SZHYA v Minister for Immigration - [2007] FMCA 1377

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHYA v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1377

MIGRATION – RRT decision – Nepali student in Australia during the Maoist insurgency – Maoist persecution of his family – unexplained reference in visa application to fear of Government forces – no claim of substance was raised before Tribunal which was not addressed – application dismissed.

Migration Act 1958 (Cth), ss.424A, 474, 476

HTUN v Ministerfor Immigration & Multicultural Affairs (2001) 194 ALR 244
Minister for Immigration& Multicultural & Indigenous Affairs, re; Ex parte Applicant S134/2002 (2003) 211 CLR 441
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1

NAVK v Minister for Immigration& Multicultural & Indigenous Affairs (2004) FCA 1695
SZEIV v Minister for Immigration & Multicultural & Indigenous Affairs (2006) FCA 1798

Applicant:

SZHYA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1627 of 2007

Judgment of:

Smith FM

Hearing date:

6 August 2007

Delivered at:

Sydney

Delivered on:

6 August 2007

REPRESENTATION

Counsel for the Applicant:

Mr L Byrne

Counsel for the First Respondent:

Ms S Sirtes

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5000

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1627 of 2007

SZHYA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 23 May 2007 which has been set down for a final hearing today under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”), in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 3 April 2007 and handed down on 26 April 2007. The Tribunal affirmed a decision of a delegate made on

30 May 2005, refusing to grant a protection visa to the applicant
An earlier decision by the Tribunal was set aside by consent order in this Court upon a concession that there was a failure to observe s.424A(1). It is not contended, in the present case, that the second Tribunal made a decision which was similarly affected.
Under s.476 the Court has the “same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474 so that I do not have power to send the matter back to the Tribunal, unless I am satisfied that the Tribunal's decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant would be at risk if he returned to his country of nationality, nor whether he qualifies for a protection visa.
The applicant was represented at the hearing today by counsel, who relied upon one ground of contended jurisdictional error. This was that the Tribunal had failed to address an integer in the refugee claims presented to the Tribunal, whether expressly articulated or implicitly. The omission in the Tribunal's reasons is identified in particular ix) of the grounds of the amended application:
ix)The Tribunal did not make any findings in regard to the applicant’s fear of persecution by the Nepalese army because of an imputed political opinion that his membership of the UML indicated support for the Maoists. The Tribunal did not make any findings in regard to the applicant’s claim that he feared persecution by the Nepalese army for reason of membership of a particular social group (his family and extended family). The applicant claimed that his family are politically active in a left wing party and that they have paid significant amounts of money to the Maoists (albeit under duress) and that his house has been searched on several occasions by the army and that his father is or was under house arrest.
In counsel's written and oral submissions, this particular was given a further focus, and it was contended that, from evidence which I shall identify below:
can clearly be inferred a claim that the applicant feared persecution from the Nepalese authorities and government because his and his family's left wing political allegiances may lead him to being suspected of being a Maoist.
This raises essentially a question of interpretation of the evidence as to how the applicant presented his refugee claims to the Department and Tribunal.
The applicant made his application for a protection visa on 19 April 2005, having arrived in Australia in July 1998 to pursue tertiary education studies. He pursued those studies and completed them in 2003, and then remained unlawfully present in Australia until making his present application. At that time he was aged 29.
His application did not identify any assistance in bringing the application, and in answer to the parts of the application form inquiring why he sought protection in Australia against return to Nepal, he answered:
40.Why did you leave that country?
To study and to avoid further harassment
41.What do you fear may happen to you if you go back to that country?
I may be killed by Maoist or the army
42.Who do you think may harm/mistreat you if you go back?
Government authorities, Maoists.
43.Why do you think this will happen to you if you go back?
Because of my (and my family) political opinion.
44.Do you think the authorities of that country can and will protect you if go back?
No, firstly they will persecute me. 2ndly, they no control over Maoist. There is no peace and order situation in Nepal.
The applicant's fears were then given substance in a typed statement occupying eight-and-a-half typed pages, setting out his history before leaving Nepal and events subsequently in Nepal which gave rise to his claimed fears. He indicated that he came from a “well being family” with business and property interests in Nepal. He received a good education. His parents lived in a town where people “used to come to my house from around, and even from villages, to talk and discuss about politics and the present situation of the country”. He said:
My parents supported United Marxist and Leninist [UML]. I participated in different programs and campaigns run by the party, and I became a member of Democratic National Youth Association [DNYA], which is youth association of UML. I actively involved in all major campaigns.
Documents later presented by the applicant suggested that he joined the party in 1996, and that he participated in a local election in 1997 and possibly also in a national election in 1998. These elections were contested between the UML party and the Nepalese Congress Party, both of whom at all times have supported democratic processes. The applicant referred to being injured after the Nepali Congress Party won an election in 1998, and receiving medical treatment for his injuries. This occurred when: “they took out big celebration rallies and big crowd throw stone into my house, glass windows all shattered and there was pieces of brick and stone in the balcony.”
The applicant then left his home town, and followed some further study in Kathmandu, before coming to Australia to complete his tertiary education. He said that at the time that he left Nepal in 1998:
Maoist rebels were not that active when I was in Nepal. They were tiny and meaningless. Infant democracy was growing up in Nepal.
After he came to Australia, he heard that the Maoists were getting stronger, after they split from the democratic Marxist parties and pursued the path of armed insurgency. He referred to the Maoists demanding money from his parents, and claimed:
They took a lot of money from us many times and they always keep on asking. They took our all the land papers, which means we are not even able to sell our land and properties. Our all the business shut down because of Maoist rebels. Everyday is bad day for family to live there. I am living here, but Maoist rebels keep on asking me when I will come back. My mother and father always cried a lot, every time I spoke to them on the phone. They insist me not to come back home in this critical atmosphere where my life will be in danger. I might kill or kidnapped any time. Sometime Maoist rebels disconnected the phone lines. It is disturbing and dangerous. My enemies, when I used to be in politics back home: now most of them are Maoists, and my few friends being kidnapped by Maoists in my neighbourhood.
At the end of his statement, he referred to events in early 2005 when the king of Nepal dismissed a multi-party government and took direct control. The applicant said:
Constitutional and democratic rights of Nepalese people have been hijacked. Now Nepal is part of the problem, not part of the solution, in resolving Nepal’s political crisis. I’m seriously concerned about ongoing violation of civil and political rights including arrest, torture and illegal detention. I also condemn the ongoing arrest, house detention and interference of the leaders of political parties and their cadres. I hope and pray to god, the restoration of democracy and fundamental rights of the people will exist soon. And I also expect, by god’s grace Nepal will solve all the problems in near future and I will be very happy person mentally, physically and emotionally. So therefore, all these above reasons and odd circumstance my life is difficult and unsafe condition. That is why it is my obligations to stay in this country rather than my fondness.
Although my parents want me to be with them, they warned me not to return to Nepal due to current political turmoil of Nepal. My life is precious. If I now return to Nepal, either I will be killed by Army or Maoists. My house was searched by Army on several occasions. My father is under house arrest. I fear to leave Australia. There is no democracy, liberty and human rights in Nepal.
The applicant’s reference at the end of this statement to “My father is under house arrest” was never developed in any further written material presented to the Department or the Tribunal, nor was it further referred to by the applicant when he attended two hearings by the Tribunal. It was therefore left obscure as to how he presented that event as bearing on his own risks of persecution. Nor, did any of the material presented to the Department or Tribunal give any explanation as to why, in his original protection visa application, he referred to a fear of death at the hands of the Army, or a general fear of harm from “government authorities”. These claims were, therefore, left unexplained and without any apparent substance.
A volume of general supporting information presented to the Department and then later to the Tribunal by the applicant referred generally to the insurgency and terrorist activities of the Maoists, and to the unsettled human rights situation in Nepal arising from the government responses.
When the delegate made his decision in May 2005, peace talks with the Maoists had collapsed in August 2004, and “a full-blown anti-insurgency war appears imminent, bringing with it possibly more human rights abuses by both sides involved in the conflict”. Notwithstanding that situation, the delegate considered that the applicant's delay in seeking protection was not “consistent with that of a person who genuinely fears persecution in his home country”. The delegate was therefore not satisfied that the applicant had a well founded fear of persecution, notwithstanding that the delegate accepted:
as plausible that the applicant's family were member of the United Marxist and Leninist Party in Nepal. I also accept as plausible that ransom demands may have been made on the applicant's family by Maoist insurgents.
On appeal, the applicant attended a hearing on 20 October 2005 held by the Tribunal as originally constituted. A transcript of his evidence is not in evidence, and the first Tribunal only gave a brief summary of his evidence. This summary appears to have been relied upon by the second Tribunal when it addressed the matter again.
According to the first Tribunal’s description of the hearing, it received documents presented by the applicant which purported to corroborate his connection with the UML party in 1996 and 1997, and that demands and threats had later been received from the Maoists by his parents. The applicant explained his family’s situation in the town where his parents still lived. He claimed to have had political enemies still in Nepal, because some of his former Congress Party opponents had joined the Maoists.
In response to various concerns put to the Tribunal by the applicant, including whether he could live safely in Kathmandu or India, the applicant is recorded as stating as follows:
The applicant stated that he had not returned home for seven years despite his grandfather dying, his mother being sick and his father having diabetes. He said that Nepal is in a civil war and there would be no safe place for him, not even in the capital. The Tribunal asked why he would not be safe and he replied that his father has been paying his UML membership and the Maoists are ‘everywhere’ and people would know he had returned because he had “so many enemies” there. He said that since the King took over government, there are no longer human rights.
The Tribunal asked about living in India. He said that if you came to the attention of the Indian police, they would put you in jail and torture you. He agreed there were many Nepalese in India but his experience was that there was a level of lawlessness there that made it unsafe to live.
The applicant then said that the problem in Nepal was that if anyone said you were a Maoist, the army would “shoot you on the spot”. He said that if someone like his father complained to the police about Maoist harassment, then the Maoists would return to wreak their vengeance.
Counsel for the applicant today drew attention to the applicant's claim that “If anyone said you were a Maoist, the Army would ‘shoot you on the spot’”. He argued that this gave some support for the originally stated fear of the Army. I accept that it does indicate a continuing and natural concern by the applicant in relation to the insecure situation in Nepal at the time of the first hearing. However, I cannot find in this evidence any suggestion that the applicant was concerned that he himself would be the subject of imputed Maoist political opinions, nor that he identified any person or group or source likely to make those imputations. In my opinion, to the extent that it is possible to draw conclusions from this summary and incomplete reference to evidence given at a hearing, I would accept only that the applicant probably presented concerns about a generally insecure situation in Nepal at that time, rather than a claim that he would be personally targeted for a Convention reason by persons other than Maoists or Maoist supporters, and in particular by the Army or government agencies.
After the matter was remitted, the applicant presented a further lengthy statement and further material to the reconstituted Tribunal. Nothing in this provides any support for the contention made to me, that the applicant had raised a claim to fear persecution by government authorities for an imputed Maoist political opinion, or that in fact he might be at risk at the hands of the Army and government authorities for his actual or imputed political opinions.
Indeed, the statement he presented to the Tribunal quite clearly indicated very strong political opinions opposed to the Maoists, notwithstanding that they were, at that time, engaged in negotiations with the democratic parties in Nepal, with a view to joining a government which would hold elections under a parliamentary constitution. The applicant expressed his hostility to Maoists as follows:
There is no compromise with the traitors at any cost instead they (Maoist) must bring into justice and must punish them the crime they did and doing for such a long time. I’m against the negotiations that government is dealing with the Maoists because they are arm rebels and the characteristics Maoist showing in the name of peace process. I strongly voice my concern to re-establish our business, return our lands and lands papers, return our money they took from my parents and the hardships they endured and enduring and the most valuable time of my life. Maoist destroyed my future and life. I want life of my grandfather back. Maoist must punish.
The applicant's statement received on 19 March 2007 also raised a new claim based on his recent marriage to a woman with whom he had attended college in Nepal, and who had come to Australia to continue her education. He claimed that their marriage had incurred the hostility of both their parents, because they came from different castes and their marriage was contrary to conservative Hindu customs. This claim was ultimately addressed by the Tribunal, and is not the subject of the ground of review which I am addressing. I therefore do not need to explain its details, and how it was dealt with by the Tribunal.
The applicant attended a hearing of the reconstituted Tribunal on

20 February 2007, where his new claim was explored by the Tribunal. The applicant also further explained his parents' extortion at the hands of the Maoists, and said that he thought that the last time they were approached by Maoists was in 2003. He gave what the Tribunal regarded as ‘vague and contradictory’ evidence as to the extent of the forced appropriations they had suffered in relation to their property and businesses.
The applicant was also questioned about his family’s political background, and he said:
The applicant was asked about his family’s involvement with politics. He said that the whole family was very involved in political discussion. The location of their house meant that a lot of people would come to the house, where there were a range of newspapers put out by different parties, and they would discuss politics. The applicant’s father was and is a member of the UML. He was asked what sort of work he did on behalf of the party. He said that he was just a member; he was not an office-bearer in the party. He is a supporter.
The applicant then referred to becoming a member of the UML in 1996 and campaigning in elections in 1997. He confirmed that the main reason he came to Australia was to study, and said “Before he came to Australia, the applicant had no particular problems in Nepal. His family had not had difficulties with the Maoists”.
The Tribunal put to the applicant that “Nepal appeared to still be on track for elections in June this year, the peace process has been continued with.” In response, the applicant referred to concerns about the Maoists, but did not identify any concern about any other group or organisation or people in Nepal. In particular, no reference is made in the Tribunal's description of this hearing to any concern expressed by the applicant of being imputed with Maoist politics’ political opinion, nor of any fear of harm at the hands of the Army or government.
When he was specifically invited to formulate his claims, no mention of this was made. The Tribunal said:
The applicant was asked what he feared if he went back to Nepal. He said that he feared that the Maoists will think, because he has been abroad, that he has a lot of money and they will demand money from him. He is also afraid because of his marriage. He is afraid of being attacked by the Maoists and by his family.
These concerns were then further explained by him.
In its statement of reasons, the Tribunal referred to independent country information, including recent information concerning the restoration of parliament in April 2006 and the “alliance of the seven main political parties” which included the UML, which had taken government, and signed a “comprehensive peace agreement” with the Maoists in November 2006. The reports from 2007 indicated that the Maoist ex-rebels “had been sworn in as Ministers in Nepal's interim government”, and an election was due for June. The Tribunal also referred to information about inter-caste marriages.

Under the heading "Findings and Reasons", the Tribunal said: “most elements of the applicant's claims are consistent in relation to his fear of serious harm from the Maoists”, although it noted some vague and contradictory aspects in relation to the extent of the expropriations by the Maoists from his family. The Tribunal also identified “a new claim” arising from his marriage. It was those two claims which the Tribunal then addressed. It is common ground that it did not discuss the applicant’s references in his visa application to a fear of the Army and government.
In relation to his concern of harm from the Maoists, the Tribunal thought that the applicant's political activities, before coming to Australia: “were prior to the rise of the Maoists, and are not relevant to the current situation in Nepal or to the applicant's claim of fearing persecution from the Maoists”. In my opinion, that finding also addressed any residual concerns arising from the applicant's 1997 conflicts with the members of the Congress party who had turned Maoist.
The Tribunal then referred to the expropriations of the Maoists from his family, and concluded:
On balance, the Tribunal accepts that Maoists seized assets and extorted money from the applicant's family, who were clearly, on his evidence, wealthy landowners and businessmen. The Tribunal also finds, however, that the extent of the Maoist's depredations against his family have been exaggerated by the applicant. It also finds, on the applicant's evidence, that the applicant's family was not approached by the Maoists after 2003.
The Tribunal noted that the applicant himself had never suffered serious harm from the Maoists, and it addressed his future if he returned to Nepal as follows:
The Tribunal has considered whether there is a real chance that the applicant will be persecuted if he returns to Nepal in the foreseeable future. He has claimed that Maoists will attempt to extort money from him if he returns, particularly because they consider all people returning from abroad are likely to be wealthy. The Tribunal accepts that the applicant may indeed be approached for money for this reason. However, the Tribunal does not accept the applicant’s claim that his inability to donate money to the Maoists will result in his death. While the applicant’s family have been the victims of Maoist extortion, they have not suffered physical harm, and indeed have not been approached by the Maoists for some years, on the applicant’s evidence. Furthermore, the political situation is changing in Nepal, a peace agreement having been signed, and arrangements being under way for elections later this year (see pages 11-12). The current government is run by a coalition which includes the applicant’s UML party (see page 11) and there is no reason to believe that the applicant would be targeted by the Maoists for this reason, even if he had been a prominent political activist. There is nothing in the applicant’s evidence to indicate a reason that he would be seriously harmed by the Maoists, and the evidence on current events in Nepal is to the effect that the situation is becoming more stable there, and that therefore mechanisms of civil protection are becoming stronger. On the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant will be persecuted by Maoists in Nepal if he returns there in the foreseeable future.It is plain that in this paragraph the Tribunal has not thought that it was required to address any concerns of harm at the hands of government agencies for imputed Maoists, political opinions or otherwise.
The remainder of its reasons addressed the applicant’s claims relating to family and social ostracism and ill health.
Addressing the ground of review raised before me, I must decide whether “integer” of a claim as formulated by the applicant’s counsel was, in fact, a matter presented to the Tribunal which its jurisdiction required it to address.
The principles in relation to this ground are familiar. Counsel for the applicant referred me to HTUN v Ministerfor Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42]:
The requirement to review the decision under s.414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims, and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend.
In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1, another Full Court accepted at [60], that the Tribunal would make a jurisdictional error if it did not address the claims presented, whether or not they were expressly ‘articulated’ as such. At [60] their Honours said:
This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.
At [62] their Honours said:
Whatever the scope of the Tribunal's obligations, it is not required to consider criteria for an application never made.
(see also Minister for Immigration & Multicultural & Indigenous Affairs, re; Ex parte Applicant S134/2002 (2003) 211 CLR 441 at [1], [28] and [31]).
The Court’s task of identifying an unarticulated claim which arose clearly and was required to be addressed, was explained by Allsop J in NAVK v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCA 1695 at [15] where his Honour said:
Whatever 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 commonsense approach to every day decision making requires the inarticulate 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 assist their legitimacy.
I was also referred to a decision by Bennett J in SZEIV v Minister for Immigration & Multicultural & Indigenous Affairs (2006) FCA 1798 where at [28]–[34] her Honour refers to the authorities and concluded at [34]:
A claim made to the Department and referred to in the Delegate's decision would, ordinarily, be before the Tribunal. However, where a claim has been made to the Delegate and not advanced at all before the Tribunal, and does not arise from material before the Tribunal, the Tribunal is entitled to assume that the claim is no longer made. The Tribunal is conducting a review of the delegate's decision but on the basis of the claims advanced the material is before the Tribunal. If a claim does not so arise and is abandoned, especially where the applicants are legally represented, the Tribunal is entitled to take the view that the applicants do not make that claim, or a case based on that claim.
In the present case, the applicant has never been legally represented, and has never expressly ‘abandoned’ his initial unexplained references to a fear of the Army and goverment. However, he never developed that claim before the Tribunal, as constituted on either occasion, beyond reference to a general situation of insecurity in Nepal during the period of the Maoist insurgency and the Army counter-insurgency activities. He never presented any explanation as to why he, himself, would be at particular risk at the hands of the Army or government authorities. Rather, the claims which he presented, in particular to the second Tribunal, made it clear that he clearly associated himself and his family with the opponents of the Maoists, and presented no basis for a risk of being imputed with Maoist political opinion or of being harmed by the Army or government.
In particular, I can find no substance in any of the material which the applicant presented to the Department or Tribunal to support his counsel’s argument that a person associated with the UML party might be imputed with the Maoists’ political opinions. I was not taken to any such material anywhere in the Court Book, and in my opinion there was no material before the Tribunal raising such a claim.
In my opinion, the second Tribunal has addressed the fears which were presented to it, specifically at the hearing and in the written material presented by the applicant to the Tribunal, but also arising in any substantial manner from the whole of the material before the Tribunal.
Particularly in view of the recent political developments to which the Tribunal referred, I do not consider that the Tribunal was obliged to address the applicant's situation merely as a member of the general population which, in the past, had been at risk in the unsettled state of Nepal during most of the years in which the applicant had been residing in Australia.
For the above reasons I am unable to accept the carefully developed submissions for counsel for the applicant, and am left unpersuaded that the Tribunal's decision was affected by any jurisdictional error. I must therefore dismiss the application.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 17 August 2007