MZWFU v Minister for Immigration
[2006] FMCA 8
•18 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWFU v MINISTER FOR IMMIGRATION | [2006] FMCA 8 |
| MIGRATION – REFUGEES – Application for review of decision by Refugee Review Tribunal – whether applicant had a well founded fear of persecution by reason of membership of a particular social group – whether wealthy people constitute a ‘social group’– selection and procedural fairness in relation to country information – the use of country information under s.424A (3)(a) of the Migration Act 1958 (Cth). |
| Federal Court of Australia Act 1976 (Cth) Federal Magistrates Court Rules 2001 (Cth) Judiciary Act 1903 (Cth) Migration Act 1958 (Cth) |
| Craig v South Australia (1995) 184 CLR 163 Iyer v Minister for Immigration & Multicultural Affairs (2001) FCA 929 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 NAAX v Minister for Immigration and Multicultural Affairs (2002) 119 FCR 312 Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 Suresh Sambandan v Minister for Immigration and Ethnic Affairs (1997) 563 FCA |
Other Authorities:
Convention Relating to the Status of Refugees (Geneva 28 July 1951) UNTS 150
Protocol Relating to the Status of Refugees (New York 31 January 1967) 606 UNTS 267
| Applicant: | MZWFU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 449 of 2004 |
| Judgment of: | Connolly FM |
| Hearing date: | 4 October 2005 |
| Date of Last Submission: | 3 October 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 18 January 2006 |
REPRESENTATION
| Counsel for the Applicant: | Ms. S. Thompson |
| Solicitors for the Applicant: | Self Represented |
| Counsel for the Respondent: | Mr. C. Horan |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Refugee Review Tribunal be joined as a second named respondent.
That the application dated 29 April 2004 be dismissed with costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 499 of 2004
| MZWFU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from an application filed by the applicant on 29 April 2004 seeking judicial review of the decision of the Refugee Review Tribunal on 30 March 2004 to affirm the decision of the delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection (class XA) visa pursuant to the Migration Act 1958 (Cth) (“the Migration Act”).
The history
The applicant is a Nepalese citizen. He arrived in Australia on 10 March
1999 and lodged an application for a protection (class XA) visa on
28 December 2001, pursuant to the Migration Act.
In his visa application, the applicant stated that he could not return to Nepal due to his fear of persecution by Maoist forces operating in the country. He stated that he was an anti-Maoist businessman from Kathmandu who had ‘never donated money’ to the Maoists. The applicant claimed that he would be killed by Maoists upon his return to Nepal. The applicant further stated that the Nepalese government was unable to protect him as ‘our government can not even protect their own police and army’. [Court book (‘CB’) 7-10]
A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs wrote to the applicant on 13 February 2002. The delegate invited the applicant to comment on country information available to the Minister showing that the ‘insurrection is centred in the ‘Maoist-affected’ districts in the West of Nepal.’ The delegate noted that the Nepalese authorities were using ‘considerable resources to fight the Maoists, and, while civilian casualties do occur (these resources) provide a measure of protection for Nepalese citizens…’ The delegate also showed concern over the fact that the applicant had been residing in Australia for over two years before applying for a protection (class XA) visa. [CB 33-34]
The applicant’s migration agent responded on 18 March 2002 and contended that violent insurgent activities had increased in Nepal over the preceding year. The agent also stated that extortion threats and threats against the life of the applicant had been made by the Maoists by way of threats against his wife, who still resided in Nepal. The agent stated that the Maoists were under the impression that the Applicant ‘had lots of money doing business’ in Australia. [CB 35-44]
On 10 April 2002, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant a protection visa to the applicant.
The applicant applied for review of that decision by the Refugee Review Tribunal (‘the Tribunal’) on 10 May 2002. He gave reasons on the basis that he feared being ‘persecuted, harassed, killed for reasons of different political opinion by Maoist killer groups.’ He stated that he would send more information relating to his claim in due course. [CB 61]
The applicant failed to furnish the Tribunal with further information by the hearing date. The applicant’s migration agent wrote to the tribunal in an undated letter stating that until now he was ‘not able to obtain this information.’ [CB 59-62]
The Refugee Review Tribunal handed down its decision on 30 March 2004. In summary, the Tribunal: [CB 75-76]
a)Accepted the applicant’s claim to be a businessman and to be opposed to the Maoists.
b)Accepted that the political situation in Nepal is marked by violence and that the Nepalese authorities are engaged in a vigorous anti-insurgency campaign.
c)Did not accept that the applicant’s shops were targeted for extortion by the Maoists prior to his departure.
d)Did not accept that the Maoists targeted the applicant for extortion by way of his wife while he was overseas.
e)Found that any extortion attempt by the Maoists would amount to ‘criminal intent’ and would not fall within the protection offered by the Convention.
f)Found that there was no evidence that businessmen in Kathmandu had been targeted as part of any class war.
g)Found that the Nepalese authorities were engaged in a vigorous anti-insurgency campaign and that they would cooperate with, and offer to protect, any person being threatened by the Maoists.
On 29 April 2004, the applicant lodged an application in this Court, being MZ 449 of 2004, pursuant to ss.475A and 483A of the Migration Act1958 (Cth), s.39B of the Judiciary Act 1903 (Cth) and s.32AB of the Federal Court of Australia Act 1976 (Cth), for review of the Tribunal’s decision. The applicant’s amended contentions of fact and law were filed on 27 September 2004. These documents claimed that the Tribunal had made a jurisdictional error. In summary, the applicant claimed the following:
a)The tribunal failed to make findings as to whether the applicant belonged to a ‘specific social group’ under the Convention.
b)The tribunal wrongly concluded that if the applicant were to return to Nepal he would not be exposed to extortionate demands or other abuses including death nor would the Maoists attempt to conscript him to fight with them.
c)The tribunal wrongly concluded that if the applicant were to return to Nepal his fears of being persecuted by the Maoists were not well founded because the authorities are actively pursuing the Maoists and those in danger of being killed are offered special protection by the authorities.
d)The Tribunal in arriving at its finding that the Nepalese authorities would cooperate with and offer protection ‘to any person threatened by the Maoists’ did not comply with the rules of procedural fairness.
e)The Tribunal constructively failed to exercise its jurisdiction, or exceeded its jurisdiction, and such error is not ‘protected’ by the privative clause.
The respondent’s amended contentions of fact and law, which were filed on 23 September 2004, rebutted the applicant’s contentions, arguing that:
a)Each of the extortion findings, the Convention nexus finding and the State protection finding was capable of providing an independent basis upon which the Tribunal’s decision could be supported.
The law
Section 36 of the Migration Act provides for the class of visas known as protection visas. The relevant protection obligation is defined in Article 33 of the Convention relating to the status of refugees which is required to be read in light of the definition of refugees in Article 1A. The Convention, which as amended, applies to a person who:
“…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
The term “well-founded fear of persecution” is affected by the provisions of section 91R of the Migration Act which provides as follows:
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351.
An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323).
Conclusions and findings
The respondent argues that each of the extortion findings, the Convention nexus finding and the State protection finding is capable of providing an independent basis on which the Tribunal’s decision can be supported. Accordingly, in order to obtain the relief sought in the amended application, the applicant must successfully impugn each of the three categories as being effected by jurisdictional error.
The Tribunal specifically rejected the applicant’s claims that he had been the subject of extortion demands from Maoists, either before or after he left Nepal. I am satisfied that if this finding of fact is not affected by jurisdictional error, then any error made by the Tribunal in relation to the Convention (particular social groups) or the adequacy of State protection would be immaterial and would not have affected the Tribunal’s decision. Alternately, if the extortion demands were not warranted by the applicant’s membership of a particular social group consistent with the meaning in the Refugees Convention, it would not have assisted the applicant to establish that he faced a real chance of such extortion or that the State was unable or unwilling to provide appropriate protection. Finally, if the Tribunal properly found that the authorities would cooperate with and offer protection to any person threatened by the Maoists such that the applicant did not face a real chance of serious harm, any fear of persecution would not be well founded.
The basis for the Tribunal’s extortion findings are set out in the final paragraph: [CB 75]
“The Tribunal accepts that the applicant has been a businessman. However, the Tribunal does not accept that his shops were targeted for extortion by the Maoists prior to his departure. The Tribunal makes this finding in the light of the applicant only raising this claim at the hearing and having said in his written claims that his first experience of extortion was when his wife was asked for money after he had left for Australia. Further, the Tribunal finds as implausible, and does not accept, that the Maoists would suddenly decide to target him for extortion via his wife while he was overseas and believes that this claim has been fabricated to strengthen his protection visa claims. Further, the Tribunal finds that the essential and significant motivation of any such extortion would be criminal intent and would not therefore fall within the Convention. The Tribunal finds no evidence that businessmen in Kathmandu have been targeted as part of any class war as the applicant claims. The Tribunal further finds that given the vigorous anti-insurgency campaign, the Nepalese authorities could cooperate with, and offer protect to, any person being threatened by the Maoists.”
It is clear that the Tribunal rejected the applicant’s claim that his shop was targeted by Maoists prior to his departure on the basis that the applicant had only raised this claim at the hearing. In his initial claim the applicant stated that his first experience of extortion was when his wife was asked for money after he left Nepal. This was a finding of fact and a finding that was open to the Tribunal. The Tribunal also rejected the applicant’s claim that the Maoists started to target him for extortion by making demands through his wife while he was overseas. Again this was a finding of fact that was open to the tribunal. Even if the basis of this finding was wrong it can not amount to jurisdictional error.
Further, the Tribunal made a specific finding of fact that any extortion claims made against the applicant were made as a result of criminal intent and not because the businessman had been targeted as part of a class war. In other words: [CB 75]
“The essential and significant motivation for the conduct was not connected to the applicant’s race, religion, nationality or membership of a particular social group or political opinion.”
I am satisfied that these findings do not reveal any legal error by the Tribunal. Even if the applicant had received extortion demands because he was perceived to be wealthy, this could not of itself constitute a “particular social group” for the purposes of the Convention. Gray J., in Suresh Sambandan v Minister for Immigration and Ethnic Affairs (1997) FCA 563 rejected an argument that the Tribunal had erred failing to find that an applicant was a member of a particular social group:
“In light of the finding of fact that it was wealth alone, and not wealth in combination with any particular racial or ethnic affiliation, which prompted extortion demands, the applicant was reduced to arguing that the Tribunal should have held that membership of a class of wealthy people was sufficient to constitute membership of a particular social group, for the purposes of the Convention. This argument ran directly into conflict with the conclusion of the Full Court in Ram. In that case, a Sikh, who left the Punjab to work in Saudi Arabia and returned home ten years later, with savings, left again after handing over a substantial sum of money to masked men who invaded his home at night and demanded money, with threats to kill him on their return if he did not pay them further sums. In that case, the tribunal made a finding similar to the finding of the tribunal in this case, to the effect that the victims of extortion in the Punjab were diverse. The issue was therefore raised very clearly as to whether wealth alone constituted a sufficient link among persons to lead to the conclusion that they were a particular social group, for the purposes of the Convention. The Court held that they were not. Ram’s case was referred to subsequently, without disapproval, by several members of the High Court of Australia in “Applicant A” v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331. See, in particular, pp. 340-341, per Dawson J., 375 per Gummow J., and 379, 382, 384, and 391, per Kirby J.”
The Tribunal cited a range of country information under the heading “Measures undertaken to counter Maoist Attacks.” [CB 74-75]
“The Nepalese government continues to use a variety of measures to counter the Maoist insurgency. Such measures include:
·Legislation to detain those suspected of involvement in such activities. “The Terrorist and Disruptive Activities (Control and Punishment) Act 2002 (TADA) was Nepal’s reaction to a apprehension of terrorism since the events of September 11 2001, and localised in Nepal through continued state of conflict between the government and the pro-republic Communist part of Nepal (CPN-Maoists).’’ (see ‘’Nepal: Tool of Terror’’, HIMAL South Asian: 2004, 17, 1. pp:16-18; use of military and police forces (see ‘Nepal tightens security over 200 said on Maoist “hit list”’ 2003, Kathmandu Post via Nepalnews.com website, 31 August (CISNET Nepal CX84300)
·Generous amnesty offers (see ‘Govt Stop for Maoists: Surrender, get amnesty’ 2003, Kathmandu Post 19 December. (http: – Accessed 13 January 2004) (\\NTSSYD\REFER\Research\INTERNET\SOU-ASIA\Nepal\np116396.web.doc); and Mills, Elizabeth 2003, ‘Government of Nepal Offers to Pay Maoists to Surrender’ , WMRC Daily Analysis 19 December (FACTIVA)”
On the basis of this information the Tribunal then made the finding [CB 75]:
“The Tribunal accepts the independent evidence cited above that politics in Nepal are marked by violence and that the Nepalese authorities are engaged in a vigorous anti-insurgency campaign.”
The applicant contends that in making this finding the Tribunal ignored or misinterpreted certain country information. However, the assessment of the Country information, its selection and the insight to be attributed are all matters for the Tribunal. Gyles J., in NAAX v Minister for Immigration and Multicultural Affairs (2002) 119 FCR 312 held,
“There is always obviously a mass of country information available. Much would be taken for granted. Much would be debatable. A selection of that which is relevant to the particular case depends upon the way in which the member views the case. The judgement as to the issues upon which the external country information will be relevant is entirely a matter for the Tribunal member. There is no obligation to consider any particular country information.”
The Court made similar observations in Iyer v Minister for Immigration & Multicultural Affairs (2001) FCA 929 at 71-72:
“It is difficult for a judge on judicial review to become involved in the assessment of country information, all the more so on appeal. Country information varies enormously as to reliability and currency. Much of it comes from special interest groups. Most of it has a slant one way or another. Members of the RRT deal with such information on a daily basis, and accord weight or otherwise, to it. Members of the RRT become expert on the background relating to individual countries. Judges do not have that knowledge or experience. This point it well illustrated in the judgement of Callinan J in Yusuf at [234] to [242]”
Even if there is country information which appears, in the view of a judge, to point to a conclusion which is contrary to the decision of the RRT, all that can be concluded is that the RRT did not agree with the country information. The country information is simply individual pieces of evidence and there is on obligation upon the RRT to accept any part of it, or all of it, or to say why it does not accept it. That part of the reasoning in Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469 which was applied by the primary judge in this case to a submission which is indistinguishable from the point which is now under discussion, remains consistent with the decision of the High Court in Yusuf (see [88] to [90]). The manner in which the RRT dealt with country information in this case was a matter for it. In particular, the decision involved no error of law within the meaning of s 476 (1)(e) of the Act on that basis. It will be recalled that an error must be an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision. That is not established in the present case.”
In the present case in my view it was open to the Tribunal on the material before it to find that the Nepalese authorities would offer protection against any harm from the Maoists, and to take this into account when determining whether the applicant had a well founded fear of persecution.
The final basis for the applicant’s claim is that the Tribunal failed to comply with the rules of procedural fairness in not allowing the applicant an opportunity to respond to country information relied upon by the Tribunal. However, in my view the country information relied upon does not fall within s.424A of the Migration Act. It was clearly covered by the exception contained in s.424A(3)(a) which applies to information “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member.” In Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) FCAFC 264, the full Court confirmed that the exclusion contained in s.424A(3)(a) produces a single composite test. If the information is “not specifically about the applicant or another person” there is no independent requirement that the information must be “just about a class of persons of which the applicant or other person is a member.”
The applicant further sought to rely on the general common law requirement of procedural fairness, alleging that the Tribunal should have given the applicant notice of the substance of certain country information prior to or during the hearing. In my view, the Tribunal did give the applicant the opportunity to respond to such information during the hearing and there was no denial of procedural fairness. The applicant was duly put on notice that the availability of protection from the authorities would be a relevant issue to the Tribunal’s decision.
I am satisfied that there has been no jurisdictional error and the application should be dismissed with costs.
I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: James Naughton
Date: 17 January 2006
0