SZFAV v Minister for Immigration

[2005] FMCA 1706

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFAV v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1706

MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in Nepal for reason of her political opinion or imputed political opinion – applicant claims RRT failed to consider letter of support – use of independent country information.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 474; 483

NAHI V Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74
R v Punzo [2004] CanLII 18976 (OnS.C.)
Fester v The Queen [2001] HCA 72

Applicant: SZFAV

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3306 of 2004

Judgment of: Emmett FM

Hearing date: 26 October 2005

Date of Last Submission: 26 October 2005

Delivered at: Sydney

Delivered on: 23 November 2005

REPRESENTATION

Solicitors for the Applicant: Mr M. Newman

Counsel for the Respondent: Ms T. Wong

Solicitors for the Respondent: Ms O. Mak, Clayton Utz

ORDERS

1. That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.

2. That the Refugee Review Tribunal be joined as Second Respondent.

3. That the applications before this Court are dismissed.

4. That the Applicant pay the costs of the First Respondent in an amount of $5700.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3306 of 2004

SZFAV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the Applicant.

2. The applicants are a 38 year old Nepalese woman of Hindu religion, her parents and 2 brothers. For the purposes of this judgment I will refer to the first applicant as the Applicant, as the applications of the other applicants are dependent on the outcome of her application.

3. The Applicant claims to be a citizen of Nepal.

4. The Applicant arrived in Australia on 24 January 2004.

5. On 13 February 2004 the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Act.

6. On 25 February 2004, the Delegate refused the Applicant’s application for a protection visa on the basis that the Delegate was not satisfied there is a real chance that she will face persecution at the hands of Maoist insurgents upon her return to Nepal and therefore the Applicant is not a person to whom Australia owes protection obligations under the Refugee Convention as amended by the Refugees Protocol.

7. On 12 March 2004, the Applicant lodged an application for review before the Tribunal.

8. On 4 June 2004, the Tribunal invited the Applicant to comment on certain independent country information that it had before it, including information contained in a document entitled ‘Nepal Times’, dated 28 September – 4 October 2001, which was critical of Nepalese seeking political asylum in Europe and Australia and the veracity of their claims.

9. On 7 September 2004, the Applicant attended a hearing before the Tribunal at which the Applicant gave oral evidence and the Applicant’s advisor made submissions.

10. On 5 October 2004, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a protection visa to the Applicant.

11. On 10 November 2004, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

12. Pursuant to directions made on 19 November 2004, the Applicant filed an amended application on 18 February 2005 (“Amended Application”). The Applicant seeks review on  grounds set out as follows:

    “The applicant made claims as follows:

    1.  She was a citizen of Nepal outside her country of origin.

    2.  She was of low caste but highly educated.

    3.  She was member of the Nepalese Congress Party, the main enemy and target of the Maoists.

    4.  She had been harassed and threatened by them ceaselessly when she refused to work for and or pay them off.

    5.  She was of particular interest to them as she was the embodiment of their ideal type-low caste and highly educated.

    6.  She was personally known to senior Maoist commanders.

    7.  She had been forced off a bridge into icy waters and had suffered injury leaving her hearing impaired.

    …

    The Tribunal erred in law and failed to exercise its jurisdiction by:

    1.  Failing to make any findings in relation to claims 2, 3, 5, 6 & 7.

    2.  Failing to consider whether these factors added to the risk of danger that she claimed to feel acutely.”

Legislative framework

1. Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.

3. Australia owes protection obligations to a refugee on Australian territory.

4. Article 1A(2) of the Refugees Convention relevantly defines a refugee as a person who:

   “owing to a 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, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Refugees Convention.

The proceeding before the Tribunal

1. The Applicant claimed that in 1995 she was associated with the Nuwakot District Committee of the Nepal Women’s Association. She stated that she received letters at her home address from the Maoist Party in about 1996 threatening her and making demands for money. The Applicant stated that she responded to the letters saying that she was not able to pay the amount sought, as a result of which, she claimed that members of the Maoist Party came to her house and threatened her 67 year old mother.

2. The Applicant claimed that, as a result of this threat, she moved to Kathmandu in 2002 as the Maoist could not operate as freely in Kathmandu as they did at Nuwakot. However, the Applicant stated that she has been living as a “domestic refugee” since that time and for 2 years she had been “wandering around the country especially finding the place in Kathmandu to hide myself”.

3. The Applicant claimed that the Maoists wanted the Applicant either on their side or out of sight. She claimed that the Maoists needed her skills but she was not prepared to cooperate with them and for those reasons she would be persecuted by the Maoists if she were to return to Nepal. She claimed that the Maoists threatened harm to her because of her occupation as a skilled woman and her active participation with the Nepalese Congress Party. The Applicant provided various documents identified by the Tribunal Member in its decision in support of her application.

4. The Applicant claimed that she worked in Kathmandu for a non-government organisation (“the NGO”) but that the Maoists had found out she was in Kathmandu so she had to hide. The Tribunal put to her that she could hardly be said to be hiding if she had a fulltime job with the NGO. The Tribunal also noted that the Applicant confirmed that her work address had remained the same throughout the period. The Applicant stated that she had reported the contact by Maoists in Kathmandu to the police, as she claimed she did in Nuwakot. In respect of her complaints to the police in Nuwakot, the Applicant provided a letter, purporting to be confirmation of her complaint, from police headquarters dated 19 February 2001. The Tribunal asked the Applicant why she had no such confirmation of any report to the police in Kathmandu. The Applicant answered that there had been problems in asking the police to help.

5. The Tribunal noted that independent country evidence indicated that the Applicant was free to live and work in India. However, the Applicant claimed that Maoists are operating in India and it would not be easy to hide from them. The Tribunal discussed the independent country information with the Applicant, noting that there were no reports of Maoists pursuing Nepalese in India, and that the Indian government had given assurances that they would move against the activities of Nepalese Maoists in India.

6. The Tribunal asked the Applicant what the Maoists had said when they approached her in Kathmandu. She replied that they had asked her to join them and help them. She said she was approached because she was from a lower class and would therefore be effective in recruiting people to their cause, particularly because she spoke a lower class language. The Applicant claimed that she had received the same demand in Nuwakot, but that she had rejected the offer because she did not like Communists. She said that the Maoists said that, if she did not join them, she would have to pay them a “donation”. She said that they could kill her and her family at any time.

7. The Tribunal noted that the Applicant had managed to refuse the advances of the Maoists for the 2 years she spent in Kathmandu, despite having worked in a fixed location. This led the Tribunal to observe that the Applicant could easily be found and that she had suffered no harm for the 2 years she was in Kathmandu. The Applicant had responded that she had not been able to return to her village of Nuwakot whilst in Kathmandu and her mother had been threatened by the Maoists to reveal her whereabouts.

8. The Applicant referred to an incident in 1997 when the Applicant claimed that, after she refused the Maoists advances, she was forced off a bridge into a river and had to swim for her life, leaving her with damaged hearing.

9. The Tribunal noted that the Applicant’s advisor submitted that the Applicant was personally known to some senior Maoists in her region including one who had studied with her.

10. The Tribunal accepted the independent country information that the politics in Nepal were marked by violence and that the Maoists had committed human rights abuses and targeted members of the Congress Party. The Tribunal further accepted that the Applicant had been involved with the Congress Party in her local area. The Tribunal accepted that the Applicant was harassed in Nuwakot and, in 2002, sought refuge in Kathmandu where she worked for the NGO, prior to leaving for Australia in January 2004.

11. The Tribunal did not accept the Applicant’s claims that she continued to be harassed by the Maoists after she relocated to Kathmandu. The Tribunal found that the Applicant’s profile was local to Nuwakot and did not accept that her profile was such that it would cause the Maoists to follow her to Kathmandu in order to harm her. The Tribunal also had regard to the fact that whilst in Kathmandu she worked at the same location for the NGO for 2 years prior to her coming to Australia. The Tribunal concluded that the Maoists could easily have found her at her fixed place of employment had they sought to.

12. The Tribunal also noted that the independent country information indicated that had she been so pursued, she would have been able to enlist the assistance and protection of the authorities. The Tribunal accepted independent country information that the authorities actively pursue Maoists and offered protection to those in danger of being harmed by Maoists.

13. The Tribunal noted that the Applicant had skills that enabled her to continue to work in Kathmandu and that she had gained her University degree there. The Tribunal concluded, therefore, that it was not unreasonable in the circumstances for the Applicant to live in Kathmandu.

14. The Tribunal did not accept that there is a real chance that the Applicant will suffer serious harm were she to return to Kathmandu. Further, the Tribunal noted that the independent country information led the Tribunal to find that the Applicant also has the right to relocate to India, if she chose not to continue to live in Kathmandu.

15. At the heart of the Tribunal’s findings, was its failure to accept that the profile of the Applicant, which it found to be local to Nuwakot, was such that it would cause the Maoists to pursue her to India in order to harm her.

16. Accordingly, the Tribunal did not find that the Applicant’s fears of harm were well founded.

The proceeding before this Court

1. The Applicant was legally represented before this Court although she did not attend in person.

2. Before this Court, the Applicant relied on 3 grounds dealt with below.

Ground 1

1. The Applicant’s solicitor submitted that the Tribunal took into account an irrelevant consideration in respect of the material the subject of its s.424 notice, being the newspaper reports referred to above. However, the newspaper reports are not referred to by the Tribunal in any part of its judgment. Accordingly, there is no basis for the submission that the Tribunal took into account that material.

2. In any event, it is apparent from the findings of the Tribunal, that the Tribunal had particular regard to the Applicant’s claims. It accepted that the Applicant had difficulties with the Maoists in Nuwakot because of her activities in the Congress Party in her local area.

3. The Tribunal did not accept that the profile of the Applicant was such that it would lead the Maoists to pursue her to Kathmandu in order to harm her. In reaching that conclusion, the Tribunal had regard to the fact that the Applicant had worked in Kathmandu with the NGO for 2 years, prior to her arrival in Australia, and she had not been harmed by the Maoists during that time. The Tribunal noted that it would have been easy for the Maoists to have located her at her fixed place of employment, had they wished to pursue her.

4. Accordingly, this ground is rejected.

Ground 2

1. The Applicant also submitted that the Tribunal accepted independent country information that led it to find that the authorities in Nepal pursue Maoists and protect those in danger of being harmed and ignored other material that would suggest that the Applicant was otherwise at risk of persecution.

2. The Applicant did not seek to identify other material beyond her mere assertion, to which the Tribunal should have had regard and which was not otherwise placed before it. In any event, that cannot form any part of the review by this Court, in that it was for the Applicant to place before the Tribunal at its hearing for review, that evidence upon which the Applicant sought to rely. The review of the Tribunal’s decision by this Court is obviously confined to the material that was before it at that time.

3. The Tribunal however, accepted information that politics in Nepal was marked by violence and that Maoists had committed human rights abuses and had targeted members of the Congress Party.

4. It is clear from the authorities, that it is a matter for the Tribunal to make findings in respect of independent country information before it and that it may inform itself as it deems appropriate about such independent country information.

5. In NAHI V Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] the Full Court of the Federal Court stated:

   “It is not…an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review.”

6. Further, s.424A(3)(a) excludes, from compliance with s.424A(1), information that applies to independent country information. Accordingly, there was no requirement, pursuant to s.424A(1), to give the independent country information to the Applicant, inviting comment, prior to the hearing.

7. The findings of the Tribunal in respect of the independent country information before it were open to the Tribunal and are findings of fact. It is not open to this Court to interfere with findings of fact.

8. Accordingly, this ground is rejected.

Ground 3

1. The Applicant further submitted that the Tribunal erred in failing to consider a letter dated 1 December 2003 (“the Letter”) purporting to be on Nepali Congress Central Office Electoral Area Number 3 Nuwakot letterhead from the President. The Letter relevantly stated that “the Maoists rebels very often go to her village house threatening her parents and asking about her address and hiding place in order torture or kill her.  Because of these threats from the Maoists, she is hiding abroad for self protection at the moment and it is not possible for her to go back to her house in the village, or even in the country safely as the Maoists continuing their activities and campaigns civil unrest and terrorist activities in all over Nepal.”

2. The Tribunal accepted that the Applicant was harassed in Nuwakot and that she sought refuge in Kathmandu since 2002.

3. The Applicant contended the Tribunal erred in failing to consider the Letter in making its findings that the Maoists would not pursue the Applicant to Kathmandu, in order to harm her, because her profile was local to Nuwakot, that had the Maoists sought to find her they could have done so easily if they wished to harm her and that there is not a real chance that the Applicant will suffer serious harm should she continue to live in Kathmandu.

4. However, the Tribunal, in the Claims and Evidence section of its decision, not only referred to the Letter, but quoted the substantive text of the Letter.

5. The First Respondent referred to the Full Court of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641, where their Honours stated that:

   “It is plainly not necessary for the Tribunal refer to every piece of evidence and every contention made by an applicant in its written reasons. …There is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf MIMIA v Yusef at 87 to 97) and a failure by the Tribunal to address a contention which, if accepted, might establish that the establish that the applicant had a well founded fear of persecution for a Convention reason. The Tribunal is not a Court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. …Its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a Court of Law.

   The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not to readily to be drawn where the reasons are otherwise comprehensive and the issue has at leat been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

1. The First Respondent contends that the Applicant’s complaint is really in relation to the weight given by the Tribunal to the Letter. The Applicant, however, referred the Court to WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 (“WAIJ”) at [12] – [13], in contending that the Tribunal should have identified the weight that it placed on the Letter in considering the credibility of the Applicant’s claims. She claimed that a failure to do so, was a failure by the Tribunal to consider relevant material in the fulfilment of its decision making function.

2. The Applicant also referred to R v Punzo [2004] CanLII 18976 (OnS.C.) at [31] and Fester v The Queen [2001] HCA 72 at [219], in support of the proposition that it is not sufficient for the Tribunal to simply recite facts and general propositions derived from decided cases. The decision must reveal reasons supporting a conclusion or finding by the Tribunal that the Tribunal did not believe the Applicant and any other evidence which the Applicant relied on in support of her claims. The Applicant submits that simply by reciting the text of the letter and identifying the letter as a document that was considered is not sufficient to conclude that the Tribunal properly weighed the evidence of the letter in its reasons.

3. The Tribunal is obliged to carry out its decision making function rationally and reasonably and not arbitrarily in that it cannot determine the matter by ““tossing a coin” or “making a snap decision” or “by acting on instincts, a hunch” or “a gut feeling”” (WAIJ at [21]). The Tribunal’s decision must be based on findings or inferences of fact that are grounded upon “probative material and logical grounds” (WAIJ at [22]).

4. The First Respondent submits that the Letter is of such small or little probative value, that there can be no error in the Tribunal’s failure to mention it specifically in its reasons.

5. In analysing the Tribunal decision, it is clear that the Tribunal accepted that the Maoists may have visited her parents seeking her details. This is reflected in the Tribunal’s acceptance that the Applicant was harassed in Nuwakot and sought refuge in Kathmandu in 2002.

6. The Tribunal did not accept the assertion in the Letter that the Applicant could not return to her village or relocate in Nepal safely as the “Maoist continuing activities and campaign for civil unrest and terrorist activities in all over Nepal.”

7. However, in rejecting that claim, the Tribunal had regard to the fact that the Applicant had managed to remain in Nepal working at the same location for the NGO for 2 years prior to coming to Australia. The Tribunal concluded from that fact, that had the Maoists sought to find her, they could have done so easily. The Tribunal found that the profile of the Applicant was local to Nuwakot and was not such as to lead the Maoists to pursue her to India in order to harm her.

8. Whilst the Tribunal did not accept that the Applicant would remain at risk in Kathmandu, it also considered that it was not unreasonable for the Applicant to relocate to India, in circumstances where the Applicant’s profile was local to Nuwakot.

9. Those findings caused the Tribunal to find that the Applicant’s fears of harm were not well founded.

10. Accordingly, there is little in the Letter that was not accepted by the Tribunal to the benefit of the Applicant. The Tribunal accepted that she was harassed in Nuwakot, that her parents were threatened, that she left for Kathmandu because of the threats from the Maoists and that she could not go back to Nuwakot. The only assertion in the Letter not accepted by the Tribunal was that the Applicant could not return safely to Nepal because the Maoists would continue to pursue her. The Tribunal identified with specificity the reasons why it did not accept that the Applicant was at risk of harm in Kathmandu and why the Tribunal did not accept that there was real chance that the Applicant would suffer serious harm should she continue to live in Kathmandu. In any event, the Tribunal considered that the independent evidence revealed that the Applicant has the right to relocate in India where she could live and work. The Letter does not suggest otherwise.

11. Accordingly, the Tribunal’s decision is based on findings or inferences of fact that are grounded upon probative material and logical grounds.

12. I do not accept that the failure by the Tribunal to mention specifically the Letter in its findings and reasons, on a fair reading of its decision, was done in ignorance of the Letter and a failure to consider the contents of the Letter.

13. Accordingly, this ground is also rejected.

Conclusion

1. The findings of the Tribunal were otherwise open to it on the material before it, and no other jurisdictional error is disclosed in its decision.

2. In the circumstances, the decision of the Tribunal is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

3. The applications before this Court in respect of each of the applicants are dismissed with costs.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S Riddle

Date:  22 November 2005