SZKRJ v Minister for Immigration
[2007] FMCA 1809
•15 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKRJ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1809 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal gave consideration to the reasons for the applicant’s delay in seeking protection and did not base its finding merely on the delay itself – no error shown in the Tribunal’s finding that evidence of the applicant was unbelievable. |
| Migration Act 1958, s.474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Thuraisamy v Minister for Immigration & Multicultural Affairs [1999] FCA 1632 W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 783 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2004) 168 ALR 407 |
| Applicant: | SZKRJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1625 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 16 October 2007 |
| Date of Last Submission: | 16 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 15 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr. B. Zipser |
| Counsel for the Respondents: | Mr. T. Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1625 of 2007
| SZKRJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Nepal where, she claims, she is an able-bodied person whom Maoists insurgents would want to recruit and who is also a member of a family members of which are longstanding targets of the Maoists. She alleges that her family was politically active in Nepal and her brothers and father were members or supporters of the Nepali Congress Party. She alleged that this subsequently led to her temporarily fleeing to Japan, her father going into hiding and her being subject to extortion by Maoists. The applicant arrived in Australia in August 2006.
The applicant claims to fear persecution in Nepal at the hands of the Maoists. She fears that they will seek to harm her through extortion and/or forced recruitment and because she will refuse to comply with their demands, they may also seek to abduct, abuse and possibly kill her. The applicant claims that the Maoists will target her as:
a)an able-bodied person;
b)a member of her family; and/or
c)a perceived wealthy returnee
whose refusal to comply with Maoist demands will be seen as an act of political opposition to them. The applicant contends that the authorities are unable to protect her from such harm.
After her arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on
16 December 2006. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 15 of the Tribunal’s decision (Court Book (“CB”) pages 279 – 290). Relevantly, they are in summary:
a)since the Maoist guerrilla war started in February 1996, the applicant’s father’s timber business which he co-owned with his brother became vulnerable as the Maoists conducted their training operations in the forests;
b)the family experienced hardships as the Maoists demanded huge donations, stopped their entry into the forest without prior written permission and demanded lodging, food and sometimes transport and storage;
c)the applicant’s family was politically active:
i)her father participated in the 1990 People’s Movement;
ii)he was elected “the Member of the District Committee, Jhapa”;
iii)her brothers were members and supporters of the Nepali Congress Party;
d)the family’s involvement in democratic processes made them unpopular with the Maoists;
e)the applicant was sent to Kathmandu when the Maoists began to recruit women;
f)the applicant left Kathmandu for Japan as the city was no longer safe for her;
g)the applicant stayed in Japan for two and a half years on a student visa;
h)the Maoists abducted the applicant’s uncle in 2005 and the family business had to shut down. The applicant’s family could no longer fund her expenses and she had to leave Japan;
i)back in Nepal, the applicant found that her father was hiding in various parts of the country. Her mother was living alone in the family home;
j)the applicant’s father was in imminent danger in mid-2005 because a murdered Maoist’s mobile had her father’s telephone number in it as the last dialled number, thus leading the Maoists to suspect that her father had something to do with the Maoist’s death;
k)the applicant received a demand to pay 1 million rupees to the Maoists or face abduction;
l)despite the ceasefire, abductions, intimidation, extortion and forced recruitment have increased; and
m)the applicant fears kidnapping, torture, rape or death in Nepal because she is “an able-bodied person, a member of [her] family and an overseas returnee, many of whom are perceived to earn a lot of money”.
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)the Tribunal found much of the applicant’s evidence to be contrived and unconvincing;
b)although on numerous occasions the applicant expressed her willingness to withdraw her application and return to Nepal once she was satisfied that the security situation there had improved, the Tribunal detected no real interest on the applicant’s part in exploring how she might safely return to Nepal in the future. The Tribunal considered that her professed interest in doing so was insincere and merely designed to impress on the Tribunal the genuineness of her claims and to delay a decision by the Tribunal;
c)the Tribunal accepted the applicant’s claims that her family operated a saw mill and was asked to make donations to local Maoists, to provide logistic support to them and to seek their permission to enter logging areas, but found that the applicant exaggerated their impact, noting that this harm to their business operations was not sufficiently serious to amount to persecution or was, in any event, Convention-related;
d)the Tribunal did not find that the applicant’s family was at risk from the government, noting that the evidence before it did not indicate that any such harm had materialised at any time in the past;
e)the Tribunal found that the applicant’s father’s political profile was not significant, noting that:
i)at the hearing the applicant admitted that her father was only active in local politics;
ii)since 1996 her father has become a mere supporter of the party;
f)the Tribunal found to be exaggerated, misleading, and in any event unreliable the various assertions that the applicant’s family was seen as political;
g)the Tribunal accepted that the applicant’s uncle was abducted by Maoists in 2005 but did not accept that this incident indicated or contributed to a real chance that the applicant would be subject to Convention-related persecution, noting that her evidence about the circumstances of her uncle’s abduction and its linkage with the alleged threat to her father was vague;
h)the Tribunal did not accept that the Maoists suspected that the applicant’s father was a government spy, noting that there was no clue as to how the applicant allegedly came to know Maoist thought processes;
i)the Tribunal did not accept that the Maoists forced the applicant’s father to go into hiding, that they destroyed the family saw-mill or that her family was subject to any ongoing or prospective Convention-related persecution;
j)the Tribunal found that the applicant’s conduct, particularly her past travel and residency, was inconsistent with a person whose immediate family had experienced harm and who themselves feared or had any objective reason to fear persecution;
k)the Tribunal was not satisfied that the applicant faced danger in Kathmandu or that she travelled to Japan for reasons related to personal security, noting that:
i)these claims were based on assertions alone; and
ii)the applicant failed to inquire about or seek refugee protection in Japan;
l)the Tribunal did not find it credible and did not accept that the applicant faced a real chance of persecution for any Convention-reason if she were to return to Nepal, noting that the applicant considered it a reasonable risk to return to Jhapa in mid-2006, despite her family’s claimed precarious situation, yet she considered it unsafe to return anywhere in Nepal in mid-2007, notwithstanding a much improved security situation;
m)the Tribunal did not accept that the applicant was subject to extortion demands on her return to Nepal or any form of harassment or harm that led her to conclude that it was unsafe for her there, describing as unbelievable her evidence that she was able to leave for Kathmandu because her mother told the Maoists that she had gone there to collect the money demanded; and
n)the Tribunal concluded that the applicant was not at risk of Convention-related persecution from the Maoists on the basis of her membership of the particular social group that is her family, as her mother did not seem to be at risk from harm at all although she remained in Nepal.
Proceedings in this Court
The grounds of the amended application filed on 16 October 2007 are as follows:
1. The Tribunal found that “the applicant’s conduct – in particular her past travel and residency – is inconsistent with a person … who herself fears or has any objective reason to fear persecution, and that her “return to Nepal in mid 2006 provides compelling evidence that she did not face a real chance of persecution for any such Convention reasons”. The Tribunal fell into jurisdictional error in making these findings.
2. The Tribunal found that the applicant’s claim that she was subject to extortion demands on her return to Nepal in 2006 was “unbelievable”. The Tribunal fell into jurisdictional error in making this finding.
Past travel and residency issue
The applicant submitted that although the Tribunal found that the applicant’s past travel and residency were inconsistent with a well-founded fear of persecution for a Convention reason it was not uncommon for applicants to delay filing visa applications or to leave their home country and to return there before coming to Australia. It was submitted that although the Tribunal may take such information into account in determining the review application, the mere fact that there was delay in pursuing protection does not mean that an applicant does not have a well-founded fear of persecution for a Convention reason.
In this case, it was submitted that the applicant had good reasons for returning to Nepal from Japan before departing for Australia. Several facts were advanced in support of her allegation that she did not think that there would be any ramifications for herself were she to return to Nepal.
It was submitted that the Tribunal had an obligation to consider not just the fact of the delay but whether there was a good reason for it: Thuraisamy v Minister for Immigration & Multicultural Affairs [1999] FCA 1632. It was submitted that the question was whether the Tribunal gave proper consideration to the reasons for delay before relying on the fact of the delay in making a decision adverse to the applicant.
A consideration of the Tribunal’s decision record in this case indicates that it did what the applicant submitted it ought to have done, namely give proper consideration to the reasons for delay. Under the heading “Return to Nepal” the Tribunal sets out the factors which the applicant had advanced as justifying her return to Nepal. It said:
The Tribunal has considered each of these explanations, but finds them unconvincing. A particular concern is the stark contrast between the applicant’s claimed thought patterns at that time, and her present refugee claims. Specifically, the Tribunal does not find credible, and does not accept, that the applicant considered it a reasonable risk to return to Jhapa in mid-2006, despite her family’s claimed precarious situation, yet considers it unsafe to return anywhere in Nepal in mid-2007, notwithstanding a much improved security situation. (CB 298)
The Tribunal expanded on these views when it said:
The Tribunal finds that the applicant’s return to Nepal in mid-2006 provides compelling evidence that she did not face a real chance of persecution for any such Convention reason then, including for membership of any putative particular social group, and that she will not in the future. The Tribunal has considered the applicant’s response to this, namely that she returned as part of a calculated risk that simply proved wrong. However, for the reasons stated above – in particular, her continued stay not only in Nepal but in Jhapa, even after the alleged threats were received by the Maoists – the Tribunal finds that the claimed incidents in mid-2006 are fabrications. (emphasis in original) (CB 299)
Clearly, the Tribunal gave proper consideration to the reasons for the applicant’s sojourn in Nepal and consequent postponement of a claim for protection. No jurisdictional error is demonstrated by this asserted ground of review.
Extortion demands issue
A few days after the applicant’s return to Nepal, the Maoists allegedly made extortion demands of the applicant via her mother. The Maoists told the applicant’s mother that they knew the applicant had returned from overseas and demanded that the applicant give the Maoists
1 million rupees or, alternatively, join the Maoists. The applicant said that she was given two weeks to comply but by the time the deadline was up she had made her way to Kathmandu for her onward journey to Australia. The applicant said that meanwhile her mother had told the Maoists that the applicant was on her way to Kathmandu to arrange collection of the money.
The Tribunal did not accept that the applicant was the subject of credible extortion demands and found her claim to be unbelievable. The Tribunal rejected it.
The applicant contests these findings and relied on the following passage in W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703 as demonstrating that the Tribunal erred:
There is one aspect of the approach taken by the decision-maker in the present case which gives us some cause for concern. It is this. Where the question of credibility is determinative of a tribunal decision, to simply assert that the tribunal considers the applicant’s account to be ‘‘implausible’’ or ‘‘highly unusual’’ does not constitute a finding on the question raised. Such expressions are more in the nature of observations or side comments rather than findings. The reasoning process and supporting evidence that forms the basis on which a finding that evidence is rejected should be disclosed and clear findings made in direct and explicit terms. It is not sufficient simply to make general passing comments on general impressions made by the evidence where the issue is important or significant. (per Tamberlin and RD Nicholson JJ at 717 [67])
Again, the Tribunal has done what the applicant submits it ought to have done. The relevant passage in the Tribunal’s reasons was:
Alleged harm in Nepal: The Tribunal does not accept that the applicant was subject to credible extortion demands on her return to Nepal, or any form of harassment or harm that led to her to conclude that it was unsafe for her there. According to her evidence at hearing, the Maoists made the extortion demands via her mother shortly after the applicant’s arrival in Jhapa. The applicant would have the Tribunal believe that she was then given two weeks to comply; that she stayed with her mother in Jhapa during that time; that she then went off to Kathmandu just before leaving for Australia; and that her mother fended off the Maoists with the excuse that the applicant had gone to Kathmandu to collect the cash. This claim is unbelievable, and the Tribunal rejects it. The suggestion that the Maoists are so patient, courteous and/or gullible is completely at odds with the applicant’s claims that they now pose a threat to her anywhere in Nepal.
The Tribunal clearly expressed the bases for its rejection of the applicant’s evidence and its reasons satisfy its obligation to give reasons and to explain its findings required by s.430(1) of the Act. The Tribunal’s reasons also satisfy the requirements articulated by Tamberlin and RD Nicholson JJ in W148/00A’s case as well as those of McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2004) 168 ALR 407 (at 423 [67]).
No jurisdictional error has been demonstrated in respect of this asserted ground of review.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 15 November 2007
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