AEB15 v Minister for Immigration

[2016] FCCA 2166

FEDERAL CIRCUIT COURT OF AUSTRALIA

AEB15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2166

Catchwords:
MIGRATION – Protection visa application – review of decision of Refugee Review Tribunal – whether the Tribunal erred in dealing with the claim of extortion – whether the Tribunal erred in holding that it was reasonable for the applicant to relocate to Kathmandu – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 91R

Federal Circuit Court Rules 2001 (Cth), r.13.03(1)(c)

Cases cited:

Minister for Immigration & Border Protection v SZSCA (2014) 254 CLR 317; [2014] HCA 45

Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1; [2004] HCA 18
Rajaratnam v Minister for Immigration & Multicultural Affairs (2000) 62 ALD 73; [2000] FCA 1111

Ram v Minister for Immigration & Ethnic Affairs (1995) 57 FCR 565; [1995] FCA 1333
SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
SZTAP v Minister for Immigration & Border Protection (2015) 238 FCR 404; [2015] FCAFC 175
SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18; [2007] HCA 40

Applicant: AEB15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 629 of 2015

Judgment of: Judge Smith

Hearing date: 20 June 2016

Date of Last Submission: 20 June 2016

Delivered at: Sydney

Delivered on: 26 August 2016

REPRESENTATION

Counsel for the Applicant: Mr J. Williams

Solicitors for the Applicant: Newman & Associates

Solicitors for the Respondents: Mr K. Eskerie, Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 629 of 2015

AEB15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Refugee Review Tribunal[1] made on 9 February 2015. The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

Background

1. The applicant is a citizen of Nepal. She arrived in Australia on 14 October 2008 as the dependent of another Nepalese citizen who came to Australia to study. Some years later the applicant applied for a protection visa.

2. The applicant’s claims in support of a protection visa were as follows:

   a)her first husband was a soldier for the Nepalese government;

   b)Maoist guerrillas came to her husband’s family home and asked for financial help for that party and his family gave the money many times;

   c)the applicant’s husband was threatened by the Maoists to leave his job with the government; however he refused to quit his job;

   d)the applicant’s husband and his brother were both killed by Maoist guerrillas;

   e)the applicant was pregnant at the time and living with her husband’s family;

   f)she returned to her parents’ home where Maoists started to ask for donations and with her daughter being close to birth that she returned again to the home of her first husband’s parents;

   g)when the baby was born she was not welcome there and returned to live at her parent’s home; and

   h)the applicant then moved to Kathmandu to live with her aunt where she learnt English and computing.

3. In Kathmandu the applicant met and married a man for the purpose of travelling to Australia. After staying and working in Australia for about five years, the applicant returned briefly to Nepal where she went to her second husband’s home and divorced her second husband. When the Maoists realised that the applicant was from Australia, they asked her for a donation. She gave them what she had at the time and then left the village at night and went to the city. The applicant then returned to Australia and applied for a protection visa.

4. The applicant claimed that society in Nepal is superstitious and that single widowed women are susceptible to harm. In an interview with a delegate of the Minister, the applicant also claimed that friends from her school had tried to force her to join the Maoists but that she had refused to do so and that those people were searching for her and may have been responsible for her husband being killed. She also claimed that in Kathmandu she had been followed by a man who knew that she was a widow.

5. On 4 February 2014, a delegate of the Minister decided not to grant the applicant a protection visa and the applicant applied to the Tribunal for review of that decision. The applicant attended a hearing conducted by the Tribunal on 5 November 2014 and on 9 February 2015 the Tribunal made its decision to affirm the delegate’s decision.

Tribunal’s decision

1. The Tribunal found the applicant to be a credible witness and accepted that she was a widow and that her first husband was shot and killed by Maoist insurgents in 2004. However, it did not accept that she was at risk of harm from the same people who killed her husband or that she was at risk of harm from Maoist insurgents because she was married to a Nepalese Army soldier or because she refused to join the Maoists. The Tribunal did not accept that her first husband was deliberately targeted by people that she knew because she refused to join the Maoists but rather that he was killed because he was soldier fighting for the Nepalese Army against the insurgents and he was shot and killed in that context.

2. The Tribunal went on to find that, even if it did accept that the applicant’s first husband was killed by people who knew her in revenge for her refusing to join the Maoists, there was only a very remote chance that the same people would target and harm her in the reasonably foreseeable future, given that 10 years had passed since her husband’s death and that there was no longer a Maoist insurgency in Nepal. It did not accept that the Maoists would track her down and harm her in Kathmandu.

3. The Tribunal accepted that there were criminal elements, who may also be Maoists, subjecting people to extortion and other crimes in Nepal; however, it accepted information to the effect that police were intervening to protect people from those crimes and found that the applicant did not face a real chance of serious harm in Nepal because of the political opinion, imputed or real, as a person opposed to the Maoists.

4. The Tribunal accepted that the applicant may be at risk of demands for money in her home village but did not accept that the level of extortion was serious harm for Convention purposes. It concluded that the applicant did not face a real chance of serious harm as a result of extortion demands from Maoists or others in her home village. However, it went on to find that, even if she were made to feel unsafe by extortion demands in her home village, she could move to Kathmandu and live there as she had previously done with her aunt and that the chance of harm there was remote.

5. The Tribunal further found in this context, as it had already noted, that the police act to protect people in relation to extortion and other crime. For those reasons, it concluded that there was not a real chance that the applicant would face serious harm because of extortion demands in the reasonably foreseeable future in Kathmandu or anywhere else in Nepal.

6. The Tribunal accepted that the applicant would experience a level of discrimination for reason of her being a widow, a divorcee, a single female with a child and as a female returning from Australia. However, it found that the applicant’s own family would continue to support the applicant in the future and that the level of dissent, disadvantage and discrimination that the applicant might face upon return to Nepal did not constitute persecution within the meaning of ss.91R(1) and (2) of the Migration Act1958 (Cth).

7. The Tribunal went on to consider the applicant’s claims on a cumulative basis and found that there was no real chance that the applicant would suffer serious harm for a Convention reason in the reasonably foreseeable future in Nepal. For those reasons, the Tribunal concluded that the applicant did not satisfy the criteria specified in sub-s.36(2)(a) of the Act.

8. The Tribunal then considered the criterion in sub-s.36(2)(aa) of the Act. In this respect, it referred to its conclusion that there was a real risk that the applicant would be subjected to extortion demands in Nepal which may be exacerbated by her returning from Australia and the workplace injuries she received here. However, the Tribunal was not satisfied that they would result in a real risk of significant harm as the applicant did not claim or describe any treatment that could be regarded as torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment and, in particular, because the applicant had only described being asked to pay money. In respect of her marriage, gender and other status, the Tribunal again found that the applicant would be supported by her family and that in her circumstances there was no real risk of significant harm because of those particular attributes.

9. For those reasons, the Tribunal found that the applicant had not satisfied the criterion in sub-s.36(2)(aa) of the Act and so affirmed the decision of the delegate. The applicant seeks judicial review of the Tribunal’s decision.

Proceedings in this Court

1. The application for review was filed on 12 March 2015. On 15 April 2015 orders were made by consent including that the matter be listed for final hearing on 26 November 2015. An order was also made granting leave to the applicant to file and serve any amended application by 21 May 2015. No amended application was filed and the applicant did not attend the hearing on 26 November 2015. In light of that, the application was dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. On 7 December 2015 an application for reinstatement of the matter was lodged and the matter was reinstated by orders made by consent on 4 February 2016. The matter was then listed for final hearing on 20 June 2016.

3. The applicant was represented by solicitors throughout the proceedings. At the hearing on 20 June 2016 she was represented by counsel who handed up in court a document entitled “The Applicant’s Supplementary Submissions” which had not been served on the solicitors for the Minister. The submissions contained in that document went beyond the grounds raised in the application but counsel said, at first, that he did not seek to amend the application. Ultimately, counsel sought leave to raise 2 further grounds: the first attacking the Tribunal’s finding concerning relocation to Kathmandu, and the second claiming that the Tribunal failed to consider the correct particular social group. The Minister opposed the grant of leave.

4. I did not grant leave at that time but ordered the applicant to file and serve any proposed amended grounds of application by 21 June 2016. No amended grounds were filed by that date and there has been no application since that time to extend the time for compliance with the order. In those circumstances, the only ground for resolution is that contained in the original application.

Consideration

1. The ground raised in the originating application is:

   1.The applicant sought review of a decision refusing the awarding of a protection visa. The applicant gave evidence both at the tribunal hearing and earlier that she was at risk of harm from Maoists for refusing their extortion demands.

   2.The applicant says that the tribunal failed to understand the true meaning of the term “extortion”, that there were possible grave consequences for someone ignoring an extortion demand, contrary to Sect 91R of the Migration Act 1958. Although the tribunal found the applicant to be credible, the tribunal erred when it found that the threats did not reach the threshold level for persecution to arise for the reason that only “economic hardship” could or would result overlooking the threats to life.

2. The applicant’s written submissions did not address this ground. Rather, they addressed the potential for extortion to be motivated by one of the Convention reasons. As noted above, the Tribunal rejected the claim concerning extortion on the basis that any harm suffered would not be sufficiently serious as to amount to persecution or significant harm. It did not deal with it on the basis that there was no Convention reason for the harm feared. I note that one of the grounds that the applicant sought leave to raise at the hearing (but apparently abandoned) was that the Tribunal did not consider whether the extortion was for reasons of the applicant’s membership of a particular social group. That issue simply did not arise on the Tribunal’s reasons. Accordingly, even if the application to amend had been maintained I would not have granted leave.

3. Refugee claims based on extortion are not always straightforward. The word “extortion” ordinarily means demands (often for money) through the use of force or threats. As such, they are often seen as involving no motivation other than gain of money or other financial benefit: Ram v Minister for Immigration & Ethnic Affairs (1995) 57 FCR 565, 569; [1995] FCA 1333. That is not always the case: see for example Rajaratnam v Minister for Immigration & Multicultural Affairs (2000) 62 ALD 73; [2000] FCA 1111 at [46] and [48].

4. Other complications arise where past extortion has resulted in the payment of money and nothing else. Such a case was considered by the Full Court of the Federal Court in SZTAP v Minister for Immigration & Border Protection (2015) 238 FCR 404; [2015] FCAFC 175 (“SZTAP”). In that case, Robertson and Kerr JJ found at [56], (Logan J generally agreeing at [2]), that it was illogical to found the conclusion that there was not an objective basis for the appellant’s fear on the absence of harm in the past, when the absence of harm was referrable to the successful extortion of the payments, the payments being made to prevent the harm in question. That harm was the abduction of the appellant.

5. The applicant did not rely on the decision in SZTAP or seek to apply similar reasoning to the facts of this case. Her argument was, in essence, that the Tribunal overlooked the threats to life (see the second paragraph of the ground set out at [20] above). One problem for the applicant is that her claim concerning the extortion was very vague and did not mention any threat to life. In her statement accompanying the protection visa application, she simply said that the Maoists were “threatening us to take donation” and when “they knew that I was from Australia they asked for donation.” At the Tribunal hearing the applicant said that if she returns to her village “they will think she is rich and she will be subject to extortion.” It is not at all clear from these claims what threats lay behind the requests or demands for donations. In those circumstances, the Tribunal did not err by failing to consider a threat to life. No such claim was made.

6. More significantly, the Tribunal found that the applicant could reasonably relocate to Kathmandu where there was no real chance of her being subjected to serious harm because of extortion demands. Critically, the Tribunal found that the police act to protect people in relation to extortion and other crime. That finding supported the Tribunal’s conclusion that there was no real chance of serious harm: Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1; [2004] HCA 18 at [21].

7. In reaching its conclusion about the applicant’s ability to live safely in Kathmandu, the Tribunal considered the practical realities that arose on the evidence including the fact that she had lived there previously with her aunt, her daughter lives there with her brother, she did not say that she could not live there and her claim of having been followed by someone from the bank there was vague, generalised and lacking in detail: [37]. I note that one of the grounds raised by the applicant’s counsel at hearing was an attack on the Tribunal’s finding of relocation. Even if it had been pursued I would have rejected it as the Tribunal considered whether it was reasonable, in the sense of practicable, for the applicant to live in Kathmandu: see SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18; [2007] HCA 40 at [21] and [24]; Minister for Immigration & Border Protection v SZSCA (2014) 254 CLR 317; [2014] HCA 45 at [23] (French CJ, Hayne, Kiefel and Keane JJ), [39] (Gageler J).

8. The consequence of the finding of relocation was that the applicant could not satisfy the criterion in either sub-ss.36(2)(a) or 36(2)(aa). For that reason, even if there were some error in the Tribunal’s conclusion about the extortion that might occur to the applicant in her home village, it did not affect the exercise of the Tribunal’s jurisdiction. Alternatively, I would refuse to grant relief in the exercise of my discretion: SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [29].

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 26 August 2016