SZLEW v Minister for Immigration
[2008] FMCA 479
•18 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLEW & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 479 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal. |
| Migration Act 1958, ss.91R, 425 |
| VSAI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1602 Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 204 CLR 1 Periannan Murugasu v Minister for Immigration & Ethnic Affairs (1987) 217 ALR 17 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 81 ALJR 515 |
| First Applicant: | SZLEW |
| Second Applicant: | SZLEX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2515 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 19 March 2008 |
| Date of Last Submission: | 19 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 18 April 2008 |
REPRESENTATION
| Counsel for the Applicants: | Mr L. Karp |
| Solicitors for the Applicants: | Paul Hense Migration Lawyers |
| Counsel for the Respondents: | Mr M.P. Cleary |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2515 of 2007
| SZLEW |
First Applicant
| SZLEX |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of Nepal where, the first applicant claims, he converted from Hinduism to Christianity. He also claimed that he had been kidnapped by Maoist guerrillas. The applicants left Nepal for Australia where, the first applicant alleges, they have attended church at the Jesus Family Centre in Cabramatta.
The first applicant claims to fear persecution in Nepal because of his religious beliefs and failure to pay extortion to Maoists.
The second applicant is the first applicant’s wife. As she has no claims of her own, the first applicant will be referred to as “the applicant” in these reasons.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 30 November 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.
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 – 24 of the Tribunal’s decision (Court Book (“CB”) pages 145 – 165).
Protection visa application
In the applicant’s protection visa application, he made the following claims:
a)he was born and raised in a Hindu family and his parents were strong believers in Hinduism;
b)the applicant was first exposed to Christianity when he was co-ordinating a Christian conference at an hotel in Kathmandu where he worked;
c)over time he adopted Christianity;
d)he informed his wife about his new found faith but did not mention it to the other members of his family. The applicant stopped participating in Hindu activities;
e)the applicant began to evangelize at a weekly local market, at his old school and amongst the homes of lower caste people;
f)some people were positive about this but others expressed their opposition to his activities. Word started to spread around the village and soon the applicant’s family came to hear about what he was doing. His family members were very upset and accused him of ruining the reputation of the family. His parents also blamed him for insulting their traditional cultural values;
g)Brahman Pundits and members of Shiv Sena in his village asked his family to pressure the applicant into reverting to Hinduism. They threatened to kill the applicant unless he obeyed their orders. They also threatened to ban the applicant’s family from participating in any Hindu religious activities;
h)the applicant and his wife were threatened and harassed by his family;
i)the applicant was banned from all traditional religious activities and not permitted to go near or enter any holy places like temples and family pagodas;
j)one night Maoist guerrillas kidnapped the applicant from his home at gunpoint and demanded a “donation” of 100,000 Nepali rupees. The applicant was told that if he did not have the money he would have to join the Maoists and fight to support their revolutionary mission;
k)the applicant was unable to pay the money and so cooked, cleaned and set up camps for the Maoists as they moved from place to place. The applicant had to carry wounded Maoists and was called upon to render first aid as required;
l)during a Maoist attack on the Diktel headquarters the applicant managed to escape. He returned to his village on foot and his family encouraged him to report everything to the Chief District Officer (“CDO”) of the district. Before he was able to do so, he was arrested and interrogated by the CDO. The authorities did not believe his story about the abduction and his forced participation in Maoist activities. After the interrogation the applicant was told that he would be charged and prosecuted because he had broken the law by preaching Christianity;
m)the applicant was handed over to the police and detained. His hands and feet were bound and his movements were restricted;
n)the applicant was released on the following conditions:
i)he was not to preach Christianity;
ii)he had to report back to the CDO office once a month pending a further inquiry; and
iii)he could not visit any public places such as schools or bazaars or attend any gatherings;
o)the applicant was told that if he breached these conditions he would be arrested;
p)the applicant returned to work in a hotel in Kathmandu. He encountered further problems because Maoist supporters and sympathisers at the hotel established a union. The applicant recommended that the union members be dismissed because they went on strike and made demands of the employer. As a result, union members confronted him and the applicant feared that he would once again come to the attention of the Maoists;
q)the applicant was afraid of being caught by government authorities, Maoists and Brahman Pundits;
r)since arriving in Australia the applicant and his wife have attended the Jesus Family Centre in Cabramatta;
s)the applicant provided the following documents with his protection visa application:
i)a Jesus Family Centre document dated 19 December 2006 entitled “Christian persecution and related issues in Nepal”;
ii)a letter from Pastor Gagendra Rai in Nepal outlining the difficulties faced by Christians in Nepal;
iii)a letter from David Boyd, a Senior Pastor at the Jesus Family Centre, attaching information about his trip to Nepal where he spoke to people from the Christian community; and
iv)an employment reference for the applicant dated 10 April 2006 stating that he was employed at a hotel in Nepal as an assistant manager.
Application for review
With his application for review the applicant provided the following additional material:
a)press reports of Maoist violence and human rights violations in Nepal;
b)a translated letter dated 8 October 2005 from the Maoist District Organising Committee of Okhaldunga stating that the applicant attacked and wounded a “comrade of the People’s Freedom Military”, fled from the village in violation of instructions and thereafter provided secret information to the government. The letter referred to the applicant’s Christian activities and instructed him to pay a fine of 500,000 Nepalese rupees to the Communist Party of Nepal (Maoist) District Office; and
c)various United Nations, Amnesty International, Human Rights Watch and US Department of State reports on Nepal.
Tribunal hearing
At the Tribunal hearing, the applicant made the following additional claims:
a)after hearing about Christianity at the hotel conference, he bought a bible and tried to study it alone;
b)he attends church every Sunday at Cabramatta;
c)he attended church in Nepal twice;
d)he was kidnapped by Maoists for use as a human shield in their attacks and was also forced to work as a porter;
e)he and his family were granted visas in August 2006 but did not leave Nepal immediately as he had to sort out many things before he could travel;
f)he was able to leave Nepal despite his ongoing case before the CDO because corruption is everywhere in Nepal; and
g)he was fearful of his brother who did not accept the fact that he had converted to Christianity and blamed him for converting his (i.e. the brother’s) wife to Christianity.
Evidence received post hearing
After the Tribunal hearing the applicant provided a statement to the Tribunal in which he claimed that the reasons for his delayed travel to Australia were as follows:
a)his family members were ill;
b)their travel tickets could not be confirmed by airlines or travel agents because of protests, strikes and blockades;
c)he was concerned that his name would be on a blacklist at the airport and so he had to arrange to pay bribes; and
d)it was his first time travelling overseas and he had to take care not only of himself, but also his family.
The applicant also provided the following documents to the Tribunal:
a)an article dated 2 May 2007 stating that a person by the applicant’s name had been abducted by Maoists and arrested by the government. It also noted that this person was being charged by police administration for preaching Christianity. The article further stated that Maoists had threatened to kill this person if the donation they demanded of him was not provided. For these reasons, he had fled the country; and
b)a letter from Pastor Dominic Din of the Jesus Family Centre dated 2 May 2007 certifying that the applicant and his wife were “sincere Christians who are very willing to be involved in church life”. It further stated that the couple were seeking to be baptized.
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 accepted that the applicant was abducted by the Maoists in June 2005 as claimed but did not accept that he was abducted because of his Christian faith or because he had preached Christianity in the village. Instead, the Tribunal concluded that the applicant was singled out by the Maoists because he had recently returned to the village from the capital and was assumed to have knowledge, contacts or access to money all of which would have made him a likely target;
b)the Tribunal found that the chance of the applicant being sought out by the Maoists if he returned to Nepal was remote, noting that the applicant and his family were not approached by Maoists from June 2005 until October 2006 after they moved to Kathmandu;
c)the Tribunal gave no weight to the letter dated 8 October 2005 in which the applicant is accused of violating instructions and ordered to pay a fine of 500,000, noting that:
i)it was implausible that the Maoists would write to the applicant in this way; and
ii)on his evidence, the applicant and his family continued to live in Kathmandu from June 2005 to October 2006 and there was no further approach from the Maoists in that time;
d)the Tribunal accepted that the applicant was detained by the CDO and treated harshly and that the applicant’s wife and father begged for his release. It further accepted that the applicant was released by the CDO after two days on the condition that he make himself available for further questioning if required. However, the Tribunal did not accept that the applicant remained a person of interest to the office of the CDO after his release in June 2005 for any perceived association with the Maoists or for preaching Christianity, noting that:
i)the CDO had had ample opportunity to locate him before his departure to Australia if the former maintained an interest in him;
ii)he continued his employment in the same hotel after his release; and
iii)his son continued his schooling uninterrupted at the same school;
e)the Tribunal accepted that the applicant, in the course of his duties at a large hotel, had some limited contact with delegates attending a Christian conference in October 2005 but did not accept that he seriously embraced the Christian faith as a result of this, noting that the applicant claimed himself that he only attended church twice in Nepal;
f)the Tribunal did not accept that the applicant preached Christianity in his village or distributed pamphlets which brought him to the attention of the Maoists, the CDO or practising Hindus including the Brahman pundits and members of Shiv Sena, concluding that:
i)the applicant’s knowledge of Christianity in May 2005, based on what he heard at the conference, was extremely limited and superficial; and
ii)the applicant’s evidence on distributing pamphlets was implausible;
g)the Tribunal found that the chance that the applicant would be targeted and seriously harmed by Hindu extremist groups for reason of his Christianity was remote, noting that:
i)independent information stated that there was a move towards secularism in Nepal which would allow the applicant to return to Nepal and continue to practise his Christian faith; and
ii)government policy in Nepal did not support Hindu extremism and any prejudice or ostracism from Hindu extremist groups was not systematic;
h)the Tribunal accepted that the applicant clashed with Maoist unionists at his workplace but did not accept that in his position as assistant manager the applicant would have been responsible for making decisions about any possible terminations of staff;
i)the Tribunal did not accept the applicant’s explanations for his delay in leaving for Australia after he obtained his visa as it did not accept that they were cogent reasons to remain in Nepal in circumstances where the applicant claimed that he was suffering harm;
j)the Tribunal did not accept that the applicant’s family had an adverse interest in him for reasons of his past or present religious beliefs, noting that:
i)there was no evidence before the Tribunal to suggest this; and
ii)the applicant did not claim that he was harassed by his brother in any way; and
k)the Tribunal considered the article dated 2 May 2007 about the applicant and concluded that its publication would not of itself bring the applicant to the attention of those persons whom he claimed harmed him in the past, noting that the article was published some two years after the events in question.
Proceedings in this Court
At the hearing, the following grounds pleaded in the application were pressed:
1. The second respondent (the Tribunal) committed jurisdictional error by failing to disclose and invite evidence on the following issues that arose in relation to the decision under review, as required by s.425 of the Migration Act.
(a) ….
(b) …
(c) Whether the applicant, as “assistant manager (front of office)” in an hotel in Kathmandu, would have been responsible for making decisions about … terminating the employment of staff during a period of union activism.
2. The Tribunal misinterpreted the word, “systematic” in s.91R(1)(c) Migration Act in connection with the harm that Christians in Nepal may face from Hindu fundamentalists.
I deal with these grounds in the order in which they were argued at the hearing.
Misinterpretation of “systematic”
Section 91R(1) of the Migration Act 1958 (“Act”) provides:
For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) …
(b) …
(c) the persecution involves systematic and discriminatory conduct.
The applicant submitted that the Tribunal had misapplied the concept of systematic persecution as referred to s.91R(1)(c) of the Act. In this regard, reliance was placed on the following passage in the Tribunal’s decision:
Whilst some Hindu converts to Christianity reportedly can face social ostracism and occasionally face isolated incidents of hostility and discrimination from Hindu extremist groups this prejudice is not systematic, although at times it has been vehement and occasionally violent. (CB 178)
The paragraph continues:
The applicant has lived in Kathmandu since 1989. The Tribunal finds that the chance is remote that he would be targeted and seriously harmed by Hindu extremist groups in Kathmandu for reason of his religion as a Christian. (CB 178 – 179)
The applicant pointed out that this passage is based on information contained in a US State Department Religious Freedom Report, extracts of which were reproduced at pp.32 and 33 of the Tribunal’s decision (CB 173 – 174). Relevantly, that report said:
Those who chose to convert to other religions, in particular Hindu citizens who converted to Islam or Christianity, sometimes were ostracized socially. They occasionally face isolated incidents of hostility or discrimination from Hindu extremist groups. Some reportedly were forced to leave their villages. While this prejudice was not systematic, it was at times vehement and occasionally violent. Nevertheless, converts generally were not afraid to admit in public their new religious affiliations. (US Department of State 2006, International Religious Freedom Report for 2006 – Nepal, 15 September … ). (CB 174)
The applicant referred to the decision of Crennan J in VSAI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1602 at [53]. There, her Honour, after having made reference to Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 204 CLR 1 and Periannan Murugasu v Minister for Immigration & Ethnic Affairs (1987) 217 ALR 17, observed that when, in order to determine whether, for the purposes of proving persecution, harassment is “systematic”, an applicant need only show that it is
… deliberate or pre-meditated, that is motivated.
It is also apparent from her Honour’s judgment that a single instance of the harm alleged to be feared could satisfy this criterion if it would be oppressive to the applicant.
The applicant submitted that where the Tribunal used the word “systematic” at CB 178 it meant conduct which was premeditated, motivated, deliberate and habitual, which was erroneous in the circumstances. The applicant further submitted that the conclusion drawn by the Tribunal in the final sentence of the relevant paragraph quoted above at [16], namely that,
The Tribunal finds that the chance is remote that he would be targeted and seriously harmed by Hindu extremist groups in Kathmandu for reason of his religion as a Christian.
was based on the meaning it applied to “systematic” and because it misinterpreted “systematic” to mean conduct of a habitual nature, it applied an incorrect test. It was submitted that the Tribunal moved from an erroneous conclusion that the hostility and the discrimination was not “systematic” to an erroneous conclusion that the applicant would not be targeted and seriously harmed.
By contrast, the first respondent submitted that there was nothing erroneous about the Tribunal’s finding that such prejudice as the applicant experienced was not systematic. The first respondent submitted that the Tribunal had not misunderstood the statutory test in s.91R(1)(c) and he referred to a passage which appears earlier in the paragraph relied upon by the applicant. The passage in question is:
On the basis of comprehensive country information the Tribunal finds that the applicant is able to return to Nepal and continue to practice his Christian faith in the manner in which he currently does so in Australia; this includes attendance at church and private prayer. In so doing the Tribunal finds that the chance is remote that he will be targeted for serious harm by Maoists or government authorities. (CB 178)
Contrary to the applicant’s submission, too much significance should not be given to the word “systematic” in the context in which it is used in this Tribunal decision. I accept that the Tribunal used that word in the sense which the applicant asserts. However, the question to be determined is whether the Tribunal applied the s.91R(1) test correctly, not whether it used the right words when applying the test. The factual findings of the Tribunal are sufficient to understand it to have concluded in the passage quoted above at [20] that the conduct in question was “systematic” as that word is properly understood in the context of s.91R(1)(c). The fact that the Tribunal then went on to say later in that paragraph, as quoted above at [16], that the conduct in question was not systematic, in the sense of not habitual, does not mean that the test was misapplied. As already noted, the passage in question is, in fact, a quotation from independent country information. It does not purport to be a recitation of the s.91R(1) test. The Tribunal was not saying that the s.91R(1) test was not satisfied because the conduct in question was not “systematic”. It was simply saying that the conduct in question was not habitual.
The real reason why the conduct in question failed to satisfy the criteria for a protection visa is to be found in the passage from the Tribunal’s decision relied upon by the first respondent quoted above at [20] and in the final sentence of the paragraph in question quoted above at [16]. That is to say, the applicant’s alleged fear lacked objective substance because, on the facts, the Tribunal concluded that the chance that he would be targeted for serious harm by reason of his religion was remote. It then discusses the contrary evidence which is relied upon by the applicant to make this argument. However, rather than using that evidence as the basis of its decision, as the applicant submits, it used it to test its conclusion. Having done so, the Tribunal put that evidence to one side on the basis that it did not affect its already expressed conclusion.
Breach of s.425
Section 425(1) provides:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The applicant had said in his application for a protection visa that because of a work stoppage at the hotel he had recommended that some staff be sacked, as a result of which union members confronted him and a dispute arose. The applicant said that he was afraid that the unionists would report his actions to the Maoists who would then take action against his management team and himself (CB 148 – 149). The applicant submitted that the following portion of the delegate’s decision was relevant to his claim to fear persecution because of his actions as a hotel manager:
I also note that with the peace agreement in place, the applicant will no longer be in danger of being harassed by the members of the hotel union who were supported by the Maoists. Any harassment coming from the unionists will be a breach of the peace agreement. (CB 99 – 100)
In support of his allegation that the Tribunal breached s.425 of the Act, the applicant relies on the following passage from the Tribunal’s decision which it says is different in substance from the relevant portion of the delegate’s decision:
The Tribunal accepts that there was unrest in the applicant’s workplace due to an effort by the Maoists and their supporters to press their claims for workers. The Tribunal accepts that the applicant did not support the actions of the Maoists and their supporters in the work place and it accepts that his opposition was known to them. At the same time the Tribunal does not accept that in his positions [sic] as assistant manager (front of office) he would have been responsible for making [a] decision about any possible terminations of staff during this period of union activism. (CB 179).
The applicant submitted that there was nothing in the delegate’s decision on this point which reflected a disbelief of the applicant. He also took the Court to the transcript of the Tribunal hearing and submitted that nothing contained in it suggested that his account of the employment dispute at the hotel was not accepted.
The delegate’s conclusion at CB 99 – 100 quoted above at [24], relates to the following evidence summarised by the delegate:
The applicant resumed his work at the hotel. The Maoists established an employees’ union at the hotel. Many of their members were not working well. The applicant had to recommend their dismissal. The union leaders who were backed by the Maoists threatened the applicant with harm if he would not reinstate the sacked workers. The applicant was again faced with a problem. He was worried that the union leaders would report him to the Maoist leaders and he would be located. The applicant had the opportunity to travel to Australia with the help of his sister-in-law. He travelled to Australia with his wife and two children. He now does not wish to return to Nepal. (CB 90)
In this connection the following passage in the delegate’s decision is particularly relevant:
According to the applicant’s application form, he and his family left Nepal on 11 October 2006. On the basis of the information he provided regarding his employment history, the applicant worked as a front office assistant manager of the Hyatt Regency Kathmandu Hotel from April 2000 until he left Nepal. This made me conclude that when he stayed in Kathmandu together with his wife and two children (including the new born one) from 3 July 2005 until 11 October 2006, he was working in the hotel’s front desk. For more than [one] year, although he claimed that he was moving residence, he went to work in a position which involved extensive public contact. As he maintained his position as an assistant manager according to the information he provided, it is reasonable to assume that he reported for work regularly. This behaviour does not appear to be consistent with that of a person who is concerned for his safety because of fear of being harmed by the Maoists and the government agents. (CB 99)
The Minister correctly submitted that this was the beginning and end of any submission based on an error involving the reasoning in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 81 ALJR 515 because it was clear from the delegate’s decision that he had problems believing the applicant in relation to his claim that he feared being persecuted by Maoists in his workplace. That is to say, the delegate questioned the credibility of the applicant on this point and did so in that passage.
It can thus be concluded that the passage from the delegate’s decision relied upon by the applicant as not raising an issue which the Tribunal subsequently relied upon, was simply a finding to the effect that the peace agreement would alleviate any problem which the applicant might face from unionists. It is really no more than a gloss on his principal conclusion on this issue, namely that the applicant’s conduct in Kathmandu was inconsistent with his claims.
As a result, far from the Tribunal reaching its conclusion partly based on an issue which the applicant could not have known he had to address, the Tribunal was traversing an issue which the delegate had already considered and found adversely to the applicant.
In any event, the issue was adequately covered at the Tribunal hearing. The question was whether the applicant did fear Maoist retribution for his actions at the hotel and it was on that issue that the applicant gave evidence. As the Minister says in his written submissions:
… on a fair reading of the decision it appears this issue was extensively discussed between the Tribunal member and the applicant at the hearing. At GB 159 – 160 the Tribunal told the applicant it wanted to speak to him about the difficulties, which he had outlined in his statement “which came as a result of his union activities in the workplace”. In the written statement the applicant had said he received verbal threats from “sacked individuals”. At GB 160 there is a reference to a discussion at the Tribunal about the management hierarchy at the Hyatt Hotel. The applicant was clearly on notice of the issue at the hearing and appears to have given his response to the issue.
Consequently, it also has to be concluded that the issue was sufficiently raised with the applicant for the Tribunal to have discharged its s.425 obligations.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 18 April 2008
4
1