CZY16 v Minister for Immigration

[2018] FCCA 467

FEDERAL CIRCUIT COURT OF AUSTRALIA

CZY16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 467

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant applicant protection visa – whether given the Tribunal found the applicant did not face a real chance of serious harm it was required to make a finding about whether the applicant had a subjective fear of significant harm – whether it was reasonably open to the Tribunal not to be satisfied that being required by criminal gangs to make donations did not constitute degrading treatment or punishment – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth) ss.5, 36(2)(aa), 36(2A)

Cases cited:

Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62
Selliah v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [1999] FCA 615

Applicant: CZY16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2798 of 2016

Judgment of: Judge Manousaridis

Hearing date: 22 February 2018

Date of Last Submission: 22 February 2018

Delivered at: Sydney

Delivered on: 2 March 2018

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the Respondents: Ms J Strugnell of Minter Ellison Lawyers

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2798 of 2016

CZY16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a national of Nepal, applies for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).

Claims for Protection

1. In his application for a Protection visa (Form of Application) the applicant said he was a Maoist and he left Nepal because he received a death threat from members of the Nepali Congress Party (NCP), whom the applicant described as his “political opponents”.[1] The applicant claimed that in June 2001, when living in his village, he became friendly with members of the Maoist Party (also referred to as the “United Communist Party of Nepal” (UCPN)) The applicant became interested in the ideas and policies of the Maoist Party and began reading books provided by that party. He became a member of the Nepal Communist Party in April 2002. The applicant said he worked as a campaigner and activist of the Maoist Party in his village. His role was basically to “spread general awareness about Maoist Party activities at informal communal gatherings in Myadgi”; and the applicant worked as a “messenger for the active members in the party when they wanted to arrange meeting in the villages”. The applicant was “harassed and persecuted by the police and supporters of Nepali opposition political parties, mainly the Nepalese Congress Party and National Democratic Party”. In 2014 the applicant was captured and tortured by the police, and was threatened that if he did not give up supporting the Maoists they would kill him. In November 2013 a group of NCP members threatened to kill the applicant if he continued to support the Maoists.

   [1] CB17

2. The applicant provided a further statement of his claim in a letter dated 7 October 2014 (Statement).[2] The applicant there claimed he is of the Chhantyal caste and a practising Hindu. In late 2002 the applicant became a member of the Maoists “in order to avoid harm from the Maoists”. The applicant was not involved in the armed insurgency, but worked as a campaigner and activist. His role was to “spread general awareness about Maoists Party activities at informal communal gatherings in Myadgi”. The applicant also worked as a “messenger for the active members in the party when they wanted to arrange meeting in the villages”. The applicant was “harassed and persecuted by the police and supporters of Nepali opposition political parties, mainly the Nepalese Congress Party and Nepal Communist party UML”. In November 2013 a group of NCP members threated they would kill the applicant if he continued supporting the Maoists. The applicant was in grave fear of being killed in Nepal. He left Myagdi for Kathmandu where he established a business. The business went well, but the applicant was forced to pay criminals many times amounts as donations. The applicant, however, was no longer able to satisfy the criminals’ demands for money. The criminals refused the applicant permission to operate his business. On 18 January 2014 a group of NCP members entered the applicant’s apartment in Kathmandu. They demanded money and threatened to kill the applicant if he did not pay the amount demanded. The applicant was able to pay only part of the amount demanded. After the applicant unsuccessfully sought assistance from the Maoists Party, the National Human Rights Commission, and the Nepal Bar Association to protect him, the applicant decided to leave Nepal.

   [2] CB49

3. Before the delegate the applicant claimed that many groups were targeting him. He said he ceased being a member of the Maoists party in 2005 and he claimed he fears the Maoists’ revenge for giving up the party and disclosing secrets.[3]

   [3] CB133, [8]  

4. The applicant supported his claims before the Tribunal by providing what purported to be a copy of his United Communist Party of Nepal membership card 2006-2009, a purported “Donation Receipt” dated 26 June 2011 “for help to Nepal Tarun Dal”, and a document purportedly from Metropolitan Police Post, New Bus Park, Kathmandu, Criminal Investigation Department.[4]

   [4] CB134, [10]. These documents have not been reproduced in the Court Book

Tribunal’s reasons

1. The Tribunal did not accept the applicant was active in the Maoists Party or that he had been threatened by the NCP, Tarun Dal, the Maoists Party, or any other political group for political reasons. First, the Tribunal found that the applicant made inconsistent claims.

   a)In his Form of Application the applicant said he befriended Maoists and became interested in Maoist ideas. In the Statement, on the other hand, the applicant said he decided to support the Maoists to avoid harm from them.[5]

   b)In his Form of Application the applicant stated he joined the Maoists in April 2002, and he told the delegate and the Tribunal that he ceased being a member in about 2004 or 2005; yet the applicant provided what purports to be a United Communist Party of Nepal identity card for 2006 to 2009. The Tribunal did not accept the applicant’s explanation that the document he produced was a renewal card, and that he remained affiliated with the Maoists. The Tribunal concluded the card is not a genuine card and the applicant was not a member of the Maoists “when claimed”.[6]

   c)In his Form of Application the applicant stated that in November 2013 a group of NPC members came to him and threatened to kill him if he continued supporting the Maoists. In the Statement the applicant said that in January 2014 a group of NCP members entered his apartment in Kathmandu demanding money and threatening to kill him, and that he had sought the assistance of the Maoists (among others). The document purportedly from Metropolitan Police on which the applicant relied, however, stated that in November 2013 the applicant filed an application in their office asking for protection of his life and property since he frequently received threats to his life and property from the UCPN (Maoists) after he left the party.[7]

   [5] CB137-138, [39], [40]

   [6] CB 138, [42]

   [7] CB138, [43]

2. Secondly, the applicant was unable to provide much information about his involvement with the Maoists. The Tribunal referred to the applicant being unable to give evidence of a meeting he attended, saying he did not attend official meetings, or of specific policies, other than stating that the Maoists were opposing the government and helping the people.[8]

   [8] CB139, [46]

3. The Tribunal accepted the applicant was a successful businessman; that he started property and investment businesses in Kathmandu which, according to the applicant’s evidence, are still doing well; that the applicant owned two hotels on his land, that he owned two other properties, that the applicant may have been asked for donations from criminal groups who may have had some connection to political parties, and that these criminal groups may ask the applicant for donations in the future. The Tribunal, however, did not accept the applicant was targeted for political reasons because the Tribunal did not accept the applicant was involved with the Maoists. And the Tribunal was not satisfied that the asking of money for donations constitutes serious harm.[9] The Tribunal referred to a report issued by the Department of Foreign Affairs and Trade on Nepal in which it was stated that extortion and donations are a part of doing business in Nepal.[10]

   [9] CB139 [47]-[50]

   [10] CB 139-140, [50]

4. The Tribunal also considered whether there is a real chance the applicant would suffer serious harm in the reasonably foreseeable future through violence, kidnapping or other physical or psychological ill treatment or any other kind of serious harm. The Tribunal did not accept that there is a real chance of serious harm in the reasonably foreseeable future. The Tribunal relied on the applicant’s evidence that his partners are living and working safely in Nepal and operating the businesses successfully; that other businesses operate successfully in Nepal; and on country information in relation to the general security situation in Nepal.[11] The Tribunal concluded it was not satisfied there is a real chance of serious harm from any criminal group, whether they are associated with political parties or not, or from Tarun Dal in particular, on the basis of the applicant’s inability to pay donations or for any other reason associated with the donations. The Tribunal was also not satisfied there would be a real chance of serious harm due to the applicant’s being considered wealthy because he would be returning from Australia.[12]

   [11] CB140-141, [52] – [59]

   [12] CB141-142, [60]

5. Finally, the Tribunal considered whether the applicant satisfied the complementary protection criteria provided for by s.36(2)(aa) of the Migration Act 1958 (Cth) (Act). Relying on the findings it had already made, the Tribunal was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal that there is a real risk the applicant will suffer significant harm.[13]

   [13] CB144, [75]

Judicial review hearing

1. At the hearing before me the applicant, who is not legally represented, read out written submissions. With his consent, I arranged copies to be made of the submissions and had them marked for identification.[14] I read to the applicant the grounds set out in the application and invited him to make submissions in relation to those grounds. The applicant said he did not want to make any submissions other than those he had read. He said, however, that he feared he would be harmed by criminal gangs if he were to return to Nepal.

   [14] MFI1

2. I propose first to consider the matters contained in the submissions the applicant read.

Submissions

1. In his submissions to the Court the applicant requested that my attention be drawn to the Statement as well as to his claims and the transcript of the hearing before the Tribunal (which is in evidence). The applicant particularly directed my attention to paragraph 60 of the Tribunal’s reasons. That is the paragraph in which the Tribunal concluded the applicant does not face a real chance of serious harm from criminal gangs to which I have already referred. The applicant submitted the Tribunal did not understand how much the applicant suffered in Nepal and it did not understand that the harm is serious. The applicant further submitted that he gave his evidence in a very honest way, that he was physically harmed, and he has a genuine fear because of what happened to him.

2. The Tribunal identified the harms the applicant claimed he suffered and which he claimed he feared he will suffer if he returns to Nepal, and the Tribunal considered those claims. To that extent the Tribunal understood the harms the applicant claimed he suffered and which he feared he will suffer if he returns to Nepal. For reasons reasonably open to it, the Tribunal did not accept that the applicant suffered the harm he claimed to have suffered because he was a member or had been a member of the Maoists Party. Further, although the Tribunal accepted the applicant may have been the victim of extortion, again for reasons reasonably open to it, the Tribunal was not satisfied that the resulting harm constituted serious harm. This part of the applicant’s submissions, therefore, discloses no jurisdictional error by the Tribunal.

3. The applicant also referred to the delegate’s finding at page 86 of the Court Book that the applicant could relocate to India. The applicant said that Nepal is his country, and that his family and business are in Nepal. This, however, does not disclose any jurisdictional error by the Tribunal.

Grounds of application

1. The application contains the following grounds of application:

   1.The Tribunal accepted my evidence and the criminal groups who asked me for donations who also may have some connection to political parties yet the Tribunal accepted that these criminal groups may ask me for donations in the future and failed to see my subjective fear of harm at their hands in the future.

   2.The Tribunal erred in law by failing to accept that forced donations amount to degrading treatment or punishment.

   3.The Tribunal failed to accept, based on my evidence, that there is a risk whether low or high, that I will suffer harm in Nepal.

Ground 1

1. The first ground appears to be directed to the Tribunal making no finding about whether the applicant held a subjective fear of harm. That the Tribunal made no finding about that question, however, “is of no relevance”.[15] That is so because the notion of “well-founded fear”, as it appears in the definition of “refugee” in Art.1A(2) of the Refugees Convention,[16]requires the identification, not only of the reasons for which a person claims he or she has a fear of being persecuted, but also the identification of facts on the basis of which it may objectively be said there are reasons for the person holding that fear, whether or not those reasons are in the mind of the person claiming the fear. That point was made by Dawson J in Chan v Minister for Immigration and Ethnic Affairs:[17]

   Upon any view, the phrase contains both a subjective and an objective requirement. There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear. 

   [15] Selliah v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [1999] FCA 615 at [40]

   [16] 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees

   [17] [1989] HCA 62 at [16]

2. The Tribunal in the case before me was aware that the applicant’s claimed fear of persecution must be well-founded, and that this added an objective requirement to the requirement that an applicant must in fact hold such a fear.[18] The Tribunal considered whether the objective requirement was met. Having concluded it was not so satisfied, it was unnecessary for the Tribunal to consider or determine whether the applicant genuinely held the fear of significant harm that he claimed to hold.

   [18] CB141, [59]

3. Ground 1, therefore, does not succeed.

Ground 2

1. Ground 2 in effect claims that, having found that criminal groups with a possible connection to political parties may have asked the applicant for donations, the only reasonably finding that was open to the Tribunal was that this amounted to degrading treatment of punishment.

2. The expression “degrading treatment or punishment” appears in the definition of “significant harm” in s.36(2A) of the Act. Subject to exceptions which are not relevant, the expression “degrading treatment or punishment” is defined in s.5 of the Act to mean “an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable”. It was reasonably open to the Tribunal, on the materials that were before it, not to be satisfied that criminal gangs asking the applicant for money amounted to degrading treatment or punishment; and it was reasonably open to the Tribunal to so conclude for the reasons it gave.

3. Ground 2, therefore, fails.

Ground 3

1. This ground cannot be established. The Tribunal considered and made express findings concerning the risk of harm the applicant faced in the foreseeable future if he were to return to Nepal.[19]

   [19] See, for example, CB139, [46], 141. [59], [60], 144. [74]

Disposition

1. The applicant has failed to establish any of the grounds stated in the application, and has otherwise not demonstrated that the Tribunal made any jurisdictional error. I propose, therefore, to order that the application be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 2 March 2018