SZILA v Minister for Immigration and Citizenship

[2007] FCA 1420

FEDERAL COURT OF AUSTRALIA

SZILA v Minister for Immigration and Citizenship [2007] FCA 1420

SZILA v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR
NSD608 OF 2007

12 SEPTEMBER 2007

EMMETT J
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD608 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZILA
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	12 SEPTEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD608 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZILA
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

EMMETT J

DATE:

12 SEPTEMBER 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a national of Nepal, who arrived in Australia on 7 July 2005.  On 8 September 2005, he lodged an application for a protection (Class XA) visa under the Migration Act 1958 (Cth) (the Act). On 13 September 2005, a delegate of the first respondent, the Minister of Immigration and Citizenship (the Minister), refused to grant a protection visa and on 16 September 2005 the appellant applied to the second respondent, the Refugee Review Tribunal (the Tribunal), for review of the delegate’s decision. On 18 January 2006, the Tribunal affirmed the delegate’s decision. The appellant was notified of that decision on 2 February 2006.

2. On 27 February 2006, the appellant commenced a proceeding in the Federal Magistrates Court of Australia seeking judicial review of the Tribunal’s decision.  On 15 August 2006, the appellant filed an amended application.  After a hearing on 22 February 2007, the Federal Magistrates Court ordered, on 27 March 2007, that the application be dismissed with costs.  The appellant filed notice of appeal from those orders to the Federal Court of Australia on 11 April 2007.

3. The grounds upon which review was sought in the amended application to the Federal Magistrates Court were as follows.

   ·Failure to take into account relevant considerations:  the Tribunal failed to take the appellant’s story seriously.

   ·Failure to give genuine and realistic consideration:  the Tribunal failed to give realistic consideration to the fact that the appellant had been individually subjected to a systematic program of harassment every time he went to his home village.

   ·Identifying a wrong issue and asking wrong questions:  the Tribunal asked the appellant questions that were confusing and made him feel that he was lying.

   ·Ignoring relevant materials or relying on irrelevant matters: the Tribunal relied on the appellant’s ability to reside in Kathmandu and to travel in and out of Nepal.

4. The notice of appeal purports to state ten grounds.  However, the purported grounds are really submissions in somewhat general terms.  Before dealing with the grounds of review before the Federal Magistrates Court and the grounds of appeal to this Court, it is desirable to say something about the Tribunal’s reasons. 

5. The appellant claimed to fear persecution in Nepal for reasons of his political opinion.  He asserted that, after starting tertiary studies in a part of Nepal away from his home village, he visited his home village in 2002 and found that the Maoists had taken over.  The Tribunal observed that it was hard to conceive that the appellant would not have known of that in advance and yet he returned home.  The Tribunal considered that that was relevant to the question as to whether the occupation of a particular area by Maoists would, on its own, give rise to a well founded fear of persecution on the part of a non-Maoist returning to that area.  The appellant claimed that the Maoists demanded that he join them, but that he refused.  He also claimed that the Maoists threatened to kill his parents if they continued to support his study in a different part of Nepal. 

6. The appellant said that he left his home village again but, instead of continuing his studies, went to work in Dubai with the financial assistance of his parents.  Notwithstanding that he claimed that his life would be in trouble if he went back to his home village, he visited Nepal again for over four months from August to December 2004. 

7. The appellant first claimed that he could stay in Kathmandu when he returned, because it was far from his home village.  However, when the Tribunal put to the appellant that he appeared to be saying that he had a substantial level of protection in Kathmandu, he said that he could not stay in Kathmandu because one of his cousins was a Maoist and there were Maoists from his village in Kathmandu.  The Tribunal considered that it was odd that the appellant’s opening position in relation to his return visit to Nepal made no reference to dangers of residing in Kathmandu but, rather, indicated the opposite.

8. The appellant also made certain additional claims to the Tribunal for the first time.  He said that, as a reaction to the Maoists in his village, he and some others, during his study vacation, formed a resistance group, which numbered eleven in total, to stand against the Maoists.  He claimed that two of his group killed two Maoists and hid their bodies.  He claimed that he was implicated by persons who were caught and tortured by the Maoists and that he is still wanted by them.  He said that he asked “government officers” to protect him but they said that they could not even protect themselves.  He claimed that those events precipitated his escape to Dubai.

9. The Tribunal accepted that the Maoist rebellion has spread to numerous parts of Nepal, but found no evidence to suggest that Kathmandu is in danger of falling to the Maoists.  The Tribunal gave the appellant time to provide evidence to that effect if he wished.  However, it received none, apart from a letter written by a friend of the appellant in Thailand.  The Tribunal gave no weight to the letter.

10. The Tribunal found that the appellant’s claims about the eleven member group and its aims and activities lacked consistency and plausibility, even if concerns as to why the claims were not made earlier were set aside.  The Tribunal considered that the appellant was particularly weak in explaining why he formed the group with the purpose of standing up to the Maoists if only to flee at the first sign of what should have been predictable conflict with them.  The Tribunal concluded that the claims about the anti Maoist group were a late invention on the appellant’s part.  On the basis of the appellant’s performance as a witness at the hearing before the Tribunal, the Tribunal concluded that the evidence was fabricated.

11. The Tribunal accepted that it may well be that Maoists occupy the appellant’s village and that the appellant does not want to live in that area.  The Tribunal also accepted that it may well be that the appellant might face some difficulties living amongst the Maoists there.  However, the Tribunal considered that that did not, of itself, indicate a real chance of persecution of the appellant in the event of return to his home village, let alone to Nepal.  The Tribunal had regard to the fact that the appellant returned to his home village during his break in study.  The Tribunal considered that, if the Maoists were occupying the area of the appellant’s home village at the time of his return in 2002, it was inconceivable that he would have been unaware of the fact until after he returned there.  The Tribunal therefore did not accept that the presence of Maoists in an area is of itself indicative of a real chance of a non-Maoist facing persecution in that area by reason of being a non-Maoist.

12. The Tribunal concluded, in effect, that it would not be unreasonable to expect the appellant to reside in another part of Nepal, such as Kathmandu.  The Tribunal referred to the fact that the appellant initially gave evidence that it was safe for him to reside in Kathmandu and only put forward an opposite view after the Tribunal put potentially adverse views to him in response to that evidence. 

13. The Tribunal considered that the appellant’s voluntary return to Nepal in 2004 was significant evidence of a lack of genuine fear of Convention related persecution on his part at that time.  The Tribunal did not consider that there was any reliable evidence suggesting any genuine significant objective or subjective factors that would prevent the appellant from returning to Nepal and residing there safely.  The Tribunal was therefore not satisfied that the appellant faced a real chance of persecution in Nepal for a Convention reason.

14. The appellant appeared without legal representation, although he relied on written submissions, which he said he prepared with the assistance of a friend.  In his written submissions, the appellant began by saying that the issue is whether the primary judge erred in failing to find that the Tribunal did not consider the following issues that he raised:

    ·whether the Tribunal erred in making a finding for which there is no evidence; and

    ·whether the Tribunal breached s 425(1) of the Act by failing to identify an issue that arose for consideration in the proceeding before the Tribunal.

    In his oral submission, the appellant reiterated the claims that he had made to the Tribunal.  He did not attempt to address any ground of jurisdictional error on the part of the Tribunal or error on the part of the primary judge, who dealt with the application for review with considerable thoroughness. 

15. In his written submissions, the appellant claimed that the Tribunal denied him procedural fairness in not determining his claims to fear persecution on the ground of political opinion and membership of a particular social group.  He said that the Tribunal had a predetermined conclusion about his case and failed to address the definitions in the Refugees Convention and failed to address the appellant’s specific claims.  He said, more particularly, that the Tribunal did not make findings on his claim that his group killed two Maoists in the village.  That assertion, of course, is completely without foundation.  The Tribunal addressed that claim and rejected it as a fabrication.  The appellant also said, in his written submissions, that the absence of any pertinent findings and discussions about the appellant’s claims implied that the Tribunal overlooked those claims.  However, the appellant did not refer to any claim that had not been addressed, other than the claim about his group. 

16. The written submission also asserted that the Tribunal used information in the appellant’s protection visa application to affirm its decision but did not comply with s 424A of the Act in relation to that information.  However, the submissions do not disclose any information that was part of the reason for the Tribunal’s decision that could fall within s 424A.  Indeed, the Tribunal expressly stated that it did not base its decision on any information contained in the protection visa application.

17. Next, the appellant’s submissions asserted that the Tribunal failed to exercise good faith and failed to make a bona fide attempt to exercise its power to review the delegate’s decision.  However, no particulars were furnished of the alleged lack of good faith or lack of bona fides.

18. The written submission also argued that the Tribunal failed to recognise the necessity of applying the definition of “refugee” in the Refugees Convention.  The submission asserted that the Tribunal made no reference to the subject matter, scope and objects of the Act and that that was unfair.  Once again, however, the appellant did not attempt to particularise the assertion.  In fact, the Tribunal summarised the effect of the Convention in unexceptionable terms.

19. Next, the submissions complained that the Tribunal’s conclusions of fact were not open to it because there was no evidence to indicate that the Maoist rebellion had not spread to all parts of Nepal.  That, of course, is a matter of fact.  The Tribunal accepted that the Maoist rebellion had spread to numerous parts of Nepal but said that it had no evidence to suggest that the rebellion had spread to all parts.  The Tribunal gave the appellant more time to provide evidence or information on that issue but received nothing from him, other than the letter to which I have already referred. 

20. Because of the lateness of the Minister’s written submissions in response to the appellant’s submissions, I granted leave to the appellant to file further written submission in reply.  The Court subsequently received further written submissions from the appellant.  The further submissions did not address the Minister’s written submissions by way of reply but raised further contentions.  I therefore invited further written submissions from the Minister. 

21. The appellant’s further submissions asserted that the Tribunal failed to make a proper, genuine and realistic assessment of the real risk of serious harm to the appellant.  The further submissions also asserted that the Tribunal failed to complete its statutory task in respect of the issue of a particular social group and claimed that the Tribunal failed to address the appellant’s claim to membership of a particular social group, being youths fearing forcible recruitment by the Maoists.  Such a claim was not articulated in the application to the Federal Magistrates Court.  Nor was it articulated in the notice of appeal or in the submissions previously made on behalf of the appellant. 

22. The appellant claimed in the further submissions that he had raised a claim to fear the Maoists by reason of his being a youth at risk of forcible recruitment and reprisal if he did not join the Maoists.  He said in the further submissions that he clearly maintained a claim to fear persecution by reason of his youth and education and Maoist activities directed at Nepalese young people. 

23. The written submissions said that the appellant’s claims were supported by a report published in January 2005 by the United Nations Commission on Human Rights.  However, there is no reference to that report in the Tribunal’s reasons.  Further, the Tribunal said that it had regard to the material referred to in the delegate’s decision, which included a list of the material before the delegate.  That list did not include the report referred to by the appellant in his written submissions.  Thus, there has been no indication of any evidentiary foundation for the assertion that the Tribunal had the report before it.  Accordingly, it cannot be relied on to support the claims made by the appellant. 

24. No question of a failure to have regard to fear by reason of membership of a particular social group was raised in the application to the Federal Magistrates Court.  However, in his submissions to the Federal Magistrates Court, the appellant asserted that he was a member of a particular social group being “local victims of extortion”.  Notwithstanding that no such issue was raised in the application to the Federal Magistrates Court, the Federal Magistrates Court discussed and rejected the claim to be a member of a particular social group consisting of local victims of extortion.  The appellant has not taken issue in the appeal with the rejection of that claim by the Federal Magistrates Court. 

25. Further, there is no reference in the transcript of the hearing before the Tribunal to an assertion by the appellant that he was a member of the particular social group now asserted in the further written submissions.  On the other hand, the appellant made several references to the Maoists, asserting that they gave “trouble” to students, teachers and ordinary people, that they asked for donations and that they came to his village to attack villagers.  The Tribunal dealt expressly with the question of whether being a young male might give rise to a real chance of persecution.  However, the Tribunal then referred to the appellant’s history of proceeding to his home village without any evident fear and being allowed to leave again.  In the circumstances, it is difficult to see any basis for the new assertion made in the further submissions that the Tribunal failed to deal with a claim by the appellant that he feared persecution by reason of his membership of a particular social group consisting of youths at risk of forcible recruitment by the Maoists.

26. The further submissions also assert that the Tribunal’s reasons contain no attempt to assess whether the appellant would be perceived, whether by the Maoists or the Nepalese authorities, as a member of a particular group at risk at the hands of either the Maoists or the Nepalese authorities.  However, the submissions give no indication as to how such claims were raised before the Tribunal.  While the appellant stated in his protection visa application that the authorities pressured and tortured him on suspicion that he was involved in Maoist activities, he made no such claim in his letter to the Tribunal in which he set his claims on review.  Those claims were made after the delegate concluded that the appellant had no fears whatsoever for his personal safety.  There is no basis for concluding that such a claim was being maintained before the Tribunal

27. The Tribunal made no finding of a subjective fear of persecution on the part of the appellant.  There is no basis for concluding that the Tribunal failed to consider any claim articulated by the appellant.  Further, there is no basis for concluding that the Tribunal failed to consider any unarticulated claim arising from the materials that were before the Tribunal. 

28. I do not consider that the appellant has demonstrated any error on the part of the Federal Magistrates Court.  He has not demonstrated any basis upon which there could be a conclusion that there was jurisdictional error on the part of the Tribunal.  The appeal must be dismissed with costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:        12 September 2007

The Appellant appeared in person.
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	8 August 2007
Date of Judgment:	12 September 2007