SZMVK v Minister for Immigration

[2010] FMCA 75

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMVK v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 75

MIGRATION – Review of RRT decision – applicant a citizen of Nepal – extortion – where Tribunal considered the effect on applicant’s capacity to subsist – whether Tribunal failed to consider broader test of “serious harm” – where Tribunal made findings that threats against the applicant’s life were not genuine – whether Tribunal adequately addressed applicant’s claims in relation to his Pahadi ethnicity – requirement that Tribunal give “proper, genuine and realistic consideration” to applicant’s evidence considered.

Migration Act 1958 (Cth), ss.91R, 425

VTAO & Ors v Minister for Immigration [2004] FCA 927
NBFP v Minister for Immigration [2005] FCAFC 95
VBAO v Minister for Immigration (2006) 233 CLR 1
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
SZKGC v Minister for Immigration [2009] FMCA 1015
SZIIF v Minister for Immigration [2008] FCA 913
NAIS v Minister for Immigration (2005) 228 CLR 470
Minister for Immigration v SZIAI (2009) 259 ALR 429
Minister for Immigration v Guo (1997) 191 CLR 559

Applicant: SZMVK

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2145 of 2009

Judgment of: Raphael FM

Hearing date: 27 November 2009

Date of Last Submission: 27 November 2009

Delivered at: Sydney

Delivered on: 10 February 2010

REPRESENTATION

Counsel for the Applicant: Mr J Young

Solicitors for the Applicant: Simon Diab & Associates

Counsel for the First Respondent: Mr T Reilly

Solicitors for the First Respondent: DLA Phillips Fox

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $5,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2145 of 2009

SZMVK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Nepal who arrived in Australia on 6 November 2007 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 19 December 2007. On 27 February 2008 a delegate of the Minister refused to grant a protection visa and the applicant sought review of that decision from the Refugee Review Tribunal. A first Tribunal affirmed the delegate’s decision on 25 August 2008. On 16 April 2009 the Federal Magistrates Court set aside that decision and remitted the matter back to the Tribunal to be determined according to law. On 15 July 2009 the applicant attended a hearing before the second Tribunal. On 16 July 2009 the applicant provided the Tribunal with a detailed statement. On 3 August 2009 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down the same day.

2. The applicant ran a construction company in Nepal. He was targeted by Maoists insurgents at a number of electrical generating plant sites that he was working on. The insurgents sought financial assistance from him. At first he disregarded the demands and, as a result, was kidnapped for four hours. He said that he gave money once to the Maoists and, on another occasion, to some hoodlums in Satdobato in 2007. He claimed that he had given altogether 581,000.00 rupees to the Maoists but, notwithstanding this, money was still demanded from him that he refused. The applicant also claimed that he was being pursued by the JTMM who suspected him of being a police informant against the Madhesi. This imputation of political views came about because he gave a lift to a policeman on his motorbike. He was subsequently questioned by a group as to why that had happened. Apparently, a few days after he had given the policeman a lift, three of the JTMM party workers had been killed by the police. The applicant told that he only escaped being killed by the JTMM on that occasion because police patrol happened to go past. When they saw the police they panicked and he was able to escape.

3. In his original application for a protection visa, in response to the question “why do you think this will happen to you if you go back?” [CB 20] the applicant responded:

   “This is purely because of my belongingness to the race or group of people from Hilly region of Nepal who they term as “Pahade” and lit fires in the house trapping people inside, rape, beat and hate. This is a war between the race of Madhise and Pahade. On the other hand, Maoists have posed threat in the Hilly region as well (refer to statement).”

   In the decision of the delegate under the heading “Is the harm feared for a Convention reason?” the delegate has noted:

   “The applicant claims that he will be persecuted due to his ethnicity by both Maoists and Madheshis. This would fall within the scope of the Refugee’s Convention.”

   And under the question “Does the harm feared amount to persecution” the delegate wrote:

   “The applicant claims that he fears being killed by these groups who are opposed to his group of Hill people.” [CB 66-67]

4. In the statement that the applicant gave to the second Tribunal he says under the response to the question “Why I came to Australia”:

   “The reason for my move to Australia is solely to spare my life from two declared enemies, YCL and JTMM. Dear Member I would do anything to live in the place where I was born. I was brought up and I owe something. That is Nepal. My old parents, children and wife are there. However, the hope of life and the hope to remain alive is such compelling; I do not have the courage to go back. Both of my declared enemies are in a position to do execution style killings any time they want and anywhere they want within the Nepal and Indian borders. They do not seek permission from anyone; this is what their record proves.” [CB 197].

5. At the Tribunal hearing the applicant was asked about the demands for money made by the Maoists. At [39] [CB 211] the Tribunal says:

   “It was put to the applicant that he had in the past said that he was afraid of the Madhesi group, the JTMM and of the Maoists and he was asked whether he still feared them. He said that he did. His relationship with the Maoists was discussed. He was asked whether he was afraid of any particular Maoist group and he said he was afraid of the YCL.”

6. The Tribunal considered with the applicant certain independent country information at [57-58] [CB 216]:

   “While the MJF is the largest of the Madhesi groups, two armed factions of the Janatantrik Tarai Mukti Morcha (JTMM) have put forward more rigorous demands. The JTMM split from the CPN-M in 2004, citing lack of concern for Madhesi issues… JTMM demands include an independent Tarai state, fair representation of Madhesis in the army and the Government, and departure of Pahadis from the Tarai region. [source cited].

   There have been a substantial number of reports on the continuing violence in the Terai region between Madhesis and Pahadis since 2006. In addition, more general unrest in the country culminated in May 2009 with the resignation of the Maoist leader and Prime Minister Pushpa Kamal Dahal, popularly known as Prachanda. A BBC News Article headed “Is Nepal sliding back into the abyss” was published on the BBC News Website on 4 May 2009.”

   At [60] [CB 217] the Tribunal noted country information from the US State Department:

   “There was significant internal conflict in the Terai. Numerous armed groups, many ethnically based, clashed with each other and with the local population. Police were given a limited mandate and were not actively encouraged to promote law and order throughout the country. Members of the Maoists, the Maoist-affiliated YCL, and various other ethnically based splinter groups in the Terai frequently committed acts of violence, extortion, and intimidation throughout the year.”

7. In its findings and reasons the Tribunal divided its decision into what it considered to be the various claims made by the applicant. It commenced with making a general comment about the applicant’s credibility saying:

   “[62] The Tribunal has some concerns about the applicant’s credibility. In particular, the applicant was vague and inconsistent about extortion, beatings and threats against him by the YCL and was unable in the Tribunal’s view to make out his claim that the JTMM continued to pursue him following an alleged incident in February 2007. In addition, the Tribunal found inadequate the applicant’s reasons for his delay of some eight months in leaving Nepal after he obtained a passport in March 2007. …This delay casts doubt on the credibility of the applicant’s claims that he was in fear of serious harm from both Maoists (the YCL) and the JTMM at the time he left Nepal in November 2007.”

8. The first matter that was considered was past persecution by Maoists including the YCL. The Tribunal came to the conclusion that whilst it accepted that the applicant was the victim of extortion by Maoists, it noted that the company continued to operate in Nepal up until the time of the applicant’s departure for Australia despite these demands for money. It concluded that:

   “On the basis of this evidence and guided by section 91R(2) of the Act, the Tribunal does not accept that the applicant was denied the capacity to earn a livelihood in Nepal where such hardship or denial threatens the applicant’s capacity to subsist. It does not accept that the extortion was sufficiently serious to amount to persecution in a Convention sense.”

9. At [64] [CB 218] the Tribunal said that it had given the applicant the benefit of the doubt in regard to his claims of being kidnapped by the YCL but:

   “however, given the brief duration of the kidnapping, the Tribunal is not satisfied that this incident of harm was sufficiently serious as to amount to persecution in the Convention sense. It is not satisfied, as detailed below, that any threats made against him by the Maoists were genuine threats against his life and is therefore not satisfied that any such threats were sufficiently serious as to amount to persecution in a Convention sense.”

10. The next matter considered by the Tribunal was past persecution by the JTMM. The Tribunal found the recounting of the incident in which the applicant’s life was threatened because he had taken a policeman on his motorbike difficult to believe.

    “If in fact it happened as reported by the applicant, the Tribunal is of the view that the JTMM would have seriously pursued the applicant following their foiled attempt to attack him in revenge for the deaths of the JTMM activists, for which they allegedly held him responsible… [the Tribunal] does not accept the applicant’s claims of ongoing threats of harm made by the JTMM. The Tribunal is not satisfied that the applicant was ever persecuted within the meaning of the Convention by the JTMM.” [68] [CB 219].

11. The Tribunal then turned to “Future persecution by Maoists including the YCL”. The Tribunal considered whether the claim of extortion, which it accepted, had a Convention nexus. It noted that the applicant’s evidence was that extortion in the construction industry was the norm but did not accept that the reason for the extortion was the applicant’s membership of a political social group, either of “construction business owners” or “construction industry tenderers”, nor did it believe that it could be directed against the applicant as a member of the social group “bread winners in families”:

    “In the Tribunal’s view the construction industry constituted a target for extortion demands because the money involved was substantial and because it was comparatively easy for armed criminals to victimise individual companies including the applicant’s company. The Tribunal has formed the view, chiefly on the applicant’s evidence, that extortion in the construction industry in Nepal was primarily a criminal activity designed to raise funds for the Maoists, rather than a persecutory activity within the meaning of the Convention… The Tribunal is not satisfied that the essential and significant motivation for extortion in the applicant’s case was for reasons of his membership of a particular social group however defined.” [70]

    The Tribunal did not consider that the reason for the extortion was the applicant’s political opinion either.

    “The applicant has not claimed that he was targeted by the YCL for reasons of his race, religion or nationality. There is nothing in his evidence which would found a reasonable claim of such motivation. In making this finding, the Tribunal accepts that the applicant claimed to be the target of the JTMM for reason of his ethnicity as well as his political opinion but has rejected these claims as detailed above.” [71] [CB 220]

12. Finally, the Tribunal considered future persecution by the JTMM and noted that it found that he had not been persecuted by the JTMM in the past or that threats had continued to be made against him by the JTMM either in Nepal or in Australia.

    “He has claimed that he came to the attention of the JTMM for reasons of his Pahadi background, the fact that he is a business owner and that he has opposed extortion demands and encouraged others to do so. …The Tribunal has formed the view that if there was a real chance of harm being done to the applicant by the JTMM for whatever reason, they would have sought to harm him in the period of nearly nine months in Nepal before his departure for Australia when he was living and travelling according to his usual routine. The Tribunal is not satisfied that the applicant has the well founded fear of persecution within the meaning of the Convention by the JTMM or associated Madhesi groups in Nepal.” [73]

13. On 3 September 2009 the applicant filed an application with this Court seeking review of the decision of the Refugee Review Tribunal. There were four grounds of that application. The first ground was:

    “The second respondent made jurisdictional error by making legal error as to the meaning and content of serious harm under s.91R(1)(b) of the Migration Act and the scope and effect of s.91R(2).”

    The applicant submits that the Tribunal erred by only considering whether, when extorting money from the applicant, the Maoists had denied him his capacity to subsist: s.91R(2)(f), rather than considering whether he had suffered serious harm within s.91R(1)(b). It relied heavily on the decision of Merkel J in VTAO & Ors v Minister for Immigration [2004] FCA 927 (“VTAO”) at [60-62]. The Tribunal referred to the capacity to subsist at [63] [CB 217] in the manner extracted at [8] of these reasons. I do not think that the words utilised by the Tribunal show an exclusive consideration of s.91R(2)(f) but merely indicate that its consideration of whether the conduct complained of constituted serious harm was guided by s.91R(2). I accept the respondent’s argument that, in any event, the statement at [63] should not be considered in isolation. At [13] of the Tribunal’s decision it notes that persecution “includes” the matters mentioned in s.91R(2) and seeks support from the views expressed by the Full Bench in NBFP v Minister for Immigration [2005] FCAFC 95 at [23] and [63-64]:

    “63 In our view, VTAO is plainly distinguishable from the present case. In VTAO the RRT made it clear that it rejected the third applicant’s claims because they did not threaten his, and his family’s, "capacity to subsist", as required by s 91R(2). At no stage did it consider how the phrase "serious harm" was to be interpreted. It repeatedly used language that suggested that the examples contained in s 91R(2)(c), (d) and (e) represented the appropriate legislative test. In addition, there were other factors present, such as those referred to in [62], [64] and [65] of Merkel J’s judgment that led his Honour to conclude that the RRT had failed to address the correct issue.

    64 In the present case, there are only two passages that can be called in aid in support of the appellant’s primary contention. Each of those passages can readily be understood as a response to a specific claim, on the part of the appellant, that his case fell within one or more limbs of s 91R(2). Those claims were considered, and rejected, as they had to be, having regard to the findings of fact made by the RRT. The sentences that immediately followed those passages are clearly susceptible to a construction that involves a broader reading of the term "serious harm", and a rejection of the claims made in the context of that interpretation.”

    I am satisfied that the Tribunal did not limit itself in the manner that concerned Merkel J in VTAO.

14. The second ground was that:

    “The second respondent made jurisdictional error by determining that, notwithstanding threats had been made against the life of the applicant, the threats could be discounted because of the findings that the threats to his life would not have been carried out.”

15. In my view the applicant has misdescribed the findings of the Tribunal. What it did was to consider whether or not the threats were genuine i.e. were they threats that were likely to be translated into action. It found that they were not. By concluding that the threats that it had found made did not constitute serious harm the Tribunal was correct; VBAO v Minister for Immigration (2006) 233 CLR 1 per Gummow J at [18]:

    “Counsel for the appellant urged a reading of para (a) of s 91R(2) which would include a past or current communication of an intention to kill or deprive a person of liberty which, looked at objectively, is capable of instilling fear in the person and does so. The Minister supports the construction adopted by Marshall J, in particular that (i) threats to life or liberty in the form of declarations of intent do not, without more, constitute the serious harm which persecution must involve, (ii) the term "threat" connotes "risk" in the sense of danger or hazard, and (iii) the threat to life or liberty must manifest itself as an instance of serious harm as distinct from a possibility of danger. The submissions for the Minister should be accepted.”

16. The third ground raised by the applicant was:

    “The second respondent made jurisdictional error in its findings about the nature and Convention relationship concerning the extent to which the second respondent found the applicant had been subjected to extortion by Maoists in Nepal.”

17. In his submissions the applicant states:

    “In considering the question of Convention nexus at [69-70] in relation to a particular social group, the RRT failed to consider the aspect of the applicant being a Pahadi. Country information relating to Pahadis is contained in the section at [56-60] [CB 216-217].

    However, at [69] and [70], the RRT gave no consideration to the applicant being Pahadi, notwithstanding that this was plainly raised as a relevant particular social group in relation to the Maoists kidnapping him and targeting him for extortion.

    Further, the duty of the RRT was to consider whether cumulatively, or in combination, the applicant may have been targeted because of the Convention bases he raised, including his membership of the particular social group of Pahadis.”

18. The applicant argues that his claim of fear as a Pahadi was a separate claim not properly considered by the Tribunal. He says it was a claim clearly made and cites the response to question 44 of the PVA extracted in these reasons and the independent country information that indicates that the JTMM is part of the Maoist faction. He notes the delegate’s reference to Hill people, also extracted. He says that the Tribunal considered the applicant’s membership of a particular social group at [70] [CB 219] but did not mention the Pahadis. It dealt with membership of a particular social group in relation to whether or not he was a victim of extortion. He denied the respondent’s argument that his claim as a Pahadi was put in the context of the fear of the JTMM. He notes his statement where he said:

    “His home is in the Southern Terai belt of Nepal and is under attack from various groups including the Janatantrik Tarai Mukti Morcha and the Madhesi Mukti Morcha.”

    It seems to me that a reading of the Tribunal decision as a whole indicates that the applicant did confine his fear of Madhesi to the JTMM which is what he said in the statement at [CB 197]. The JTMM is a Madhesi associated group and the Tribunal concluded at [73] [CB 220] that the applicant did not have a well founded fear of persecution from the JTMM or “associated Madhesi groups in Nepal”. There is no indication that the applicant raised his fear of the Madhesi as a member of the Pahadi other than in the general context of what had occurred to him at the Tribunal hearing. It seems to me that what the Tribunal did do was to note that the applicant had made the claim but that he had not followed it up to the extent of making any submissions about it. In the absence of those submissions, the Tribunal would appear to have considered that it was sufficient for it to come to the generalised conclusion that I have quoted. The Tribunal’s job is to consider the claims made.

    “[An applicant does not] have to pick the correct Convention "label" to describe his plight. The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. This Court has rejected that approach to the Tribunal's duties. The function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances.”

    Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [78].

    It follows that if the claims are made only very faintly then that will be reflected in the Tribunal’s consideration. That is what occurred here.

1. The final ground raised by the applicant was:

   “The second respondent made jurisdictional error by failing to give proper, genuine, realistic consideration to the applicants claim to fear harm from JTMM and instead applied a capricious and inflexible rule that if there was any chance that the applicant would be harmed by JTMM, the JTMM would have done so before the applicant left Nepal.”

2. Mr Young referred to a recent decision of this Court in which Scarlett FM appeared to accept that failure to give proper, genuine and realistic consideration to the decision under review constitutes a jurisdictional error; SZKGC v Minister for Immigration [2009] FMCA 1015 at [41]. His Honour referred to Weinberg J’s decision SZIIF v Minister for Immigration [2008] FCA 913 (“SZIIF”) which, in turn, quoted heavily from NAIS v Minister for Immigration (2005) 228 CLR 470 (“NAIS”). In that case, the High Court was concerned with the effect of excessive delays in the RRT on the decision-maker’s ability to fairly consider the case before it. In a joint judgment Callinan and Heydon JJ accepted that s.425 refers, by implication, to a hearing where the evidence given is to be given “proper, genuine and realistic consideration” in the decision subsequently to be made [171]. Because of the extraordinary delay between the oral hearings and the decision in that case, the Tribunal had disabled itself from being able to give proper consideration to the decision under review in much the same way as bias does.

3. Their Honours expressed the view that that was a very exceptional case:

   “The facts, it is to be hoped, are extraordinary. It is [a case] in which the Court is bound to hold that the proceedings have not been fairly conducted, by reason of the delays, both from beginning to end, and between each episode in them.”  [174]

   It would seem, therefore, that the jurisdictional error in that case was the extraordinary delay rather than the failure to give “proper, genuine and realistic consideration” to the applicant’s evidence. Although that failure was indeed the result of the delay, a proper reading of NAIS suggests that it is not a head of jurisdictional error in itself. This was confirmed by Weinberg J in SZIIF at [83]:

   “Speaking generally, therefore, NAIS stands as support for the proposition that lengthy delay, unacknowledged by the Tribunal in its reasons for decision, can give rise to jurisdictional error. This may be because the Tribunal has failed to take into account a matter that it was obliged to consider: Minister for Aboriginal Affairs v Peko-Wallsend Ltd[1986] HCA 40; (1986) 162 CLR 24. Alternatively, it may be that the Tribunal has denied the applicant a fair hearing, and thereby denied him procedural fairness.

4. I accept the respondent’s submission that there is nothing to suggest that the accepted bases of jurisdictional error now include a new ground of uncertain meaning being a failure to give “proper, genuine and realistic consideration” that can be made in the absence of any other accepted jurisdictional error being established. This view is consistent with that of the High Court in Minister for Immigration v SZIAI (2009) 259 ALR 429 which illustrated a determination on the part of the High Court to restrict categories of jurisdictional error to those arising directly from failure to comply with statutory requirements.

5. I am bound to consider whether the reasoning employed by the Tribunal at [73] reveals some other fault amounting to jurisdictional error. According to the applicant, the Tribunal’s finding that the applicant would not face future persecution by the JTMM on the basis that that group had not sought retribution in the nine months before he left for Australia demonstrates that the Tribunal applied a capricious and inflexible rule. I do not agree.  It is well established that past events are a useful guide to future events: Minister for Immigration v Guo (1997) 191 CLR 559. At [68] of its decision the Tribunal makes it clear that it did not accept the applicant’s claims that he had almost been attacked by the JTMM or that threats were made against him. This is the real reason why the Tribunal rejected the possibility of any future harm. The fact that the applicant had not been attacked in the nine months prior to his departure went towards that finding, it did not, as the applicant suggests, provide the basis for the finding on future persecution.

6. I dismiss the application. The applicant must pay the first respondent’s costs which I assess in the sum of $5,800.00.

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

Associate: 

Date:  10 February 2010