MZYSO v Minister for Immigration
[2012] FMCA 398
•8 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYSO v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 398 |
| MIGRATION – Review of Refugee Review Tribunal decision – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(c), 36(3), 36(4), 36(5), 63(3), 65, 91R, 411(1)(c), 412, 477(1), 477(2) Migration Regulations1994 (Cth), Part 866 of Schedule 2 1950 Indo-Nepal Treaty of Peace and Friendship, Article 7 1951 Convention Relating to the Status of Refugees 1967 Protocol Relating to the Status of Refugees |
| Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited (1986) 162 CLR 24 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 |
| Applicant: | MZYSO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1685 of 2011 |
| Judgment of: | Hartnett FM |
| Hearing date: | 8 May 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 8 May 2012 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Ms Holt |
| Solicitors for the First Respondent: | Clayton Utz |
THE COURT ORDERS THAT:
There is leave to the applicant to institute the proceedings filed 28 November 2011 with an extension of the time granted pursuant to s.477(2) of the Migration Act 1958 (Cth).
The application filed 28 November 2011 is dismissed.
The applicant pay the costs of the first respondent in these proceedings fixed in the sum of $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1685 of 2011
| MZYSO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These proceedings commenced upon the applicant filing an application on 28 November 2011. Interestingly, there were no grounds of application as set out in that document. That document was not subsequently amended and in submissions made this day by the applicant, he still essentially failed to put before the Court any grounds for judicial review of the decision of the Refugee Review Tribunal (‘the Tribunal’) made 20 October 2011.
The applicant did file an affidavit on 28 November 2011 in which he set out some claims being:
“a) The Tribunal’s decision was unjust and failed to take into consideration the past persecutions that I suffered and likelihood of possible persecutions should I return to my home land”;
b) The Tribunal, in my view, failed to take into consideration my emotional and psychological state when forming its decision not to grant me the protection; and
c) It is also my view that I was considered unreliable and therefore lacking creditability as a reliable witness.”
The applicant asserted the Tribunal based its findings on:
“recent reports and on the reports of its choosing.”
The applicant is a litigant in person. He was assisted at the hearing by an interpreter in the Nepalese language. He had no written submissions to put before the Court but had been served with the first respondent’s written submissions filed 30 April 2012 and those documents which the first respondent was required to serve upon the applicant, including the court book filed 19 March 2012 and the first respondent’s response to the application filed 14 December 2011.
Although the application was not made to the Court within 35 days of the date of the Tribunal decision dated 20 October 2011, and pursuant to s.477(1) of the Migration Act 1958 Cth (‘the Act’), I nevertheless exercised my discretion to enable the time for filing of the application to be extended, the applicant being a litigant in person, he swearing to the matters that he did in his affidavit and he being only some four days outside the requisite time period. In the circumstances of this case, including a consideration if its merits, it is proper to do so.
The first respondent submitted that the decision of the Tribunal made 20 October 2011 was not affected by jurisdictional error.
History
The applicant was born on 5 December 1976 in Baglung in Nepal and is a citizen of Nepal. He arrived in Australia on 19 January 2009, travelling on a Nepalese passport and on a student visa. He held a Subclass 572 Vocational Education and Training Sector Visa valid until 15 March 2011.
On 11 January 2011, the applicant lodged with the first respondent an application for a Protection (Class XA) Visa with supporting documentation.
On 27 January 2011, a delegate of the first respondent (the ‘delegate’) invited the applicant to attend an interview in relation to his visa application. Such interview was scheduled for 14 February 2011.
On 2 March 2011, the delegate made a decision to refuse to grant a protection visa to the applicant. That decision was made on the basis that the delegate was not satisfied that the applicant was a non-citizen in Australia to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (‘Refugee Convention’). The first respondent notified the applicant of the delegate’s decision to refuse the grant of the visa, dated 2 March 2011, under cover of a letter of the same date.
On 29 March 2011, the applicant applied to the Tribunal for merits review of the delegate’s decision.
On 13 April 2011, the Tribunal sent a letter by registered post to the applicant’s authorised recipient inviting the applicant to appear before the Tribunal on 20 May 2011.
On 20 October 2011, the Tribunal made a decision affirming the delegate’s decision under review. The Tribunal sent the decision to the applicant’s authorised recipient by registered post under cover of letter, dated 21 October 2011.
Proceedings before the Tribunal
The Tribunal commenced by noting that before it was an application for review of a decision made by a delegate of the first respondent to refuse to grant the applicant a Protection (Class XA) Visa under s.65 of the Act. The delegate’s decision was reviewable under s.411(1)(c) of the Act and the applicant made a valid application for review under s.412 of the Act.
Section 36(2)(a) of the Act provides that a criteria for a protection visa is that the applicant for the visa is a non-citizen of Australia to whom the Minister for Immigration and Citizenship is satisfied Australia has protection obligations under the Refugee Convention. Further criteria for the grant of a Protection (Class XA) Visa are set out in Part 866 of Schedule 2 to the Migration Regulations1994 (Cth).
The Tribunal had before it the Department’s file relating to the applicant. The Tribunal also had regard to the material referred to in the delegate’s decision and other material available to it from a range of sources.
The Tribunal set out the applicant’s background and protection claims in paragraph 22 of its reasons. The Tribunal also set out country information considered by it in paragraphs 57 to 64 inclusive of its reasons.
The Tribunal found that the applicant was a national of Nepal.
The Tribunal noted that the applicant claimed to face persecution in Nepal for two discreet political reasons based on his actual or imputed political opinion. Firstly, the applicant claimed that the Maoists had harmed him in the past, including forcing him to give them money at least partly because he was a member of the Rastriya Prajatantra Party (the ‘RPP’) and that they will harm again if he returns to Nepal. Secondly, the applicant claimed that the police had also harmed him in the past because he was suspected of helping the Maoists and he feared that the police may again harm him as there is still conflict between the two groups. The Tribunal noted such claims were generally consistent with country information concerning the conflict in Nepal. The Tribunal also noted that it was well documented that the Nepalese authorities would target both the Maoists and those suspected of supporting them, engaging in persecutory behaviour in the process. More specifically the applicant’s account of the Maoists targeting him for extortion, punishing him physically when he refused to pay and seizing his property was consistent with country information about the manner in which that group operated at the time these events were said to have occurred, and in which the group evidently continued to operate.
Despite some concern about the veracity of the applicant’s claims, the Tribunal accepted that the applicant had experienced problems in the past in Baglung Nepal, which amounted to serious harm. The Tribunal accepted that the Maoists initially extorted money from the applicant when he was running his business and then physically mistreated the applicant when he refused to pay any more, culminating in them taking his stock and assets and also taking over his business premises in 2006. The Tribunal also accepted that the Nepalese authorities detained the applicant at this time on suspicion of being a Maoist sympathiser and mistreated him in detention before agreeing to release him after the intercession of a local RPP figure. The Tribunal also accepted the applicant’s claims that the Maoists in Baglung maintain an ongoing interest in him and have made threats, including a threat to kidnap his children, prompting his wife to relocate to her parents’ home in Palpa. However, the Tribunal did not accept that the applicant had a well founded fear of Refugee Convention persecution if he returned to Nepal in the reasonably foreseeable future for the following reasons:
a)The Tribunal found that Nepalese authorities had no further interest in the applicant and that there was no risk of further harm from them;
b)The Tribunal found that the applicant had no political commitment or desire to engage in political activity;
c)The Tribunal found that the applicant was not targeted for reasons of his political opinion as a member of a political party, but because of his assets;
d)The Tribunal found that the applicant was not a member of a particular social group for the purposes of the Refugee Convention; and
e)The Tribunal found that the harm suffered by the applicant in the past by the Maoists did not amount to Refugee Convention persecution as it was not inflicted on him for the essential and significant reason of his political opinion, his membership of a wealth-based particular social group, or indeed for any other Refugee Convention reason, but was motivated simply by criminal greed.
The Tribunal did not accept that the applicant was facing any threat of serious harm from Maoists in Kathmandu and therefore did not accept that the applicant had to live in hiding whilst he was living there. The Tribunal therefore found that it would be reasonable for the applicant to relocate to Kathmandu. The Tribunal also noted that the applicant’s wife and children had relocated from Baglung to Palpa, suggesting that they could also reasonably be expected to relocate to Kathmandu and join the applicant there.
The Tribunal was not satisfied for the purposes of s.91R of the Act, that if the applicant returned to Nepal in the reasonably foreseeable future, he faced a real chance of serious harm capable of amounting to persecution, whether for any of the Refugee Convention reasons arguably arising in the case such as his membership of a particular social group or imputed political opinion or for any other reason.
The Tribunal noted that even if it had found that the applicant had a well-founded fear of Refugee Convention persecution in Nepal, it would nevertheless conclude for the purposes of s.36(2)(c) of the Act, that the applicant was not a person to whom Australia has protection obligations on the basis that he has not, for the purposes of s.63(3) of the Act, taken all possible steps to avail himself of the right to enter and reside in India.
The Tribunal found the applicant to have a presently existing and legally enforceable right to enter and reside in India on the basis of country information indicating that there is an international bilateral agreement between India and Nepal, known as the 1950 Indo-Nepal Treaty of Peace and Friendship. Article seven of that Treaty provides in essence, that under this Treaty the holder of a Nepalese passport, such as the applicant, can enter and reside in India.
The Tribunal further noted that the country information did not suggest that the applicant was at risk of refoulement from India to Nepal, on the basis that it is the Maoists or suspected Maoists facing such risk. The Tribunal acknowledged that the applicant was previously mistreated by the Nepalese authorities as a suspected Maoist, but given that he was soon exonerated and released from custody without charge, the Tribunal found there to be only a remote possibility that the Indian authorities would suspect the applicant of being a Maoist were he to invoke his right to enter and reside in that country. The Tribunal therefore found that s.36(5) of the Act was not enlivened in this case.
The Tribunal found for the purposes of s.36(4) of the Act that the applicant did not have a well-founded fear of being persecuted for a Refugee Convention reason in India, or of being returned from that country to a country where he does have a well-founded fear of being persecuted for the purposes of s.36(5) of the Act. Accordingly, s.36(3) of the Act was found to apply to the applicant. The Tribunal thus affirmed the decision under review, refusing to grant the applicant a protection visa.
Consideration
The applicant has not identified any grounds for judicial review in his application and he failed to identify any jurisdictional error in the Tribunal’s decision. The applicant is essentially seeking a review of the Tribunal’s decision on its merit. It is not this Court’s function in reviewing an administrative decision to substitute its own decision for that of the Tribunal by exercising a power which the legislature has vested in the Tribunal (Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited (1986) 162 CLR 24 at 40).
The Tribunal clearly considered all of the applicant’s claims and evidence and the Tribunal made a decision open to it, on the evidence before it. Further, it is well established that the Tribunal is not required to make the applicant’s case for him, nor was it required to uncritically accept any or all of the claims made by him (Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170). Nor is the Tribunal obliged to comment on every item before it, to the extent of saying why it rejected a piece of evidence or attributed less weight to it, than another item (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at 14).
In his affidavit, the applicant alleges that the Tribunal questioned his credibility as a witness. Credibility findings are findings of fact and they are a matter for the Tribunal and not this Court.
The Tribunal’s reasons for its decision demonstrate that the Tribunal discharged its statutory obligations and arrived at a decision open to it on the evidence before it. The Tribunal’s decision is not affected by jurisdictional error. Accordingly, the application will be dismissed with costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Date: 26 July 2012
0