SZMVK v Minister for Immigration
[2009] FMCA 304
•14 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMVK v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 304 |
| MIGRATION – Review of RRT decision – applicant a Nepali businessman – where significant non-Convention reason for applicant’s travel to Australia – whether Tribunal relied on this to dismiss claims of persecution without considering their merit – meaning of the phrase “give no weight” considered – multi-faceted nature of extortion – whether Tribunal failed to consider that there might be multiple reasons for the extortion. |
| Migration Act 1958 (Cth), s.91R |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 Rajaratnam v Minister for Immigration [2000] FCA 1111 Ahmed v Minister for Immigration [2000] FCA 1571 SZLAN v Minister for Immigration [2008] FCA 904 |
| Applicant: | SZMVK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2606 of 2008 |
| Judgment of: | Raphael FM |
| Hearing date: | 30 March 2009 |
| Date of Last Submission: | 30 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 14 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Young |
| Solicitors for the Applicant: | Simon Diab & Associates |
| Solicitors for the First Respondent: | DLA Phillips Fox |
ORDERS
A writ of certiorari issue directed to the Refugee Review Tribunal removing into this Court to be quashed the decision of the Tribunal made on 25 August 2008 and handed down on 9 September 2008.
A writ of mandamus be directed to the Second Respondent directing it to reconsider and determine the matter according to law.
A writ of prohibition preventing the First Respondent from taking any action upon the decision of the Second Respondent.
The First Respondent to pay the Applicant’s cost assessed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2606 of 2008
| SZMVK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Nepal. He arrived in Australia on 6 November 2007 and on 19 December 2007 applied to the Department of Immigration and Citizenship for a protection (Class XA) visa. On 27 February 2008 a delegate of the Minister refused to grant a protection visa and on 20 March 2008 the applicant applied to the Refugee Review Tribunal for review of the delegate’s decision. The Tribunal held a hearing which the applicant attended on 21 July 2008. On 25 August 2008 the Tribunal determined to affirm the decision not to grant a protection visa.
The applicant provided a written translated statement in which he said that he was the owner of a construction contracting company which, along with other members of the same industry, has suffered as a result of the armed Maoist insurgency in Nepal. He claimed that he had been once kidnapped by the Maoists and detained for a few hours until he agreed to make payments to them. Between 2003 and 2007 he paid a total of 580,000.00 Nepalese rupees. The applicant also claimed to have been a target of the JTMM who demanded some 81,000.00 rupees from him and threatened to kill him if he did not pay them. The applicant is a Pahadi from the Terai district of Nepal. He started his business in that area but told the Tribunal that for some years his company had operated more out of Kathmandu. The company has a staff of three including himself and his wife and employed subcontractors when it obtained a major contract. He had worked on a road project funded by the World Bank. The company was currently working on this road project with the profits being split between the applicant and a colleague who he involved because his wife is currently unwell. The applicant believed that this was not generally a very positive environment for the construction industry in Nepal, not only because of the economic downturn, but also because the Young Communist League has been obstructing companies that it does not favour from securing new contracts.
The Tribunal raised with the applicant the question of the location of the company which appeared to the Tribunal to be run more out of Kathmandu than out of the Terai. The applicant said that the demands made by the Maoists were made first by the Maoists in Kathmandu and then later by local vigilantes. In regard to the claims on his life, he told how one day he was riding his motorcycle and he gave a lift to a man who he did not know and later he was stopped along a jungle road by a group who took him aside and told him that his passenger had been a policeman and some three days thereafter had killed members of their group.
“The Tribunal asked the Applicant how he knew the JTMM wanted to kill him, and he said he knew this because when they stopped him they carried weapons in their hands. The Tribunal asked the Applicant if he knew why they did not kill him then and there and he said that a police patrol came by. In his statement the Applicant merely said, vaguely, that he was able to save himself by escaping from there.” [CB 135]
The Tribunal expressed concern to the applicant that although the incident with the JTMM had occurred in March 2007 and he had obtained his passport on 29 March 2007, he did not leave for Australia until November.
“The Tribunal drew the Applicant’s attention to evidence he gave earlier in the hearing about his genuine interest in the conference and the genuine desire to take knowledge from that conference home to Nepal to apply to his work there. The Tribunal put to the Applicant that in light of this genuine interest in attending the conference, as specifically described by him, one might form the view that his protection visa application might have been an afterthought. In reply, he said the conference gave him the ability to gain more (professional) contacts. The Tribunal also drew the Applicant’s attention to his claims about business prospects in Nepal appearing to dry up due to corruption. He said that this was all true and correct, and added that he also came here to secure his life.” [CB 136 – 137]
The Tribunal then questioned the applicant about extortion demands at [CB 137].
“[66] The Tribunal looked closely at the amounts demanded of the Applicant on past occasions by the Maoists and others. He said that on each of these occasions, the amounts totalled between 2% and 5% of the total contracts currently being undertaken at the time.
[67] The Tribunal put to the Applicant that as unreasonable as the demand for such percentages of overall takings would have been (e.g., for being illegal and totally unwarranted, and for cutting into profits in harder and harder times) the percentages cited suggested the parties demanding the money had an interest in letting him survive to operate his business so that they could illegally cream off a percentage. In reply, the Applicant said, “we work in competition.” Here he seemed to indicate that his competitors and their socio-political backers possibly sought unlawful “compensation” for missing out on contracts they would have preferred to win for their own.
“[68] The Tribunal put to the Applicant that the motivation on the part of the parties harassing him in this context appeared to be mercenary rather than to harm him for any of the Convention-related reasons broadly identified in his overall application.
[69] In reply, the Applicant said the demands for money have been constant. He said it was becoming impossible to meet them and stay afloat financially. He said that there are no guarantees what his profits in any contract will be due to competitiveness in the industry.”
Finally, the Tribunal questioned the applicant about why he had sent his daughter back to Terai where he claimed the worst of the problems were and why he had left his wife and daughter in Nepal.
“[81] The Tribunal put to the Applicant that he appeared to describe himself as having significant characteristics in common with his wife and daughter and yet he had left them in Nepal where nothing of note appeared to have happened to them. In reply, he said he came here hoping to be able to sponsor them later on. The Tribunal undertook to consider this. That said, the Tribunal also continues to have regard to the claim about attending the conference in Australia with the intention of taking knowledge back to the company in Nepal.”
The Tribunal’s findings and reasons commence at [CB 138]. It starts by dismissing the applicant’s claim that he faces a real chance of persecution in Nepal for reasons of his Pahadi profile. It then moves to the claim about having been stopped by the JTMM and threatened with murder because he was perceived as a police informer.
“The story relies on some fairly far-fetched elements, such as people on the ground recognising a pillion passenger on a bike as a policeman even though this was not visibly apparent to the driver, who stopped to pick him up. The claim about the stopping of the motorcycle on the second occasion lacks plausible detail. The Applicant was not very clear or consistent as to how he came to be sure that the group intended to kill him. His claim about how he escaped was vague and somewhat far-fetched. In any event, this alleged event was claimed to have occurred in the Terai in 2007, when the Applicant was not even commonly residing there. Furthermore, the Applicant did virtually nothing to change the way he lived, involving himself, as he said, with this work rather than taking measure to flee Nepal when he already had a passport, and even sending his daughter back to live and school in the Terai. Meanwhile nothing of relevance to the claimed threat to kill the Applicant happened. On top of all this, the Applicant gave the very strong impression of having come to Australia with the original and arguably pre-eminent intention of enhancing his professional and commercial standing upon return to Nepal, indicating a significant non-Convention motivation for his travel and a desire at the time to return in spite of these claimed events and pressures pre-dating his application for his visa. He even attended the whole conference. Taking account of all these factors, whether or not the alleged jungle ambush ever occurred, and the Tribunal strongly doubts that it did, the Tribunal gives no weight to the Applicant’s claims about that alleged episode and threats associated with it.”
This paragraph provides the basis for the applicant’s first three grounds of complaint that the Tribunal fell into jurisdictional error.
“1.The Second Respondent made jurisdictional error by treating the “pre-eminent” reason for travel to Australia of attending a conference as entitling it to give no weight to the Applicant’s account about violence and threats made against him in Nepal.
2.The Second Respondent made jurisdictional error by taking into account a concept of “significant non-convention motivation for travel” (to Australia) as negativing the Applicant’s claims.
3.The Second Respondent made jurisdictional error by failing to make findings about critical claims made by the applicant and regarding itself as free to simply state that it gave no weight to the Applicant’s claims.”
The applicant argues that the Tribunal did not reject his claims about the JTMM rather it “gave them no weight” because of what it considered to be a significant non-Convention motivation for his travel and a desire to return. The applicant claims that the Tribunal considered that it was relieved of any fact-finding duty in relation to this particular claim because of the applicant giving the impression of having come to Australia in relation to a conference after which time he intended to return. The applicant explained his complaints about the Tribunal’s actions as two-fold. Firstly, that it believed it did not have to deal with the JTMM complaint because of the finding about his reasons for coming to Australia. Secondly, that the Tribunal did not consider the situation as at the time the applicant made his protection visa application, but rather the situation at the time the applicant left Nepal.
Whilst there can be no doubt that the appropriate time to look at the applicant’s claim to have a well-founded fear of persecution for a Convention reason is the time he makes the application, a consideration of the question will more likely than not be heavily informed by the views he held of his situation at the time he left his country of origin. An applicant may well leave his country of origin for what is found to be a non-Convention reason but by the time he comes to complete his application for a protection visa and has it considered by a Tribunal, a Convention ground may have arisen. Normally the applicant would be expected to put forward such a claim himself. If a Tribunal failed to consider that claim it would be failing to complete its task. In this case there is no such suggestion. The applicant is arguing that [91] of the decision reads as if the only time the Tribunal considered the applicant’s well-founded fear was the time at which he left Nepal.
It is trite law that a Tribunal’s reasons for decision cannot be scanned line by line for the purposes of seeking out possible errors; Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6. The decision must be read as a whole. Whilst the wording of [91] is not as felicitous as it might be and the use of the phrase “give no weight” is perhaps confusing when the Tribunal might be better off referring to a lack of satisfaction, I am of the view that the Tribunal did not abrogate its responsibility to make a factual finding concerning the JTMM claims because of the alleged non-Convention motivation for travel but that it did consider those claims, found them of doubtful veracity and gave them no weight for a number of reasons which included the manner and grounds of the applicant’s leaving. Whilst the Tribunal says that it “gave no weight” to the claims about the alleged episode, it effectively has dismissed those claims.
Nor do I believe that the Tribunal considered the claims only at the time the applicant left Nepal. At [93] of the Tribunal’s reasons it says:
“The Tribunal has considered the Applicant’s claim that parties hostile to him and his position in society would continue to be hostile even now that the Maoists have been elected to government, but on consideration of the evidence and arguments he gave in support of this position, the Tribunal gives it no weight.”
At [94] the Tribunal also makes reference to the current and future situation:
“Relevant to this the Tribunal gives weight to the Applicant’s evidence about his wife, staff, business colleague (with whom he has split his part in the Hille-Bhojpur Road project), parents, daughter, and siblings all getting on with their lives in Nepal, his wife’s unresolved health issues permitting.”
Finally at [96] the Tribunal makes a finding that it is “not satisfied that [the applicant] faces a real chance of Convention related persecution in Nepal” (emphasis added). I am of the view that when one recalls that the applicant has made no new claims of Convention-related persecution between the time he left Nepal and the time he completed the PVA or went to the Tribunal and then reads the Tribunal’s decision carefully, it is clear that the Tribunal considered the claims across the proper time-frames and did not halt its consideration at the time when the applicant left Nepal.
The fourth ground of application is:
“The Second Respondent made jurisdictional error by treating the factor of demand for money accompanied by death threats as being incapable of amounting to persecution because the conduct arose “significantly and essentially in the context of corrupt and criminal demands for money”.
The Tribunal’s treatment of the extortion claims is contained in [92] at [CB 140]:
“The Applicant cited another source of harassment or exploitation: the YCL, which is reportedly one of the parties involved in the conflicts in the Terai. The Applicant said that the YCL and/or the Maoists demanded a percentage of contracted income from him on a number of occasions. The Tribunal considered the claim about the YCL treating him and his company in a hostile and unreasonable way that it would not do in respect of companies that were in the YCL’s favour or which supported it politically. It is reasonable therefore to accept that discrimination on political grounds forms a backdrop to the exploitation the Applicant claims to have suffered as a construction businessman over the years. However, the Tribunal finds on the evidence before it that the harassment and exploitation the Applicant claims to have suffered, in the form of Maoist/YCL/vigilante demands for certain sums including set percentages of his gross takings from discrete building contracts, has corrupt and mercenary motivations that are not essentially or significantly Convention-related. The Tribunal is not satisfied on the evidence before it that the amounts extracted, however illegal and unreasonable, even amount to persecution. The Tribunal notes the Applicant’s suggestion that the claimed risk of not paying the amounts demanded was death. This suggestion was not always clear-cut. The Applicant said at one stage in the hearing that the amount demanded was at least in some instances a bribe, in effect, to persuade the YCL to see contracts directed towards his company rather than to other companies they might prefer to promote. Overall, the Tribunal gives no weight to the Applicant’s claim about facing death threats in the event of not paying the amounts he paid over the years because, as discussed, the Tribunal does not accept on the evidence before it that any Convention-related factor was the essential and significant factor for the death threats; rather the threats, at best, arose significantly and essentially in the context of corrupt and criminal demands for money. A separate and equally significant reason why the Tribunal does not give weight to the claims about being threatened with death on the event of not paying “fees” demanded by the parties identified in this application is that, on the evidence before it, the Applicant got on with his work, did not leave Nepal until the conference opportunity came up, and attended the whole conference with the intention as stated to the Tribunal of taking skills home to Nepal for the benefit of his business in an increasingly challenged and challenging market.”
The applicant argues that what the Tribunal did was to dismiss this claim as not being Convention-related. The dismissal was in two parts. Firstly, the Tribunal found that the extortion was corrupt and mercenary which were characteristics not essentially or significantly Convention-related and then, because the extortion was not Convention-related, it gave no weight to the fact that the applicant had said that he was threatened with death if he did not pay. The applicant argues that the first six lines of [92] places the activity in a Convention context and more importantly that this is accepted by the Tribunal in the next sentence where, at the risk of repetition, it says:
“It is reasonable therefore to accept that discrimination on political grounds forms a backdrop to the exploitation the Applicant claims to have suffered as a construction businessman over the years.”
This sentence also provides the Convention category of the applicant as a member of the particular social group of “construction businessmen”. The applicant goes on to argue that to describe extortion as having corrupt and mercenary motives is merely to state the definition of that crime and it cannot be that just because something is by definition criminal that it cannot also be Convention-related. It is not enough just to look at the activity. One must look at why the activity is being conducted and against whom it is being conducted.
This was the view taken in Rajaratnam v Minister for Immigration [2000] FCA 1111, where the Full Court considered the multi-faceted nature of extortion.
“[46] As this Court has indicated on several occasions, care needs to be taken when considering whether extortion has been practised upon a person for a Convention reason: see eg Minister for Immigration and Multicultural Affairs v Sarrazola [1999] FCA 1134; (1999) 166 ALR 641 at 645-646. The need for this is apparent enough. In the usual case of extortion the extorting party will be acting for a self-interested reason (ie to gain an advantage for himself or herself, or for another). In this sense, his or her interest in the person extorted can always be said to be personal. What needs to be recognised, though, is that the reason why the extorting party has that interest may or may not have foundation in a Convention reason. The extorted party may have been chosen specifically as the target of extortion for a Convention reason, or may have become the subject of extortion because of the known susceptibility of a vulnerable social group to which he or she belongs, that social group being identified by a Convention criterion. Or, conversely, the person may have been selected simply because of his or her perceived personal capacity to provide the particular advantage sought and for no other reason or purpose.
…
[48] In a particular setting, then, extortion can be a multi-faceted phenomenon exhibiting elements both of personal interest and of Convention-related persecutory conduct. For this reason the correct character to be attributed to extorsive conduct practised upon an applicant for refugee status is not to be determined as of course by the application of the simple dichotomy: “Was the perpetrator's interest in the extorted personal or was it Convention related?” In a given instance the formation of the extorsive relationship and actions taken within it can quite properly be said to be motivated by personal interest on the perpetrator's part. But they may also be Convention-related. Accordingly any inquiry concerning causation arising in an extortion case must allow for the possibility that the extorsive activity has this dual character.”
In Rajaratnam the applicant, who was of Tamil ethnicity, claimed he was the victim of extortion practised upon him by a Sri Lankan army Lieutenant. The Tribunal in that case concluded that the motivation for the extortion was purely personal. However, its decision did not refer to or discuss elements of the account involving strong racial abuse. The Court found that the Tribunal had failed to appreciate the possible duality of motivation in extortion cases.
The question in the instant case is whether the Tribunal erroneously adopted the approach that a finding that the extortionists had corrupt and mercenary motives was inconsistent with a finding that they were motivated by a desire to harm the applicant for a Convention reason (see Ahmed v Minister for Immigration [2000] FCA 1571). As the passage quoted at [10] indicates, the Tribunal considered whether there were potentially Convention-related motives behind the extortion but it does not appear to have made a finding on that point. It merely notes that discrimination on political grounds forms a “backdrop” to the exploitation. In the next sentence the Tribunal implies that, regardless of any political colouration, the extortion is not Convention-related because it “has corrupt and mercenary motives”. This would appear to be an error of the type considered in Rajaratnam.
The Tribunal goes on to discuss the applicant’s claim that the risk of not paying the amounts demanded was death. It says:
“The Tribunal does not accept on the evidence before it that any Convention-related factor was the essential and significant factor for the death threats; rather the threats, at best, arose significantly and essentially in the context of corrupt and criminal demands for money.”
In the respondent’s submissions, the words “essential and significant” indicate that the Tribunal considered the existence of Convention-related factors but did not find them to be the “essential and significant” reason for the death threats. However, the effect of non-payment is only one element of the persecution alleged. For the Tribunal to have carried out a proper assessment, it would have had to consider whether there was a dual motivation for the action which gave rise to the death threats in the first place, that is, the demand for money. It did not do this.
The multi-faceted nature of extortion was also considered by Graham J on appeal from this Court in SZLAN v Minister for Immigration [2008] FCA 904. First, in relation to s.91R of the Migration Act 1958 (Cth) at [37] - [41] and then in relation to the particular facts of that case which were similar to those of the one currently before me. At [76] - [80] his Honour found that the Tribunal, having identified the applicant as a member of a particular social group of “wealthy Nepalis” should have addressed whether the persecution of the applicant was for a Convention-related reason as a member of that social group and not simply motivated by personal interest on the perpetrator’s behalf. In the instant case, the Tribunal has identified political grounds which form a backdrop to the exploitation and the particular social group. It appears to have accepted the applicant’s submission that the money was paid as a bribe “to persuade the YCL to see contracts directed towards his company rather than to other companies they might prefer to promote” having already indicated that those companies which the YCL proposed to promote were those which supported it politically. It seems to me that the Tribunal has concentrated exclusively on the death threats that were made and, being reluctant to accept that this occurred, did not properly consider the nature of the extortion itself. In this regard I note that the Tribunal did say:
“the Tribunal is not satisfied on the evidence before it that the amounts extracted, however illegal and unreasonable, even amount to persecution.”
But it was not put to me that this was a separate and independent finding under s.91R that would mean that the Tribunal had no obligation to consider the nature of the extortion. The regular requirement to pay a percentage of contract fees might well be considered to amount to persecution. If the money was demanded for political reasons or from a member of a particular social group then it could fall within the Convention definition.
I am satisfied that the Tribunal erred in the manner in which it considered the claims relating to extortion in respect of this applicant. It failed to analyse those claims in the manner required by the authorities and in that way fell into jurisdictional error. This being the case, I would grant the applicant the constitutional writs he seeks and order that the matter be referred back to the Tribunal to be heard and determined according to law. The respondent should pay the applicant’s costs which I assess in the sum of $5,000.00.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 14 April 2009
6
1