SZRLK v Minister for Immigration & Anor
[2012] FMCA 1155
•14 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRLK v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1155 |
| MIGRATION – RRT decision – Nepali persecuted by ethnic and political extremists – Tribunal found that extortion was unrelated to Refugees Convention – whether all integers of refugee claims were addressed – finding of ability to relocate – failure to address reasonableness in applicant’s circumstances – failure to address issues raised by complementary protection criteria – matter remitted. |
| Migration Act 1958 (Cth), ss.36, 91R(1)(a) Migration Amendment (Complementary Protection) Act2011 (Cth), Sch.1 cl.35 |
| Lee v Minister for Immigration & Citizenship (2007) 159 FCR 181 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 Plaintiff M13/2011 v Minister for Immigration & Citizenship (2011) 277 ALR 667, [2011] HCA 23 Screen Australia v EME Productions No 1 Pty Ltd (2012) 200 FCR 282 Stead v State Government Insurance Commission (1986) 161 CLR 141 SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18 SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26 |
| Applicant: | SZRLK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 960 of 2012 |
| Judgment of: | Smith FM |
| Hearing date: | 28 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 14 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr J R Young |
| Solicitors for the Applicant: | Shamser Thapa & Associates |
| Counsel for the Respondents: | Ms D Watson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue directed to the second respondent, to quash the decision of the second respondent made on 5 April 2012 in case number 1113363.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 16 November 2011.
The first respondent pay the applicant’s costs in the sum of $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 960 of 2012
| SZRLK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a Nepalese citizen who arrived in Australia on a student dependent visa in July 2008 at the age of 32. His and his wife’s visas were cancelled in 2009, and his wife departed Australia. The applicant remained unlawfully, and avoided being interviewed by the Department of Immigration. On 18 August 2011, he lodged an application for a protection visa, assisted by a solicitor. He claimed that he had been persecuted with threats, violence, and extortion demands by extremist groups, while running a textile store in the southern district of Nepal known as the Terai. The visa application was refused by a delegate of the Minister on 16 November 2011, and her decision was affirmed by the Tribunal on 5 April 2012. The applicant now seeks judicial review of the Tribunal’s decision.
The applicant contends that the Tribunal made jurisdictional errors by failing to make findings which addressed all of his claims to be a refugee as defined by the Refugees Convention, and by failing to address the practical circumstances bearing on its finding that the applicant could avoid persecution by relocating within Nepal, and by failing to provide findings and reasons which rationally addressed the ‘complementary protection’ issues arising under s.36(2)(aa) of the Migration Act 1958 (Cth). The Minister concedes deficiencies in relation to the last of these matters, but seeks to uphold the Tribunal’s decision by reference to its earlier finding on relocation. For the reasons which follow, I am not persuaded that I should decline relief for that reason.
The applicant’s refugee claims
As will appear, the Tribunal appeared to accept the applicant’s claims of persecution by threats and actual violence from ethnic ‘Madhesi’ and Maoist groups, and expressed doubts only in relation to his claims that he had been an active supporter of a monarchist party. However, the applicant’s history of the relevant events was presented somewhat incoherently in his visa statement and subsequent evidence, and there was a lack of clarity by the Tribunal as to how much of the history it accepted.
In his visa statement, the applicant said:
My district shares a border with India’s Bihar Province; therefore the majority of the population living in my district are of Madhesi ethnicity. There are several Freedom Fronts and Terrorist Parties comprised of the Madhesi ethnic groups in the Terai Districts of Nepal including my district Siraha. These parties particularly target people of hilly origin to extort money, abduct, murder and eventually chase them away from the villages. I also live in one of such district and have incidently been forcefully asked for donations, have received threatening for life on several occasions via phone calls and letters and was forced to live a life in terror and fear.
I was attacked twice with attempts for abduction and execution during 2064, “Magh” (Jan-Feb 2008). During one of these times, a group of 12 to 15 combats of “Janatantrik Terai Mukti Morcha” JTMM (Democratic Terai Liberation Front) came to my house approximately around 11 p.m. but I was able to escape and save myself. I used to stay awake at nights with fear in my mind thinking the Liberation Front’s combats would attempt an attack on me. As I saw some of these Liberation Front guerrillas coming, I jumped out of a window and ran away a little further from my house to climb a mango tree. When The Liberation Front combats searched and could not find me inside the house, they became furious and made some blank fires in anger as they left. A group of Police from the Dhangadi area came to my house 30 minutes after this incident as they heard the firing, it was only then I climbed down from the mango tree and told them the entire episode. Such incidents kept happening in my life from time to time. From time to time cadres of the Democratic Terai Liberation Front and the Terai People’s Liberation Front threatened to kill me not just on the phone or letters but also made physical attempts, but probably I was just lucky or I had the grace of the almighty God, I was able to save my life each time so far.
My village shares a common border with India and these terrorist groups operate their activities from across the Indian border, therefore it was unsafe for me to even go to India to save my life, similarly the hilly region of Nepal is dominated by the NCP-M, Nepal Communist Party-Maoist and their affiliate YCL, Young Communist League, which targeted me as a supporter of the Monarchy, since I have been an active member of “Rastriya Prajantric Bidhyarti Sangathan Nepal” (National Democratic Student Organisation Nepal). I was receiving life-threatening, economical and physical actions on the phone as well as in letters from the Maoists. In despair I sometimes cursed myself saying since I had no father and mother living it was probably my bad fate that I too had to live such a fearful and unsecured life. Every night was a dark and fearful night from me where I was unsure what would become of me and whether I could survive through it. I was always unsure, scared and asked myself; I am alive now but would I live another day or not? I thought how unlucky I was to be in such a state. At times I even made conclusions about ending my life myself rather than losing it with torture and great agony after adduction by the terrorists.
In this context, to save my life I went to Bangladesh in the year 2006, but unfortunately had to return back since I could not find any medium for survival there. Since the Terai commonly bordered India’s Bihar, the Liberation Front created a situation for me where they did not let me live either in the Terai or across the border in India, similarly if I went in the hilly region elsewhere the Maoists and their cadres would not spare me, they would suppress me and murder me, such was my pitiful state. Every night I became horrified and could not sleep at all.
In search of freedom and safety of my life, I came to Sydney, Australia as a dependent of my student wife (name omitted), with assumptions to obtaining a permanent residency (PR) through the pathway upon completion of her studies, to live a free and safe life in the days to come. …
A covering submission from the applicant’s solicitor confirmed that the applicant claimed to have been threatened and subjected to extortion demands by Madheshi extremists and by Maoists, which culminated in the two incidents in early 2008. The submission characterised the activities of the Madheshi group as “due to the Convention reason of membership of a particular social group”, and the activities of the Maoists as being due to “political opinion” because “he has been an active member of” a youth wing of the RPP pro-monarchist party.
A number of documents were presented to the Department in originals and translations, to corroborate these claims, and the authenticity of these was not subsequently doubted by the Tribunal. They included:
·A membership card for the National Democratic Student Organisation issued on 1 August 2005.
·A demand dated 25 December 2007 from the ‘Terai Public Awakening Resistance Force’, which said “You have been a supporter of the Monarchy, hence to live in this area you are required to support us by financial assistance of Rupees 2 Million to us”. It warned that if he informed the Army and the Police “we will take physical action against you where you will be abducted and killed”.
·A demand dated 9 January 2008 from his local district committee of the ‘Democratic Terai Liberation Front’ for 2 million rupees to assist their militia which “has been combating to eradicate the exploiters and suppressive Pahadiya … away from Madhesh”.
·A demand dated 20 May 2008 from the district coordinator of the Maoist party. This said that “we have opened an investigation and appropriate action against you; with charges for supporting the dictatorial Monarch and working as an informer to the Nation…”. It requested two million rupees for “your support to our insurrection”, and concluded with a warning that “if found disclosing about this letter anytime anyplace, we will not only take economical and physical action against you but will not hesitate to exterminate you”.
·A letter signed by the Secretary of the village development committee dated 31 August 2009, certifying that “the underground armed group of Terai began to demand time and again to donate or otherwise threat to murder him. Likewise at the time of 10 P.M. on (26 January 2008) and (11 February 2008) they came with the group of having about 10/12 persons to him and attempted to abduct and then he fled to save his life and residing elsewhere till date”.
·A statement signed by a ‘Police Sub Inspector’ dated 8 October 2009, stating the applicant “was threatened by the Terai based armed groups named Democratic Terai Liberation Front (Goit Group and Jwala affiliated Group) with forceful donations and further (threats) of abduction and extermination, if the demand was not met. The same group also attacked with intention to abduct and kill (the applicant) on (27 January 2008) and (11 February 2008). It is hereby certified with verified information, that victim (the applicant) has been displaced from this place elsewhere because of the above reasons”.
·An article from a daily newspaper on 30 December 2009, which said “the rapid increase of Donation terror has made the population in the Terai districts horrified and have been forced to leave the villages to be displaced elsewhere”. It referred specifically to the applicant as having received one of the above demands, and that he had “been forced to flee from the village in order to save his life from the terrorists”.
The applicant appears to have maintained his claims at an interview with the delegate on 11 October 2011, although there is no clear evidence as to what he said.
In her decision, the delegate cited country information, some of which gave credence to the applicant’s claims. This included a US Department of State 2010 review, which included the statements:
There was continuing conflict in the Terai. Numerous armed groups, many ethnically based, clashed with each other and with the local population. Police were unable fully to promote law and order. Members of the Maoists, the Maoist-affiliated YCL, and other ethnically based splinter groups in the Terai frequently committed acts of violence, extortion, and intimidation throughout the year.
Maoists and Maoist-affiliated organizations continued to commit abuses during the year in contravention of the Comprehensive Peace Agreement (CPA). Maoists regularly extorted money from businesses, workers, private citizens, and NGOs. When individuals or companies refused or were unable to pay, Maoists retaliated violently or threatened violence.
The delegate also said:
Country information (CX185533 and CX197217) confirms that the “Madhesi are the original inhabitants of the Terai region which is a lowland area of southern and southeastern Nepal which has become the bread basket and industrial heartland of the country. The Pahade, (Pahadi) on the other hand, are of hill origin and migrated to the Terai for work. There have been tensions between the two groups since a large group of Pahades (Paharis) moved to the Terai in the 1960s”. The information also confirms that Madhesi groups have been responsible for acts of violence in Nepal and also across the border in India.
It is unnecessary to examine the delegate’s reasons for arriving at a general conclusion that she was not satisfied that the applicant had a well-founded fear of persecution in Nepal. It is enough to note that the Tribunal’s reasoning took different pathways, and that the amendments to the Migration Act which required consideration of additional criteria relating to Australia’s other treaty obligations had not commenced at the time of the delegate’s decision.
In the review before the Tribunal, the applicant continued to rely upon the claims and documents which he had previously presented. On 28 March 2012, his solicitor lodged an intelligently prepared response to the delegate’s reasoning, which maintained that the applicant had genuine and well-founded fears of persecution coming within the Refugees Convention. This submission did not address complementary protection issues, and this was understandable, since the commencement of these amendments had only very recently been proclaimed.
Both the applicant and his solicitor attended a hearing of the Tribunal on 2 April 2012. A transcript of the hearing is not in evidence, and I can rely only upon the Tribunal’s somewhat abbreviated description in its “Statement of Decision and Reasons”. This suggests that no mention was made by the Tribunal or the applicant’s solicitors to the complementary protection amendments, which had been proclaimed to commence on 24 March 2012. Nor was any submission on these amendments invited or provided subsequent to the hearing, although the Tribunal had acquired a jurisdictional obligation to address them in all pending matters (see Sch.1 cl.35 to the Migration Amendment (Complementary Protection) Act2011 (Cth).
According to the Tribunal, the applicant gave evidence at the start of the hearing:
35.The applicant attended the hearing with his adviser. He repeated the claims he provided to the Department. He stated that he was a monarchist and the Maoists considered him to be an opponent. He stated that he was suspected of being an informer for the authorities. The applicant claimed that they targeted him with extortion demands for political reasons. He stated that the Madhesi extremist groups targeted him for being a Pahadi. The Tribunal asked the applicant if he complied with any of the extortion demands. He stated that he did not. The applicant claimed that he began to receive extortion demands from 2005 onwards when he became involved in pro-monarchist politics. The Tribunal asked the applicant why the groups targeting him did not carry out their threats when he refused to comply. The applicant stated that they tried to kill him twice, in January and February 2008, but he was fortunate to escape.
36.The Tribunal commented that the groups targeting the applicant since 2005 had sufficient time and opportunity to find and harm him, if indeed it was their intention to do so, before he departed the country in 2008. The applicant stated that he was effectively in hiding and they could not find him. The Tribunal commented that he was claiming to be politically active, and running his own textile store, which in the Tribunal’s view would have given the extortionists an opportunity to find him. The applicant stated that he conducted his political and business activities discreetly and in 2008, after the two attacks, he moved from place to place until he was able to come to Australia. He stated that if he returned to Nepal he will be killed by the persons who targeted him before because he did not comply with their demands. The Tribunal asked the applicant if his siblings in Nepal have been targeted by the same groups or persons. The applicant stated that they were not targeted because they were not involved in politics. The Tribunal asked the applicant if he participated in any activities of a political nature since he arrived in Australia. The applicant stated that he had no involvement in such activities. He was asked if he maintained contact with his political associates in Nepal. He stated that he did not maintain contact with them and he had no interest in politics.
Most of the subsequent hearing appears to have been occupied with the Tribunal putting to the applicant some information suggesting that violence from both the Madhesi groups and the Maoists in the Terai “appeared to be confined to that region”, and that “only politically active members of the RPP-N appear to attract interest from the Maoists”. It also put to the applicant that “he was targeted because he was a shopkeeper or person perceived to have sufficient wealth to pay the extortion”, but the applicant maintained that “he was targeted for political reasons and his status as a Pahadi”.
In the course of this discussion, the Tribunal records the applicant saying:
40.The applicant was asked if he could be safe from the persons he feared in the Terai by relocating to one of the urban centres, such as Kathmandu. The Tribunal noted that he was able to avoid those persons after he fled from the Terai in February 2008. The applicant stated that he went from place to place, including Kathmandu, but he did not feel safe. He stated that wherever he goes in Nepal they will find him and kill him.
…
44.The applicant stated that he could not avoid the persons he feared by moving to other parts of the country. He stated that after the attacks in January and February 2008, he moved from place to place, and he spent time in Kathmandu, but he did not feel safe. He stated that the only option he had was to leave the country. The applicant stated that his political views attracted attention. The Tribunal asked the applicant which political party he was involved with. He stated that it was the youth wing of the RPP. The Tribunal commented that the party had splintered into factions. He was asked which faction he belonged to. The applicant stated that it was the RPP-N.
At the end of the hearing, the Tribunal “commented that the applicant appeared to be safe after he left the Terai in February 2008”, but the applicant responded that “he did not feel safe and he fled the country to save his life”.
At no stage during the hearing did the Tribunal explore with the applicant the applicant’s actual places of residence after leaving his village, nor the practical circumstances in which the applicant had claimed to have ‘moved from place to place’. Nor did it explore with the applicant how he or his wife had supported themselves in the period after the 2008 incidents, nor any of the practical aspects of a possible future relocation to live permanently in Nepal away from his family’s home district.
The Tribunal’s reasoning
The Tribunal’s “Statement of Decision and Reasons” commenced with what appears to me to be the usual template description of ‘relevant law’, which is almost invariably adopted by most Tribunal members and now includes a brief summary of the “complementary protection criterion”. It unexceptionably explains:
Complementary protection criterion
16.If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
17.‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
18.There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
The Tribunal then briefly, but without any obvious omission, summarised the evidence and submissions presented by the applicant in writing and orally.
The Tribunal then recorded its “Findings and Reasons” over four pages. Its reasoning is compressed, and does not follow a clearly apparent and logical pathway. When closely examined at the hearing before me, I was left in doubt about many aspects of how the Tribunal had approached the issues arising under s.36(2) of the Migration Act. As will appear, I give the Tribunal the benefit of some of these doubts. However, other omissions appear to me to prove jurisdictional error affecting its purported application of s.36(2)(aa), and also result in the inability of the Minister to salvage findings from other parts of its reasoning which might render this error immaterial.
The Tribunal’s findings commenced with a summary of the applicant’s claims:
61.The applicant claims that he was targeted by the Maoists and the YCL in Nepal because he was a monarchist and an active member of the youth wing of RPP-N. He claims that he was also targeted by Madhesi extremists groups because he was a Pahadi. He claims that he was suspected by the persons who targeted him of being an informer for the authorities. The applicant claims that from 2005 onwards he suffered ongoing harassment and threats from Maoists and Madhesi extremists in the Terai region. He claims that extortion demands were sent to him and, in January and February 2008, two attempts were made to abduct him. He claims that he was forced into hiding and he did not feel safe anywhere in Nepal. He claims that the persons who targeted him before will seek to kill him because he did not comply with their demands, his political opinion, and membership of a particular social group, with that group possibly being Pahadis in the Terai.
The applicant’s counsel before me accepted that this paragraph contained a fair outline of the applicant’s claims for protection, although he also submitted that the Tribunal’s later reasoning overlooked its apparent acceptance that the applicant had received “ongoing harassment and threats” which were not part of the extortion attempts of both groups of persecutors. He submitted that the Tribunal’s later reasoning had erroneously ‘rolled up’ the other harassment faced by the applicant within its discussion of the Convention relationship of the extortion demands which had been received by the applicant. I shall consider this submission below.
The Tribunal then qualified what otherwise appears from its later reasoning to be an acceptance of all of the claims which it had summarised, by stating that “the Tribunal has formed the view that the applicant exaggerated certain claims to enhance his application”. The significance of this qualification was not clearly explained by the Tribunal, except by a statement that it was “not satisfied that the applicant provided a credible account of his involvement in political activities in Nepal”, and a finding that “the applicant greatly exaggerated his interest and involvement in politics, to enhance his application”. However, the Tribunal did not say that it totally disbelieved the applicant’s claim to have been, at least, a member of a monarchist-related group, and to have been known as such by the extremist groups which targeted him. Nor did the Tribunal reject the corroborative documents, in so far as they supported his claims that he was perceived by all these groups to hold political opinions unsupportive of their causes, and also to belong to the targeted social group of Pahadi.
Unfortunately, rather than stating precisely which of the applicant’s claims of persecution were or were not accepted as true, and then considering the character of each of them in terms of the criteria in s.36(2), the Tribunal embarked on a discussion of whether “the persons who targeted him before will seek to target him again throughout Nepal”. This course of reasoning may well have led the Tribunal to overlook the need for precise findings as to what were the harms suffered by the applicant, who were the persons who inflicted each of them, what were their reasons in relation to each event, and how their accepted acts of persecution should be characterised for the purposes of the criteria for protection under s.36(2). Only with precise findings on these matters in relation to the claimed past history, could the Tribunal be confident that it would address all relevant future risks of persecution facing the applicant (see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 574 – 576). By failing to make these findings at this stage of its reasoning, the present Tribunal’s reasons leave open the possibility that its later discussion of persecution by way of extortion might not have addressed all of the species of persecution suffered by the applicant in the past. I shall consider this issue below.
Moreover, the obscurely premised question posed by the Tribunal as to the applicant’s ability to ‘avoid harm’ also appears to have led the Tribunal to make a finding as to a future place of safe refuge for the applicant within Nepal, which was, on any view, cursory in its discussion of relevant matters. That finding, which I shall refer to as the ‘relocation finding’ and discuss further below, is found in the last sentence of the following two paragraphs:
66.The Tribunal has considered information from external sources, referred to above, relating to the activities of the Maoists, the YCL, and the Madhesi extremists, in Nepal. The Tribunal has formed the view from the above information that the activities of these groups against individuals in the Terai, is confined to the Terai, and that persons who are targeted by those groups, can avoid further harm by leaving the area. The Tribunal is satisfied that when the applicant left the Terai in February 2008, he was not a person at risk of harm by the Maoists, the YCL, or the Madhesi extremists, who harassed him while he lived in the Terai. The Tribunal is satisfied that a similar situation will continue in the reasonably foreseeable future. The Tribunal finds that the applicant’s fear, that he will be targeted by the same persons or groups, throughout Nepal, is not well-founded.
67.The Tribunal accepts that the applicant may suffer further harassment and extortion demands if he returns to the Terai. Information from external sources referred to above, indicates that the harassment suffered by the applicant, is common in that region. Nevertheless, the Tribunal has formed the view that the applicant was able to avoid further harm when he left the Terai, and it finds that he can continue to avoid harm, by living outside the region. The Tribunal is satisfied that the applicant has the ability to live outside the region, as he did previously, and that relocation to a safer environment within the country is a reasonable option for the applicant.
After making this finding, the Tribunal made some specific findings which addressed the documented three extortion attempts and the two attacks on the applicant in early 2008. It said:
68.The Tribunal accepts that the applicant received the three extortion demands for which he provided evidence. It accepts that in January and February 2008, the person or persons seeking money from him attempted to kidnap and physically harm him because he refused to comply. It accepts that the persons harassing him made references to his political opinion and his status as a Pahadi in the Terai. The Tribunal accepts that Maoists and Madhesi extremists were implicated in harassing the applicant by attempting, unsuccessfully, to extort money from him. The Tribunal accepts that extortion demands can in certain circumstances fall within the scope of the Refugees Convention. It has considered whether this is the case in the present matter.
The Tribunal then referred to authorities in the Federal Court, which have held that the circumstances of acts of persecution by way of the extortion of money under threat of violence need to be examined closely, before drawing conclusions whether those acts had occurred, and might in the future re-occur, “for one or more of the reasons enumerated” in the definition of ‘refugee’ in the Refugees Convention and, if so, whether the Convention reason or reasons ‘is or are’ “the essential and significant motivation for the persecution” as required by s.91R(1)(a).
The Tribunal expressed its findings and conclusion on this topic by making the following findings, which I shall refer to as ‘the Convention nexus findings’:
75.In the present matter, the Tribunal is not satisfied by the available information that the applicant’s political views, or the political views attributed to him by the persons seeking to extort money from him, or his status as a Pahadi in the Terai, or any other Convention reason, was an essential and significant reason for the harm which he suffered. The Tribunal has formed the view from the applicant’s evidence, and the information from external sources relating to these activities in the Terai, that the targeting was criminal conduct relating to monetary gain. The Tribunal is not satisfied that the applicant’s political opinion or his status as a Pahadi, or the political opinion and Madhesi status of the perpetrators, contributed to the extortion and harassment which the applicant suffered in Nepal. The Tribunal finds that the applicant was a victim of criminal conduct; and it is not satisfied that he was targeted for reasons of political opinion or membership of a particular social group, with that group possibly being Pahadis in the Terai, or any other Convention reason.
76.Accordingly, and in view of the above findings, the Tribunal is not satisfied that the applicant faces a real chance of persecution in Nepal for reasons of political opinion, his membership of a particular social group, with the group possibly being Pahadis in the Terai region of Nepal, or any other Convention reason.
The Tribunal then recorded its general conclusions, and included statements which purported to address the alternative ‘complementary protection’ criteria for a protection visa provided under s.36(2)(aa):
77.The Tribunal has also considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that he will suffer significant harm under the complementary protection criterion. The applicant did not raise claims in this regard and the Tribunal is not satisfied by the evidence that such a risk exists for the applicant.
Conclusions
78.The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
79.Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(aa).
Decision
80.The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.
The grounds for judicial review
Counsel for the applicant relied upon the following grounds which are found in a ‘further amended application’ filed at the hearing:
The grounds of the Application are:
1.The Second Respondent made jurisdictional error in that, having accepted that person who attempted extortion and kidnap against him made reference to his political opinion, the Second Respondent was bound to consider imputed political opinion even if the Second Respondent itself considered that the applicant had exaggerated his interest and involvement in politics.
1A.The Second Respondent made jurisdictional error by ignoring its own findings at [68] at CB 214 in starting at [75] at CB 215 that neither the applicant’s political opinion nor his status as a Pahadi contributed to the harassment he had suffered thereby failing to consider the Applicant’s claims in this regard.
1B.The Second Respondent made jurisdictional error by failing to deal with claims of persecution of the Applicant by the Maoists where monetary factors such as extortion were not at issue.
…
4.The Second Respondent made jurisdictional error by failing to have regard to an issue of the reasonableness of relocation.
5.The Second Respondent failed to carry out jurisdictional task imposed upon it by section 36(2)(aa) of the Migration Act 1958.
…
In his written and oral submissions, counsel addressed these grounds as making essentially three principal contentions of jurisdictional error affecting the Tribunal’s decision. I can summarise these challenges and then explain my conclusions shortly, in the light of my above analysis of the Tribunal’s reasoning. The applicant’s three principal contentions were:
i)The Tribunal’s adverse ‘Convention nexus’ finding in paragraphs 75 and 76 addressed only part of the history of persecution claimed by the applicant, being the part which involved persecution by way of extortion and two incidents of attempted kidnapping and assault in early 2008 which it related to the extortion. However, the applicant’s refugee claims encompassed a history which was more than acts of attempted extortion, but included other ‘harassment’ and threats of violence over several years unrelated to the three extortion letters and the two incidents. Although the Tribunal at times appeared in paragraphs 61 and 68 to have accepted that other harassment occurred, and that all the experiences of the applicant were related to his perceived monarchist political opinions and Pahadi ethnicity, its adverse conclusion that the applicant was a ‘victim of criminal conduct’ was directed only at his situation as a target for extortion. The Tribunal therefore failed to make findings on other acts of persecution claimed to have been experienced and feared by the applicant for Convention reasons. It thereby made jurisdictional errors of the type explained by the Full Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 and other well understood authorities.
ii)The Tribunal’s finding “that relocation to a safer environment within the country is a reasonable option for the applicant” was not based upon findings and an analysis which addressed the ‘practical’ circumstances in which the applicant had during 2008 ‘avoided harm’, and in which in the future it was expected that he could do so by residing outside his home district. The Tribunal had therefore failed to identify and address relevant questions under established authority, when deciding whether a refugee claimant may be expected “to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution”. These authorities required the Tribunal also to consider and make findings about the reasonableness of a future relocation “in the sense of practicable”, and this “must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality”, including an evaluation whether it would be “unduly harsh” to expect the claimant to relocate (see SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18 at [23]-[25]).
iii)In relation to the complementary protection criteria, the Tribunal’s inadequately explained conclusion that it was not “satisfied by the evidence that such a risk exists for the applicant”, purported to address the risk which is defined by s.36(2)(aa) as “a real risk that the non-citizen will suffer significant harm” if he were removed from Australia to Nepal. However, this conclusion was starkly contradictory to its own finding at paragraph 67, that the applicant would face death threats from extremist groups if he returned to his home district, because such threats obviously involved ‘serious harm’ as defined in s.36(2A)(a) and other paragraphs. It must therefore be inferred that the Tribunal had misunderstood and misapplied the complementary protection criteria for a protection visa.
I have found it difficult to decide the applicant’s first contention, largely as a result of the path of reasoning taken by the Tribunal, which left significant ambiguities in its references to ‘harassment and extortion’ of the applicant. In particular, as to the extent to which it did or did not accept that the applicant’s claims of harassment by extremist groups had included more than extortion attempts by extremist groups. There is then further ambiguity in the Tribunal’s reasoning from paragraphs 68 to 76, as to whether its finding that the applicant was a victim only of criminal conduct, and was not targeted for reason of his political opinions or ethnic attributes, was confined to a consideration only of harassment in the course of attempted extortion.
Although the awkward reasoning process displayed in the Tribunal’s “Findings and Reasons” is partly responsible for my difficulty, it is also partly the consequence of imprecision in the manner in which the applicant’s history was presented to the Department of Immigration and Tribunal by him and his solicitor. However, it was the Tribunal’s jurisdictional duty to make findings which applied the Refugees Convention criteria to all of the separate strands in the applicant’s claims to have fled Nepal as a result of persecution, even if they were not expressly articulated by the applicant, but were “raised by the evidence” to the extent that it was accepted by the Tribunal (cf. NABE (supra) at [63]).
Not without hesitation, I have decided that the Tribunal’s reasoning can be understood to have addressed all of the ‘integers’ in the applicant’s claims of persecution in Nepal, in so far as they were accepted to be factually true.
Considering how the applicant presented his claims, as set out above, I think it was open to the Tribunal to have understood that the applicant’s evidence suggested that all of the harassment which he had encountered since 2005 had occurred in the course of repeated attempts by both groups of extremists to extort money from him. I consider that it was then open to the Tribunal to characterise all of those events as ‘criminal conduct’ in which his political opinions and ethnic background were only incidental and inessential reasons for his being targeted, particularly once it rejected his claim to have been ‘actively’ involved in monarchist politics. I accept that minds might have differed about an analysis of the applicant’s refugee claims, but I am unpersuaded that the evidentiary context in which the Tribunal made its findings in paragraphs 75 and 76 reveals that it probably found, and then overlooked, an added integer in his refugee claims.
The language of the Tribunal’s concluding paragraphs is of such generality that it is clearly capable of being understood to be addressed at all of the applicant’s claims concerning “the extortion and harassment which the applicant suffered in Nepal” as narrated in his evidence. In their general terms, these conclusions found that none of the applicant’s evidence which was accepted by the Tribunal had raised a claim of persecution having a Convention nexus. Although the sequence of the Tribunal’s reasoning leading to these conclusions leaves some doubt whether they should be understood more narrowly, at the end of the day I am unpersuaded that I should read them narrowly, and thereby discern jurisdictional error of the type which was submitted under Grounds 1, 1A and 1B.
However, I have concluded that jurisdictional error should be found in relation to the applicant’s second contention, which was addressed in Ground 4. I am satisfied that the Tribunal’s finding that “relocation to a safer environment within the country is a reasonable option for the applicant” was made without consideration of the practical circumstances which might face the applicant in establishing a home away from the Terai.
Its omission is shown by the context of the sentence in which this finding was made, and in its preceding discussion which I have extracted above. In short, the relocation finding appears based on no more than a finding that the applicant had between February and July 2008 objectively been able to ‘avoid harm by living outside the region’ of the Terai. The Tribunal then extrapolated that he could in the future avoid harm by living outside the region ‘as he did previously’, and therefore concluded that this was a ‘reasonable option’ for the future.
Yet the only evidence given by the applicant was that he had avoided harm over this period by moving ‘from place to place’ in circumstances where he did not feel safe anywhere. This evidence did not necessarily suggest that the circumstances of how he was living at that time were ‘reasonable’ in the required sense. The Tribunal appeared to have accepted the applicant’s unsettled state of mind, and did not investigate the actual circumstances of his temporary residences, domestic arrangements, and employment, over this period. It certainly did not explore in its reasoning whether the actual circumstances of his living ‘from place to place’ could reasonably, or at all, be projected into the future, and whether they would provide a prospect of a settled existence which would be practicable and reasonable to expect the applicant to adopt in the future.
Moreover, at an evidentiary level, the Tribunal appears not to have investigated these issues during its interview of the applicant, and in my opinion it was left with no evidence upon which it could properly evaluate the issues of reasonableness required under SZATV (supra) and the preceding Federal Court authorities.
I am therefore satisfied that Tribunal failed to make an evaluation of the prospect of relocation in accordance with law. In my opinion, the Tribunal’s finding concerning relocation was affected by jurisdictional error of the kind found, in different contexts, by the Full Court in NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37, and by Hayne J in Plaintiff M13/2011 v Minister for Immigration & Citizenship (2011) 277 ALR 667, [2011] HCA 23.
Turning to Ground 5 and the applicant’s third contention, concerning the complementary protection criteria, the Minister’s counsel did not dispute that the Tribunal’s finding against the existence of a ‘real risk’ of ‘significant harm’ facing the applicant in Nepal was unexplained and was prima facie contrary to its own earlier findings. She did not dispute that jurisdictional error could be inferred as a consequence, since the reasoning of the Tribunal suggests that it failed to give adequate consideration to the separate elements raised by s.36(2)(aa) and its related definitional provisions in s.36(2A).
Counsel for the Minister also did not seek to defend this part of the Tribunal’s decision on the basis suggested by the Tribunal’s observation that “the applicant did not raise claims in this regard”. That observation was disingenuous, in circumstances where the complementary protection criteria were proclaimed and came into force in relation to the applicant’s matter only on the very eve of the Tribunal’s hearing, and were not drawn to the applicant’s attention by the Tribunal at the hearing or subsequently.
Moreover, the Tribunal could not avoid a duty arising under the transitional provision to the amendments to adequately address the new criteria according to their terms, if the applicant’s claims which were before it and its own findings left alive a real basis for applying the new criteria. As I have noted above, this is what happened as a result of the Tribunal’s refusal to characterise any part of the past persecution of the applicant as coming within the protection of the Refugees Convention. The Tribunal’s own findings then left alive a very significant claim that the applicant would face serious and significant harms which might be covered by Australia’s other international obligations, and which required careful analysis and full reasons which applied the new statutory provisions.
In my opinion, the Tribunal’s failure to perform this task is manifest, and the applicant has established a prima facie right to orders by way of judicial review which would require it to further consider the whole of the applicant’s application to the Tribunal according to law.
Counsel for the Minister resisted the grant of relief on this ground, by referring to the Tribunal’s relocation finding which I have discussed above. She accepted that it did not in its language address the s.36(2)(aa) criteria and its exclusionary provisions concerning relocation, and was not directed by the Tribunal at those provisions. However, she submitted that in effect it contained factual findings which might be regarded as satisfying the exclusionary provision of s.36(2B)(a). This provides:
Protection Visas
(2B)However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
…
Counsel for the Minister accepted that the Tribunal’s relocation finding could not be regarded as providing an ‘independent’ and error-free finding which directly supported the Tribunal’s decision in relation to s.36(2)(aa), of the same type as was suggested by the High Court to provide reasons for refusing relief in SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26 at [28], [55]-[59], [91]. However, she submitted that the Court could refuse relief on the more general discretionary principle of ‘futility’, which has been applied in exceptional cases in relation to error by denial of procedural fairness, and for which Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 is commonly cited.
Under the Stead principle, relief may be refused if the Court is positively persuaded and is confident that “there is not even a possibility that the outcome could or might be different” if a further consideration of the applicant’s case was undertaken (cf. Screen Australia v EME Productions No 1 Pty Ltd (2012) 200 FCR 282 at [57]). Unlike the ‘independently supported’ basis for refusing relief, which finds that an error did not materially affect the validity of the decision already made, this principle requires a ‘forward looking’ assessment of how a reconsideration of the administrative matter might be conducted in the future by a differently constituted Tribunal and on possibly additional evidence and submissions (see Lee v Minister for Immigration & Citizenship (2007) 159 FCR 181 per Besanko J at [53], Moore and Buchanan JJ agreeing at [1] and [69]).
I am far from satisfied that I should apply the Stead futility principle to the present case. A fundamental difficulty is, as I have found above, that the Tribunal’s relocation finding was flawed by jurisdictional error, even for the purposes of the judicially developed principles of relocation relevant to the Refugees Convention. Moreover, the points which I have made above about that finding, even if they were not sufficient to establish positively the error which I have found, must at least leave the Court lacking in confidence that no conclusion could be reached by a differently constituted Tribunal other than that s.36(2B)(a) would apply to the applicant if he were removed to Nepal. As I have explained above, the Tribunal’s finding of relocation in its terms appears to be based on no more than the opinion of the Tribunal that the applicant would avoid harm from his persecutors if he did not live in the Terai. The Tribunal did not provide any other findings or explanation showing convincingly why it would be ‘reasonable’ for the applicant to live outside that area in the same manner “as he did previously”.
In my opinion, the Tribunal’s finding in paragraph 67 provides far from convincing evidence showing that remitter of this matter would be futile. I would therefore not refuse relief based upon my upholding Ground 5.
For all the above reasons, I therefore make the orders sought by the applicant. It is agreed that scale costs should follow this event.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate:
Date: 14 December 2012
8
9
2