SZLHI v Minister for Immigration

[2008] FMCA 281

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLHI v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 281

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – Applicant citizen of Nepal – claiming fear of persecution for being a member of a particular political and social group – no reviewable error.

Migration Act 1958 (Cth), s.476

Htun v Minister for Immigration & Multicultural Affairs (2001) FCA 1882 42  NABE v Minister for Immigration & Multicultural & Indigenous Affairs No. 2 (2004) FCA FC 263 57‑58

Applicant: SZLHI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2788 of 2007

Judgment of: Scarlett FM

Hearing date: 19 February 2008

Date of Last Submission: 19 February 2008

Delivered at: Sydney

Delivered on: 19 March 2008

REPRESENTATION

Solicitors for the Applicant: Simon Diab & Associates

Counsel for the Respondents: Ms Sirtes

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,350.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2788 of 2007

SZLHI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The applicant, who is a citizen of Nepal, asks the Court to review a decision of the Refugee Review Tribunal affirming the decision of a delegate of the Minister for Immigration & Citizenship not to grant him a protection (Class XA) visa.  The decision was signed on 8 August and handed down on 16 August 2007.  The Tribunal affirmed the delegate's decision, and the applicant claims that the Tribunal fell into jurisdictional error by failing to deal with his claims in their component integers and/or failing to give proper, genuine and realistic consideration of the applicant's claims in respect of that claim that he had been targeted by Maoists because he refused to provide them with financial assistance.

Background

1. The applicant arrived in Australia on 9 January 2007. He applied for a protection (Class XA) visa on 20 February 2007. His application for a protection visa was refused on 2 April 2007, and on 30 April in that year the applicant applied to the Refugee Review Tribunal for review of the Tribunal decision. The applicant provided to the Tribunal a notice under s. 312B of the Migration Act appointing as his registered migration agent one Man B. Khatri.  The applicant also provided a notice appointment of representative and appointment of authorised recipient, nominating Mr Khatri as his representative and authorised recipient for the purposes of the proceedings.  The Tribunal acknowledged receipt of the application on 30 April 2007 and wrote to the applicant care of Mr Khatri on 8 May 2007 inviting him to attend the hearing scheduled for 9.30 am on 17 July 2007.

2. The applicant attended that hearing and gave evidence with the assistance of an interpreter in the Nepalese language.  The applicant provided to the Tribunal a copy of his passport issued by Nepal.  He also produced a certificate from Health Services Australia Ltd relating to a medical examination conducted by a Dr Roopesh Dahr, a report from B&B Hospital in Nepal dated 25 December 2006 showing that the applicant had been admitted on 13 November of that year after having sustained a road traffic accident.  He produced a number of documents written in the Nepalese language and provided some documents downloaded from the internet.  He provided documents relating to the business of Nepal Export Gallery Pvt Ltd and provided a statement in which he set out how he had been working as a managing director of the Nepal Export Gallery and had been actively involved in politics during his student life.  He claimed in his statement that Maoists had demanded money from him, and when he did not provide this money he received threats of being killed the revenge for not cooperating with the Maoists financial demands.

3. The Tribunal sign its decision on 8 August 2007 and handed it down on 16 August.  A copy of the Tribunal decision record can be found at pages 260 through to 278 of the Court Book.  In the decision record the Tribunal sets out under the heading "Claims and evidence" the applicant's claims as set out in his protection visa application and his claims as stated to the Tribunal at the hearing.  There was also a post‑hearing submission, which the Tribunal considered.  The Tribunal also referred to independent country information about royalists in Nepal, general Maoist violence, the role of Maoists in the current Nepal government and the interim constitution in Nepal and the constitutional process within that country.

4. The Tribunal's findings and reasons are set out on pages 275 through to 278 of the Court Book.  The Tribunal found that the applicant was a citizen of Nepal who arrived in Australia on 9 January 2007 and relied on the applicant's passport presented at the hearing.  The Tribunal noted that the applicant claimed refugee status on the basis that he claimed to have been targeted by Maoists but did not accept that the applicant was or is of adverse interest to the Maoists because the Tribunal did not accept the basis upon which the applicant asserts that he was of adverse attention to them.  The Tribunal did not accept that the applicant had been harmed in the past by Maoists.  The Tribunal noted that the applicant claimed that he was of adverse interest to the Maoists for these reasons: 

   i)Believe him to be a police informant.

   ii)He has failed to cooperate with their demands for financial support.

   iii)He is a supporter of the monarchy.

   iv)He is a member of the RPP, which is the Rasteryia Prajatantra Party (RPP).

5. The Tribunal accepted that the applicant was a member of the RPP and a support or of the monarchy but did not accept that he had a profile or prominence in the party.  The Tribunal found that, due to the paucity of his oral written evidence as to his involvement in the RPP and a supporter of the monarchy, the Tribunal did not accept that he was any more than a passive supporter of the RPP.  The Tribunal found the applicant's oral evidence about the claim that the Maoists considered him could be a police informant to be lacking in substance.  The Tribunal went on to find:

   Furthermore, the Tribunal considers that the applicant's modus operandi belies his claim to have been of adverse interest to the Maoists and in fear of them.  As discussed with the applicant at the hearing, the applicant set up his own business in 2004 and then travelled to Asia in 2004 for business purposes and to Europe in 2005, again for business purposes.  He then sought to travel to America in 2006 and only after this was refused sought a visa to come to Australia in October 2006 and travelled to Australia in January 2007.  Despite claiming that he was receiving letters of demand from the Maoists in 2004 onwards, the applicant continued to return to Nepal claiming at the hearing that he decided it was better to seek refugee status in Australia than in Europe[1]. 

   [1] See Court Book at page 276

6. The Tribunal considered the applicant's documentary evidence but did not consider that documentary evidence provided any great assistance to the applicant's claim.  The Tribunal said:

   Given the dubious nature of these documents and in light of the unsatisfactory nature of the applicant's oral evidence about his claims to have been threatened by Maoists, the Tribunal does not give weight to these documents and the Tribunal does not accept that the applicant was pursued or threatened by Maoists to donate to their cause[2]. 

   [2] See Court Book at page 276 - 277

7. The Tribunal was not satisfied the applicant had a well‑founded fear of persecution for a Convention reason on his return to Nepal, and was not satisfied the applicant was a person to whom Australia has protection obligations under the Refugee Convention. Therefore, the Tribunal found the applicant did not satisfy the criterion set out in s. 36(2) (a) of the Migration Act for a protection visa.

8. The applicant commenced proceedings for judicial review in this Court by means of an application and affidavit in support filed on 11 September 2007.  He filed written submissions on 6 February 2008 and an amended application under the Migration Act in Court, for which he obtained leave through his counsel on the day of the hearing, 19 February.  In the amended application, whilst there were three grounds set out, it was only the third ground upon which the applicant relies.  The third ground says:

   The second respondent made jurisdictional error by failing to deal with the applicant's claims and their component integers and/or failing to give proper, genuine or realistic consideration to the applicant's claims in respect of the applicant's claim that he had been targeted by Maoists because he refused to provide them with financial assistance.

9. The applicant seeks in his amended application: 

   i)A writ of certiorari quashing the Tribunal decision.

   ii)A writ of mandamus requiring the Tribunal to determine his application for a protection visa according to law.

   iii)A writ of prohibition preventing the minister from taking any action upon the decision of the Tribunal.

   iv)An order for costs.

10. For the applicant, Mr Young of counsel submitted that the applicant clearly claimed that he feared persecution because he had refused to provide the Maoists with financial support.  He referred to his refusal to provide financial support to the Maoists in his application for a protection visa[3], and the Tribunal itself found that he had claimed to have been targeted by the Maoists because, amongst other things, he had refused to provide them with financial support. Mr Young relied upon the decisions in Htun v Minister for Immigration & Multicultural Affairs (2001) FCA 1882 42 and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263 57‑58. In support of the claim that the requirement to review the decision under s. 414 of the Migration Act requires the Tribunal to consider the claims of the applicant and to make a decision without having considered all of the claims is to fail to complete the exercise of jurisdiction embarked upon.  Failure to deal with an essential element of the claim, he submitted, will, of necessity, mean that the Tribunal has not addressed its task under s. 414 of the act.

    [3] See Court Book at page 21

11. The Tribunal dealt with the applicant's claims to have been targeted because he was a member of the RPP, but the Tribunal did not accept that he was any more than a passive supporter of the RPP.  It certainly dealt with his claim that the Maoists considerate him to be a police informant and stated that that claim was lacking in substance.  However, Mr Young submits that the Tribunal did not deal generally with the applicant's claim to have feared persecution because he had refused to give the Maoists financial support.  The only specific finding that the Tribunal made in relation to that claim ‑ that is, to have been targeted by the Maoists for refusing to provide them with financial support – was that the Tribunal did not accept that the applicant was attacked by Maoists on 11 November 2006.  The applicant had claimed that he left Nepal to seek protection about November 2006, not only because he was attacked at that time but he had begun to receive letters of threats.  The Tribunal dealt with the letters of demand from the Maoists but did not give weight to them.

12. Mr Young submits that the Tribunal's rejection of the claim to have been attacked by the Maoists on 11 November 2006 and not to give weight to the three letters of demand from the Maoists, the latest of which was on 1 July 2006, dealt only with some aspects of his claim in relation to fearing the Maoists because he had refused to give them financial support, but it did not amount to consideration of the claims as a whole.  Nor, he submitted, did the noting of the applicant's travel movements amount to findings sufficient to deal with his claims.

13. The applicant's claim before the Tribunal is that he had left Nepal because he had been attacked in November 2006 and had begun to receive threatening letters.  The Tribunal's refusal to accept the claim that the applicant was attacked by the Maoists in November 2006 did not include a finding that the applicant had not begun to receive the threatening letters at around that time.  The Tribunal's note of the applicant's movement from 2004 did not deal with the applicant's claim that he had begun to receive the threatening letters in November 2006.  That claim was not dealt with by the Tribunal.  Mr Young submitted that a fair reading of the Tribunal decision shows that it did not deal with the applicant's claim to fear harm from the Maoists because he had not provided them with financial support.  The Tribunal dealt only with some particulars of the claim and not with the claim as a whole.  That, he submits, is a jurisdictional error which entitles the applicant to the orders that he sought.

14. In reply, Ms Sirtes of counsel appearing for the Minister summarised the applicant's claim as a failure to address an integer of his claims in that he failed to cooperate with demands for money by the Maoists.  Ms Sirtes submitted that the ground was wholly without foundation because: 

    i)The Tribunal had found the applicant had travelled and returned to Nepal on several occasions during the period that he claimed to be receiving the letters of demand from the Maoists, and the Tribunal found that to be inconsistent with a genuine fear.

    ii)The Tribunal did not give any weight to the letters of demand which the applicant claimed had been sent by the Maoists.

    iii)The Tribunal did not accept that the applicant was pursued or threatened by Maoists to donate to their cause[4]. 

    She, in fact, submitted there was no jurisdictional error and that the decision was a privative clause decision.

    [4] See Court Book at page 277

15. I am certainly of the view that the applicant claimed that he was pursued and threatened by the Maoists because he refused to provide them with financial support.  That was one of the applicant's claims, and the Tribunal, in fact, noted that in its findings and reasons.  The Tribunal just did not accept the basis upon which the applicant claimed that he had attracted adverse attention from the Maoists and did not accept the applicant's evidence that he had, in fact, been harmed by them in the past.

16. The Tribunal did not accept that the applicant was attacked by the Maoists on 11 November 2006.  It found that claim or the evidence of that claim to be unconvincing and lacking in coherency.  The Tribunal was aware that the reason that the applicant claimed that he was attacked was because of his refusal to contribute financially as well as having the concern that he was a police informant.  The Tribunal found that that claim was anomalous, particularly as a result of the nature of the injuries that he received.  The Tribunal did consider the letters of demand from the Maoists and found that they were contrived and self‑serving and gave them no weight.  I do not see how it can be said that the Tribunal has not considered the integers of the applicant's claim.  He claims to fear harm from the Maoists because he had not contributed to their cause financially and claimed that he had been threatened and beaten up accordingly.  The Tribunal did not accept the fact that he had been physically harmed and did not accept the documentary evidence of the threats.  The Tribunal just did not believe his claim.  The Tribunal did not believe the parts of the claim nor the claim as a whole.  I am not satisfied that the applicant's ground for relief has been made out, and I am not satisfied that the Tribunal fell into jurisdictional error.

17. In the absence of jurisdictional error the Tribunal decision is a privative clause decision and is not subject to orders in the nature of certiorari, mandamus or prohibition.  It follows that the application will be dismissed, and I will consider the question of costs.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  19 March 2008