SZRAP v Minister for Immigration - [2012] FMCA 583

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRAP v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 583

MIGRATION – RRT decision – Nepali student – grandfather murdered by Maoists after extortion attempt – Tribunal found no Convention nexus nor real chance of future Convention persecution – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth), s.91S

Jayawardene v Minister for Immigration & Multicultural Affairs (1999) 60 ALD 425, [1999] FCA 1577
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, [1996] HCA 6
Perampalam v Minister for Immigration & Multicultural Affairs (1999) 84 FCR 274, [1999] FCA 165
Rajaratnam v Minister for Immigration & Multicultural Affairs (2000) 62 ALD 73, [2000] FCA 1111

Applicant:

SZRAP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 9 of 2012

Judgment of:

Smith FM

Hearing date:

28 June 2012

Delivered at:

Sydney

Delivered on:

28 June 2012

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr T Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 9 of 2012

SZRAP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia as a student at the age of 20 in July 2007. He was granted two further student visas, the last visa expiring in June 2010. He then remained unlawfully in Australia until applying for a protection visa on 11 February 2011. He was assisted to make the application by a solicitor.
His reasons for claiming to fear persecution for a Convention reason if he returned to his country of nationality, Nepal, were set out in a statutory declaration supported by translations of documents. In his statement, he claimed that he came from a family who lived in a village in Nepal, where his grandfather was a landowner and his father a teacher. In 2003 the Maoists demanded a large donation from his grandfather, destroyed the family house in an explosion, and subsequently killed his grandfather. The remaining family moved to another location, but further extortion demands were made to his father, who made some payments to them. They also attempted to recruit the applicant. His family therefore sent him overseas to study. The applicant claimed to fear returning to Nepal, because he feared that he would have to obey orders of the Maoist party to pay money and join their organisations. He said: “I do not want to lose my life going back to Nepal”. The applicant submitted documents to corroborate some of these events.
The applicant was interviewed by a delegate on 29 March 2011, and the delegate made a decision to refuse the visa on 7 April 2011. Essentially, the delegate was not satisfied that the applicant “has a profile of concern to the Maoists”, and was not satisfied that he had a well‑founded fear of persecution if he were to return to Nepal. The delegate took into account the period of time in which the applicant had lived in Australia before applying for a protection visa, and doubted whether he had “genuine claims” for protection.
The applicant sought review by the Refugee Review Tribunal, where he was no longer assisted by his solicitor. He attended a hearing on 25 August 2011, which was held by video connection to Melbourne from Sydney. A transcript of the hearing is not in evidence, and I have no reason to doubt the description given by the Tribunal in its statement of reasons. The Tribunal discussed the applicant’s claims with him and obtained more information about the family situation in the past and the present.
The Tribunal made a decision on 1 December 2011 to affirm the delegate’s decision. In its statement of reasons, it referred to the applicant’s claims and evidence, and also to country information concerning the past insurgency by the Maoist party in Nepal, and about recent politics in Nepal after the Maoists had joined the government. This information suggested that they were “no longer actively engaging in armed violence”, although its YCL wing “has continued to use ‘intimidation and violence to control political space’”.
In its “Findings and Reasons”, the Tribunal discussed the evidence concerning the death of the applicant’s grandfather. It noted some deficiencies, but did not disbelieve the applicant. It said:
61.… Nonetheless, the Tribunal is willing to give the applicant the benefit of the doubt and accepts that his family home was blasted and suffered moderate damage and his grandfather killed in 2003 as claimed. However, the Tribunal finds, for reasons outlined below, that this was because the applicant’s grandfather refused to pay the Maoists the money they were demanding and not because of his political opinion or any other Convention reason.
The Tribunal instructed itself as to relevant principles when considering whether a Convention reason provided the explanation for past and future feared harms by way of extortion, referring to Perampalam v Minister for Immigration & Multicultural Affairs (1999) 84 FCR 274, Jayawardene v Minister for Immigration & Multicultural Affairs (1999) 60 ALD 425 and Rajaratnam v Minister for Immigration & Multicultural Affairs (2000) 62 ALD 73. In my opinion, its discussion indicates that it probably correctly instructed itself not to take a simple analysis of persecution by way of extortion as never being Convention‑related and always to be characterised as criminal activity motivated by greed. As Finn and Dowsett JJ had pointed out in Rajaratnam:
[48]… 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.
Having so instructed itself in the present case, the Tribunal said:
67.In the present case the applicant said at the hearing that although his grandfather was “like” a village head, he was not a member of a political party. He had links to political parties such as the Congress Party, and was politically active around village elections, but that was the extent of it. When asked at the hearing why the Maoists targeted his grandfather, the applicant said because he had plenty of land and because he was a kind of “boss.” On this basis the Tribunal finds that the applicant’s grandfather was targeted in the past by Maoists for extortion and killed because he did not comply. In this case the Tribunal finds that the essential and significant reason behind the extortion attempts against the applicant’s grandfather was because of the land he owned and his position in the village, not because of his political opinion.
68.The Tribunal has considered whether ‘wealthy land owners’ constitutes a particular social group. However, the Tribunal does not accept there is any evidence before it, other than the applicant’s assertions that his grandfather was targeted for a number of reasons, including because he owned land, suggesting that there is a relevant identifiable social unit with unity of characteristics, attributes, activities, beliefs, interests or goals which set the group apart from society at large in Nepal (Applicant A v MIEA (1997) 190 CLR 225 at [264] per McHugh J and at [241] per Dawson J). On this basis it does not accept that ‘wealthy land owners’ constitute a particular social group for the purposes of the Convention in this case.
The Tribunal then considered the implications of extortion demands on the applicant’s father, but characterised them in the same manner.
It also considered the applicant’s situation as a member of a family in which serious harm had been inflicted on his grandfather by Maoists, and further extortion had occurred. It found: “However in this case, because the Tribunal finds that the applicant’s grandfather was targeted by Maoists for a non‑Convention reason (as discussed above), the Tribunal finds that the applicant (and his father), as members of his ‘family’, do not fall within the grounds for persecution covered in the Convention as per s.91S”.
The Tribunal considered the applicant’s personal contacts with the Maoists before he came to Australia, but it said that it was not satisfied that the applicant had well‑founded fears of persecution on return to Nepal on these bases.
The Tribunal referred to the applicant’s delay in applying for protection, and said that this “indicates that he did not have a strong subjective fear of persecution in Nepal at the hands of Maoists”. However, its findings did not negate the existence of some fear of return, and at paragraph 77 it accepted that the applicant “views the volatile political situation in Nepal with considerable concern”.
The Tribunal’s essential reason for affirming the delegate’s decision was its conclusion expressed in paragraph 76:
76.For the reasons outlined above, the Tribunal finds that there is not a real chance that the applicant would be subject to serious harm by Maoists if he returns to Nepal now or in the reasonably foreseeable future.
The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for further consideration. I have power to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not myself have power to decide whether the applicant faces a real chance of persecution for a Convention reason if he returns to Nepal, nor do I have power to consider whether he should be given any permission to stay in Australia.
The applicant’s application contains only one ground:
Page 4, 22, third paragraph there is two different date of [name] death (applicant’s grandfather), that mean there was careless while doing the decision by the tribunal member. The real death date of [the grandfather] was on 24^th June 2003 and then after the tribunal member made a mistake that the death of the [grandfather] was on 24/03/2003.
To explain this ground, the applicant took me to the relevant evidence and the part of the Tribunal’s reasoning which referred to the date of the death of his grandfather. The Tribunal’s decision in this respect itself contains a typing error or misreading of a document before it, although the Tribunal did correctly identify a discrepancy in relation to the month in 2003 in which the death of the grandfather was referred to in several documents. However, as I have noted above, the Tribunal did not rely upon these inconsistencies adversely to the applicant, but accepted the gist of his claim that “his family home was blasted and suffered moderate damage and his grandfather killed in 2003 as claimed”.
The mistake identified by the applicant was therefore, in my opinion, not material to the conclusion of the Tribunal. It also would not, in my opinion, have given rise to jurisdictional error if it had occurred, because it would amount to an error only of fact made within jurisdiction. Any error by the Tribunal raised by the ground cannot support the grant of the relief now sought by the applicant.
The applicant was referred for advice under the free advice scheme, and a barrister assisted the applicant to prepare an amended application which contains the following ground:
1.The [Tribunal] failed to complete the exercise of its jurisdiction
Particulars
The Tribunal failed to make a finding as to whether the refusal by the applicant’s grandfather to pay the Maoists imputed to him a political profile of opposition to the Maoists and that this was the reason his house was bombed and he was shot. This is a separate question from why the grandfather was targeted for extortion in the first place.
In effect, the ground argues that the Tribunal addressed only the possible Convention relationship of the Maoist extortion demands on the applicant’s grandfather and family, and failed to address separately the reasons for the killing of the grandfather.
However, I accept the submissions of the Minister’s counsel that the Tribunal’s reasoning shows that it did address the causation of both the extortion and the killing. It concluded that the reasons for the killing were the same reasons as it discerned for the extortion, that is, reasons which did not include a Convention reason. This is shown in particular in the Tribunal statement at paragraph 67 that “the Tribunal finds that the applicant’s grandfather was targeted in the past by Maoists for extortion and killed because he did not comply”. It is clear, in my opinion, that the Tribunal found that the murder of the grandfather was entirely the result of a failure to comply with the extortion attempt, and therefore the reasons for it had the same non‑Convention character.
I therefore am not persuaded by the ground raised in the amended grounds of application.
I discussed with counsel for the Minister an arguable concern arising from the Tribunal’s reasoning in paragraph 68. Prima facie there might usually seem to be a possibility that the targeting for extortion and murder of a wealthy landowner might necessarily be part of a program of class warfare conducted by a Maoist insurgency such as occurred in Nepal, and therefore have a Convention complexion. If the Tribunal thought that there was no possible basis for such a conclusion in the present case, then it may have made a jurisdictional error in its understanding of the refugee claims which were before it.
However, approaching an understanding of the Tribunal’s reasoning in the beneficial manner required by Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, I consider that the Tribunal’s reasons should be understood as showing that it was not persuaded that this possible Convention motive was an operative reason for the persecution of the applicant’s family in the present case. I do not consider that the evidence as to the situation of the applicant’s grandfather did not permit that conclusion. I consider that the Tribunal, having correctly identified and applied principles for assessing the causation of the incidents of extortion and related murder by reference to relevant Federal Court authority, has not revealed error of law or jurisdictional error in its conclusion, notwithstanding that minds might differ in relation to its assessment.
I am therefore unable to find any jurisdictional error affecting this part of the Tribunal’s reasoning.
The applicant today had intelligently thought about his case, and presented the above arguments. He also submitted that there were mistakes made by the decision‑makers, when assessing his reasons for not applying for a protection visa at an earlier date. It is not clear to me that he identified any mistake in their reasoning, in the sense of error of fact. Rather, he sought to persuade me not to accept the assessment of the decision‑makers, in so far as they reflected adversely on the genuineness of his having fears of return to Nepal.
I consider that his arguments concerned only the merits of factual assessments which were open to the Tribunal, and did not raise any jurisdictional error. Moreover, as I have included above, the Tribunal’s reference to his delay in applying for protection did not provide the essential basis for its adverse conclusion, nor affect that conclusion. The Tribunal’s conclusion was that the serious harms to the applicant’s grandfather and father in the past did not have a Convention nexus, and that the applicant himself would not face harms having a Convention nexus in the future if he returned to Nepal.
For all the above reasons, I am not satisfied that the Tribunal’s decision was affected by any jurisdictional error, and I must dismiss the application.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 10 July 2012