SZQFO v Minister for Immigration
[2011] FMCA 711
•16 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQFO v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 711 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to understand the applicant’s claims. |
| Migration Act 1958, ss.474, 477 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZQFO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 953 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 9 September 2011 |
| Date of Last Submission: | 9 September 2011 |
| Delivered at: | Sydney |
| Delivered on: | 16 September 2011 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Minter Ellison Lawyers |
ORDERS
The applicant’s application for an extension of time to bring these proceedings be dismissed.
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 953 of 2011
| SZQFO |
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 student member of the Nepali Congress Party (“NCP”). He claims that in 2004 he planned to stand for the position of union secretary at the student elections but was threatened by Maoists. He also claims that he is a member of the Chhetri caste in Nepal and, as such, is subject to discrimination both by the government and by other Hindu castes.
The applicant claims to fear persecution in Nepal because of his political opinion and his membership of a particular social group.
The applicant arrived in Australia on 2 December 2007 as the holder of a student visa. On 19 February 2010 he lodged an application for a protection visa which was refused by a delegate of the first respondent (“Minister”) on 12 May 2010. He then applied to the second respondent (“Tribunal”) for a review of that departmental decision.
He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
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 4-9 of the Tribunal’s decision.
The applicant made the following claims in a statement attached to his protection visa application and at an interview before the delegate on 6 May 2010:
a)he belonged to the Chhetri caste but had lived in an area which was dominated by people from the Newari caste;
b)
he was a candidate in the student union elections in 2004.
His faction was aligned with the NCP while other factions were aligned with the United Communist Party of Nepal-Maoists and the Communist Party of Nepal-United Marxist Leninist-Communists. The election was won by the Maoists;
c)he was beaten and injured by Newari students in the lead up to the election. There were many other incidents of violence between the factions during this time;
d)he fell in love with a girl from the Newari caste who was also a student at his college. Her family were opposed to the relationship and threatened to kill him if it continued. On one occasion he was attacked by her brother and his associates. Later, her family informed the college about the relationship and he was expelled. Their relationship ended because of pressure and interference from her family;
e)he was also the victim of two street assaults. The first appeared to be a random attack while the second occurred when he inadvertently became involved in a street fight;
f)his father and uncle originally supported the NCP but later became supporters of the monarchy. When the king was deposed they lost all their political connections and influence. The applicant followed their political affiliations and, in any case, would be imputed as following the same party as his father;
g)in 2007 the Maoists gained power and began plotting with the Newari against the Chhetri. Chhetris are now denied equal rights and face harassment, discrimination and attack in Nepal;
h)the government has declared his home district in Kathmandu as a Newari region and has been using the Young Communist League (“YCL”), a Maoist youth wing, to achieve their ends. The YCL has been responsible for acts of harassment and violence in the district;
i)the Chhetri and other castes have been left with no place to live and the region is no longer safe as there is kidnapping, extortion and gang fights instigated by Newaris who are associated with the Maoists; and
j)he cannot relocate to another area in Nepal because the situation would be “no different”.
The applicant appeared before the Tribunal on 26 July 2010 to give evidence and present arguments. He made the following additional claims:
a)when the Maoists came to power his father and uncle were forced to go into hiding. While the situation is now more secure, his father cannot go wherever he pleases, particularly in Maoist strongholds;
b)his father was no longer involved in politics while his uncle was currently “doing nothing”;
c)he was harmed on two occasions in Nepal. The first, in 2001, occurred when he was having coffee with some friends. A man accused him of staring and called his associates over who then proceeded to beat the applicant and his friends. The second incident occurred in 2002 when he was beaten by his then-girlfriend’s brother;
d)despite this incident, he continued to see his then-girlfriend secretly until about three months before he came to Australia (in 2007). They have not had any contact in three years;
e)in 2005 a “bad fight” erupted between Newaris and Chhetris at his college. Many of his friends were involved. The following day some Newari students went in search of the applicant, assuming that he had been involved in the fight. In order to avoid them he did not return to college for three or four weeks;
f)he had planned to stand for the position of union secretary at his college but was threatened by men from the Maoist and Communist parties a few days before the nominations were due to be called. As a result, he did not stand in the elections; and
g)his political activities did not extend beyond college, although he was still a member of the NCP.
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)the Tribunal accepted that the applicant had been a supporter of the NCP at college and, until he was threatened by students loyal to the Maoists, had planned to contest the position of union secretary at the student elections. However, the Tribunal found that these events had occurred in the context of student politics some time ago and noted that the applicant had not received any further threats or intimidation by Maoists or any other group as result of his support of the NCP while at college. The Tribunal noted that at its hearing the applicant said that he had not been politically active outside or after college and gave no indication that he would be in the future. Consequently, the Tribunal found that the chances of the applicant being seriously harmed on his return to Nepal for reasons of his political opinion were remote;
b)the Tribunal did not accept that there was a real chance that the applicant would suffer serious harm amounting to persecution for reasons of his imputed anti-Maoist political opinion arising from the past political activities of his father and uncle, noting that:
i)the Tribunal accepted that the applicant’s father and uncle had been members of the NCP and had been forced to go underground for a period of months in 2008 to avoid harm from the Maoists. However, the applicant said at the hearing that although his father restricted his movements somewhat, he had otherwise been able to live relatively freely and had not been threatened or harassed by Maoists or any other group since that time;
ii)at the hearing the applicant also said that his father and uncle were no longer politically active; and
iii)according to country information the level of violent activity implicating CPN-M or YCL members had decreased significantly since the 2008 elections;
c)for the reasons set out above in (a) and (b), the Tribunal did not accept that the applicant had a profile or had come to the attention of the Maoists such that he would be perceived as a Maoist opponent. As such, the Tribunal found that the applicant’s fear of persecution on the grounds of political opinion was not well-founded;
d)the Tribunal accepted that the applicant was a member of the Chhetri caste and that this constituted a particular social group for the purposes of the Convention. However, it did not accept that the applicant faced a real chance of persecution in Nepal on this account, noting that:
i)according to country information, the higher caste Hindus in Nepal – including Chhetris – still dominated business and government and were historically privileged. Further, latest reports from various sources did not suggest that the Chhetri faced severe discrimination and/or persecution in the post-2008 political climate in Nepal;
ii)the applicant’s claim that he had been beaten in 2001 was, by his own evidence at the hearing, a random incident in which he had not been targeted for the essential and significant reason of being Chhetri or any other Convention reason. The Tribunal found that the applicant’s fear of harm in connection with this incident, which occurred almost ten years before and had not been followed by any further threats or harm, was not well-founded;
iii)the Tribunal found that there was not a real chance that the applicant would be seriously harmed by any of his former girlfriend’s family members on account of their past inter-caste relationship, noting in this connection that the applicant had not been harmed or threatened since he was attacked in 2002 by his then-girlfriend’s brother; had said that the relationship had ended three months before he came to Australia in 2007; had said that he not heard from her for three years; and had given no indication that he wished to recommence the relationship; and
iv)in the Tribunal’s view, the specific problems that the applicant claimed to have suffered as a Chhetri caste member, such as violence between Chhetris and Newaris, did not amount to persecution. Further, other than his assertions that he would be at risk as a Chhetri, there was no clear evidence that Chhetri caste members were targeted for serious harm in Nepal whether by Newaris or any one else.
Proceedings in this Court
Extension of time
The applicant seeks an extension of time to bring these proceedings.
Section 477 of the Act prescribes that an application to this Court for a review of a decision of the Tribunal must be filed within thirty-five days of the date of the Tribunal’s decision. In this case, the decision of the Tribunal was dated 19 October 2010 but these proceedings were not commenced until 12 May 2011. Clearly, they are out of time.
The Act prescribes that certain procedural requirements be met before an extension of time may be considered and, in this case, the contents of the application commencing the proceedings satisfy those requirements. However, the Court must also be satisfied that it is in the interests of the administration of justice that time be extended. In the context of this matter I consider that the considerations relevant to take into account when determining that question are whether the applicant has a satisfactory explanation for the delay in commencing the proceedings and whether the proceedings have reasonable prospects of success.
In his affidavit sworn or affirmed on 10 May 2011 the applicant deposed that the delay in commencing the proceedings arose out of unavoidable circumstances beyond his control:
4.I was not in a proper mental position to apply in time as I was unable to find access to the legal system anytime before this instant.
5.I was suffering from tremendous mental stress after learning that I had to leave Australia and return to Nepal and I was unable to decide what I was to do.
6.Also I was not employed and I had no money to pay the Court fees or legal help and also I sought legal aid, which took a long time to let me know that I was not eligible for their assistance.
Although the Minister did not cross examine the applicant on this evidence he did submit that the applicant had failed to provide a satisfactory explanation for the delay because he had adduced no evidence of his medical condition, of a proper explanation of his financial position, of whether he had made any enquiries regarding obtaining a reduction of the Court’s filing fees, of what steps he took to find funds to cover the filing fees in the first place and of what he had done subsequently to permit him to commence the proceedings.
The Minister submitted that the applicant’s explanation had to be compelling and of clear merit given the significant delay in question.
As, for the reasons which follow, I am not satisfied that the applicant has demonstrated that the Tribunal’s decision was affected by jurisdictional error, and thus that his principal allegations have reasonable prospects of success, it is not necessary for me to consider whether he has provided a satisfactory explanation for the delay in commencing the proceedings.
Grounds of the application
The grounds of the application commencing these proceedings were pleaded as follows:
1.The reason of my Application is to appeal against the decision made by the Member of the Refugee Review Tribunal with regard to my Protection visa application.
2.I fear persecution for reasons of a political opinion imputed to me by the Maoists in Nepal on account of my father and uncle’s involvement with the NC in the past, and my involvement with student politics.
3. I also fear serious harm from non state actors such as Newari gangs because I belong to the Chhetri caste.
4.I claim that the Authorities of Nepal cannot protect me from any of the aforesaid convention based persecution since Maoists target Chhetri’s.
5.The Member of the Tribunal has failed to understand my well founded fear in the event I return to my home country Nepal.
6.The Member affirms the decision made by the Delegate of the Minister by stating that I am not a person to whom Australia has protection obligations under the Refugees Convention.
7.The Member of the Tribunal failed to understand that I will be persecuted in Nepal for a convention reason now or in the foreseeable future.
8.The Member also does not accept that I face a real chance of suffering persecution in Nepal for reason of membership of a particular.
As submitted by the Minister, with the possible exception of the fifth and the seventh grounds, the grounds of the applicant’s substantive application are assertions of fact which are not susceptible to judicial review. The first explains that the proceedings are brought to appeal against the Tribunal’s decision, the second and third set out the claimed basis to fear persecution, the fourth raises issues of state protection which the Tribunal was not called upon to consider because it did not accept that the applicant had a well-founded fear of persecution, the sixth states the nature of the Tribunals’ decision and the eighth observes that the Tribunal did not accept his claim to face persecution by reason of his membership of a particular social group.
None of those matters allege jurisdictional error on the part of the Tribunal which, as noted earlier, is the only basis upon which the Tribunal’s decision may be set aside.
The fifth ground of the application, that the Tribunal failed to understand the applicant’s claimed fear of persecution does not, in terms, raise an issue of jurisdictional error; it appears to invite the Court to reconsider the merits of his application for a visa and to substitute a view on that issue different from that of the Tribunal.
The Court is not empowered to do this. It may be that the applicant seeks to allege that the Tribunal did not understand the test which it had to apply when determining whether he met the criteria for the grant of a protection visa and erred by, for instance, failing to address a relevant consideration. However, a review of the Tribunal’s decision, and in particular its discussion of the relevant law, fails to suggest any misunderstanding of this sort on the Tribunal’s part. Having set out the applicant’s claims in some detail, as summarised above at [7] and [8], the Tribunal proceeded to consider them in that part of its decision under the heading “Findings and Reasons” in accordance with the relevant tests. Doing so, it reached conclusions which were open to it on the evidence. For these reasons, the fifth ground of the application does not disclose jurisdictional error on the Tribunal’s part.
The allegation made in the seventh ground of the application, that the Tribunal failed to understand that the applicant would be persecuted were he to return to Nepal, also appears to invite the Court to reconsider the merits of his visa application. For the reasons given in relation to the fifth ground of the application, this ground must also fail.
At the hearing in these proceedings the applicant submitted that the Tribunal had not considered his claim and, when asked to explain this submission, said that the Tribunal did not understand the situation in Nepal concerning disputes involving the Maoists and disputes between castes. Again, this submission is addressed to the merits of the applicant’s application in that it is to the effect that the Tribunal reached incorrect factual conclusions on these issues. Even if the Tribunal did reach factual conclusions which were incorrect, they were ones which were open on the evidence and thus do not amount to errors of law. If they were errors, they were errors within jurisdiction. For this reason, the matter raised by the applicant in his oral submissions does not point to the Tribunal’s decision having been affected by jurisdictional error.
Conclusion
As none of the matters raised by the applicant in the substantive part of his application have reasonable prospects of success, because they do not disclose jurisdictional error on the Tribunal’s part, I am not of the view that it is in the interests of the administration of justice that the time for bringing these proceedings be extended. Consequently, the application for an extension of time will be refused.
As the application for an extension of time is to be refused, the application brought to this Court will be dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 16 September 2011
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