SZMPX v Minister for Immigration

[2008] FMCA 1634

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMPX v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1634

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal’s decision not irrational or illogical – no breach of s.425 of the Migration Act 1958 proved.

Migration Act 1958, s.425

SZLCO v Minister for Immigration & Citizenship [2008] FCA 650
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152

Applicant: SZMPX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2066 of 2008

Judgment of: Cameron FM

Hearing date: 24 November 2008

Date of Last Submission: 24 November 2008

Delivered at: Sydney

Delivered on: 8 December 2008

REPRESENTATION

Counsel for the Applicant: Mr J.R Young

Solicitors for the Applicant: Simon Diab

Counsel for the Respondents: Mr T. Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2066 of 2008

SZMPX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Nepal where he claims he was subject to threats from the Maoists because he is a supporter of the Rastriya Prajatantra Party (“RPP”), is a businessman and is distantly related to the deposed King of Nepal. He alleges that while in Nepal, he was subject to extortion threats and was kidnapped on two occasions. The applicant left Nepal and arrived in Australia on 7 November 2007.

2. The applicant claims to fear persecution in Nepal because he falls into a particular social group comprising businessmen and also because he is a supporter of the RPP which is considered to be pro-monarchist.

3. After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on

   
   15 February 2008

   . 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.

4. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 10 of the Tribunal’s decision (Court Book (“CB”) pages 196 – 202). Relevantly, they are in summary:

   a)his father had a slight involvement in politics and was committed to the RRP. He influenced the applicant to become a member and he then frequently participated in party activities;

   b)he was a formal member of the RPP and joined four to five years ago, he liked their goals and objectives and the continuity of the king, but he could not give his full time support to the party as he had to work;

   c)on several occasions he arranged the program on how the party should be run, helped to gather crowds, made signs and arranged flowers when the then-king visited his town. He also distributed information and canvassed for votes;

   d)his family’s occupation is “construction industrialists” and the Maoists believe people who own construction companies generate a lot of money so they ask for large donations from them. The applicant claims that:

   i)he received a letter from the Maoists demanding Rs 10 Lakhs (i.e. 1,000,000 rupees) but he refused to pay;

   ii)he was held captive several times by the Maoists who threatened his life, but was allowed to go after three days if he paid Rs 10 Lakhs;

   iii)he paid the Maoists Rs 4 Lakhs as a down-payment but still owes Rs 6 Lakhs; and

   iv)he continues to receive warning letters for the balance but he cannot pay and, even if he could, he does not intend to pay them;

   e)the Maoists Young Communist League (“YCL”) sets up in city areas to raise funds and forces people to obey them. The applicant does not support their system of belief and he is not safe in India as Maoists supporters operate on the “urban border” [scil: “open border” (CB 78)];

   f)the government itself does not seem safe from the Maoist insurgents, many officials lose their lives and property and he could be kidnapped at any time as he is a target;

   g)he is unable to return to Nepal and continue his previous occupation, start another business or live and work elsewhere due to their threats and he will have to give them the remaining Rs 6 Lakhs;

   h)he cannot afford to pay the Maoists from his earnings, there is no liberty to run a business or security of life and property in Nepal;

   i)four years ago when working in the Kaligandaki region, several people in his group were captured by the Maoists. They told him to pay a million rupees which he could not pay;

   j)later that year he was captured again, roughed up by Maoists and accused of spying for the military. They realised he had not previously paid the money demanded by them and he was held for three days, then released with a severe warning; and

   k)he paid the Maoists a total of 400,000 rupees but he could not raise the rest. He claimed that, three and a half years ago, the Maoists still wanted the remaining 600,000 rupees and had threatened his family so he moved around from place to place.

2. After the hearing the applicant provided the Tribunal with the following documents:

   a)letter dated 9 June 2005 from the Nepal Communist Party (Maoists) titled “Subject: Financial Assistance” requesting that the applicant provide a donation or financial assistance of 1,000,000 rupees;

   b)donation receipt dated 7 August 2005 in the applicant’s name from the Nepal Communist Party (Maoist) for 400,000 rupees;

   c)a press release from the RPP Working Committee dated 16 June 2006 noting that the Maoists had asked the applicant, a party youth leader, to provide a donation of more than 1,000,000 rupees from time to time or be murdered;

   d)a press release from the Human Rights Peace Society dated 29 August 2005 protesting against the murder threats made by the Maoists against the applicant;

   e)an “appeal” letter from the Nepal Red Cross Society dated 18 June 2005 regarding the threats made by the Maoists against the applicant; and

   f)a report dated 4 May 2008 from the Home Ministry District Police Office certifying that the applicant had left his house and had migrated abroad due to the Maoist insurgency in 2005.

The Tribunal’s decision and reasons

1. 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)although the Tribunal accepted that the applicant was a former member of the RPP, it did not accept that the applicant or his father could be regarded as having a political profile in Nepal, even at the local level, noting that:

   i)he did not claim that he or his father held a position in the RPP even at the local level, made speeches, wrote pamphlets, stood for an elected political position or engaged in any political or party activity that would have had a political profile;

   ii)the applicant’s responses to questions testing his knowledge of the RPP including its policies, political manifesto and political activities were extremely vague and general, reflecting no detailed knowledge of the RPP; and

   iii)when the Tribunal put to the applicant it had expected him to talk about party policies in areas such as foreign policy, social security, education and taxation, he replied that the RPP supported villages and agricultural reform;

   b)the Tribunal therefore did not accept that the applicant engaged in political activities that would bring him to the attention of other political parties or that he would be subject to serious harm on this basis;

   c)further, the Tribunal concluded that these matters went to the applicant’s credibility and it found that he was not a credible witness;

   d)from the limited and unsubstantiated claims made by the applicant, the Tribunal was not satisfied that there is a real chance he has a well founded fear of persecution because he supports the deposed Nepalese king and will be targeted by the Maoists for this reason;

   e)the Tribunal was not able to satisfy itself that the applicant was a member of a particular social group comprising businessmen and, in particular, businessmen in the construction sector who were at risk from the Maoists for a Convention related reason, noting:

   i)while the Tribunal accepted that the applicant had been abducted by Maoists on two occasions in 2005, he provided no evidence to support his claim that there had been further threats against him or his family since he paid the Maoists 400,000 rupees in 2005;  

   ii)at the hearing the applicant claimed he had not been threatened by the Maoists for some three and a half years and did not claim that he had been abducted, attacked or harmed in the two years spent in Nepal prior to coming to Australia or that his family who remained in Nepal had been harmed in any way;

   iii)the Tribunal found that even if the applicant went to different places after his abduction as he claims, as he continued to live in his home or at his parents’ houses he cannot claim to have been living in hiding or that the Maoists or YCL would not have known where to find him;

   iv)the Tribunal found the applicant was able to live and work elsewhere and, without difficulty, avoided making further payments to the Maoists for over two years prior to coming to Australia;

   v)the applicant did not claim that the Maoists or YCL have demanded that his wife, father or brothers pay the outstanding amount on his behalf, nor that they have had similar threats made against them although they are involved in the construction business; and

   vi)although the applicant claims that he cannot afford to pay the Maoists or YCL from his earnings, that there is no liberty to run a business, no security of life and that there is property crime in Nepal, he does not claim that his family have been subject to such threats, forced from their homes or unable to continue their business, even though he indicates they are in the same or a very similar situation as he;

   f)the Tribunal was also satisfied that if the applicant had had a well founded fear of persecution for a Convention reason on the basis of his particular social group, his political opinion or for any other reason, he would have immediately fled Nepal after the first, and particularly the second, abduction in 2005, but accepted that he had not done so; and

   g)in light of the above, the Tribunal was not able to satisfy itself that the applicant has a well founded fear or serious harm on a cumulative basis because of his previous background and abductions, his very limited political involvement with the RPP, his distant relationship to the former king, his involvement in business in the construction industry, his being a young businessman or for any other Convention-related reason.

Proceedings in this Court

1. The grounds of the amended application were pleaded as follows:

   (1)The Second Respondent made a jurisdictional error by failing to provide the Applicant with an opportunity to comment on adverse information as required by s424A of the Migration Act 1958.

   (2)The Second Respondent made a jurisdictional error by failing to take account of relevant facts and instead taking account irrelevant considerations.

   (3)The Second Respondent made jurisdictional error by failing to give proper, genuine and realistic consideration to the Application’s claims to fear future persecution by reason of events of past persecution accepted by the Second Respondent.

   (4)The Second Respondent made jurisdictional error by adopting a rule or policy inflexibly and without regard to the merits of the case.

   (5)The Second Respondent made jurisdictional error by failing to comply with section 475 of the Migration Act by failing to accord the Applicant procedural fairness and/or by putting him on notice in relation to the issues arising on the review.

2. At the hearing, the first, second and fourth grounds were not pressed.

Tribunal failed to give proper consideration to the applicant’s claims in light of past persecution

1. In his written outline of submissions the applicant makes reference to the following passage of the Tribunal’s decision:

   Indeed, the Tribunal is satisfied that if the applicant had a well founded fear of persecution for a Convention reason on the basis of his particular social group, his political opinion, or for any other reason, then he would have immediately fled Nepal after the first, let alone second, abduction in 2005, but accepts he did not do so. (CB 206)

2. The applicant submitted that it was odd and irrational for the Tribunal to “opine that the Applicant would have immediately fled Nepal if he was in fear”. The applicant continued:

   … It is submitted that it is absurd, in circumstances where the RRT accepts that particular acts of persecution have occurred, for the RRT to reason that an Applicant does not have a subjective fear of persecution by reason only that he or she did not immediately depart his country of origin at the time of persecution. Indeed it is submitted that it makes a mockery of the purposes of the Convention for the RRT to so reason.

3. In making this allegation, the applicant has sought to highlight one aspect of the Tribunal’s decision to the exclusion of other aspects, thereby giving a misleading impression of the matters which the Tribunal found were relevant to its considerations. Certainly the Tribunal did make the comment quoted above at [10] but that comment is not objectionable in itself nor was it the only conclusion reached by the Tribunal in connection with the applicant’s claims, notwithstanding the applicant’s submissions. Indeed, for the reasons discussed below at [20] and [21], I am not of the view that the Tribunal’s decision was actually based on the conclusion quoted above at [10] much less that this was the only matter relied on by the Tribunal.

4. What the Tribunal did rely on when reaching its conclusion were the allegations which the applicant made concerning his experiences in Nepal. These have been summarised above at [7] and provided an adequate basis for the Tribunal’s ultimate finding.

5. As to the applicant’s concerns regarding the rationality of the Tribunal’s opinion, the comments of Logan J in SZLCO v Minister for Immigration & Citizenship [2008] FCA 650 are apposite:

   As to the claim that the Tribunal’s conclusions were not based on a rational or logical foundation, it must first be said that there is something of a controversy as to whether this is a ground of jurisdictional error. In VWST v The Minister for Immigration and Multi-cultural and Indigenous Affairs [2004] FCAFC 286, 10 November 2004, a Full Court of this Court held that the current state of the law is that want of logic in the reasons of the Tribunal is not an available ground of review, see para 18.

   That Court did so, having considered, materially, a then recently given decision of the High Court, Re: Minister for Immigration and Multi-cultural Affairs, ex parte S20 of 2002 (2003) 77 ALJR 1165. I note that the learned authors of Aronson and others, at page 265 state of this decision of the High Court that it, “approved review for irrationality or illogicality.” There is, with respect, certainly reason so to regard the High Court’s decision in S20; see para 52 in the joint judgment of McHugh and Gummow JJ, with which, at para 173, Callinan J agreed; see also para 138 in the reasons of judgment of Kirby J. Even assuming, though, that want of logic or irrationality is a permissible ground of jurisdictional error review, this is not a case, in my opinion, in which such a ground can be made out. (at [17]-[18])

6. Similarly here, I do not find that the Tribunal’s comments quoted above at [10] disclose a lack of rationality or logic which, even if that were to be a ground which would support a finding of jurisdictional error, would justify the Court making such a finding.

7. For these reasons, this ground is not made out.

Breach of s.425

1. The applicant submits that critical, determinative issues in the review, as understood in light of the decision of the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152, included the matters arising out of the passage quoted above at [10], namely:

   a)why the applicant had not left Nepal in 2005; and

   b)whether the applicant had a subjective fear of persecution given that he remained in Nepal.

   The applicant alleged that the Tribunal did not identify these issues to the applicant as required by s.425.

2. The passage from the Tribunal’s decision quoted above at [10] does not stand alone and cannot be considered except in the context of other elements of the Tribunal’s decision. In particular, at CB 203-204 the Tribunal discussed the applicant’s claims to fear persecution because he and his father were members of the RPP and because he was distantly related to the former king but concluded that, in fact, the applicant did not have a well founded fear of persecution for these reasons. At CB 205-206 the Tribunal considered the applicant’s claim to fear persecution because of his membership of a particular social group and concluded that he did not have such a fear.

3. Confusingly, the passage from the Tribunal’s decision quoted above at [10] forms part of the very large paragraph 63 of the Tribunal’s decision which is primarily concerned with the applicant’s particular social group claim. It ought to have formed part of a separate paragraph to more clearly identify the fact that, properly understood, it stands separately and apart from the Tribunal’s conclusions concerning the applicant’s claim to fear persecution because of his membership of a particular social group. In the sentences which immediately precede the relevant quoted passage, the Tribunal said:

   Accordingly, given all the above and while accepting that the applicant has only paid Nepalese Rupees 400,000 of a Nepalese Rupees 1,000,000 donation requested of him by the Nepal Communist Party (Maoists), District Committee Syanja, on 9 June 2005 as is evidenced by the letter provided to the Tribunal by the applicant on 29 May 2008, the Tribunal does not accept that after such a length period there is a real chance that the applicant would be subject to serious harm amounting to persecution because of his failure to provide this second donation. Moreover, the Tribunal has not been able to satisfy itself in regard to the applicant’s adviser’s contention contained in his letter dated 16 May 2008 that there was a Convention nexus: namely, that the applicant is a member of a particular social group comprising businessmen (and businessmen in the construction sector in particular), and that every businessmen in Nepal is at risk from the Maoists and, on this basis, [that] the applicant has a well-founded fear of serious harm amounting to persecution for a Convention reason. (CB 206)

4. By the time the Tribunal made the comment of which the applicant complains, it had already expressed its conclusions on the applicant’s claims to fear persecution and given its reasons for those findings.

1. Properly understood, the passage from the Tribunal’s decision quoted above at [10] is an additional comment made to emphasise the conclusions which the Tribunal had already articulated, based on other evidence which it identified, that the applicant did not have a well founded fear of persecution for a Convention reason whether on account of his political opinions and activities, his distant family connection with the former King of Nepal or his membership of the relevant particular social group. Consequently, the fact that the applicant had not left Nepal earlier than he did was not an issue determinative of his review application.

2. Further, to the extent that it is capable of an alternative characterisation, the passage in question may be considered not as a conclusion in its own right but as part of the conclusion that the applicant was not a credible witness, a matter which had been put directly to him as recorded as para.44 of the Tribunal’s decision (CB 200).

Conclusion

1. Consequently, jurisdictional error on the part of the Tribunal has not been demonstrated.

2. The application will be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date:  8 December 2008