appropriate integers of the appellant's claims. 16 The appellant elaborated upon those grounds in his outline of submissions. At the hearing, the appellant mainly addressed the merits of the Tribunal's decision.