SZMWA v Minister for Immigration
[2009] FMCA 206
•16 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMWA v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 206 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – credibility finding – Tribunal not required to consider unarticulated claims which are not raised squarely by the material available to the Tribunal – alleged particular social group lacked the distinctive qualities necessary to be considered to be a particular social group. |
| Migration Act 1958, ss.65, 414 |
| Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387 Rajaratnam v Minister for Immigration & Multicultural Affairs (2000) 62 ALD 73 |
| Applicant: | SZMWA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2701 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 5 March 2009 |
| Date of Last Submission: | 5 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 16 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr J.R Young |
| Solicitors for the Applicant: | Simon Diab & Associates |
| Counsel for the Respondents: | Mr G. Kennett |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2701 of 2008
| SZMWA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Nepal where, he claims, he was a member of the Nepali Congress Party. He alleges that while in Nepal his political affiliation with that party made him a target of the Maoists who forced him to pay extortion money and prevented him from earning a living. The applicant arrived in Australia on 4 February 2008.
The applicant claims to fear persecution in Nepal because of his political affiliation with the Nepali Congress Party and his membership of a particular social group made up of Nepali businessmen.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 19 May 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.
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 – 5 of the Tribunal’s decision (Court Book (“CB”) pages 235 – 236). Relevant factual allegations are in summary:
a)the applicant was a great supporter of the Nepali Congress and had been since childhood. This made him a target of the Maoists;
b)the applicant and his family lived on a village farm. When the Maoists started protesting in his district, they used his farm for shelter and forced the applicant and his family to feed them. When the applicant protested, the Maoists beat him and robbed him. They returned a few days later and bombed the applicant’s home;
c)he had no choice but to leave the village and so moved into his parents’ home in the city where he started a small telecommunications service centre;
d)the Maoists targeted the applicant once again, this time demanding that he provide donations. When he was no longer in a position to make those payments, the Maoists beat him and threatened to kill him. They used the applicant’s shop for their personal use and stole his goods to the point that the applicant was forced to close down;
e)the Maoists then tried to force him into military service. The applicant fled the city to save his life and had no choice but to return to his home village;
f)he has no right to enter and reside in India and, in any event, the Maoists have a heavy presence there and would be able to locate him; and
g)if he returned to Nepal he would not be able to earn his living without paying extortion.
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)while accepting that his claims were prima facie plausible, the Tribunal concluded that the applicant was not a witness of truth for the following reasons:
i)the Tribunal had difficulties eliciting information from the applicant and was only able to obtain meaningful responses after repeated questioning. The Tribunal was therefore satisfied that the applicant was willing to embellish, if not fabricate, his claims as it suited his case in order to invoke refugee protection obligations in Australia;
ii)the applicant made no claims in his protection visa application about having suffered any harm between July 2006 and February 2008 (when he purportedly returned to his village following the closure of his telecommunications service centre). The Tribunal rejected as false the applicant’s explanation that he forgot to include these claims and concluded that, irrespective of whether or not he had come to the attention of the Maoists previously, the applicant did not suffer any harm between July 2006 when he returned to his home village and February 2008 when he departed Nepal;
iii)the applicant stated that he did not wish to travel to India because of the Maoist presence there but took no steps to ascertain with some certainty whether the chance of harm to him in India would be less than the harm he alleged he might face in his home village; and
iv)the applicant explained that his delay in seeking a visa to come to Australia was because he was waiting for his finances and English language ability to improve, conduct which the Tribunal considered inconsistent with a genuine fear of persecution;
b)in light of these findings, the Tribunal concluded that the applicant’s oral claims to have been harassed and/or harmed by Maoist insurgents between July 2006 and February 2008 were a recent invention submitted for the sole purpose of enhancing his claim for protection and it rejected them as false;
c)given its finding that the applicant was not subject to any harm after July 2006, the Tribunal rejected the claim that he would not be able to maintain his livelihood in Nepal without paying extortion;
d)the Tribunal was satisfied that, were the applicant to return to Nepal, he not would choose to engage in the expression of his political opinion and, instead, would voluntarily choose to focus on his business, career and family as he did in the past. In this regard, the Tribunal was satisfied that the applicant’s lack of knowledge and/or understanding about the Nepali Congress was indicative of a lack of any real interest on his part;
e)based on the evidence before it and noting that numerous other persons and occupations were also targeted by the Nepali Maoists, the Tribunal was not satisfied that businessmen in Nepal were targeted by Maoists for any reason other than opportunistically and for their perceived capacity to provide money. Without more, the Tribunal did not believe that such behaviour gave rise to refugee protection obligations; and
f)finally, the Tribunal did not accept that the applicant was a witness of truth, finding that he was prepared to embellish or fabricate his material claims to enhance his prospects of enlivening refugee protection obligations in Australia. As a consequence, the Tribunal expressly rejected all his material claims and found that they were not true.
Proceedings in this Court
The grounds of the amended application were pleaded as follows:
(1)The Second Respondent made jurisdictional error by:
(a) Confining its consideration of the claims in relation to political opinion to the strength of the applicant’s actual political opinion; and/or
(b) Failing to have regard to whether the applicant might be persecuted for his perceived, imputed or actual political opinion, even if, that political opinion was not strongly held; and/or
(c)Failing to consider the extent of persecution of persons supporting or perceived or imputed to support the Nepali Congress (Party).
(2)The Second Respondent made jurisdictional error by regarding the targeting by Maoists of businessmen in Nepal being “opportunistic” as precluding a finding that persecution for opportunistic reasons could give rise to refugee obligations for businessmen in Nepal.
(3) The Second Respondent made jurisdictional error by:
(a)Failing to have regard to the reasonably foreseeable future in relation to the situation in Nepal in circumstances where the Second Respondent noted that Nepal was passing through a difficult period and its recent history had been tragic; and/or
(b) Regarding a period between July 2006 and February 2008 in which the applicant had not been persecuted as necessarily determinative that there was no real chance of persecution in the future irrespective of the circumstances which might occur in the future and irrespective of the applicant’s claims of persecution prior to July 2008; and/or
(c)Confining its consideration of past persecution to a closed period of between July 2006 and February 2008 in circumstances where the Second Respondent acknowledged that the applicant claimed persecution for about 9 years.
Political opinion claim
The applicant complains that the Tribunal based its findings concerning his political claims by reference to the strength of his political views. That is not so. First, and at a general level, it can be observed that the applicant claimed that he had been a great supporter of the Nepali Congress Party since his childhood and that his own ideology was similar to that of the Congress Party. However, those assertions and the applicant’s allegation to have become a target of Maoists on that account, together with every other of his material claims, were rejected by the Tribunal on the basis that they were untrue.
Secondly, and specifically on the subject of the applicant’s political claims, the Tribunal’s discussion of those claims can be found at paras.52-57 of its decision record where it sets out its consideration of the applicant’s evidence, the relevant authorities and the UNHCR Refugees Handbook. That consideration led to the conclusion that the applicant
a)had no real interest in the Congress Party;
b)had not been a great supporter of it since his childhood; and
c)had not become the target of Maoists because his ideology was similar to that of the Congress Party.
Although the applicant alleged that the Tribunal reached its conclusion on this aspect of his claims by a consideration of the strength or weakness of his political views, the above discussion demonstrates that the Tribunal’s decision was not based on such matters. Rather, the Tribunal concluded that the applicant’s interest in the Congress Party was not a real one. Another way of expressing this conclusion is that the applicant’s claimed interest in the Congress Party was feigned, which conforms with the other two findings cited at (b) and (c) above.
Consequently, there was no error committed by the Tribunal on the basis alleged in paragraph 1(a) of the amended application.
As to the applicant’s complaint that the Tribunal did not consider the possibility that he might be persecuted by reason of the imputation to him of a political opinion, it must be noted that this was not a claim which the applicant made to the Tribunal. Further, not only was a claim of that sort not made explicitly, it was not otherwise sufficiently apparent such that the Tribunal was required to consider it.
The Tribunal is required under s.414 of the Migration Act 1958 (“Act”) to consider the claims of the applicant; to make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at 259 [42]. Further, the Tribunal is not limited in its considerations to the claims articulated by the applicant if additional claims are raised “squarely” on the material available to the Tribunal: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 at 18-19 [58]. Even so, in NABE’s case the Full Court of the Federal Court held that an unarticulated claim must emerge clearly from the materials before the Tribunal will be obliged to consider it (at 22 [68]) and a claim requiring such consideration will not depend for its exposure on constructive or creative activity by the Tribunal (at 19 [58]). As Allsop J said in NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 at [15]:
Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
In this case, no postulated claim to fear persecution by reason of the imputation to the applicant of a political opinion met the tests discussed in NABE’s case and NAVK’s case. In such circumstances, it was unnecessary for the Tribunal to consider whether the Maoists might have imputed to the applicant a particular political commitment.
Particular social group – Nepali businessmen
This ground is based on the Tribunal’s conclusion that Nepali businessmen could not be said to comprise a particular social group which was being harassed because of its particular features or qualities. The Tribunal observed that independent country information indicated that businessmen were apparently being randomly “targeted for e.g. extortion” in Nepal. In this connection, the Tribunal expressed its reasoning and conclusions in the following terms:
However, numerous other persons and occupations appear to be also subject to such harm. It appears that such persons are targeted opportunistically and for their perceived capacity to provide (by force in [sic] necessary) monies. None of the evidence considered by the Tribunal has satisfied it that businessmen in Nepal are targeted for any other reason than opportunistically and for their perceived capacity to provide monies. The Tribunal does not believe this, without more, gives rise to refugee protection obligations for businessmen (or similarly described PSG’s) in Nepal. (para.62)
In Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387 it was said:
… the determination of whether a group falls within the definition of “particular social group” in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a “social group” and not a “particular social group”. As this Court has repeatedly emphasised, identifying accurately the “particular social group” alleged is vital for the accurate application of the applicable law to the case in hand. (per Gleeson CJ, Gummow and Kirby JJ at 400-401 [36])
The applicant alleges that the Tribunal erred by finding that the “opportunistic” targeting of Nepali businessmen by Maoists precluded a finding that “persecution for opportunistic reasons could give rise to refugee obligations for businessmen in Nepal”, but this was not actually its conclusion. Rather, the Tribunal should be understood to have found that the targeting of Nepali businessmen was no different to the targeting of “numerous other persons and occupations” in Nepal and thus the conduct complained of could not be said to indicate that Nepali businessmen were being harassed because of their distinctive features or because of attributes peculiar to them. In essence, the Tribunal concluded that there was nothing to distinguish Nepali businessmen from the other persons and occupations who appeared to be subject to the same harm.
There was no error in this approach. As was said in Rajaratnam v Minister for Immigration & Multicultural Affairs (2000) 62 ALD 73 at 85-86 [46] per Finn and Dowsett JJ:
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.
It was into the final category mentioned in that quotation that the Tribunal found Nepali businessman fell. For these reasons, the second ground in the amended application is not made out.
Tribunal’s treatment of past persecution and its assessment of the future
At para.64 of its decision, the Tribunal stated that it was not satisfied that the applicant has a real chance of being persecuted for a Convention reason should he return to his village and work as a farmer, based on its findings as to his capacity to reside safely in his village and work as a farmer between July 2006 and February 2008.
The applicant submitted:
At [64] at CB 243, the RRT noted that Nepal had been through a difficult period with a “tragic” recent history. The task of the RRT was to consider the reasonably foreseeable future. However, the RRT merely assumed that if the applicant had not been persecuted from July 2006 to February 2008 (irrespective of the truth of the applicant’s claim that Maoists had persecuted him over a 9 year period), there could not be a real chance that he would be persecuted in the future. …
The approach of the RRT did not look at the future at all; rather it assumed that if the applicant had not been harmed between July 2006 and February 2008, there was not a real chance that he might suffer future harm.
The applicant submitted that the Tribunal’s statement at para.47 of its decision that
... even though the Tribunal accepts that the applicant may have been subject to some form of harm by Maoists in 2002 (on his farm) and 2006 (in Ghorahi City)
meant that when assessing the potential for future persecution in Nepal the Tribunal had to consider not only the 2006 to 2008 period, which the applicant spent safely in his village, but these earlier events too. It was submitted that the Tribunal had failed to do this, resting its decision solely on its finding that the applicant suffered no harm between July 2006 and February 2008 when he was in his village.
These submissions fail to recognise that the finding set out at para.64 of the decision record was no more than a re-iteration of a conclusion which the Tribunal had articulated earlier in its reasons.
At paras.41-46 of its decision, which are briefly summarized above at [6(a)] and [6(b)], the Tribunal analyses the applicant’s evidence concerning the period July 2006 to February 2008 and there rejected his late-made claim to have been persecuted in his home village during that period. It went on to consider the earlier events to which the applicant had made reference, and on which he now relies, saying:
Further, even though the Tribunal accepts the applicant may have been subject to some form of harm by Maoists in 2002 (on his farm) and 2006 (in Ghorahi City), given the other adverse credibility findings herein, the Tribunal is satisfied he has (at the least) embellished these claims. (para.47)
Having thus considered what the applicant had alleged, the Tribunal expressed its relevant conclusion in the following terms:
The above findings have formed part of the reason the Tribunal was ultimately satisfied the applicant does not have a prospective real chance of persecution in Nepal; though further discussion of this is set out below. (para.48)
Thus, it can be seen that the conclusion expressed at para.64 is no more than an encapsulation of what had gone before and which had expressly taken into account the very events which the applicant now alleges had been ignored.
The Tribunal concluded that no harm of a persecutory nature had befallen the applicant prior to his departure for Australia, either between July 2006 and February 2008 or earlier. This conclusion emerges from the minimal significance the Tribunal accorded the two prior events but most clearly from its general rejection on credibility grounds of all of the applicant’s essential claims. As a result, the Tribunal did not err when concluding that the applicant did not face a real chance of being persecuted were he to return to Nepal.
Generally
The Tribunal’s rejection of the applicant’s claims to invoke refugee protection obligations in Australia was comprehensive. It found that none of those claims were true and it is clear that the Tribunal’s adverse conclusions as to the applicant’s credibility were open to it. Such credibility findings are matters peculiarly reserved to the Tribunal and cannot be reviewed by this Court.
As the first respondent correctly submitted, an essential element of the applicant’s claims was that he feared persecution and that this was necessarily one of the aspects of his claims which was rejected by the Tribunal when it rejected all his material claims. In the absence of an acceptance by the Tribunal that the applicant had a subjective fear of persecution, his review application could not succeed because the Tribunal could not be satisfied that he had a well-founded fear of persecution for a Convention reason.
In such circumstances, s.65 of the Act required the Tribunal to affirm the delegate’s decision to refuse the applicant a protection visa.
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 (30) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 16 March 2009
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