SZIOF v Minister for Immigration
[2007] FMCA 1321
•17 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIOF v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1321 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Visa – protection visa – refusal. Tribunal under no duty to make inquiries – it is the applicant’s task to make out her claim – applicant disbelieved – no s.424A(1) obligation in the circumstances. |
| Migration Act 1958, s.424A |
| SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 |
| Applicant: | SZIOF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 917 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 26 June 2007 |
| Date of Last Submission: | 26 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 17 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr. J. R. Young |
| Solicitors for the Applicant: | Simon Diab & Associates |
| Counsel for the Respondents: | Ms. L. Clegg |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 917 of 2007
| SZIOF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application filed in Court on 26 June 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 8 February 2007 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 31 October 2005 refusing the applicant’s application for a protection visa.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. There was a previous Tribunal decision signed on 30 January 2006 which was quashed by order of this Court.
Background facts
The Tribunal described the applicant as:
… a 32 year old married Nepalese who has lived and worked in Kathmandu prior to coming to Australia. She gained 12 years of schooling and has worked as a “beautician/host”. (Court Book (“CB”) page 224).
The applicant claims to fear persecution in Nepal because of her membership of a particular social group, being the wife of security personnel, a media host, a Maoist victim and an internally displaced person.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-22 of the Tribunal’s decision (CB 224-242). Relevantly, they are in summary:
a)on 19 May 1995 the applicant married an army corporal. Her district was influenced by Maoists much more than the districts of Kathmandu, Bhaktapur and Lalitpur. The Maoist influence further strengthened from 2001/2002;
b)in every village Maoists started to visit every house owned by army servicemen and to threaten them. The Maoists visited the applicant’s house a number of times and told her that they knew that her husband was in the army. They demanded that she recall her husband to the village or make him resign from the army and that if this was not done, they threatened that actions would be taken against her family;
c)the applicant tried to convince her husband to resign from the army. However, as the security situation of the country was deteriorating, the government did not let him leave the army. Instead, the government transferred the applicant’s husband to the districts dominated by the Maoists;
d)the applicant’s husband used to telephone her to tell her about his work. He was sent to Jajarkot to construct roads. He kept receiving letters from Maoists saying that they would not allow the surveyor to construct roads in that area and that surveyors and engineers would soon be beheaded. The Maoists also threatened to behead the applicant’s husband;
e)the applicant’s family suffered from the Maoists at home in [village] and her husband suffered from the same Maoists in the district of Jajarkot. The applicant and her husband lived in fear because nowhere in Nepal was safe for army regulars;
f)the applicant was threatened “several times” by Maoists who went to her house in 2006. They told her they would kill her if she did not ask her husband to leave the army;
g)the applicant claims that relocation to India is not an option, as in India many Nepalese women are forced to work in brothels. In India, Nepalese women are easily singled out by their appearance, complexion, language and accent;
h)in 2002 the applicant’s fear of being kidnapped, raped or killed prompted her to leave the village for Kathmandu where she received training as a beautician and worked in the media making documentaries about Maoist activities in western Nepal. This caused her to fear for her life and she started to receive several threatening telephone calls; and
i)the applicant was involved in a documentary on the Achham District which the Maoists did not want to be made. Afterwards she received threatening letters.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)while the Tribunal accepted that the applicant and her husband had received some threats prior to the implementation of the peace accord, it did not accept that anything untoward had happened to them in the past or that the applicant had a well-founded fear of serious harm amounting to persecution because the applicant’s husband did not stop the road construction in the Jajarkot region, because she was married to a corporal in the Nepalese army, because she is a member of a particular social group (i.e. the wife of security personnel), or that the authorities have shown that they are incapable of providing her with security or effective state protection;
b)the Tribunal did not accept the claim that the applicant is a member of a particular social group comprising internally displaced people or that she has a Convention-related well-founded fear of serious harm amounting to persecution on this basis;
c)the Tribunal was not satisfied on the evidence that the applicant had a political or imputed political profile of any sort in Nepal due to her association with the media;
d)the Tribunal did not accept that the applicant was of such significance that she was under Maoist surveillance or that she thought they would try to kill her if they discovered she was trying to leave Nepal. The Tribunal found that the applicant had embellished her claims in order to enhance her claim for a protection visa; and
e)it considered the fact that she did not leave Nepal for well over two years after she was able to do so indicated that she did not have a well-founded fear of serious harm amounting to persecution for a Convention reason.
In essence the Tribunal found:
… the Tribunal is satisfied the peace accord in Nepal is holding with both sides largely complying with it and the Maoists have now been brought into the mainstream political process, something the Applicant herself accepts in her statutory declaration of 29 January 2007. Accordingly, the Tribunal is satisfied that there is not a real chance that the Applicant would be subject to serious harm amounting to persecution for a Convention reason if she returns to Nepal, now or in the reasonably foreseeable future, from the Maoists or from any other source, and the Tribunal does not accept these claims. Nor does the Tribunal accept the Applicant [sic] unsupported claim that there is a lack of effective state protection available to the Applicant because she was involved in the media or because her husband is a soldier in the Nepalese army or that she is at risk of physical punishment from the former Maoist rebels because she did not obey them prior to the establishment of the peace accord or that there is any reason to believe that the Maoists are seeing this as a favourable time for them to take revenge and persecute their opponents. (CB 245).
Proceedings in this Court
Of the seven grounds appearing in the amended application, only the final two were pressed at the hearing. These may be summarised as:
a)by finding that there would be “some occasional further incidents” of persecution, notwithstanding the peaceful situation in Nepal, the Tribunal erred in not considering whether the applicant had a well-founded fear in respect of those “occasional further incidents”; and
b)the Tribunal breached s.424A of the Act in respect of information that the applicant could have gone to India straight away upon receiving her passport in 2003.
Dealing with each of these grounds in turn:
By finding that there would be “some occasional further incidents” of persecution, notwithstanding the peaceful situation in Nepal, the Tribunal erred in not considering whether the applicant had a well-founded fear in respect of those “occasional further incidents”
The applicant submitted that once the Tribunal allowed that there would be some further incidents of persecution, notwithstanding the much improved position arising out of the peace accord in Nepal, the applicant’s fear had to be considered in the context of the residual persecution which might occur. She submitted that her claim could not be dismissed simply on the basis that, in general, a peaceful situation obtained in Nepal. The applicant submitted that the Tribunal ought to have considered this identified exception to the general situation and her claim in the context of that exception. She submitted that the real question was whether the “occasional further incidents” were ones which amounted to persecution and whether there was state protection in respect of them. She submitted that her particular circumstances had to be considered in light of these facts.
The first respondent submitted that the Tribunal found that:
… the situation in Nepal has since November 2006 changed significantly and that the risk of further threats or even possible harm from the Maoist [sic] is extremely remote. (CB 244).
The Tribunal found:
From the attachments provided under cover of the advisers [sic] letter off [sic] 30 January 2007, the Tribunal accepts that there have been several isolated incidents of violence where the Maoists have not complied with the peace accord but does not accept that this is widespread or that it indicates that there has been a significant or sustained breach of the peace accord or that the Maoists are not fully committed to and are complying with the accord. On the contrary, and based on the independent country information put to the Applicant in its letter of 17 January 2007 which is accepted by the Tribunal, and notwithstanding the Applicant’s claims in response and the material she has provided, the Tribunal is satisfied that a peace accord is holding and that both sides remain fully committed to it. (CB 244).
Based on the findings quoted above at [12] the Tribunal further found that there was not a real chance that the applicant would be subjected to serious harm amounting to persecution for a Convention reason. This was a conclusion that was open to the Tribunal on the facts.
The applicant also submits that objection may be taken to the passage below which immediately followed the one quoted above at [12]:
It follows that the Tribunal does not accept the Applicant’s claims that the peace accord won’t continue to be implemented in Nepal; she has a well founded fear of persecution for any Convention reason whatsoever … ; or that she has grave fears for a life in Nepal for any other reason and she will be harmed by the Maoists in the foreseeable future. (CB 245).
This objection was said to be on the basis that the conclusions expressed there did not “follow” from the passage quoted above at [12].
What the Tribunal was saying was that notwithstanding occasional further incidents of persecution in Nepal, these did not justify the applicant having a well-founded fear of persecution. It was not necessary for the Tribunal to “consider the nature of such further incidents and whether the applicant might be the recipient of further incidents” as alleged in the application, as this suggests that the Tribunal had an obligation either to speculate or to make inquiries when, in fact, it was the applicant’s task to make out her claim. It was for the Tribunal to determine, based on the facts before it, whether there was a real chance of the claimed persecution occurring and thus whether the applicant’s claimed fear was a well-founded one.
Based on the evidence before it, in a decision which was open to it, the Tribunal concluded that the peace accord would last, that the chance of harm from the Maoists was at that time extremely remote and it did not accept that the applicant had a well-founded fear of persecution in the changed circumstances in Nepal. The Tribunal applied the correct test and no jurisdictional error is demonstrated in relation to this asserted ground of review.
The Tribunal breached s.424A of the Act in respect of information that the applicant could have gone to India straight away upon receiving her passport in 2003
The applicant submitted that the following passage from the Tribunal’s decision relied on information which should have been supplied to the applicant in accordance with s.424A(1) but was not:
In short, the Tribunal is satisfied that if for any reason the Applicant had a well founded fear of serious harm from the Maoists or from any other source, she would have immediately left Nepal when she was issued with her passport and would have gone to another country such as India in order to seek international protection and either sought protection in that country or would have applied for a visa to a third country from this position of safety. (CB 244).
The facts underlying that finding were that the applicant had received her Nepalese passport on 28 May 2003 but did not depart Nepal until 25 August 2005. The applicant submitted that the Tribunal’s statement that she could have “immediately left Nepal when she was issued with her passport” relies on information which was not provided in accordance with s.424A, namely, that she could go to India without a visa. It was submitted that it could be inferred, because the applicant had said that she did not leave Nepal earlier because she did not have a visa or other means of departing Nepal, that when the Tribunal said that she could have gone to India it relied on information that she could do so without a visa. The applicant submitted that this information was not supplied in accordance with s.424A(1).
There is more than one answer to this submission. First, information regarding Nepalese subjects not needing to obtain a visa to travel to India would be information falling within the s.424A(3)(a) exception to s.424A(1). Secondly, what the applicant characterises as information is, in reality, a conclusion of the Tribunal that had she really feared persecution she would have used her passport to escape even if she did not have a visa. The Tribunal’s conclusions and thought processes are not “information” as that term is understood by s.424A: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26. Thirdly, the information which underlay the conclusion, namely the dates of the passport and departure from Nepal, were put to the applicant in the Tribunal’s s.424A letter dated 17 January 2007 (CB 178) and it was in her response to that letter, by way of her statutory declaration made
29 January 2007, that the applicant said she could not leave Nepal during that period as she lacked a visa (CB 190).
For these reasons, no breach of s.424A is disclosed in respect of this issue.
As an additional point, the applicant submitted that the Tribunal’s s.424A(1) letter of 17 January 2007 did not comply with the formal requirements of s.424A(1) on the basis that it stated that the information it contained indicated that the applicant might “not have a well-founded fear of serious harm amounting to persecution for a Convention reason in Nepal” rather than giving the applicant “particulars of any information which the Tribunal considers would be the reason, or part of the reason for affirming the decision that is under review” as stipulated by s.424A(1)(a). A consideration of the letter indicates that there is no substance to this complaint and that the Tribunal did provide particulars of the relevant information, did explain to the applicant why it was relevant to the review and also invited her to comment on it.
Generally
The first respondent submitted that, notwithstanding the matters raised by the applicant, the Tribunal’s decision can be sustained on another ground, namely that the applicant was disbelieved. The first respondent pointed out that the Tribunal’s decision could be divided into two separate parts, the first dealing with the claims which the applicant made to fear persecution on the basis of prior events, in respect of which the Tribunal concluded against the applicant at the end of the first paragraph at CB 244 and the second part which dealt with the changed circumstances in Nepal which led the Tribunal to the conclusion that the applicant had no well-founded fear of persecution in the new political environment.
The Tribunal’s principal conclusion, which was based on the applicant’s experiences prior to the change of political situation in Nepal, was that she had embellished her claim and had no well-founded fear of persecution. In essence, she was disbelieved. This was a conclusion which was open to the Tribunal on the material before it. This conclusion provides a basis for the Tribunal’s decision independent of its second and logically secondary conclusion regarding the applicant’s lack of a well-founded fear of persecution in Nepal in the new political environment.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 17 August 2007
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