SZHDO v Minister for Immigration
[2008] FMCA 1156
•15 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHDO v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1156 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZHDO”. |
| Migration Act 1958 (Cth), ss.91X, 424A |
| Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17 Minister for Immigration & Multicultural Affairs v Respondents S152 of 2003 (2004) 205 ALR 487 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 S v Minister for Immigration & Multicultural Affairs (2003) 217 CLR 387 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 Tin Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 |
| Applicant: | SZHDO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 280 of 2008 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 2 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 15 August 2008 |
REPRESENTATION
| Applicant: | The applicant appeared in person with the assistance of a Nepali interpreter |
| Counsel for the Respondents: | Mr M. Izzo |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application filed on 7 February 2008 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 280 of 2008
| SZHDO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The male applicant was born in the village of Beni, Myagdi, Nepal in 2004 and claims to have lived there ever since except for brief periods when he was in Kathmandu for school. The applicant claims that his parents and younger sister reside in Myagdi and his brother studies in Kathmandu. He attended boarding school until the age of 15 and, in 2001, the applicant went to Kathmandu for four to five months before studying Hotel Management for two years at a college. Upon completion, the applicant returned to his village which was attacked by Maoists in 2004. The applicant claims that he stayed in his village for three to four months to help his parents in their small grocery shop.
The applicant also claims that he left Nepal because of Maoist attacks on his village and specifically on his family home. He advised the Tribunal at the first hearing that he hid from the Maoists in Kathmandu. He further claims that the Maoists were looking for him and threatened his family that he should return.
At the second Tribunal hearing, the applicant was questioned about the possibility of him living in India. He replied that India was entrenched in violence and a lack of human rights and that he had not completed his education. He also stated that he did not have family in India and did not know if he could survive there. On the other hand, the applicant said he did not want to live in Kathmandu with his family as he should be independent.
The applicant arrived in Australia on 29 November 2004 and applied to the Department of Immigration for a Protection (Class XA) visa on
12 January 2005. A delegate of the Minister refused to grant the visa on 20 January 2005. The applicant applied to the Refugee Review Tribunal (“the Tribunal”) on 23 August 2005 and on 12 April 2007 the Federal Magistrates Court set aside that decision and remitted the matter to the Tribunal. On 24 December 2007, a second Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa and it is that decision (reference 071618370) which is the subject of these proceedings.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A” and is the only evidence before the Court.
At the first Court date, the applicant indicated that he wished to participate in the scheme that gives unrepresented applicants in refugee matters independent legal advice on the prospects of success of their appeal. The applicant was allocated a panel advisor and the Court file indicates he received the advice.
The applicant was granted leave to file an amended application giving complete particulars of each ground of review relied upon by 15 May 2008. An order was also made that he file and serve a short outline of submissions and list of authorities fourteen days prior to the hearing. The applicant complied with both of these orders.
The applicant appeared at two hearings of the Tribunal:
a)On 29 July 2005 (the first Tribunal) where he was represented by a migration agent from NAOSAMS Migration Services;
b)On 18 September 2007 (the second Tribunal) where he was represented by a migration agent from Parish Patience Immigration Lawyers.
An interpreter was present at both hearings.
On 26 September 2007 the Tribunal sent an “Invitation to Comment on Information” letter pursuant to s.424A of the Migration Act 1958 (Cth) (“the Act”) to the applicant’s agent at Parish Patience Immigration Lawyers. In that letter is the following statement:
The Tribunal has conducted country research in relation to the situation in Nepal and whether citizens of Nepal can enter and reside in India. Some of the relevant country information is attached.
This information indicates that although there is still violence in Kathmandu, it is directed more at the media and business. Further as a Nepalese citizen the applicant has a right to enter and reside in India. (CB 98)
Attached to the letter are several pages extracting various documents in respect of these issues. The applicant’s agent initially responded with a brief letter attaching two references from the applicant’s school.
A more substantial letter was sent on 8 October 2007 addressing the substantial issues raised in the Tribunal’s 26 September 2007 letter (CB 107-116). Attached to that second letter are extracts from various articles which support the information contained in the first letter (CB 117-146).
On 30 October 2007 the Tribunal sent a further “Invitation to Comment on/Respond to Information in Writing” letter (CB 150-152). This letter addressed contradictions and inconsistencies between the applicant’s original protection visa application lodged on 12 January 2005 and information provided by him at both the first and second Tribunal hearings. It requested his response. A brief response was forwarded by the applicant’s agent on 12 November 2007.
The Tribunal’s reasons
The Tribunal accepted that the applicant was in the village of Beni, Myagdi when it was attacked by Maoist rebels in 2004. However, it found that the applicant was not a credible witness because of a number of inconsistencies and contradictions in his written and oral statements made to the Department and the Tribunal identified as follows:
a)Statements about the length of time the applicant was in his home village before and after the Maoist attack in 2004;
b)At the first hearing he claimed that after he completed his exams he returned to his village for three to four months and the village was attacked while he was there. At the second hearing he claimed that he had failed his exams and he had been in the village for a week prior to the attack and stayed for four to five days after (CB 181.4-5).
c)The Tribunal doubted whether the applicant went to any Maoist programs. In his application he said that although Maoist cadres told him to attend their programs, he never did. At the second hearing he said he attended the programs (CB 181.7-8).
d)Statements about when the applicant found out that the Maoists were looking for him.
i)At the first hearing he claimed that he found out when he returned to Beni after his exams and his parents told him.
ii)At the second hearing he claimed that he found out when his parents told him after he had returned to Kathmandu five months after the attack (CB 181.9-182.1).
e)Statements about how many times the applicant returned to Beni after the attack and for how long. In his visa application, he claimed he returned to Beni once after the attack. At both hearings he claimed he returned a second time, although these were for periods of time inconsistent with what he said in his application (CB 182.3-182.4).
f)That the applicant provided no explanation for his inconsistent statements, some of which were central to his claims.
The Tribunal concluded that it was not satisfied that the applicant had attended Maoist programs or that he or his family had been approached by Maoists recruiting the applicant into their army (CB 182.9-183.2).
The Tribunal concluded that it was not satisfied that the applicant had been persecuted, or that there was a real chance he would be persecuted, because of the fact that he was a young man in Nepal who:
a)the Maoists wanted to recruit into their army as he was involved in sport and his school captain;
b)had avoided being recruited by Maoists;
c)had adopted a western lifestyle; and
d)had been in Australia and it would be assumed that he had worked in Australia and accumulated funds.
The Tribunal referred to country information indicating that:
a)large recruitment by Maoists and the use of schools for military purposes had ended.
b)most reported incidents of persecution were in the district of Terai.
c)Maoist and Young Communist League (YCL) activities were directed principally against the media and business groups or hotels, casinos and persons with American non-government organisations.
d)Maoist abductions have been principally of businessmen, teachers, journalists, members of political parties and local government officials.
e)there had been no reported incidents in the district of Myagdi in October or November 2007 (CB 183.3-183.10).
The Tribunal rejected the applicant’s claim that he would be persecuted by government security forces because he was a young man in Nepal:
a)whose family had provided money to the Maoists and are still doing so; and
b)whose father was well-known in this area.
The Tribunal pointed out that the applicant stated at both Tribunal hearings that when he was last in his village he stayed for part of the time at the army camp. He was able to do so because his father owned a hotel and knew army personnel. There was no claim that the applicant’s family suffered persecution from government security forces at any time during the period in which they gave money to the Maoists (CB 184.1-184.5).
The Tribunal noted the applicant’s statement that people in Nepal joined the Maoists because they had been wrongly victimised by the authorities. It noted that the applicant did not make any claim that he or his family had been persecuted by the authorities despite these general statements (CB 184.5).
The Tribunal also noted the applicant’s claims that there was a lack of security in Nepal and the authorities were:
a)unable to prevent violence; and
b)unable to prevent sporadic violence.
The Tribunal noted that most of the violence was in Terai and directed at groups of which the applicant was not a member. It did concede that there was a real chance, although small, that the applicant would be caught up in this sporadic violence. The Tribunal concluded that such violence was neither systematic nor discriminatory, and so did not amount to persecution for a Convention reason pursuant to s.91R of the Act (CB185.2-185.6).
The Tribunal considered that it was reasonable for an individual in the applicant’s circumstances to relocate to Kathmandu as:
a)he had lived there previously and had not suffered any persecution;
b)at the first hearing he indicated that his claims that Maoists were looking for him only related to Maoists looking for him in his village;
c)the applicant was able to adapt to new situations as evidenced by his adaptation to life in Australia;
d)the applicant could adapt to Kathmandu especially as he has relatives there; and
e)there was nothing to suggest that he could not continue his studies in Kathmandu (CB 185.7-186.3).
Consideration
The applicant filed both an amended application and written submissions. While the amended application contains a single ground of review the written submissions take a substantially different approach and address a wide range of issues not contained in the amended application. Consequently and as the applicant is a self-represented litigant, I will address ground one of the amended application and then consider the written submissions.
Ground one
1. The Tribunal committed jurisdictional error by failing to consider a claim made by the applicant.
Particulars
(a) The applicant claimed at the first hearing conducted by the Tribunal on 29 July 2005 that he stayed with friends at an Army camp in his home village and that Maoists kill anyone that spies and gives information to the Army. The Tribunal did not consider the possibility that he would be perceived by Maoists to have spied on them or to have given information to the Army in light of the fact that it accepted that he had stayed with friends at the Army camp. That was a claim, which if accepted, could have supported the applicant’s claims to be a refugee. This oversight by the Tribunal was not remedied by any of the other findings by the Tribunal and in particular, by its relocation finding because that finding was premised only upon attention being paid to the applicant by Maoists in order to recruit him. The Tribunal had accepted [CB 185.3] that there was sporadic violence subsisting in Nepal and, in particular, Kathmandu.
This ground contends that the Tribunal failed to consider a claim, being the possibility that the applicant would be perceived by Maoists to have spied on them or to have given information to the army in circumstances where the applicant:
a)claimed he had stayed with friends at an army camp; and
b)said that Maoists kill spies who give information to the army.
Both these issues were expressly identified by the Tribunal under “Claims and Evidence” in its decision:
The first Tribunal asked where was he when the Maoist were looking for him and he stated that sometimes he used to stay with his friends in the army camp …The first Tribunal asked the applicant if he told his army friends what was happening and he stated that he did not tell his friends as it was dangerous to say anything to army people as the Maoists would kill anyone who gave information to the army. When the first Tribunal suggested that it was suspicious if he was staying at the army base and he stated he was not there for a long time, he was there for two or three days and then he went to hide in Kathmandu. He went to Kathmandu by bus which took 12 hours. (CB 164.8, emphasis added)
Referring to the second hearing the Tribunal said:
He stayed for one week but no Maoists spoke to him as he stayed sometimes at the army camp. The Tribunal asked the applicant why he did that and he stated because of his fear of being there as because his parents told him to. He was able to stay there as his father has a hotel and he knew army personnel. The Tribunal asked if staying at an army camp would put him in more danger if the Maoists found out about it. The applicant stated that at the time everyone’s life was in danger and he has to obey his parents. The Maoists did not talk to him but he was living with the fear. (CB166.4, emphasis added)
Mr Izzo, for the first respondent, submits that it is apparent from these passages that the Tribunal was alert to the possibility that the applicant might fear harm for reason of the fact that he had stayed at an army base. During both hearings the Tribunal gave the applicant an opportunity to elaborate on that fear. Mr Izzo submits that the applicant relied on these general statements:
i)everyone’s life was in danger; and
ii)he was living in fear
However, Mr Izzo submits that the applicant expressed no fear that he would suffer harm because he stayed at the army base, nor did he suggest that Maoists had perceived that he had spied or given information to the army.
No such claims were contained in his protection visa application or in any of his written communications to the first or second Tribunal. Rather the applicant’s claims before both Tribunals was that he feared harm from the Maoists because:
i)they would try to recruit him given his local profile and age (CB 107.7); and
ii)he would be targeted for having a western lifestyle and outlook (CB 68.2).
Mr Izzo contends that where a claim now made is one that was never expressly articulated by the applicant and did not arise clearly on the material before the Tribunal, the Tribunal is under no obligation to deal with it in its findings and commits no jurisdictional error in failing to do so: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55]-[61]. Mr Izzo also submits that the nature of the questions at both Tribunal hearings and the findings of the first Tribunal (CB 58-59) would have put the applicant on notice that everything he said in support of his application was in issue. Therefore there could be no room for suggesting that he was denied an opportunity to give evidence and present arguments relating to the decision under review as s.425 of the Act requires, see SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at [47]:
[47] First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
In the absence of a transcript of the second Tribunal hearing, the Court must rely on the decision record. On a fair reading of the decision, I am satisfied that the Tribunal member did put to the applicant the important issues relevant to its decision and invited his response. Subsequent to the hearing the Tribunal forwarded two letters pursuant to s.424A of the Act inviting his response to specific issues relevant to the final decision. I am satisfied that the Tribunal member did explore the important issues raised by the applicant in his claim and invited him to respond to its questions. In the circumstances I am also satisfied that the Tribunal discharged its responsibilities and it is not apparent that any jurisdictional error arises from the conduct of the Tribunal in addressing the issues raised by the applicant’s claims.
Issues raised in the applicant’s written submissions
The applicant, with the help of unidentified people, addressed a wide range of alleged jurisdictional errors which he says occurred in the administrative review process of the Tribunal. His submissions refer to issues a number of times with no particular attempt to group related issues together. There has been no apparent attempt to particularise the claims. Instead the applicant makes bald statements of alleged error without identifying and detailing the issue. However, the applicant has identified a number of claims that, if correctly pleaded and particularised, must be addressed. Consequently, I will take each submission and address the issues raised.
Submission one
The Tribunal decision was affected by jurisdictional error as the Tribunal misdirected itself in relation to the issue of “serious harm”, it failed to address essential integers of the my claim; it misdirected itself as to Convention nexus; and it erred in its consideration of State protection.
In paragraph 12 under the sub-heading “Relevant Law”, the Tribunal decision clearly states the test to be applied in respect of “serious harm” and there is no evidence that the Tribunal misdirected itself in this respect. The integers that are claimed to have been overlooked have not been identified. However, a fair reading of the Court Book indicates that all the issues raised by the applicant in his protection visa application, at the Tribunal hearings and in the two replies to the s.424A requests have been addressed.
It should be noted that during the preparatory stage and at both Tribunal hearings, the applicant was assisted and represented by a qualified migration agent. However there is no evidence before this Court that either of those agents raised the issue of an essential integer of his claims not being addressed. There is nothing to suggest that the Tribunal misquoted or incorrectly applied the appropriate criteria on the Convention nexus as set out under the sub-heading “Relevant law”. Under the sub-heading “State Protection”, the Tribunal considered this issue in the context of the relevant authorities applicable to this area. On a fair reading of the decision, in the context of the applicant’s claims and the absence of particulars, it is not apparent that the Tribunal erred in its approach.
Submission two
2. The Tribunal erred in its application of the relocation principle, failed to consider the availability of state protection and failed to consider a fundamental aspect of my claims in the circumstances where I was found to have suffered serious harm at the hands of Maoists.
Under the heading “Relocation to Kathmandu” the Tribunal evaluated the possibility of the applicant’s relocation and indicated why Kathmandu would be suitable to him. The availability of state protection was discussed and clearly considered in the Tribunal decision.
In paragraph 88 of the decision, the Tribunal accepted that the applicant was present in Beni when it was attacked by Maoists in 2004. However, it noted the inconsistencies and contradictions in the applicant’s statement in respect of any suffering or injury he sustained during the attack.
Submission three
3. The relocation finding did not immunize the decision against jurisdictional error as it could not be said that the pervasive political violence referred to was geographically limited. Given the apparently pervasive nature of Nepalese political violence, there must be some question whether such protection was available.
The Tribunal clearly stated that the concept of state protection does not guarantee an individual’s safety from harm caused by non-state persons, nor does relocation act as a substitute for that guarantee.
The applicant’s own evidence was that he lived and studied in Kathmandu for seven to eight months after the attack on Beni and did not suffer any persecution in that period.
Submission four
4. The Tribunal member expressed reluctances in considering my case to be valued for the purpose of Convention reason and failed to recognise the necessity in applying the definition of “refugee”. The decision in my case was not made by reference to subject matter, scope and objects of the Immigration Act. This is completely unfair and injustice. My case should be treated with fairness and human dignity.
A fair reading of the Tribunal decision does not reflect this claim and, in the absence of a hearing transcript or tape, there is no evidence that the Tribunal member expressed these views. The decision clearly addressed the subject matter within the scope and objectives of the Act and it is not apparent which aspects are claimed to be unfair or unjust. This submission appears to be a general statement of frustration by the applicant after being unsuccessful in his protection visa application but the allegations contained in this submission cannot be sustained on the material that is contained in the Court Book.
Submission five
5. The RRT did not consider it necessary to come to a concluded view as to whether I was a victim of the Maoists or protected by government authorities. I argue that by avoiding a finding on this issue the RRT fell into error because it did not carry out a review as required by the Act. The finding that the Tribunal actually made in my case was an irrelevant finding, but it was a finding that appears to misunderstand the terms of the Refugee Convention and to that extent constitutes a jurisdictional error.
The conclusion that the Tribunal came to is supported by a clearly articulated and reasoned decision on all aspects raised in the protection visa application and subsequent submissions by the applicant and his migration agents at various stages before the Tribunal decision. The requirements under the Refugees Convention when assessing a protection visa application were clearly stated in the decision including the authorities which support that interpretation.
Submission six
6. I argued that I was denied procedural fairness based on the Tribunal’s findings that I lacked credibility and the rejection of my oral evidence. I also contend that the Tribunal had made up its mind during the hearing that I was not a refugee.
An adverse credibility finding by the Tribunal and any consequent rejection of an applicant’s claim, is a matter for the Tribunal par excellence: Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. It is not for this Court to review or upset a credibility finding.
What the applicant complains about in this submission is precisely what the Tribunal is meant to do. However, I suspect that the applicant has expressed himself incorrectly and attempted to suggest actual bias on the basis that the Tribunal member had a pre-existing state of mind which disabled her from undertaking or rendered her unwilling to properly evaluate the material before her relevant to the decision to be made: Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17 at [35] and [72]. Actual bias may be said to exist where a Tribunal member is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented: Jia at [71] and [72].
A party alleging actual bias on a decision maker’s part carries a heavy onus and it must be clearly proved: Jia at [37]. The existence of actual bias may be inferred on the facts and circumstances but caution should be exercised, in the absence of evidence of partisanship or hostility, before inferring actual bias from factual errors or faulty reasoning on the part of the Tribunal member: Tin Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988 at [27]; Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 at [36]. Actual bias is seldom made out by reference solely to the reasons for decision and no inference of bias or pre-judgment can be drawn from the mere fact of adverse findings in a Tribunal’s reasons: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 at [21].
Submission seven
7. The Tribunal was entitled to have regard and give weight to country information in reaching its conclusion that there was a reasonable level of efficiency of the police, judicial and related services. However, as the Tribunal accepted that I believed the police did not provide adequate and effective protection because threats against me continued, it was incumbent upon it to make a further specific finding in relation to my claims concerning the extent to which I was able to avail myself of the protection of the police and the local authorities. The Tribunal erred in its approach to the claim of political activities which involved violence, such that there was a constructive failure to exercise jurisdiction.
This submission appears to repeat or recast the submission on state protection. The Tribunal clearly and correctly set out the decision in Minister for Immigration & Multicultural Affairs v Respondents S152 of 2003 (2004) 205 ALR 487 per Gleeson CJ, Hayne and Heydon JJ:
No country can guarantee that its citizens will at all times and in all circumstances be safe from violence. The Tribunal has referred and relied on country information about the situation in Nepal and again this is an issue for the Tribunal to assess the relevance of that material and the conclusions to be drawn from it.
Submission eight
8. I contend that the Tribunal’s reasons did not deal with important elements of my claims which included the claim to have an actual political opinion because of my anti-Maoists attitude. The invitation to comment was unnecessarily uninformative and in the circumstances inadequate. I argue that the Tribunal failed to address my claim that I would be denied state protection from the harm feared for reasons of my political opinion, being my non pro-Maoist attitude.
This submission appears to be confused as the administration of Nepal is against the Maoist insurgency and would protect its citizens from that insurgency. Anyone expressing a view that they were anti-Maoist would not be denied state protection in those circumstances.
Submission nine
9. The Tribunal made no specific finding as to whether hiding would lead to avoidance of an adverse reaction from the Maoists because either it was unlikely to come to the notice of Maoists, or because the authorities were concerned about my safety. Since these issues were not dealt with, it inferred that the Tribunal Member did not consider them to be material, when they were. Thus there was a failure to have regard to relevant material which was so fundamental that it went to jurisdiction.
The Tribunal did acknowledge that the applicant could be exposed to violence if he remained in the vicinity of Beni. It was on this basis that the Tribunal considered the issue of relocation and formed the view that as the applicant had been able to live and study safely in Kathmandu it was reasonable to suggest relocation to Kathmandu.
Submission ten
10. The Tribunal’s decision was affected by jurisdictional error. It failed to fully deal with my claims to have been targeted as a member of anti-Maoists. This was a characteristic that may have been shared with other local victims of extortion, who can therefore constitute a particular social group for the purposes of the Convention definition.
This appears to be an attempt by the applicant to place himself within the Convention by claiming membership of a particular social group and that persecution results from that membership. Importantly a defining issue in establishing membership of a particular social group is that a characteristic is not persecution itself. This will be considered further in the following submission.
Submission eleven
11. The Tribunal member rejected my claim that the fear of being seriously harmed by the Maoists was for the reason of membership of a social group, the brevity of its reasons that showed that the Tribunal member made too simplistic an analysis of my claims before it. It is no answer that my own narrative of my difficulties with the Maoists might have poorly assisted the Tribunal to make essential findings as to the existence and definition of a group to which I belonged. If the Tribunal had appreciated the potential for a particular social group claim based on its finding, it is possible that its investigation of country information might have given the claim more substance.
Whether an individual is a member of a particular social group was considered by the High Court in S v Minister for Immigration & Multicultural Affairs (2003) 217 CLR 387 at [36] per Gleeson CJ, Gummow and Kirby JJ:
[36] Therefore, the determination of whether a group falls within the definition of "particular social group" in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A45 [[1997] HCA 4], a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". As this Court has repeatedly emphasised, identifying accurately the "particular social group" alleged is vital for the accurate application of the applicable law to the case in hand46 [see Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26 per Kirby J at [872]].
The Tribunal found in its “Findings and Reasons” at [88]:
…The Tribunal accepts that the Maoists entered and looted the applicant’s family home. However, the Tribunal did not find the applicant to be a credible witness for reasons set out below. In particular there are a number of inconsistencies and contradictions in the statements made by the applicant, both written and orally, to the Department and the Tribunal which are of such a magnitude that it indicates that the applicant and his family were not approached by Maoists in relation to the applicant being recruited into the Maoists army and his family have not provided money to the Maoists. The inconsistencies and contradictions also indicate that the applicant had not suffered the harm he claims to have suffered in Nepal. (CB 818)
The applicant appears to claim that the particular social group in which he is a member is based on the characteristic of “local victims of extortion”. The Tribunal made a clear finding that the applicant and his family had not provided money to the Maoists or that there was an attempt to extort money from him. The Tribunal made the following finding at [103]:
With the exception of the attack on Beni in 2004, in the Tribunal’s view there is no plausible evidence before it that the applicant had suffered persecution in his country, Nepal because of his political opinion, his imputed political opinion, his membership of a particular social group or groups, his religion or for any other Convention reason. Nor in the Tribunal’s view does the evidence establish that there is a real chance that the applicant will suffer for a Convention reason either now or in the reasonably foreseeable future if he returns to Nepal. Having regard to the above the Tribunal is not satisfied, on the evidence presented before it, that the applicant has a well founded fear of persecution for a Convention reason if he returns to Nepal in the foreseeable future. (CB 104)
I am satisfied that the Tribunal has considered the issue of the applicant’s membership of a particular social group and the reasons for the finding are clearly set out in its decision.
Conclusion
The applicant in these proceedings was a self represented litigant who appeared with the assistance of a Nepali interpreter. The Court provided the applicant with a panel advisor and the applicant availed himself of the opportunity to file an amended application and written submissions. He elected not to make oral submissions. It appears that the amended application and written submissions are works of different authors and do not focus specifically on the Tribunal decision but rather raise general issues commonly addressed in administrative review applications. The errors raised are not particularised or addressed in the submissions.
This places an obligation on the Court to independently consider whether an error does exist by an examination of the Court Book and particularly the Tribunal decision – which is the only evidence before the Court. The Tribunal concluded that if the applicant became involved in sporadic violence in some parts of Nepal, that by its very nature it does not involve systematic and discriminatory conduct amounting to persecution within s.91R of the Act. There was also nothing to indicate that the applicant would not be provided with state protection. However, the Tribunal also considered his possible relocation to Kathmandu where he had resided in the past and had not suffered any violence from the Maoists or the YCL. Although he indicated that he did not wish to reside with family members in Kathmandu, he had demonstrated by living in Australia that he could adapt to new situations and would adapt to Nepalese society in Kathmandu. I am satisfied on a fair reading of the material available to the Court that the applicant’s claims were rejected on credibility findings and that the Tribunal made the additional finding that the applicant could safely relocate within Nepal and was unlikely to suffer persecution in the foreseeable future. It is not apparent that the Tribunal made a jurisdictional error in its decision making process. Consequently the applicant’s claim should be dismissed with costs.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 15 August 2008