SZBJI v Minister for Immigration - [2005] FMCA 473

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBJI v MINISTER FOR IMMIGRATION

[2005] FMCA 473

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Nepal – whether RRT applied the correct test of persecution considered – whether the RRT properly considered the ability of the applicant to avoid persecution by relocation considered.

Federal Court Rules
Migration Act 1958 (Cth), ss.36, 56, 65, 91R, 424

Applicant:

SZBJI

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 1782 of 2003

Judgment of:

Driver FM

Hearing date:

14 April 2005

Delivered at:

Sydney

Delivered on:

14 April 2005

REPRESENTATION

Solicitors for the Applicant:

Mr S Diab
Simon Diab & Associates

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
The time for an appeal against this judgment be extended to 42 days from the date of these orders, pursuant to Order 52 rule 15 of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1782 of 2003

SZBJI

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 30 June 2003 and handed down on 29 July 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Nepal and had made claims of political and particular social group persecution. The relevant background facts are adequately set out in written submissions prepared on behalf of the Minister by Mr Reilly. I adopt for the purposes of this judgment paragraphs 2-4 of those written submissions by way of background in this judgment:
The applicant applied for the visa on 1 March 2002: court book, pages 1-28. On 10 May 2002 the delegate wrote to the applicant pursuant to s.56 of the Migration Act 1958 (Cth) (the Act): court book, pages 29-31. The applicant was interviewed by the delegate on 2 October 2002: court book, page 60.1. The delegate’s decision refusing the visa was made on 29 November 2002: court book, pages 55-65. The applicant applied to the RRT for review on 20 December 2002: court book, pages 66-70. The RRT held a hearing on 20 March 2003: court book, page 74. On 3 June 2003 the RRT wrote to the applicant pursuant to s.424 of the Act: court book, pages 75-76.
The applicant claimed to fear persecution in Nepal for reason of his political opinion and membership of a particular social group. He claimed to have become vice president of the All Nepal National Student Federation on the Marxist-Leninist Party ticket in 1999, but was expelled in 2001, after which he joined the All Nepal National Independent Student Union in July-August 2001, which was affiliated with the Maoists. The applicant claimed that he attended some Maoist meetings. He claimed that the army was searching for Maoists in Kathmandu in October 2001, and that he feared arrest and so hid in Bonepa and Lamjung before returning to Kathmandu in November 2001, from where he fled to Australia in February 2002, paying a bribe to leave through the airport. He feared arrest and harm from the authorities if he returned to Nepal because of his connection with the Maoists. He also claimed to fear harm because of his low caste. See generally court book, pages 18-21, 109-111, 118-123.
The RRT accepted the majority of the applicant’s claims, but found that his Maoist political involvement was minor and any profile that he had thereby acquired was confined to Kathmandu. The RRT concluded that the applicant was not of any interest to the Nepalese authorities when he left Nepal, noting that he had voluntarily returned to Kathmandu from November 2001-February 2002 despite the army looking for Maoists in Kathmandu at this time. The RRT rejected the applicant’s claim that he paid a bribe to leave through the airport, and found that he had left legally on his own passport indicating that he was not of interest. To the extent that the applicant had any Maoist profile in Kathmandu the RRT found it was reasonable for him to relocate from Kathmandu to his home town of Lamjung, noting independent country information to this effect (on which the applicant’s comment had been sought: court book, pages 122-123). The RRT also found that any discrimination the applicant had suffered in the past or might suffer in future because of his low caste was insufficiently severe to constitute persecution within s.91R of the Act. See generally court book, pages 123-127.
The applicant proceeds on the basis of an amended application filed on 26 February 2004. That amended application raises two grounds of review. The first is an asserted failure by the RRT to properly apply the Refugee Convention and Protocol in considering whether the applicant would be persecuted if he returned to Nepal. The particulars given assert that the RRT erroneously assessed whether or not it would be possible for the applicant to avoid problems. Secondly, the amended application asserts that the RRT erred in its construction of Australia's protection obligations under the Convention and ss.36(2) and 65(1) of the Migration Act. The particulars are that the RRT is said to have incorrectly examined the issue of the applicant's ability or lack thereof to re-locate within Nepal.
In his written submissions on behalf of the applicant, Mr Diab summarises the grounds advanced on behalf of the applicant in this way. The first ground is that the RRT ought to have considered the likelihood of the applicant being persecuted if he returned to his home country rather than whether he was persecuted before he left his home country. The second ground is that the RRT found that it would have been reasonable for the applicant to be re-located to another part of Nepal and not be detected by the authorities in the new location because of his low political profile. Mr Diab submits that re-location is not an option for the applicant in this case where he fears persecution by the authorities in his home country and the authorities in his home country have control of the area it is proposed that the applicant relocate to.
The presiding member, after setting out the relevant considerations in dealing with a protection visa case and the applicant's claims and relevant country information, concluded that the applicant was involved with student politics while he was at university and that he was elected to an official position. The RRT accepted that the applicant supported the UML/ML Party, being the United Marxist Leninist Party/Marxist Leninist Party, and that when those parties split, he continued to support the ML Party. The presiding member had some reservations about the applicant's assertion that he changed political allegiance but stated as follows[1]:
Although the Tribunal has serious reservations that a person such as the applicant who had participated in the mainstream political process at an official level would join such a radical and violent group as the Maoists, the Tribunal accepts that it [is] plausible that a person could lose confidence in the leaders of his own political party for the reasons stated by the applicant and could have become disillusioned to such an extent that joining a radical party was seen as a viable option. In addition the Tribunal finds it plausible that there were rumours that he and others from his group intended to join the Maoists and they were thus expelled from their own party.
[1] court book, page 124
The presiding member went on to accept that the applicant joined the Maoist affiliated All Nepal National Independent Student Union in about July or August 2001 and also accepted that the applicant stopped attending University in about August 2001. He left Nepal and came to Australia in February of 2002. Importantly, the presiding member had regard to independent country information that Maoists and their supporters are persecuted by the Nepalese authorities but there was also country information from a report from Belgium that low profile Maoists, namely sympathisers of the party or minor members, who did not fulfil an executive function within the party could avoid possible problems by using an internal flight alternative.
The presiding member accepted that country information. The presiding member went on to find that although the applicant was a Maoist sympathiser and member of a Maoist affiliated organisation his political profile was low and his political involvement was minor.

It was also confined to the time that he had spent in Kathmandu while a student. The next paragraph in the decision is a difficult one. The presiding member said this[2]:
The Tribunal is fortified in its view that the applicant's profile was low and that he was not of any adverse interest to the authorities by the fact that the applicant remained in Kathmandu despite being expelled from his own party on campus and despite his own evidence that the authorities were looking for Maoist supporters at the University. In addition the independent evidence is that the State of Emergency was declared in Kathmandu in November 2001 and as a result any person with any connection with the Maoists was under serious threat. The fact that the applicant returned to Kathmandu about the time and remained there until February 2002 is inconsistent with a fear of persecution and is strong evidence that he was not in any fear that he was of any adverse interest to the authorities.
[2] court book, page 125
The presiding member then went on to draw an adverse credibility finding about the applicant's claims concerning the circumstances in which he left Nepal. The part of the decision that I have quoted is difficult because it is in part an adverse credibility finding on the question of whether the applicant had, at the time of the RRT hearing, a genuine fear of persecution and is also in part, a factual finding on whether the applicant was of adverse interest to the authorities in Kathmandu in late 2001.
The presiding member has clearly stated that in her view, the applicant did not fear harm from the authorities in late November 2001 and early February 2002. At the same time, the presiding member appears to have accepted country information that as a result of a state of emergency declared in Kathmandu in November 2001, any person with any connection to the Maoists was under serious threat.
These statements appear at first reading to be inconsistent. I have reconciled them on the basis that while the applicant was under serious threat as a Maoist sympathiser and a member of a Maoist-affiliated organisation, as a result of the declaration of a state of emergency, the applicant had not as a matter of fact come to the adverse attention of the authorities and did not fear coming to the attention of those authorities. The presiding member on that basis appears to have found that the applicant could return to Kathmandu without being at serious risk of harm. In the alternative, the presiding member found that the applicant could relocate to another part of Nepal, having regard to country information that Nepalese authorities are not interested in chasing Maoists across the country. The presiding member considered in particular that the applicant could return to his home town.
Mr Diab submits that the RRT erred first by failing to consider the risk of harm to which the applicant would be exposed should he return to Nepal by reference to possible future events. In Mr Diab's view, the RRT’s consideration was limited to the risk of harm based upon past events. Secondly, Mr Diab submits that the presiding member misunderstood or misapplied the test for relocation on the basis that the Nepalese Government controls all of the territory of Nepal and, if it was accepted that the applicant was at risk of harm from the Nepalese Government as a Maoist sympathiser, relocation was not an option.
The case brings into sharp relief the difficulty of differentiating a dispute over the merits of a RRT decision from a dispute over the legality of a RRT decision. Not infrequently, cases are brought before the Court that seek to blur that distinction or do not clearly fall on one side of the line or the other. This is, in my view, such a case.
For his part, Mr Reilly submits that the matters raised in the application do go simply to the merits of the RRT decision; that the RRT decision is based on findings of fact that were open to the RRT; and that no jurisdictional error has been demonstrated.
It is beyond the scope of these proceedings to make any definitive comments on the merits of the RRT decision. Nevertheless, on the basis of the RRT decision there would, in my view, be sound reason for the Minister to reconsider the decision made by the RRT. The RRT accepted that the applicant had been involved in Maoist-related political activity and accepted that Maoists and their supporters are persecuted by the Nepalese authorities.
The issue that one may debate is the level of risk to which the applicant was exposed. Different minds will take different views on that question. In addition, it is well known that circumstances in Nepal have taken a serious turn for the worse in recent times and that the international community has expressed serious concern about political developments in Nepal earlier this year. That is another circumstance that would reasonably merit a reconsideration of this case by the Minister. I have, of course, no authority to make any direction or recommendation, but it is pertinent that I make those observations.
The grounds advanced in the amended application cannot, in my view, be sustained. The assertion that the RRT misunderstood or misapplied its task in relation to the Convention by limiting itself to past events is not borne out by the terms of the presiding member's decision. First, the presiding member clearly sets out at the start of her decision the relevant considerations. Secondly, the presiding member states on page 125 of the court book:
The question for the Tribunal however is whether, given the applicant's political profile, there is a real chance that he would be at risk of persecution should he return to Nepal now or in the reasonably foreseeable future in relation to the whole of Nepal.
That statement is clearly correct. Further, the presiding member went on to consider the level of risk to which the applicant would be exposed should he return to Nepal. There was no evidence before the RRT that the applicant had participated in political activities outside Kathmandu; neither was there any evidence that the applicant wished to pursue higher profile political activities in Nepal in the future should he return there.
In these circumstances, it was reasonable for the presiding member to conclude that the applicant's political profile would be no greater in the future than it had been in the past. It was also reasonable for the presiding member to conclude that the applicant's risk of harm was primarily geographically limited to Kathmandu. The presiding member concluded that the applicant did not face a real chance of persecution for reasons of his imputed or actual political opinion should he return to Nepal now or in the reasonably foreseeable future in relation to Nepal as a whole.
Contrary to Mr Diab's submissions, I find that in reaching that conclusion the presiding member did speculate on possible future circumstances by reference to the information that was available to her.
The challenge to the decision on the issue of relocation also fails. First, I accept Mr Reilly's submission that the decision of the RRT primarily rests on the finding that the applicant did not have a well founded fear of persecution in Kathmandu. The relocation finding was secondary on the basis that the presiding member was not so certain in that finding that she could exclude from consideration the possible need for relocation.
Further, the relocation finding was open to the presiding member on the basis of the country information available to her. The presiding member would, in my view, have erred if she had concluded that the applicant could avoid a real risk of harm by going into hiding or going on the run from the Nepalese authorities. This probably would have been the result if the applicant had had a high political profile in Nepal that placed him at significant risk. It would obviously be unreasonable to expect an applicant to avoid a risk of harm from the Nepalese government by going into hiding or by constantly moving.
Mr Diab submits that the finding on relocation contains an inherent and unreasonable assumption that the applicant will have to move from time to time. While that is arguable it is on balance not the interpretation of decision that I draw. The applicant had had no political profile outside Kathmandu prior to coming to Australia. The presiding member considered that the applicant could safely relocate outside Kathmandu, in particular to his home town of Lamjung. It did not necessarily follow from the material before the presiding member that the applicant would come to the adverse attention of the authorities outside Kathmandu and neither did it necessarily follow that the applicant would have to undertake further moves in the future if and when he did come to the adverse attention of the authorities.
Accordingly, I reject the grounds of review advanced in the amended application. I find that the decision of the RRT is a privative clause decision.
I dismiss the application.
The application having been dismissed costs should follow the event. Mr Reilly seeks an order for costs fixed in the sum of $5,300. Mr Diab did not wish to be heard on the question of costs. I am satisfied that having regard to the amount of preparation required by the Minister in this case, the appearance by Mr Reilly, his instructing solicitor today and the earlier directions hearing, costs of not less than $5,000 have been reasonably and properly incurred on behalf of the Minister when assessed on a party/party basis.
I will order that the applicant pay the Minister's and disbursements of and incidental to the application, which I fix in the sum of $5,000.

I will further order that the time for an appeal against this judgment be extended to 42 days from today pursuant to Order 52 rule 15 of the Federal Court Rules. That extension of time takes account of my inability to settle the judgment transcript for the next three weeks, due to my absence on leave.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 10 May 2005