SZRNE v Minister for Immigration
[2013] FMCA 127
•15 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRNE v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 127 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. The Applicant in these proceedings is not to be identified pursuant to s. 91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZRNE. |
| Migration Act 1958 (Cth), ss.36, 91X |
| Chan Yee Kin v Minster for Immigration and Ethnic Affairs (1989) 169 CLR 379 Minister for Aboriginal Affairs & Anor v Peko –Wallsend Ltd (1986) 126 CLR 24 Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 MZRAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1261 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Rajaratnam v Minister for Immigration and Multicultural Affairs (2000) 62 ALD 73 SZBBEv Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 264 SZDWR v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 149 FCR 550 VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291 |
| Applicant: | SZRNE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1169 of 2012 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 4 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 15 March 2013 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Nepalese interpreter |
| Solicitors for the First Respondent: | Mr J. Pinder of DLA Piper |
| Solicitors for the Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
The Application filed 30 May 2012 is dismissed.
The Applicant is to pay the First Respondent’s costs and disbursements of, and incidental to, the Application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1169 of 2012
| SZRNE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In accordance with the Court Orders made on 19 June 2012, the solicitors for the first respondent, the Minister for Immigration & Citizenship (the “Minister”), were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”), marked Exhibit A and is the only evidence before the Court.
At the First Court Date directions hearing the applicant sought to participate in the NSW RRT Legal Advice Scheme. This referral was made and written advice was provided after the conference with a Panel Adviser. The applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review upon, together with any supporting affidavit material on or before 31 July 2012. The applicant elected not to file an Amended Application.
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review in respect of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1200499, a decision of Tribunal Member A. Jacovides dated 4 May 2012, affirming the decision of a delegate of the Minister to refuse the grant of a Protection (Class XA) visa to the applicant.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference for that material.
The applicant is a male citizen of Nepal born on 23 February 1986 (CB 13-14). He arrived in Australia on 28 February 2009 (CB 15). The applicant applied for a Protection (Class XA) visa on 8 June 2011 (CB 3-36). The applicant’s claims were set out in a statement titled “Statement of Claim” accompanying the application (CB 32-36). The application was refused by a delegate of the Minister on 23 December 2011 (CB 42-52). The applicant applied to the Tribunal for review of the decision of the delegate on 13 January 2012 (CB 53-57). The applicant attended the Tribunal hearing on 20 April 2012 (CB 72-73). The Tribunal handed down its decision on 4 May 2012 affirming the delegate’s decision (CB 87-102) to refuse the grant of a Protection visa.
The delegate’s decision
On 23 November 2011, a delegate of the Minister invited the applicant to attend an interview scheduled for 8 December 2011 (CB 37-38) which the applicant did not attend. Consequently, no evidence was given in support of the applicant’s claims (CB 50).
The applicant is a male citizen of Nepal who claims to fear the persecution from the Maoists in Nepal for reason of his past low-level association with the Rastriya Prajatantra Party (“RPP”) and because in 2002 he was accused of being a spy for the armed forces. He further claims that the Maoists will target him for donations as a person returning from Australia.
On 23 December 2011 the delegate made a decision refusing to grant the applicant a Protection visa (CB 46-52). The delegate found, pursuant to s.36(2) of the Migration Act, the applicant was not a person to whom Australia owed protection obligations for the grant of a Protection (Class XA) visa. The delegate noted that “all reasonable steps had been taken to give the applicant an opportunity to substantiate his claims however he has failed to take up that opportunity” (CB 51).
The Tribunal’s decision
The applicant applied to the Tribunal for review of the delegate’s decision on 13 January 2012. The applicant was sent an invitation to appear before the Tribunal on 15 March 2012. The applicant responded to this invitation on 16 April 2012 and the hearing took place on 20 April 2012. The applicant did not provide any new claims or submissions in support of the review application.
The applicant claimed that when he was at school he belonged to the RPP. In July 2002 he organised a RPP cultural event in his village, but the Maoists disrupted the process and threatened to kill the applicant. The applicant claimed that after this incident he became very cautious and chose to stay with an uncle. While he was at his uncle’s house, in March 2003, the Maoists went to his parent’s house and declared that he was an informer. The applicant claimed that they threatened to find him and subject him to justice (CB 92 at [26]). He stated that he did not stand a chance of survival if they caught him, so he fled to Kathmandu. The applicant claimed to have contacted a member of the National Democratic Cultural Organisation, which was affiliated with RPP, and asked for assistance. He stated that they ignored his case as he wasn’t going anywhere with the party (CB 92 at [26]). The applicant found work with a family, and remained working there for two years. During this time the applicant claims that his family told him that the Maoists were still looking for him.
The applicant claimed that in 2006 he took the opportunity to return to Kathmandu while peace talks were occurring to talk to the party leaders and ask them to talk to the Maoists regarding his “issues” (CB 92 at [28]). The peace talks failed and the Maoist’s youth wing, the YCL, “started all sorts of violence and protests” (CB 92 at [28]). The peace talks succeeded and the Maoists entered mainstream politics. The applicant claimed that in 2008 members of the YCL went to the house where he lived. The applicant stated that “fate helped him” (CB 92 at [28]) as he was not at home at that time. The applicant claimed that it was then he realised that the YCL were quite well informed and organised, and the only safe place for him was overseas. The applicant contends that he went to Thailand to be safe but he found it difficult to survive, so he went to Macau but found that he could not afford to stay there. The applicant indicated that he returned to Nepal in May 2008.
The applicant stated that after he returned to Nepal he met and married his wife. On 27 February 2009 they came to Australia so he could be safe and his wife could study. He stated that they had marital difficulties soon after they arrived in Australia which led to them separating. The applicant stated that his wife asked him for a divorce. The applicant claimed that he had been running for his life for a long time and decided to seek protection in Australia (CB 92 at [29]).
The Tribunal accepted that the applicant was in conflict with Maoists in Nepal in 2002 and was forced to flee from his home town (CB 97 at [50]). However, on the basis of independent country information, the Tribunal formed the view that the RPP was not a major political party in Nepal and was not involved in any grave conflict with Maoists (CB 98 at [52]). The Tribunal also found that, in any event, the applicant was not a political activist and, therefore, would not be targeted by Maoists for his political opinion (CB 98 at [52]).
The Tribunal concluded, in respect to the claim that the applicant would be targeted by Maoists for being a spy, that the applicant’s adverse relationship with the Maoists was confined to his home town and to the period of the civil war (CB 98 at [53]). The Tribunal found that once the applicant left his home town, he was no longer of concern to the Maoists (CB 98 at [53]).
The Tribunal also considered claims raised by the applicant’s adviser that the applicant would be subject to the threat of extortion by Maoists. Based on independent country information, the Tribunal concluded that the targets of extortion are chosen for their wealth rather than their political opinions. In any event, the Tribunal found that the applicant did not have enough wealth to be a person of interest to the Maoists (CB 99 at [55]) and that he could avail himself of state protection (CB 100 at [64]).
The Tribunal noted that extortion can be multifaceted and may be carried out for more than one reason (CB 100 at [61]): Rajaratnam v Minister for Immigration and Multicultural Affairs (2000) 62 ALD 73. The Tribunal accepted that the relevant question is whether the threat of extortion is personal or for a Convention related reason. The Tribunal concluded that the evidence provided in this case did not indicate that the applicant would be targeted by extortionists for any Convention reason (CB 100 at [63]).
The Tribunal also considered whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia and returned to Nepal, there was a real risk that the applicant would suffer significant harm under the complementary protection criterion. The applicant did not raise these claims, and the Tribunal was not satisfied by the evidence that such a risk existed for the applicant.
The Tribunal concluded that it was not satisfied that the applicant faced a real chance of persecution in Nepal for reasons of political opinion or for any other Convention reason.
Current Proceedings
The applicant filed an application for judicial review in the Federal Magistrates Court on 30 May 2012. Pursuant to the application, the applicant sought the following order:
1. A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.
The application contains three grounds:
1. Only country information been relied upon, personal circumstances not considered.
2. Decesion (sic) has been made on speculation.
3. Tribunal has suggested that I seek state protection, which in not available in real life.
Federal Magistrate Smith made orders on 19 June 2012, granting leave to the applicant to file an amended application or any additional affidavits on or before 31 July 2012. The applicant did not file an amended application or any additional affidavits. The applicant did file in Court on the day of the hearing an outline of submissions.
Applicant’s Submissions
The applicant submits that he is a genuine refugee because he has a well founded fear of persecution for reason of his political opinion. The applicant contends that the Tribunal committed legal error by failing to consider whether he could obtain state protection, to the extent that there would not be a real risk that he would suffer significant harm. This, the applicant argues, is in the context that the Tribunal had accepted that he may suffer harm upon his return to Nepal, but that it would not be harm for a Convention reason. The applicant argues that the Tribunal Member did not give any consideration to the issue of state protection and as such the Tribunal’s decision was infected by jurisdictional error.
The applicant also argues that, in respect to his fear of harm on return to Nepal, this is indeed linked to the Convention reason of political opinion. The applicant contends that the Tribunal failed to consider whether he might be threatened by the Maoists and whether the Nepalese authorities would take appropriate measures to protect him.
The applicant argues that the Tribunal failed to consider whether the change in circumstances in Nepal were “durable and substantial”. He claims that the Tribunal turned a blind eye to the willingness or capability of the authorities in Nepal to protect him from the harm he fears.
Minister’s submissions
The Minister submits that the first ground alleges that the Tribunal failed to consider the applicant’s personal circumstances. The Minister argues that this allegation is contradicted by the Tribunal’s Decision Record in which the applicant’s claims, both written and oral, are clearly considered. While the Tribunal did give weight to independent country information in reaching its ultimate decision, it is well settled law that the weight given to independent country information is a matter for the Tribunal; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ; Minister for Aboriginal Affairs & Anor v Peko –Wallsend Ltd (1986) 66 ALR 299 at 328 per Brennan J; VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291 at [41] per Heerey, Finkelstein and Lander JJ.
The applicant’s second ground alleges that the Tribunal’s decision was made on speculation. The Minister contends that, while the forward-looking nature of the well-founded fear test imposed on the Tribunal necessarily involves an element of speculation, the Tribunal’s assessment of whether the applicant would have a well-founded fear of persecution if returned to Nepal was based on its careful consideration of the applicant’s claims of past harm and its analysis of independent country information about the current political situation in Nepal. This approach is consistent with the approach set out in Chan v Minster for Immigration and Ethnic Affairs (1989) 169 CLR 379. Consequently, the Minister submits that the Tribunal’s reasoning process does not disclose any jurisdictional error.
The third ground of the application takes issue with the Tribunal’s finding regarding effective state protection. However, the Minister argues that this allegation is misconceived, as the Tribunal’s reasoning does not rely on an effective state protection finding. Rather, the Tribunal did not accept that the applicant would face harm in Nepal in the future for a Convention reason. While the Tribunal does mention state protection at [64] (CB 100) of it’s decision, that remark must be regarded in the context of that paragraph, as well as the previous paragraph immediately prior to it, where the Tribunal states its conclusion that the applicant’s fear is not well founded based on the available information, and that the claimed harms does not possess the requisite Convention nexus.
The Minister also submits that the Tribunal dealt satisfactorily with the issue of whether threats of extortion were within the scope of the Refugees Convention (at [57]-[59]; CB 99). To this end the Tribunal properly considered whether the threat of extortion was due to personal or Convention related reasons, accepting that extortion is “multifaceted; and therefore often for more than one reason” (at [61]; CB 100). The Tribunal concluded, as a matter of fact, that the applicant would not be targeted by extortionists for a Convention related reason (at [63]; CB 100).
The Minister submits that no jurisdictional error has been demonstrated and the application should be dismissed.
At the hearing, the Minister’s solicitor was also provided with a copy of the applicant’s submissions. Mr Pinder broke the applicant’s submissions into the following categories (Transcript 4 December 2012, p. 3):
a)Paragraph 1 – an introductory statement;
b)Paragraph 2 – takes issue with state protection and whether or not the Tribunal properly considered that issue;
c)Paragraph 3 – restates the applicant’s political opinion claim and suggests that the Tribunal failed to consider whether he may be at risk from the Maoists and whether the Nepalese authorities had taken reasonable measures to him; and
d)Paragraph 4 – appears to suggest that the Tribunal didn’t consider whether or not the situation in Nepal is temporary or likely to change, such that a fear in the future may become well-founded.
Mr Pinder argued that the issue of state protection was agitated by the applicant in Ground 3 of his application. Mr Pinder reiterated his written submission (noted above at [27]) on that issue and re-stated that:
…that sentence must be regarded in the context of that paragraph in the tribunal’s decision as a whole. The tribunal had already found that there was no well founded fear of persecution and in that context, the issue of state protection is, to a degree, otiose because there would be no harm from which… state protection would need to be sought.
(Transcript, 4 December 2012; p. 3)
Mr Pinder argued that it is open to the Tribunal, for the reasons that it states and because of the evidence that is included in that decision, to come to the conclusion that the applicant would not be targeted in the future for extortion or for other behaviour that may give rise to a well-founded fear of prosecution.
Mr Pinder also argued that, in circumstances where the Tribunal referred to contemporaneous or at least current external material informing its decision, the fact that potentially at some point in the future another state of affairs may come to be, would not suggest jurisdictional error on part of the Tribunal. Mr Pinder argued that there was nothing put to the Tribunal, from its own enquiries or by the applicant, that would suggest a likelihood or a reasonable chance of a significant change in the future in Nepal that would have enlivened the Tribunal’s need to consider that issue further. Mr Pinder contends that the Court must have regard to the nature of the Tribunal’s review, which is to conduct an enquiry into the future but must do so by way of evidence and not merely through speculation.
Consideration
The applicant commenced these proceedings with three vague and unparticularised grounds of review that are reproduced at [20] above. The Court Book reveals that the applicant was represented by a registered migration agent from the time of lodging his original visa application through to the time of his appearance before the Tribunal. That is reflected in the nature and preparation of various documents, lodged on behalf of the applicant through those various stages. That assistance is not apparent in the preparation of the review application before this Court. The applicant made no reference to who may have assisted him in the preparation of the review application documentation, but it is immediately apparent that the person who assisted in that task had very limited knowledge of the review process or the nature of what was being attempted to be achieved by the process.
At the hearing, when the applicant was invited to make any oral submissions in response to the argument presented by the representative of the Minister, he indicated that, although the proceedings had been translated to him by an accredited interpreter, he had no understanding of the issues and arguments being put to the Court. His main comments were restricted to his broad claim that protection was not available to him in Nepal as a Maoist government was in power and that he feared for his life if he was forced to return.
Mr Pinder, appearing for the Minister, in accordance with orders made at the First Court Date directions hearing prepared written submissions addressing the three grounds of review contained in the original application. These are set out at [25]-[28] above. I am satisfied that those submissions correctly and adequately address those grounds and require no further comment.
As indicated above, at the First Court Date directions hearing the applicant indicated that he wished to participate in the panel advice scheme, which he subsequently did by attending a conference and receiving written advice. Although he was granted leave to file an amended application, he did not avail himself of this opportunity. At the commencement of the hearing, when invited to make any submissions, the applicant handed up a page of typed submissions which did not address or supplement the three grounds pleaded, but effectively did raise a new issue, in the nature of a ground of review of the Tribunal decision record. It was immediately apparent that those written submissions had been prepared with the assistance of an individual with a more comprehensive understanding of the procedures of judicial review of administrative decisions. Mr Pinder, in oral submissions, effectively summarised the new issue. This summarisation is set out at [30] above.
The submission, advanced by the applicant, takes issue with the Tribunal’s findings in respect to state protection and whether or not the Tribunal properly considered that matter. In the Tribunal’s Decision Record at [64] it states:
The Tribunal has considered the applicant’s claim that he been living in Australia and extortionists in Nepal will assume that he has money. He claims that ransom and donations will be demanded from him. The Tribunal has already found that his fear in this regard is not well-founded; and it further finds that this conduct related to criminal activity rather than Convention related persecution. If the applicant is targeted by extortionist he can seek state protection. The Tribunal is satisfied by the information from external sources referred to above, and discussed with the applicant at the hearing, that state protection against extortionists, including those implicated with the Maoists, is increasingly available to citizens of Nepal and it finds that it will also be available to the applicant if he needs it.
In the Decision Record, under the subheading “Hearing” the Tribunal discussed with the applicant a range of matters concerning the activities of the Maoists and their youth wing by reference to a number of articles published by various Nepalese press services and international websites, together with recent US Department of State reports, International Crisis Group and the Carter Centre, a majority of which were published during 2011 and early 2012. A review of the Tribunal Decision and the application for review by the Tribunal does not disclose that any material was advanced on behalf of the applicant expressing a contrary view.
I note, that in a letter from the applicant’s migration agent, dated 13 January 2012 and addressed to the Registrar of the Refugee Review Tribunal, the following statement is contained therein:
We advise that a detailed submission and evidence to support the applicants’ claim will be forwarded upon receiving instructions from the applicant.
(CB 53)
In its Decision Record the Tribunal refers to the applicant’s statement of claim that was lodged with the original Protection visa application (CB 32-36), together with the applicant’s passport. There is no other reference to any material tendered and relied upon by the applicant before the Tribunal.
Although not specifically expressed by the applicant, it appears that the applicant is raising the issue of the lack of state protection in circumstances where the alleged persecutor was a non-state agent, being the Maoists and/or their youth wing, the YCL. The High Court in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 per Gleeson CJ, Hayne and Heydon JJ at [21]-[22] and [29] indicated that the relevant test, in respect of the appropriateness of state protection, is directed to the adequacy of protection. At [26] their Honours stated:
No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence…
In the same case, his Honour Kirby J, at [117] stated that:
…It [the Refugees Convention] posits a reasonable level of protection, not a perfect one…
The relevant test is that what is required is an adequate, not ideal, level of protection by the state. It does not require a guarantee of safety: SZDWR v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 149 FCR 550 per Heerey, Kiefel and Bennett JJ at [22]. Importantly the Tribunal, in its decision record is not required to specify the standards of state protection: MZRAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1261 per Heerey J at [26]; SZBBEv Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 264 per Jacobson J at [46]. This is clearly considered by the Tribunal and set out in its reasons. In this matter, the Tribunal has previously found that the applicant’s fears were not well-founded and therefore, the Tribunal was not required to consider the question of state protection. On a fair reading of the Tribunal decision, I am satisfied that the approach adopted by the Tribunal in respect of state protection was appropriate and that this issue of review cannot be sustained.
Conclusion
The original application in this matter appears to have been prepared or provided by some unidentified third party and does not appear to be fully conversant with the operations of the Migration Act, as the grounds of review pleaded do not specifically arise from the published decision of the Tribunal Member. The applicant’s written submissions tendered on the day of the hearing do raise an issue, however, I accept the submissions made by Mr Pinder as an appropriate approach to the issues raised in those submissions. I am satisfied that none of the issues raise in the original pleadings, or in those late submissions can be sustained. Nor is it apparent that any other grounds of review exist to suggest that the Tribunal Member has made a jurisdictional error in his decision to reject the applicant’s application for a Protection visa. The applicant’s claim should be dismissed, with costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Date: 15 March 2013
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