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SZMVK v Minister for Immigration & Anor [2010] FMCA 75 (10 February 2010)
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Federal Magistrates Court of Australia
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SZMVK v Minister for Immigration & Anor [2010] FMCA 75 (10 February 2010)
Last Updated: 16 February 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
SZMVK v MINISTER FOR
IMMIGRATION & ANOR
|
|
MIGRATION – Review of RRT decision –
applicant a citizen of Nepal – extortion – where Tribunal considered
the effect on applicant’s capacity to subsist – whether Tribunal
failed to consider broader test of “ serious harm” –
where Tribunal made findings that threats against the applicant’s life
were not genuine – whether Tribunal
adequately addressed applicant’s
claims in relation to his Pahadi ethnicity – requirement that Tribunal
give “proper,
genuine and realistic consideration” to
applicant’s evidence considered. |
|
First Respondent:
|
MINISTER FOR IMMIGRATION & CITIZENSHIP |
REPRESENTATION
Counsel for the
Applicant: |
Mr J Young
|
Solicitors for the Applicant: |
Simon Diab & Associates
|
Counsel for the First Respondent: |
Mr T Reilly
|
Solicitors for the First Respondent: |
DLA Phillips Fox
|
ORDERS
(1) Application dismissed.
(2) Applicant to pay the First Respondent’s costs assessed in the sum of
$5,800.00.
FEDERAL MAGISTRATESCOURT OF AUSTRALIA
ATSYDNEY
|
SYG 2145 of 2009
Applicant
And
MINISTER FOR IMMIGRATION &
CITIZENSHIP
|
First Respondent
Second Respondent
REASONS FOR JUDGMENT
- The
applicant is a citizen of Nepal who 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 27 February 2008 a delegate of the
Minister refused to grant
a protection visa and the applicant sought review of
that decision from the Refugee Review Tribunal. A first Tribunal affirmed the
delegate’s decision on 25 August 2008. On 16 April 2009 the Federal
Magistrates Court set aside that decision and remitted
the matter back to the
Tribunal to be determined according to law. On 15 July 2009 the applicant
attended a hearing before the second
Tribunal. On 16 July 2009 the
applicant provided the Tribunal with a detailed statement. On 3 August 2009 the
Tribunal determined
to affirm the decision not to grant a protection visa and
handed that decision down the same day.
- The
applicant ran a construction company in Nepal. He was targeted by Maoists
insurgents at a number of electrical generating plant
sites that he was working
on. The insurgents sought financial assistance from him. At first he disregarded
the demands and, as a
result, was kidnapped for four hours. He said that he gave
money once to the Maoists and, on another occasion, to some hoodlums in
Satdobato in 2007. He claimed that he had given altogether 581,000.00 rupees to
the Maoists but, notwithstanding this, money was
still demanded from him that he
refused. The applicant also claimed that he was being pursued by the JTMM who
suspected him of being
a police informant against the Madhesi. This imputation
of political views came about because he gave a lift to a policeman on his
motorbike. He was subsequently questioned by a group as to why that had
happened. Apparently, a few days after he had given the policeman
a lift, three
of the JTMM party workers had been killed by the police. The applicant told that
he only escaped being killed by the
JTMM on that occasion because police patrol
happened to go past. When they saw the police they panicked and he was able to
escape.
- In
his original application for a protection visa, in response to the question
“why do you think this will happen to you if you go back?”
[CB 20] the applicant responded:
- “This
is purely because of my belongingness to the race or group of people from Hilly
region of Nepal who they term as “Pahade”
and lit fires in the house
trapping people inside, rape, beat and hate. This is a war between the race of
Madhise and Pahade. On
the other hand, Maoists have posed threat in the Hilly
region as well (refer to statement).”
In the
decision of the delegate under the heading “Is the harm feared for a
Convention reason?” the delegate has noted:
“The applicant claims that he will be persecuted due to his ethnicity
by both Maoists and Madheshis. This would fall within
the scope of the
Refugee’s Convention.”
And under the question
“Does the harm feared amount to persecution” the delegate
wrote:
“The applicant claims that he fears being killed by these groups who
are opposed to his group of Hill people.” [CB 66-67]
- In
the statement that the applicant gave to the second Tribunal he says under the
response to the question “Why I came to Australia”:
- “The
reason for my move to Australia is solely to spare my life from two declared
enemies, YCL and JTMM. Dear Member I would
do anything to live in the place
where I was born. I was brought up and I owe something. That is Nepal. My old
parents, children
and wife are there. However, the hope of life and the hope to
remain alive is such compelling; I do not have the courage to go back.
Both of
my declared enemies are in a position to do execution style killings any time
they want and anywhere they want within the
Nepal and Indian borders.
They do not seek permission from anyone; this is what their record
proves.” [CB 197].
- At
the Tribunal hearing the applicant was asked about the demands for money made by
the Maoists. At [39] [CB 211] the Tribunal says:
- “It
was put to the applicant that he had in the past said that he was afraid of the
Madhesi group, the JTMM and of the Maoists
and he was asked whether he still
feared them. He said that he did. His relationship with the Maoists was
discussed. He was asked
whether he was afraid of any particular Maoist group and
he said he was afraid of the YCL.”
- The
Tribunal considered with the applicant certain independent country information
at [57-58] [CB 216]:
- “While
the MJF is the largest of the Madhesi groups, two armed factions of the
Janatantrik Tarai Mukti Morcha (JTMM) have put
forward more rigorous demands.
The JTMM split from the CPN-M in 2004, citing lack of concern for Madhesi
issues... JTMM demands include
an independent Tarai state, fair representation
of Madhesis in the army and the Government, and departure of Pahadis from the
Tarai
region. [source cited].
There have been a substantial number of reports on the continuing violence
in the Terai region between Madhesis and Pahadis since
2006. In addition, more
general unrest in the country culminated in May 2009 with the resignation of the
Maoist leader and Prime
Minister Pushpa Kamal Dahal, popularly known as
Prachanda. A BBC News Article headed “Is Nepal sliding back into the
abyss”
was published on the BBC News Website on 4 May
2009.”
At [60] [CB 217] the Tribunal noted country
information from the US State Department:
“There was significant internal conflict in the Terai. Numerous armed
groups, many ethnically based, clashed with each other
and with the local
population. Police were given a limited mandate and were not actively encouraged
to promote law and order throughout
the country. Members of the Maoists, the
Maoist-affiliated YCL, and various other ethnically based splinter groups in the
Terai frequently
committed acts of violence, extortion, and intimidation
throughout the year.”
- In
its findings and reasons the Tribunal divided its decision into what it
considered to be the various claims made by the applicant.
It commenced with
making a general comment about the applicant’s credibility saying:
- “[62]
The Tribunal has some concerns about the applicant’s credibility. In
particular, the applicant was vague and inconsistent
about extortion, beatings
and threats against him by the YCL and was unable in the Tribunal’s view
to make out his claim that
the JTMM continued to pursue him following an alleged
incident in February 2007. In addition, the Tribunal found inadequate the
applicant’s
reasons for his delay of some eight months in leaving Nepal
after he obtained a passport in March 2007. ...This delay casts doubt
on the
credibility of the applicant’s claims that he was in fear of serious harm
from both Maoists (the YCL) and the JTMM at
the time he left Nepal in November
2007.”
- The
first matter that was considered was past persecution by Maoists including the
YCL. The Tribunal came to the conclusion that whilst
it accepted that the
applicant was the victim of extortion by Maoists, it noted that the company
continued to operate in Nepal up
until the time of the applicant’s
departure for Australia despite these demands for money. It concluded that:
- “On
the basis of this evidence and guided by section 91R(2) of the Act, the Tribunal
does not accept that the applicant was denied the capacity to earn a livelihood
in Nepal where such hardship
or denial threatens the applicant’s capacity
to subsist. It does not accept that the extortion was sufficiently serious to
amount to persecution in a Convention sense.”
- At
[64] [CB 218] the Tribunal said that it had given the applicant the benefit of
the doubt in regard to his claims of being kidnapped
by the YCL
but:
- “however,
given the brief duration of the kidnapping, the Tribunal is not satisfied that
this incident of harm was sufficiently
serious as to amount to persecution in
the Convention sense. It is not satisfied, as detailed below, that any threats
made against
him by the Maoists were genuine threats against his life and is
therefore not satisfied that any such threats were sufficiently serious
as to
amount to persecution in a Convention sense.”
- The
next matter considered by the Tribunal was past persecution by the JTMM. The
Tribunal found the recounting of the incident in
which the applicant’s
life was threatened because he had taken a policeman on his motorbike difficult
to believe.
- “If
in fact it happened as reported by the applicant, the Tribunal is of the view
that the JTMM would have seriously pursued
the applicant following their foiled
attempt to attack him in revenge for the deaths of the JTMM activists, for which
they allegedly
held him responsible... [the Tribunal] does not accept the
applicant’s claims of ongoing threats of harm made by the JTMM.
The
Tribunal is not satisfied that the applicant was ever persecuted within the
meaning of the Convention by the JTMM.” [68] [CB 219].
- The
Tribunal then turned to “Future persecution by Maoists including the
YCL”. The Tribunal considered whether the claim of extortion, which it
accepted, had a Convention nexus. It noted that the applicant’s
evidence
was that extortion in the construction industry was the norm but did not accept
that the reason for the extortion was the
applicant’s membership of a
political social group, either of “construction business
owners” or “construction industry tenderers”, nor
did it believe that it could be directed against the applicant as a member of
the social group “bread winners in families”:
- “In
the Tribunal’s view the construction industry constituted a target for
extortion demands because the money involved
was substantial and because it was
comparatively easy for armed criminals to victimise individual companies
including the applicant’s
company. The Tribunal has formed the view,
chiefly on the applicant’s evidence, that extortion in the construction
industry
in Nepal was primarily a criminal activity designed to raise funds for
the Maoists, rather than a persecutory activity within the
meaning of the
Convention... The Tribunal is not satisfied that the essential and significant
motivation for extortion in the applicant’s
case was for reasons of his
membership of a particular social group however defined.”
[70]
The Tribunal did not consider that the reason for
the extortion was the applicant’s political opinion either.
“The applicant has not claimed that he was targeted by the YCL for
reasons of his race, religion or nationality. There is nothing
in his evidence
which would found a reasonable claim of such motivation. In making this finding,
the Tribunal accepts that the applicant
claimed to be the target of the JTMM for
reason of his ethnicity as well as his political opinion but has rejected these
claims as
detailed above.” [71] [CB 220]
- Finally,
the Tribunal considered future persecution by the JTMM and noted that it found
that he had not been persecuted by the JTMM
in the past or that threats had
continued to be made against him by the JTMM either in Nepal or in
Australia.
- “He
has claimed that he came to the attention of the JTMM for reasons of his Pahadi
background, the fact that he is a business
owner and that he has opposed
extortion demands and encouraged others to do so. ...The Tribunal has formed the
view that if there
was a real chance of harm being done to the applicant by the
JTMM for whatever reason, they would have sought to harm him in the
period of
nearly nine months in Nepal before his departure for Australia when he was
living and travelling according to his usual
routine. The Tribunal is not
satisfied that the applicant has the well founded fear of persecution within the
meaning of the Convention
by the JTMM or associated Madhesi groups in
Nepal.” [73]
- On
3 September 2009 the applicant filed an application with this Court seeking
review of the decision of the Refugee Review Tribunal.
There were four grounds
of that application. The first ground was:
- “The
second respondent made jurisdictional error by making legal error as to the
meaning and content of serious harm under
s.91R(1)(b) of the Migration Act and
the scope and effect of s.91R(2).”
The applicant
submits that the Tribunal erred by only considering whether, when extorting
money from the applicant, the Maoists had
denied him his capacity to subsist:
s.91R(2)(f), rather than considering whether he had suffered serious harm within
s.91R(1)(b). It relied heavily on the decision of Merkel J in VTAO & Ors
v Minister for Immigration [2004] FCA 927 (“VTAO”) at
[60-62]. The Tribunal referred to the capacity to subsist at [63] [CB 217] in
the manner extracted at [8] of these reasons. I do not think that the
words utilised by the Tribunal show an exclusive consideration of s.91R(2)(f)
but merely indicate that its consideration of whether the conduct complained of
constituted serious harm was guided by s.91R(2). I accept the respondent’s
argument that, in any event, the statement at [63] should not be considered in
isolation. At [13]
of the Tribunal’s decision it notes that persecution
“includes” the matters mentioned in s.91R(2) and seeks
support from the views expressed by the Full Bench in NBFP v Minister for
Immigration [2005] FCAFC 95 at [23] and [63-64]:
“63 In our view, VTAO is plainly distinguishable from the present case.
In VTAO the RRT made it clear that it rejected the
third applicant’s
claims because they did not threaten his, and his family’s, "capacity
to subsist", as required by s 91R(2).
At no stage did it consider how the phrase "serious harm" was to be
interpreted. It repeatedly used language that suggested that the examples
contained in s 91R(2)(c),
(d) and (e) represented the appropriate legislative test. In addition, there
were other factors present, such as those referred
to in [62], [64] and [65] of
Merkel J’s judgment that led his Honour to conclude that the RRT had
failed to address the correct
issue.
64 In the present case, there are only two passages that can be called in aid
in support of the appellant’s primary contention.
Each of those passages
can readily be understood as a response to a specific claim, on the part of the
appellant, that his case fell
within one or more limbs of s 91R(2).
Those claims were considered, and rejected, as they had to be, having regard to
the findings of fact made by the RRT. The sentences
that immediately followed
those passages are clearly susceptible to a construction that involves a broader
reading of the term "serious harm", and a rejection of the claims made in
the context of that interpretation.”
I am satisfied that
the Tribunal did not limit itself in the manner that concerned Merkel J in
VTAO.
- The
second ground was that:
- “The
second respondent made jurisdictional error by determining that, notwithstanding
threats had been made against the life
of the applicant, the threats could be
discounted because of the findings that the threats to his life would not have
been carried
out.”
- In
my view the applicant has misdescribed the findings of the Tribunal. What it did
was to consider whether or not the threats were
genuine i.e. were they threats
that were likely to be translated into action. It found that they were not. By
concluding that the
threats that it had found made did not constitute serious
harm the Tribunal was correct; VBAO v Minister for Immigration [2006] HCA 60; (2006) 233
CLR 1 per Gummow J at [18]:
- “Counsel
for the appellant urged a reading of para (a) of s 91R(2) which would include a
past or current communication of an intention to kill or deprive a person of
liberty which, looked at objectively,
is capable of instilling fear in the
person and does so. The Minister supports the construction adopted by Marshall
J, in particular
that (i) threats to life or liberty in the form of declarations
of intent do not, without more, constitute the serious harm which
persecution
must involve, (ii) the term "threat" connotes "risk" in the sense
of danger or hazard, and (iii) the threat to life or liberty must manifest
itself as an instance of serious harm as
distinct from a possibility of danger.
The submissions for the Minister should be accepted.”
- The
third ground raised by the applicant was:
- “The
second respondent made jurisdictional error in its findings about the nature and
Convention relationship concerning the
extent to which the second respondent
found the applicant had been subjected to extortion by Maoists in
Nepal.”
- In
his submissions the applicant states:
- “In
considering the question of Convention nexus at [69-70] in relation to a
particular social group, the RRT failed to consider
the aspect of the applicant
being a Pahadi. Country information relating to Pahadis is contained in the
section at [56-60] [CB 216-217].
- However, at
[69] and [70], the RRT gave no consideration to the applicant being Pahadi,
notwithstanding that this was plainly raised
as a relevant particular social
group in relation to the Maoists kidnapping him and targeting him for
extortion.
- Further, the
duty of the RRT was to consider whether cumulatively, or in combination, the
applicant may have been targeted because
of the Convention bases he raised,
including his membership of the particular social group of Pahadis.”
- The
applicant argues that his claim of fear as a Pahadi was a separate claim not
properly considered by the Tribunal. He says it was
a claim clearly made and
cites the response to question 44 of the PVA extracted in these reasons and the
independent country information
that indicates that the JTMM is part of the
Maoist faction. He notes the delegate’s reference to Hill people, also
extracted.
He says that the Tribunal considered the applicant’s membership
of a particular social group at [70] [CB 219] but did not mention
the Pahadis.
It dealt with membership of a particular social group in relation to whether or
not he was a victim of extortion. He
denied the respondent’s argument that
his claim as a Pahadi was put in the context of the fear of the JTMM. He notes
his statement
where he said:
- “His
home is in the Southern Terai belt of Nepal and is under attack from various
groups including the Janatantrik Tarai Mukti
Morcha and the Madhesi Mukti
Morcha.”
It seems to me that a reading of the
Tribunal decision as a whole indicates that the applicant did confine his fear
of Madhesi to
the JTMM which is what he said in the statement at [CB 197]. The
JTMM is a Madhesi associated group and the Tribunal concluded at
[73]
[CB 220] that the applicant did not have a well founded fear of persecution
from the JTMM or “associated Madhesi groups in Nepal”. There
is no indication that the applicant raised his fear of the Madhesi as a member
of the Pahadi other than in the general
context of what had occurred to him at
the Tribunal hearing. It seems to me that what the Tribunal did do was to note
that the applicant
had made the claim but that he had not followed it up to the
extent of making any submissions about it. In the absence of those submissions,
the Tribunal would appear to have considered that it was sufficient for it to
come to the generalised conclusion that I have quoted.
The Tribunal’s job
is to consider the claims made.
“[An applicant does not] have to pick the correct Convention "label" to
describe his plight. The Tribunal acts in a generally
inquisitorial way. This
does not mean that a party before it can simply present the facts and leave it
to the Tribunal to search
out, and find, any available basis which theoretically
the Act provides for relief. This Court has rejected that approach to the
Tribunal's duties. The function of the Tribunal, as of the delegate, is to
respond to the case that the applicant
advances.”
Dranichnikov v Minister for Immigration and
Multicultural Affairs (2003) 197 ALR 389 at [78].
It follows that if the claims are made only very faintly then that will be
reflected in the Tribunal’s consideration. That is
what occurred here.
- The
final ground raised by the applicant was:
- “The
second respondent made jurisdictional error by failing to give proper, genuine,
realistic consideration to the applicants
claim to fear harm from JTMM and
instead applied a capricious and inflexible rule that if there was any chance
that the applicant
would be harmed by JTMM, the JTMM would have done so before
the applicant left Nepal.”
- Mr
Young referred to a recent decision of this Court in which Scarlett FM appeared
to accept that failure to give proper, genuine
and realistic consideration to
the decision under review constitutes a jurisdictional error; SZKGC v
Minister for Immigration [2009] FMCA 1015 at [41]. His Honour referred to
Weinberg J’s decision SZIIF v Minister for Immigration [2008] FCA
913 (“SZIIF”) which, in turn, quoted heavily from NAIS v
Minister for Immigration [2005] HCA 77; (2005) 228 CLR 470 (“NAIS”). In
that case, the High Court was concerned with the effect of excessive delays in
the RRT on the decision-maker’s
ability to fairly consider the case before
it. In a joint judgment Callinan and Heydon JJ accepted that s.425 refers, by
implication, to a hearing where the evidence given is to be given
“proper, genuine and realistic consideration” in the decision
subsequently to be made [171]. Because of the extraordinary delay between the
oral hearings and the decision
in that case, the Tribunal had disabled itself
from being able to give proper consideration to the decision under review in
much
the same way as bias does.
- Their
Honours expressed the view that that was a very exceptional
case:
- “The
facts, it is to be hoped, are extraordinary. It is [a case] in which the Court
is bound to hold that the proceedings have
not been fairly conducted, by reason
of the delays, both from beginning to end, and between each episode in
them.” [174]
It would seem, therefore, that
the jurisdictional error in that case was the extraordinary delay rather than
the failure to give “proper, genuine and realistic
consideration” to the applicant’s evidence. Although that
failure was indeed the result of the delay, a proper reading of NAIS
suggests that it is not a head of jurisdictional error in itself. This was
confirmed by Weinberg J in SZIIF at [83]:
“Speaking generally, therefore, NAIS stands as support for the
proposition that lengthy delay, unacknowledged by the Tribunal in its reasons
for decision, can give rise
to jurisdictional error. This may be because the
Tribunal has failed to take into account a matter that it was obliged to
consider:
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24. Alternatively,
it may be that the Tribunal has denied the applicant a fair hearing, and thereby
denied him procedural fairness.
- I
accept the respondent’s submission that there is nothing to suggest that
the accepted bases of jurisdictional error now include
a new ground of uncertain
meaning being a failure to give “proper, genuine and realistic
consideration” that can be made in the absence of any other accepted
jurisdictional error being established. This view is consistent with
that of the
High Court in Minister for Immigration v SZIAI [2009] HCA 39; (2009) 259 ALR 429 which
illustrated a determination on the part of the High Court to restrict categories
of jurisdictional error to those arising directly
from failure to comply with
statutory requirements.
- I
am bound to consider whether the reasoning employed by the Tribunal at [73]
reveals some other fault amounting to jurisdictional
error. According to the
applicant, the Tribunal’s finding that the applicant would not face future
persecution by the JTMM
on the basis that that group had not sought retribution
in the nine months before he left for Australia demonstrates that the Tribunal
applied a capricious and inflexible rule. I do not agree. It is well
established that past events are a useful guide to future events:
Minister
for Immigration v Guo (1997) 191 CLR 559. At [68] of its decision the
Tribunal makes it clear that it did not accept the applicant’s claims that
he had almost been attacked by the JTMM or that threats were made against him.
This is the real reason why the Tribunal rejected
the possibility of any future
harm. The fact that the applicant had not been attacked in the nine months prior
to his departure went
towards that finding, it did not, as the applicant
suggests, provide the basis for the finding on future persecution.
- I
dismiss the application. The applicant must pay the first respondent’s
costs which I assess in the sum of $5,800.00.
I certify that the
preceding twenty-four (24) paragraphs are a true copy of the reasons for
judgment of Raphael FM
Associate:
Date: 10 February 2010
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