SZEEX v Minister for Immigration
[2005] FMCA 359
•8 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEEX v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 359 |
| MIGRATION – RRT decision – Nepalese businessman subject to Maoist extortion – Tribunal rejected political reasons for fears – failed to consider fears by reason of membership of a particular social class – matter remitted. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.414, 415, 417, 477(1A), 483A, Part 8
Applicant S v Minister for Immigration & Multicultural Affairs [2004] HCA 25, 206 ALR 242
Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441
SGBB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 364
WAEE v Minister for Immigration (2003) 75 ALD 630
| Applicant: | SZEEX |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2566 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 23 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 8 April 2005 |
REPRESENTATION
| Counsel for the Applicant: | Dr J G Azzi |
| Counsel for the First Respondent: | Mr J Smith |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 22 January 2003 in matter N01/40445.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 25 September 2001.
The first respondent pay the applicant’s costs in the sum of $4000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2566 of 2004
| SZEEX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 December 2002 and handed down on 22 January 2003. The Tribunal affirmed a decision of the delegate made on 25 September 2001 which refused an application for a protection visa. The applicant seeks the issue of writs of certiorari to quash the Tribunal’s decision and mandamus to compel a rehearing by the Tribunal according to law.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. Relevant to the present matter, that jurisdiction is its general judicial review jurisdiction under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs, Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76‑7], and in subsequent cases, the relief sought by the applicant is available only if I am persuaded that the Tribunal’s decision is affected by jurisdictional error.
The application was filed in this Court about 20 months after the Tribunal handed down its decision, and to explain this delay the applicant filed an affidavit. He claimed that there was delay before the decision came to his attention because the Tribunal did not send it to a new postal address which he had advised, and that he had first sought the Minister’s intervention under s.417 of the Migration Act. Counsel for the Minister indicated that there were aspects of the affidavit upon which he wished to cross‑examine the applicant if the affidavit were read. However, he informed the Court that, if jurisdictional error were found so that the time limit under s.477(1A) was inapplicable, then the Minister would not submit that relief should be refused on the ground of delay. The applicant, therefore, did not seek to read the affidavit, and I do not need to address any issues concerning the delay.
Counsel for the applicant informed the Court that he had recently accepted instructions to represent the applicant on a de bono contingent basis, following a referral to him for advice under the Commonwealth funded legal advice scheme. He relied upon grounds of review set out in a further amended application which was filed in Court. This replaced previous documents prepared by the applicant without legal assistance. I gave directions for the joinder of the Tribunal. Although the lateness of counsel’s instructions meant that the respondent was not able to file written submissions in response to his submissions, which was regrettable, I have been greatly assisted by having the matter fully argued by counsel on both sides.
The ground of jurisdictional error
The further amended application pleads four grounds of review which vitiate the Tribunal’s decision, but they amount to one contention which is based on well established authorities. This is that the Tribunal made a jurisdictional error by failing to deal with a substantial claim for refugee status made by the applicant which remained open on evidence which was not rejected by the Tribunal.
The relevant principles were recently examined in the Full Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263. Their Honours held at [48-51] and [55] that failure by a Tribunal to make a finding on “a substantial, clearly articulated argument relying upon established facts” can amount to jurisdictional error by failure to carry out the review required by s.415 of the Migration Act. At [63] they said:
It is plain enough, in the light of Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome.
Their Honours said at [68] that “a judgment that the Tribunal has failed to consider a claim not expressly advanced is … not lightly to be made. The claim must emerge clearly from the materials before the Tribunal”.
Allsop J has given further guidance in NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 at [15]:
From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
In SGBB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 364, Selway J considered a contention that a Tribunal failed to address a claim to refugee status based on fears resulting from being a member of a particular social group and had addressed the fears on the basis only of other “Convention reasons” of ethnicity and race. At [17-18] his Honour refers to Dranichnikov (supra) and said:
Indeed, that case serves as an example of how the nature of the case as actually put can affect the obligation of the tribunal in identifying the relevant social group. In that case the majority of the High Court were prepared to identify the relevant social group from the evidence and material put before the tribunal by the applicant to explain his relevant “fear” by reference to the “peculiar circumstances that had impinged on his life”: see Dranichnikov at [63].
The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.
Selway J concluded that the case presented by the appellant did identify aspects of his situation as part of a claim to protection on the basis of a membership of a particular social group, and that the Tribunal had made jurisdictional error by failing to consider the issues which were identified by Gummow and Callinan JJ (Hayne J agreeing) in Dranichnikov (supra). Their Honours said at [26]:
At the outset it should be pointed out that the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well‑founded, and if it is, whether it is for a Convention reason.
In Applicant S v Minister for Immigration & Multicultural Affairs [2004] HCA 25, 206 ALR 242, the High Court considered a conclusion by a Tribunal that a young Afghan avoiding recruitment by the Taliban was “not targeted to the extent that he was listed or registered for recruitment by the Taliban but was merely seen as a young man who was available in that area at that time and, in the random manner of such an ad hoc drive he was able to avoid recruitment for a second time”. A majority upheld a conclusion of Carr J at first instance that this showed the Tribunal concluding that the appellant was not targeted by reason of any political opinion or religious beliefs, but had failed to consider “whether able‑bodied young men (or possibly able‑bodied young men without the financial means to buy‑off the conscriptors) comprised a particular social group within the meaning of the Convention”, and “whether because of legal, social, cultural and religious norms prevalent in Afghan society, young able‑bodied men comprised a social group that could be distinguished from the rest of Afghan society” (see [13], [50-51], [77]).
The circumstances in Dranichnikov (supra) also have similarities to the present, since the present applicant argues that his claims raised for consideration whether his fears of extortion and violence at the hands of Nepalese Maoists were by reason of his membership of a class comprising successful Nepalese businessmen, and, in particular, businessmen personally known to the Maoists. He argues that the Tribunal addressed the Convention relationship of his fears only on the basis of his political opinions and membership of a political party.
In Dranichnikov, the Tribunal did address whether the appellant had well‑founded fears of criminal attacks for reason of being a “businessman in Russia”. However, the majority of the Court held that it had failed to address “the matter which was put to it” which was that he was a member of a narrower “social group consisting of entrepreneurs and business men who publicly criticised law enforcement authorities for failing to take action against crime or criminals” (see [18], [23], [27], [63-4]).
In the present case, for the reasons I shall explain below, I have concluded that the Tribunal overlooked that the applicant’s initial claim to refugee status was principally a “particular social group” claim related to his characteristics as a businessman known to the Maoists. The Tribunal assessed his fears of extortion and violence by considering whether they were the result of his political opinions and political associations, and did not ask itself the questions identified in Dranichnikov (supra) at [26] which I have set out above. I cannot be satisfied that, if it had asked itself these questions, it would still have affirmed the delegate’s decision.
To explain these conclusions, it is necessary to identify how the applicant presented his claims, and how they were dealt with by the Tribunal.
The applicant’s refugee claims
The applicant set out his claims when making his application for protection in a short statement, of which the following parts are relevant:
I am compelled to lodge this application for the protection visa because I am unable to return to my country because of fear of persecution in the hands of Maoist Movement in Nepal that had killed up to 2000 people in the past.
I was doing the business of electrical and electronics in Nepal.
I was threatened, and money extorted. My life was made extremely difficult by the Maoist group robbing and extorting me, which was a common practice for them. On the first occasion I paid money through my business in Nepal to Maoist but I was not capable of paying money to them in later instances. There was continuing demand from them for money.
I had to seek help from the police. I went to the police and complained about this but nothing concrete happened they took my complain and told me to ring if they come again, but it made Maoist very aggressive. I was left with the letter at home that they are no longer interested in money but they will kill me. It was said as soon as they find me they will shoot me, & that was the last message that I got from them.
I was scared and talked to the authorities and up to certain extent if the help could be found there but there was no guarantee of anything from the authorities because many policemen have died since the uprising begun. They did not want to promise me anything. They ignored the situation of mine and I was on my own basically.
Since that message was sent to me by Maoist I started living somewhere else, and during that time some strange people have been visiting my place according to the family sources. They have been asking me saying they were my friends from the university, and the parents had not seen them. They wanted to know my newer address.
I was unable to hide myself for the long time because I could not come out and work I decided to go overseas for the sake of my safety. I am a fully qualified engineer and I thought that at least I do not have to be killed in their hands and hopefully I could do something in overseas countries.
…
I could not risk to return in this situation specially have previous trouble with the Maoist Movement.
The another reason I was a particular target was because of my role at the university where I was studying. I was the Student Council coordinator & I have been a very strong supported of Monarchist in Nepal. I believe that some of the student who had problems with me and who were not in my support may have joined the Maoist Group and they may have targeted me to harm me because I was one of the successful engineer who had his own business of Electric and Electronics Engineering after 2 years of graduation.
I consider that it is clear from the opening parts of this statement that the applicant presented the reason for his being targeted for extortion by the Maoists was that he was a businessman. His fears which developed and which led him to leave the country were, no doubt, then compounded by his personal responses to the extortion and the consequential death threat. However, I do not accept the submission of the respondent’s counsel, that his status as a businessman targeted for extortion must be regarded as the setting rather than a claimed reason for his fears.
The applicant pointed to his “social group” characteristics also in the second passage which I have extracted above. In this, he suggests a concurrent characteristic explaining his targeting by Maoists: that he is a businessman who is personally known to them due to his “high profile” when he was a student at university. He clearly formulates his claimed “reason” for the extortion threats as “because I was one of the successful engineer who had his own business of Electric and Electronics Engineering after 2 years of graduation (emphasis added)”. Given that the nature of the persecution he feared was the “common practice” of extortion to fund and advance a Maoist terrorist insurgency rather than an isolated incident of criminal extortion, I consider that his claims clearly raised the suggestion that he was at continuing risk due to characteristics shared with a group of Nepalese businessmen.
The delegate failed to appreciate this when deciding the application. He said: “The applicant’s claims relate to his imputed political opinion”, and omitted reference to the reasons pointed to by the applicant for his being targeted by the Maoists. The delegate’s reasons for refusing the visa included the lack of more detail and other reasons. However, significantly, there are clear suggestions that the delegate required a political motivation for the extortion threats: “He has neither indicated of ever getting involved in anti Maoist activities.
I am therefore not satisfied that the Maoist organisation would have an interest in the applicant if he now returns to Nepal”.The Tribunal does not refer to the delegate’s reasoning, and it was not its function to review it, as distinct from the delegate’s decision. However, the applicant was never represented before the delegate or Tribunal by a solicitor or agent, and he presented a history and material which was largely unfocused. In this situation, the Tribunal was obliged to perform its own analysis of the Convention bases of the claims. It never did this expressly in its own reasons. In this situation, it seems quite possible that the Tribunal may have been influenced by the delegate’s analysis, and that this may explain the defects in its own reasoning which I shall discuss below.
Before the Tribunal, the applicant made written submissions which elaborated his history and provided supporting information. One of his documents presented at the hearing on 14 November 2002 was three pages of “comments” on the delegate’s reasons. One paragraph of this contains a summary of his claims which can be read as an attempt to address the Convention definition. In my opinion, it confirms that a significant reason for his continuing fears of Maoist violence was his characteristics as a businessman. He said:
In my case, it is being shown that I am outside my country and also do persist the fear of persecution if send back to my country. The reason for such fear is clearly shown in my case story. I have also mentioned my involvement in politics and business that are the main two reasons for the fear of persecution.
His reference to his “case story” and to “my involvement in politics” appears to be to another three page document presented at the hearing. In this, he again narrates his history, and brings up‑to‑date his fears concerning a return to Nepal. He describes his background leading to the extortion demands in February 2000:
I was an active student in school as well as in college and university. I was always involved in leadership role since my school days. This had created an interest on me to go to one of the political party. I chose Communist party of Nepal – United Marxist and Leninist (CPN‑UML) as my party because of its view and objectives that would have brought equality between two distinctive high and low class of people. As soon as I graduated as an Electrical and Electronics Engineer in August 1998, I started to work in the Nepal’s biggest Electronics Company, Beltron Trading Pvt.Ltd, as a sales Engineer and I was also taking part in CPN‑UML’s various programs. I was doing very well so I decided to leave the company and run my own business. I left the company on July 1999. From September 1999 I was involved in my business, which was under my father’s business, which is now being elaborated by my friend and has been renamed as A… Pvt.Ltd.
Suddenly one afternoon in February 2000 I was at home and phone rang. I picked up the phone and there was a stranger on other side of the phone. He was demanding the money, I thought to myself well better to give him what I can. I gave him the money after two days. I gave him around 80,000 Nepali rupees. After a month’s time, on March 2000, they again rang me demanding more this time. At that time I decided not to give them anything and kept mum but they again rang me after 5 days I was very frustrated by their call so I shouted in the telephone warning them if they call me I will go and make complain about that guy to the police. They did not call me but after a weeks time they send me the message demanding money and also warned me that if I do not comply with their demand then they may do harm to me. This time I had to go to police to file my complaint. But police did not do anything at all about my complaint. They only asked me to give them a call if again Maoist calls me. When they knew about my complaint in police about them then they were very aggressive and they send me the message about a month after (April) saying they would persecute me for not fulfilling their demand.
His statement then explains how his uncle, a police inspector, was killed in ambush by Maoists in May 2000, and his decision to leave the country in February 2001. He explains his stay in India and New Zealand before reaching Australia in July 2001. He claims that he has been told that Maoists came to his home and then stoned it in January 2002, and that in June they assaulted his brother after asking about him. He completes his statement:
Recently about few months ago, Maoists have started kidnapping, abducting and killing of Nepali congress and CPN‑UML’s members all over Nepal. In that I also come to know that they have abducted and killed five of my friends who were also the active members of CPN‑UML. In this scenario, BB, Nepal General Secretary of our party, has asked Maoists to stop it or else all CPN‑UML members will start counter‑activities against them.
Now, its not only the issue of money for me but being the member of CPN‑UML has given me no hope to go back to my country until and unless whole Maoists are erased from Nepal.
It is clear that in this statement he was, in effect, raising a “sur place” basis for his fears of return. This was a claim that, after he left Nepal, the Maoists had started a campaign of violence directed at “the active members of CPN-UML”, a political party which he claimed to have joined after leaving University. However, his last paragraph still maintains his original claim that a reason for claiming protection was “the issue of money”. I consider that this should have been considered by the Tribunal as a reference to his fears of extortion‑related persecution by Maoists of him as a businessman.
I can find nothing in the Tribunal’s account of its questioning of the applicant at the hearing as suggesting that he ever withdrew this part of his claims. Indeed, I consider that the Tribunal’s description of the hearing suggests that the applicant made statements supporting his “businessman” explanation for being targeted by Maoists, and also that the Tribunal failed to appreciate this and looked only for political reasons. None of its questioning explored whether there were “particular social groups” which were being targeted nor whether he shared characteristics of such a group.
The Tribunal’s discussion contains the following passages:
I asked him for his employment history. He responded that he had graduated in August 1998 as an electrical engineer, and then got a job at Beltron Trading. He had resigned in July 1999, because he had to take care of his father’s business. He had also set up his own business, assembling computers. He got a big contract and did well. He assumed that his friends from university may have told the Maoists about this business.
He stated that he had been the President of the Student Council at university. He also claimed that he had joined the CPN-UML [the Communist Party of Nepal United Marxist-Leninist]. (He clarified later in the hearing that he had joined it after he left university). I asked him why he had written in his statement to the Department that he was a monarchist, why he had not mentioned his membership of the CPN-UML and how one could be both. He responded that the CPN-UML supported the monarchy. He did not mention he was a member of the party because he did not want the Department to think he was applying for “political asylum”. Also his agent did not “explain well” to him, and told him he could give this information “at the hearing”.
…
At the hearing I asked him if the Maoists had ever approached his friend (Mr CC) for money, and he responded that they had not. [The applicant] and his family were the only targets. He thought this must be because he had been President of the Student Council - a small group of students had resented this. He thought that some of them may have become Maoists. He had heard that the Maoists paid professionals well, including computer engineers, so it was possible that they were able to get information about [the applicant].
…
I put to him that, according to his account, the caller had never mentioned his political views to him. He responded that this was true, but they were now abducting and harming CPN-UML people.
…
I told him there was independent evidence that business people were sometimes subjected to extortion demands in Kathmandu itself, but the general consensus was that Kathmandu was safe from targeted killings by Maoists. Everyone was safe there apart from suspected Maoists, according to recent information from Nepal’s National Human Rights Commission, the British and German Embassies in Kathmandu and the (Nepalese) Informal Sector Service Centre in Kathmandu (Update of 7 June 2002 to “Mission to Nepal, 21 January to 9 February 2002”, Kingdom of Belgium, Office of the Commissioner General for Refugees and Stateless Persons, CEDOCA Documentation and Research Department, p.5). [The applicant] disagreed, saying that U.S. security personnel were killed outside the U.S. Embassy, and a politician was killed on the day before the hearing. I put to him that his background was very different to theirs, and he was a very minor figure compared to them. He responded that he might be killed. I told him that I was unable to see any Convention reason for the harm he feared, as his political views had never been mentioned to him as the motivation for the contacts with him. He responded that he thought he was targeted not just for money but because of politics.
The Tribunal’s reasons then gave a summary of country information concerning conditions in Nepal and Kathmandu in relation to the Maoist insurgency, which had deteriorated since the applicant departed and since the delegate had considered the situation. The discussion contains one reference which gives substance to the applicant’s “businessman” claim: “A press report observes that in 2000 the rebels were funded and armed principally by theft and extortion from businessmen, teachers and police”. However, the Tribunal does not show that it investigated this information in a manner to enable it to answer the issues identified in Dranichnikov (supra).
The Tribunal’s reasons for affirming the delegate’s decision
I have suggested above that the Tribunal might have been misled by the delegate’s defective analysis of the applicant’s visa application into overlooking a “particular social group” claim. It is significant that, when it came in its reasons to summarise his statement which I have set out above, the Tribunal also overlooks this. It says: “[The applicant] claimed that he could not return to Nepal because he feared being killed by Maoists who had tried to extort money from him when he was self-employed”. It fails to appreciate that the applicant did not claim that he was targeted in unique circumstances, but that he put forward his belonging to a business group or class to explain his targeting. The Tribunal fails to appreciate that this might provide a Convention “reason” independent of the applicant’s claimed concerns arising from his membership of the CPN‑UML.
In my opinion, this error then appears clearly in a critical passage of the Tribunal’s reasoning under the heading “Findings and Reasons”. The Tribunal commenced with a consideration of the applicant’s political concern. Upon reasoning which is not compelling at a factual level, but which is not challenged before me, it concluded “I do not accept that [the applicant] was, or is, a member of the CPN-UML”. It then continued:
[The applicant] speculated that he was singled out for extortion because people with whom he had been a university student might have joined the CPN-M and because, when all were students, they had resented him for being President of the Student Council. However, he did not claim to have established that any fellow students had joined the Maoists, nor was there anything about his contacts with the extortionist from which he could reasonably have inferred that there was any link between past fellow students and the demands for money. His assertions about this link amounted to no more than speculation.
As to his claim to have been subjected to extortion, I accept that members of the CPN-M were extorting money from business-people (among others) in the period in which [the applicant] claims he was approached for money. I also accept that he was the co-owner of a business in Kathmandu. It is therefore plausible that he was asked for money, although it is possible that the people who demanded the money from him were not members of the CPN-M at all, given the evidence (Kathmandu Post 1998) that criminals masquerading as CPN-M were known to be active in Kathmandu. In any case I am not satisfied that the extortion was motivated by any perception of [the applicant’s] political opinions. According to him the caller made no comment about those opinions, nor even asked what they were. There is insufficient evidence before the Tribunal to enable me to establish whether the extortion demand was from a member of the CPN(M) or an ordinary criminal. However I am not satisfied, on the basis of [the applicant’s] evidence, that he was singled out for extortion because of his political opinions or for any other Convention reason.
I consider that in this passage the Tribunal shows that it addressed the applicant’s claims without dealing with his “particular social group” reasons for fearing extortion and violence from Maoists. Instead, it required him to show a political motivation to the feared persecution before he could enjoy protection under the Convention. This is clear when it says: “In any case I am not satisfied that the extortion was motivated by any perception of [the applicant’s] political opinions”.
I consider that this finding explains its conclusion that it was not satisfied “that he was singled out for extortion because of his political opinions or for any other Convention reason”.
I am unable to find that the Tribunal properly dealt with this claim in its throw‑away reference to “or for any other Convention reason”. Indeed, counsel for the Minister did not attempt to persuade me to this effect, but argued that the applicant had never made a “particular social group” claim requiring attention by the Tribunal. As I have indicated above, I have rejected his submissions in this respect.
Considering the Tribunal’s reasons as a whole and in the light of all the material before me, I am persuaded to draw the inference that this part of the claims of the applicant were not taken into account by the Tribunal in the manner required by the authorities cited above (as to the drawing of the inference from omissions in a Tribunal’s reasons, see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [35], [69], [75], and WAEE v Minister for Immigration (2003) 75 ALD 630 at [47]). I therefore accept counsel for the applicant’s submission that the Tribunal failed to perform a necessary element in its duty under s.414 of the Migration Act to “review” the delegate’s decision, and that its own decision is therefore vitiated by jurisdictional error.
I am not persuaded that its error was rendered immaterial by reason of other findings made by the Tribunal. The evidence I have extracted above shows that the applicant’s “businessman” claim had substance and arises “tolerably clearly from the material” (to use Allsop J’s phrase in NAVK (supra)). The Tribunal in its reasoning set out above itself accepts that it was “plausible that he was asked for money” in circumstances where “members of the CPN-M were extorting money from business‑people (among others) in the period in which [the applicant] claims he was approached for money”. These findings raise a clear possibility that the Tribunal might have accepted this claim as providing a Convention basis for the applicant’s current fears if it had addressed it correctly.
After further reasoning by the Tribunal it says that it has “considerable doubts about the veracity of his claim to have made a complaint to the police, I am unable to accept that he did so”. The reasoning leading to this conclusion is, again, far from compelling, but is not open to challenge in this Court. However, as counsel for the Minister conceded, it does not amount to a finding which demolishes the applicant’s “businessman” claim.
Counsel for the Minister sought to persuade me that findings having that effect were made by the Tribunal in the following paragraph:
[The applicant] claims that the extortionists, who he believes to be CPN-M members, might harm him if he returns to Nepal. He bases this fear in part on the fact that his brother was assaulted after [the applicant’s] departure from Nepal by people who wanted to know [the applicant’s] whereabouts. He has submitted numerous original documents about his brother’s injuries and treatment. Because of their internal consistency, the fact that they are originals, and the range and detail of the information in them, I am satisfied that they are genuine and that his brother sustained a head injury after [the applicant] left Nepal. I also accept that this occurred during an assault. However, in my view [the applicant] has sought to make a link which does not exist between that assault and the risk to himself. He has claimed that the assailants asked for his whereabouts of his brother, and also that people rang and asked his father for [the applicant’s] address. I consider these claims to be implausible, mainly because I am not satisfied that he was being sought by Maoists before he left Nepal. Secondly, he was unable to explain why, if he had decided to apply for the protection visa after his arrival in Australia because his father had told him that strangers had rung asking for his address (a matter which he now claims signified a risk to his safety), he had not told his agent this important information so that it could be incorporated into his written statement to the Department. Instead he merely said that his parents told him there was “no surety with the life” and he could be “killed instantly”, especially since the death of the entire royal family. Thirdly, he stated in his written claims that his brother had refused to give any information about [the applicant] to his assailants, but gave oral evidence to the Tribunal that his brother had given them his full address in Sydney, an inconsistency from which I infer that [the applicant] has fabricated the claim that the assailants had an interest in his whereabouts at all. I do not accept that members of the CPN(M) have been seeking [the applicant] since he left Nepal.
I am unable to accept this submission for several reasons. The Tribunal’s conclusion that “I do not accept that members of the [Maoists] have been seeking [the applicant] since he left Nepal” does not make a finding that the applicant would not again be targeted for extortion and violence as a businessman if he returned to Nepal. Moreover, since the Tribunal had overlooked this Convention claim, it is impossible to read it as saying this by implication. Rather, in its context and content, I understand the paragraph to be concerned with what the Tribunal perceived to be claims by the applicant that, since he had left, members of his family had been harassed by Maoists looking for him as a member of a rival political party.
I am not persuaded that the Tribunal would have reached the same conclusion if it had properly identified and dealt with all the applicant’s claims for protection.
For the above reasons, I consider that the applicant is entitled to relief by way of writs of certiorari and mandamus directed at the Tribunal and its decision.
The applicant is entitled to an award of costs, but I accept the submission of the respondent that I should take into account the lateness of the applicant’s instructing of counsel and that this may have resulted in some additional costs to the respondent. My award reflects a discount to take account of this.
I certify that the preceding thirty‑nine (39) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 8 April 2005
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