SZMRD v Minister for Immigration & Anor [2009] FMCA 112 (4 February 2009)

Last Updated: 24 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMRD v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 112

MIGRATION – Review of decision of RRT – where applicant claims a well founded fear resulting from extortion attempts – whether Tribunal dealt with all claims made by applicant.

Migration Act 1958, s.424

Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166

Applicant:

SZMRD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2179 of 2008

Judgment of:

Raphael FM

Hearing date:

4 February 2009

Date of Last Submission:

4 February 2009

Delivered at:

Sydney

Delivered on:

4 February 2009

REPRESENTATION

For the Applicant:

In Person

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

(1) Application dismissed.
(2) Applicant to pay the First Respondent's costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2179 of 2008

SZMRD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Nepal. He arrived in Australia on 6 November 2007 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 19 December 2007. On 10 April 2008 a delegate of the Minister refused to grant a protection visa and on 5 May 2008 the applicant applied for review of that decision from the Refugee Review Tribunal. The applicant attended a hearing before the Tribunal on 15 July 2008. On 17 July 2008 the Tribunal determined to affirm the decision not to grant a protection visa and that decision was handed down on 29 July 2008.
2. The applicant claimed to be owed protection in Australia on the convention ground of political opinion. He told that he had left Nepal to save his life from a possible attack from the Young Communist League, a sister organisation of the Maoist Party. It appears that the applicant set up a building business after he had left school and was awarded contracts to undertake work at the Nalla Model Site under the Flood Disaster Control Division. Shortly after being awarded the first of two contracts he was approached by a local Maoist leader who demanded 200,000 Rupees from him. The applicant was unable to pay this but he did give the leader, “J”, 50,000 Rupees because of the threats that “J” had made against him. About three weeks later another Maoist leader also asked for a contribution towards the cause and the applicant explained to him that he was unable to assist because he had already given 50,000 Rupees to “J”. This leader, “S”, called “J” and required him to hand over the money to the organisation. That did not stop “J” from continuing to make demands upon the applicant for 200,000 Rupees. The applicant paid “J” a further 50,000 after he had been beaten up on the building site.
3. The applicant was awarded a further contract and “J” continued to attempt to extort money from him. He wanted 2 per cent of every contract. The applicant reported this to the Contractors Association. This information leaked back to “J” who began to make death threats against him through his mobile telephone. “J” put it about that the applicant was a member of the National Democratic Party and as a result he became the target of the Young Communist terrorist group.
4. The Tribunal questioned the applicant about these matters and the applicant revealed that he had completed the second contract in 2000. After that he went to work for other people. He made reference to a further donation to “J” about seven or eight years ago which he hoped would be enough to get that man to leave him alone.
5. The applicant told the Tribunal that he did not appear to have further problems with “J” until September or October 2007 when he was followed by some motorcycles and attacked. One of the attackers he claimed was “J”.
   • “The Tribunal asked the applicant if there were any other reasons why he believed he was a refugee. In reply, the applicant claimed that all the difficulties he experienced were from the Maoists in relation to making contributions. He claims that one person, who is involved in construction, was stopped from bidding for contracts and was beaten. He claimed there was enmity between himself and J, and someone in the area had also been killed, although he didn’t know his name. He claimed that the Maoists now control the country and he wanted to save his wife and children, so he came to a Master Builders Conference in Australia.” [CB 92]
6. The Tribunal questioned the applicant as to why, having been issued a passport first in 1995 and then again in 2005, he did not leave the country earlier if he had a well-founded fear of serious harm. The applicant responded that it was the last attack on him in September 2007 that had compelled or forced him to leave the country.
7. In its findings and reasons commencing at [CB 94] the Tribunal considered the evidence that had been given to it by the applicant and whilst accepting that it may well have been the case that he was threatened by Maoists and had money extorted from him during the period 1999 to 2000, it could not find plausible the continuing claims made by the applicant. The Tribunal did not understand how a person threatened with serious harm would not either have gone into hiding or left Nepal earlier than the applicant apparently did.
   • “In short, the Tribunal is satisfied that as he made no attempt to leave his home of many years, let alone not to go overseas in order to ensure his own safety, that the applicant does not have a well-founded fear of serous harm amounting to persecution for a Convention reason in Nepal.” [CB 95]
8. In regard to the incident in 2007 the Tribunal stated:
   • “In his protection visa application, the applicant provides absolutely no indication when this incident, [occurred] although he states it was after a close friend of his from school ldays, who was very close to the YCL, hinted that he was to be the subject to retaliation which could result in his losing his life. The implication is that the claimed attack by J was what his friend had hinted would occur. In regard to this latter claim, the applicant makes it very clear that he was not told by his friend directly that his life was at risk but rather this was somehow simply and more ambiguously hinted at. Further, the applicant again provides no evidence from his friend or any other information to support this claim. Indeed the applicant does not explain how his friend was in a position to know that he was to be targeted.
   • Of greater importance, however, the applicant again does not claim that he immediately left his home, went into hiding or to have left Nepal, and the Tribunal is satisfied that he would have done so if he had a well-founded fear of serious harm amounting to persecution for a Convention reason, and not waited until the convention in Australia in November 2007 in order to do so. Accordingly, the Tribunal does not accept these claims and does not accept his claim that out of control YCL cadets who may harm, mistreat, or even kill him to achieve their political and social goals as he has not followed their orders and instructions he received in relation to paying large amounts of money.” [CB 96]
9. The Tribunal also considered the possibility that the applicant might be imputed with political opinion for belonging to the National Democratic Party.
   • “In regard to these claims, the Tribunal has already found that the applicant's firm won two contracts in 1999 and 2000 respectively, after which he then worked for other contractors in the seven years he remained in Nepal before coming to Australia. However, from the limited and unsupported claims that he was known to oppose this impost by J, the Maoists or YCL, the Tribunal has not been able to satisfy itself that he has a well-founded fear of serious harm amounting to persecution on this basis.” [CB 97]
10. On 20 November 2008 the applicant filed an amended application with this court. The first ground upon which he claims in that amended application that the Tribunal fell into jurisdictional error, commences with a rehearsal of the history of the claimed extortion by “J”. He says that the Tribunal failed to consider his genuine claims. To the extent that he is referring to the claims made in his history, the fact is that the Tribunal did consider them and came to the view that it may well have been true that money was extorted from him by “J” in 1999/2000. This ground can therefore not be supported.
11. The second ground raised by the applicant is that the Tribunal should have held on the evidence that he was a refugee. There is a sort of particular of this ground suggesting that he ought to have been given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that his claims were plausible. As Mr Reilly says, the applicant has not provided the court with any authority to the effect that the Tribunal's decision-making processes require it to give the applicant the benefit of the doubt. The Tribunal's duty is to come to a conclusion as to whether the applicant had a well-founded fear of persecution for a convention reason. It must look at all the evidence in order to do that. In this particular case it did find that some of the applicant's claims were plausible but it came to a very firm view that any fear that he may have had no longer applied some eight years after the incidents he referred to. That was a decision on the facts which was one for the Tribunal alone.
12. The third matter raised by the applicant (although numbered 5) is a statement that the Tribunal erred in law by finding that he did not have a well-founded fear of persecution. No particulars of this error are provided and it is not appropriate for the court to try and guess in what way the jurisdictional error occurred when the Tribunal came to that conclusion.
13. The fourth complaint (numbered 6) is that the Tribunal member failed to consider all the material readily available and accessible. This would seem to be some reference to independent country information which the Tribunal might have utilised. The Tribunal did not appear to have utilised any independent country information other than informing the applicant of the notorious change in the political environment in Nepal whereby the Maoists were now a part of the government. In any event, it seems to me that the applicant has misunderstood the duties of the Tribunal and the responsibilities of a person such as himself. As the Full Bench Allsop, Jacobson and Graham JJ said in Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 [26]:
    • “Proceedings before the Tribunal are inquisitorial rather than adversarial. A Tribunal member conducting an enquiry is obliged to be fair. However, the Tribunal is not in the position of a contradictor of a case being advanced by an applicant. In a case such as that brought by the appellant under his application for review to the Tribunal, it was for him to advance whatever evidence or argument he wished to advance and for the Tribunal to decide whether his claim that he was a refugee, within the meaning of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (‘the Refugees Convention’) had been made out.”
14. The final complaint made by the applicant (numbered 7) alleges that the Tribunal failed to accord him procedural fairness under s.424 of the Migration Act 1958 (the “Act”). It then goes on to make reference to s.424A of the Act and to make reference to the provision of particulars of independent information as to claims based upon "adequate state protection". Because of these failures the applicant says that the Tribunal failed to analyse properly the future harm he might face if he went back to Nepal. For good measure the applicant then throws in the failure of the Tribunal to apply the real chance test.
15. The first thing that should be said is that the applicant has in no way identified any information which should have been provided to him under s.424A of the Act. The second thing which should be said is that if such information was independent country information as suggested, that is of course not a form of information that needs to be provided to him under that section because it is exempted by the provisions of s.424A(3)(a). The third thing that should be said is that there did not appear to me to be any reference to adequate state protection in the discussion between the Tribunal and the applicant, nor did the existence of adequate state protection form part of the Tribunal's decision. Adequate state protection did not fall to be considered by the Tribunal because it did not consider that the applicant had a well-founded fear of persecution for a convention reason. Adequate state protection is usually invoked in cases where an applicant is found to fear persecution from non-state actors. In this case the last incident complained of by the applicant does not appear to have been reported to the police so there was no opportunity for them not to have taken steps to assist the applicant. Insofar as the applicant claims that the Tribunal failed to analyse properly future harm that he may face if he went back to Nepal, the Tribunal did do so. It came to the conclusion that he would not face any harm if that occurred. Finally, with regard to the real chace test the Tribunal did say:
    • “Accordingly, given all the above and from the vague and unsupported claims made by the applicant, the Tribunal does not accept that there is a real chance that he would be subject to serious harm because of his political opinion, either actual or imputed, and the Tribunal does not accept this claim.” [CB 98]
16. Before me today the applicant made reference to the current political situation in Nepal and informed me that he had a good job in Nepal and he was now only doing a cleaning job here. He also informed me that he was a family man and that he had left his family in Nepal and he was now alone in Australia. These facts, which I accept, were put to me for the purposes of influencing a view that the applicant was honest and a genuine refugee. However, as I explained to the applicant, the assessment of his status is not a job for this court. This court is limited to considering the manner in which the Tribunal came to its conclusions and not the merits of those conclusions. In these circumstances I am unable to find that the Tribunal fell into jurisdictional error in the manner in which it reached its decision in this case. I dismiss the application. I order the Applicant pay the First Respondent’s costs which I assess in the sum of $4,000.00.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: