SZROR v Minister for Immigration
[2012] FMCA 888
•16 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZROR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 888 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Nepal – Tribunal finding that the applicant’s fears were not well-founded or were not Convention related – whether the Tribunal overlooked an element or integer of the applicant’s claims considered. |
| Migration Act 1958 (Cth), s.91R |
| Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473 Applicant A v Minister for Immigration (1997) 190 CLR 225 Chenafa v Minister for Immigration [1999] FCA 1432 Jayawardene v Minister for Immigration (1999) 60 ALD 425 Rajaratnam v Minister for Immigration (2000) 62 ALD 73 Ram v Minister for Immigration (1995) 57 FCR 565 Santhikumar v Minister for Immigration [1999] FCA 1777 SZALN v Minister for Immigration [2008] FCA 904 SZMVK v Minister for Immigration [2009] FMCA 304 |
| Applicant: | SZROR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1359 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 21 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 16 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr J R Young |
| Solicitors for the Applicant: | G&S Law Group |
| Solicitors for the Respondents: | Mr R Baird Clayton Utz |
ORDERS
The amended application filed on 18 September 2012 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1359 of 2012
| SZROR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (the Tribunal). The decision was made on 24 May 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant claimed persecution at the hands of the Maoists in Nepal.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Nepal. He arrived in Australia on 20 May 2007[1].
[1] Court Book (CB) 13
On 12 September 2011, the applicant applied for a protection visa[2]. The application was refused by the delegate on 3 February 2012[3].
[2] CB 1-28
[3] CB 56-68
On 17 February 2012 the applicant filed an application with the Tribunal. The Tribunal affirmed the decision of the delegate on 24 May 2012[4].
[4] CB 86
The applicant filed an application for review of the Tribunal's decision in this Court on 21 June 2012.
Summary of the applicant’s claims
In his initial protection visa application, the applicant submitted the following claims:
a)during the civil war in Nepal, his family were targeted through harassment and extortion by the Maoists because of his father's military background;
b)on account of his father's military background, the Applicant's own political views, and his status as a young educated man, the Applicant was targeted by the youth wing of the Maoists - the Young Communist League (YCL), who “threatened and pressurised” him to join the YCL;
c)if he returns to Nepal, he will be forced to join the YCL, or be killed by them if he does not comply; and
d)in such circumstances, the authorities will not protect him.
The delegate found that the applicant did not have a genuine fear of harm and that there was no real chance of persecution occurring. As a result, the delegate refused the protection visa application[5].
[5] CB 59-68
Decision of the Tribunal
The Tribunal had regard to the Department's file relating to the applicant, including documents submitted by the applicant in support of his protection visa application and the oral evidence the applicant presented at the hearing.
The Tribunal's findings and comments are recorded in its statement of reasons[6].
[6] [51]-[69], CB 95-99
Based on the evidence, the Tribunal accepted that the applicant and his family were targeted during the civil war in Nepal on account of his father's military background. The Tribunal also accepted that the applicant was targeted after the civil war during a period of instability by YCL members seeking his support[7].
[7] [53], CB 95
However, the Tribunal formed the view, based on country information, that human rights conditions in Nepal have significantly improved since the applicant left the country in 2007. The Tribunal found that although the applicant's background and profile may have attracted the adverse interests of Maoists prior to 2008, he would no longer be a person of particular interest to the Maoists. Such interest is restricted to political activists who take part in demonstrations and the applicant does not fit this profile. Therefore, the Tribunal found that the applicant's fears that he would be targeted by Maoists and the YCL because of his family background and political views, were not well-founded[8].
[8] [56], CB 96
The Tribunal accepted the applicant's claim that Maoists had demanded money from him and his family but correctly considered whether the applicant would be targeted for extortion by the YCL if he returned to Nepal and whether such extortion would be for a Convention reason[9]. Based on its consideration of relevant country information, the Tribunal formed the view that extortion by the YCL in Nepal is a purely criminal activity which is undertaken for monetary gain[10]. In other words, the victim's political opinion or any Convention reason is not the essential or significant reason for the extortion. Having already found that the applicant does not have the political profile to attract the adverse interests of the YCL, the Tribunal also formed the view that the applicant does not have the profile or financial resources to attract the adverse interest of the extortionists in Nepal. The Tribunal found that if the applicant were targeted for extortion when he returns to Nepal, it would not be for a Convention reason[11].
[9] [57], CB 96
[10] [58]-[64], CB 96-98
[11] [64], CB 98
Accordingly, the Tribunal concluded that there is no real chance that the applicant will face persecution because of his political views or for any other Convention related reason if he were to return to Nepal now or in the reasonably foreseeable future[12].
[12] [64]-[65], CB 98
The Tribunal also considered whether there is a real risk that the applicant will suffer significant harm upon being removed from Australia to Nepal, under the complementary protection criterion. The Tribunal found that the applicant was not at risk of any such harm[13].
[13] [98], CB 98
The judicial review application
These proceedings began with a show cause application filed on 21 June 2012. I granted the applicant leave to rely upon an amended application filed on 18 September 2012. The Minister opposed the granting of leave. There are two grounds in that application:
1. The Second Respondent made jurisdictional error by failing to take into consideration relevant information, making a determination which was irrational, illogical, not based on findings or inferences of fact supported by logical grounds, and/or which was manifestly unreasonable.
Particulars
(a) The Second Respondent accepted [at paras 50 and 53 of the decision] that the applicant had attracted the adverse interest of Maoists during the civil war as a result of his social group, that is, as an anti-Maoist with military ties, notwithstanding that he was not politically active.
(b) The Second Respondent accepted [para 53] that the applicant had been harassed between 2006 and 2008 by YCL members seeking his support, notwithstanding that he was not politically active.
(c) The Second Respondent accepted [para 57] that the applicant had been subject to extortion attempts by the YCL.
(d) In determining the risk of persecution by reference to country information, the Second Respondent failed to consider that a number of sources reportedly advised the Carter Centre observers that individuals were compelled to give donations due to the implicit threats that accompanies persistent YCL threats, and that those targeted do not speak openly about such requests for fear of reprisal. (The Carter Centre 2011, Political Party Youth Wings in Nepal, 28 February 2011, p 12).
(e) The Second Respondent failed to consider the impact of those reports particularised above to the validity and weight to be afforded to other country information indicating a diminishing risk of persecution.
(f) The Second Respondent failed to recognize the nexus between extortion undertaken by YCL members and the Convention.
(g) The Second Respondent failed to properly consider the purpose of the YCL’s extortion.
2. The Second Respondent made jurisdictional error in that it failed to comply with Section 414 of the Migration Act 1958 or that it constructively failed to exercise jurisdiction by reason that it failed to deal with a claim which clearly arose on the materials before the Second Respondent.
Particulars
(a) At CB 98 at [64], the Second Respondent found that the Applicant did not have the political profile or the financial resources to attract the adverse attention of (Maoist) extortionists in Nepal.
(b) At [56] at CB, 96 the Second Respondent found that persons of the Applicant’s political profile and background in Nepal who may (as had the Applicant) attracted the adverse interest of the Maoists prior to 2008 were no longer of particular interest to the Maoist.
(c) At [27] at CB 91, the Second Respondent noted a letter of demand (which is at CB 45) from the Young Communist League Central Committee to the Applicant’s mother by Maoist extortionists dated 1 July 2009 indicating that the recipient was perceived to have a lot of money because the husband and the son (the Applicant) were overseas.
(d) The letter at CB 45 also warned of severe reprisals against the family if it did not comply.
(e) At [57] at CB 96, the Second Respondent accepted that the Maoists had demanded money from him and his family and that the last documented approach (from the Maoist extortionists) was to his mother in 2009.
(f) On the material before it and on the basis of its own findings in relation to those materials, it plainly arose that the Applicant was making a claim upon the basis of a particular social group, being families where members of the particular family had departed Nepal.
(g) Further [or] in the alternative …, membership of the particular social group identified in [f] above was a rational hypothesis for there being an act of extortion against the family of the Applicant in 2009, given the findings of the Second Respondent noted in (a) and (b) above.
Ground 1 was not pressed.
I received as evidence the court book filed on 7 August 2012.
Both parties made written and oral submissions. The Minister’s written submissions took into account the second ground of review for which I granted leave. The Minister denies that the Tribunal fell into jurisdictional error.
Consideration
The applicant’s contention is a simple one. It is that the Tribunal overlooked an element or integer of his claims which, although not expressly advanced, is said to have clearly arisen from materials before the Tribunal.
I accept that the Tribunal may constructively fail to exercise its jurisdiction if it fails to deal with such a claim. However, in the present case, I am not persuaded that the claim as asserted now by the applicant clearly arose from the material.
The applicant concedes that the claim he says was overlooked was “one not expressly articulated in terms by the applicant”[14]. The Minister contends that the extent of the concession ought to be greater. The applicant does not allege that the claim arose, even implicitly, from anything contained in:
a)his migration agent's written submission to the delegate[15], in which the agent identified the Convention grounds relied upon[16];
b)his protection visa application[17] or written statement to the delegate[18];
c)his interview with the delegate[19];
d)his migration agent's written submission to the Tribunal[20]; or
e)his hearing before the Tribunal[21].
[14] applicant's submissions at [12]
[15] CB 29-33
[16] CB 30.2-5
[17] CB 17-20
[18] CB 34-38
[19] CB 63.7-65.1
[20] CB 82-84
[21] [34]-[50], CB 92.8-95.5
Rather, the claim is alleged to arise from a single document[22], provided to the delegate without any identification of the claim to which it is now alleged to give rise[23]. In those circumstances, I accept that the words of Gleeson CJ in Appellant S395/2002 v Minister for Immigration[24] at [1] are apposite:
[O]n judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process.
[22] CB 45
[23] CB 41
[24] (2003) 216 CLR 473
The claim is said to arise from the text of a translation of a letter of demand allegedly sent by the YCL to the applicant’s mother. That letter relevantly states[25]:
[25] CB 45
Dear Madam,
We request you to provide us a donation of Rs 500,000.00 in order to succeed our different activities which are being organized by our committee’s pupils.
As your husband and son are in foreign country and they have earned a lot of money so it is reasonable to provide such donation for our party. So we expect that you will not reject our request; otherwise our party will be bound to take severe action against your family.
The letter stands out somewhat from other demands said to have been made by the YCL because it was made in 2009. That was after the date that the Tribunal reasoned the Maoists ceased their violent political activities. The Tribunal reasoned that after the elections in 2008, the applicant’s fear of the Maoists on account of his political allegiance was not well-founded. It is arguable, therefore, that the Tribunal needed to consider the 2009 extortion demand in the context of some other possible link to the Refugees Convention. The Tribunal dealt with the issue in the following way:[26]
[26] [57]-[64], CB 96-98
The Tribunal accepts the applicant’s claim that the Maoists demanded money from him and his family. The Tribunal noted that the last documented approach of this nature was to his mother in 2009. The applicant indicated at the hearing that he did not know if the demands were continuing. Nevertheless, information from external sources summarised above, and discussed with the applicant at the hearing, indicates that despite the reduction of the YCL’s range of activities, requests for donations remain common. The information indicates that individuals are targeted because they are considered to have money. The Tribunal has considered whether the applicant is at risk of being targeted in this way and, if he is, whether the harm he will suffer will be Convention related persecution.
Information from external sources indicates to the Tribunal that, despite the political rhetoric of the YCL, their involvement in extortion is motivated by monetary gain rather than political opinion or any other Convention reason. The Tribunal has formed the view that their activities in this regard are criminal in nature rather than Convention related. In Ram v MIEA[27] the applicant claimed that he was being extorted on the basis that he was a member of a particular social group; namely, villagers who had gone abroad and returned with money, or other wealthy Sikhs. The Court rejected this contention. Justice Burchett stated:
[27] (1995) 57 FCR 565
In the present case, quite apart from the difficulty of seeing wealthy Punjabis living in circumstances which make them vulnerable to extortion as sufficient group, it is the greater difficulty of saying that the attack feared by the appellant would be for reasons of his membership of that group which, it seems to me, he cannot overcome. Plainly, extortionists are not implementing a policy, they are simply extracting money from a suitable victim. Their forays are disinterestedly individual. … [The appellant] does not fear persecution for reasons of membership of a particular social group, but extortion based on a perception of his personal wealth and aimed at him individually.[28]
[28] Ram v MIEA (1995) 57 FCR 565 at 569
In Chenafa v MIMA the Court observed that:
There are a considerable number of authorities in this court to the effect that extortion of funds from victims is not necessarily evidence of persecution for a Convention reason, in view of the consideration that there may be many other grounds on which money is sought to be extracted in a criminal way from citizens of a country.[29]
The majority in the above judgment found there may be a purposive approach in the LTTE’s criminal conduct arising out of the belief that Tamils should support the LTTE. In Jayawardene v MIMA, on the other hand, the Court found that it was open to the Tribunal to find on the facts of that case that the applicant were being extorted, not for any Convention reason, but because they were comparatively wealthy.[30]
These cases, as well as the Full Federal Court decision of Rajaratnam v MIMA,[31] highlight the potentially multi-faceted nature of extortion. The majority in Rajaratnam found that in particular settings:
…extortion can be a multi-faceted phenomenon exhibiting elements both of personal interest and of Convention-related persecutory conduct. For this reason the correct character to be attributed to extorsive conduct practised upon an applicant for refugee status is not to be determined as of course by the application of the simple dichotomy:
“Was the perpetrator’s interest in the extorted personal or was it Convention related?” 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 extorisve activity has this dual character.[32]
Section 91R(1)(a) of the Act requires that a Convention reason is the “essential and significant reason” for the persecution.
The Tribunal has formed the view that extortion by the YCL in Nepal is essentially a criminal activity which is undertaken for monetary gain. It is satisfied by the above information that the perpetrators’ or the victims’ political opinion, or any other Convention reason, is not an essential or significant reason for the extortion. The Tribunal has already found, for the reasons provided, the applicant does not have the political profile or background to be a person of particular interest to the Maoists or the YCL in Nepal. At the hearing he indicated that he had limited financial resources. The Tribunal has formed the view that the applicant does not have the profile or financial resources to attract the adverse interest of extortionists in Nepal. Nevertheless, it finds that if he is targeted for extortion, it will not be for a Convention related reason. The Tribunal has formed the view that the applicant’s political views, or the political views attributed to him, or his background, or any other Convention reason, will not attract the adverse interest of the Maoists/YCL or extortionists in Nepal.
[29] [1999] FCA 1432 (Tamberlin J, 13 October 1999) at [12]
[30] (1999) 60 ALD 425 at [36]-[37]. See also Santhikumar v MIMA [1999] FCA 1777 (Einfeld, Lindgren & Tamberlin JJ, 23 December 1999)
[31] (2000) 62 ALD 73
[32] Rajaratnam v MIMA (2000) 62 ALD 73, at [48]; see also SZALN v MIAC [2008] FCA 904 (Graham J, 13 June 2008) at [79]-[80]; SZMVK v MIAC [2009] FMCA 304 (Raphael FM, 14 April 2009) at [12]-[13].
I accept the Minister’s contention that, even though the applicant’s now asserted claim was not clearly articulated, the sharp eyed presiding member of the Tribunal saw it and dealt with it. Regardless of how the particular social group of which the applicant now claims to be a member is constructed, it is clear that the Tribunal understood, considered and rejected the claim the applicant says was overlooked.
Secondly, the alleged particular social group now presented is materially the same as the one which the Tribunal did in fact consider. The applicant cannot overcome the difficulty that the essential and significant reason why a family with members who had departed Nepal would be targeted would be because of the extortionists' desire to appropriate for themselves the family's financial resources. In addition to referring expressly to the evidence from which the applicant alleges the claim arose[33], the Tribunal found[34] that “[t]he information indicates that individuals are targeted because they are considered to have money. The Tribunal has considered whether the applicant is at risk of being targeted in this way ..” (emphasis added). Further, in finding that the extortionists were “motivated by monetary gain”[35], the Tribunal must be taken to have addressed any claim that it was the extortionists' views as to where that monetary gain could be obtained that determined the selection of their victims.
[33] [27], CB 91
[34] [57], CB 96
[35] [58], CB 96; see also [64], CB 98
In my view, the Tribunal understood and addressed any claim that it was the perception of wealth that motivated the extortionists. It is in this context that the Tribunal addressed the applicant's actual wealth[36]. The Tribunal was entitled to take into account the reality of the applicant's financial circumstances in addition to, or as part of, its consideration of whether the extortionists would hold the perception alleged.
[36] [64], CB 98
Thirdly, I accept that even if an error of the sort alleged were found, it would not go to jurisdiction because the Tribunal's decision would remain supportable on the separate and independent basis of its finding that any extortion the applicant may experience would have no Convention nexus[37]:
The Tribunal has formed the view that extortion by the YCL in Nepal is essentially a criminal activity which is undertaken for monetary gain. It is satisfied by the above information that the perpetrators' or the victims' political opinion, or any other Convention reason, is not an essential and significant reason for the extortion.
[37] at [64], CB 98
In the paragraphs preceding that finding[38], the Tribunal reviewed the authorities dealing with the manner in which the selection of victims for extortion could be said to involve persecution for reasons of membership of a particular social group. Of particular significance is Ram v Minister for Immigration[39], which the Tribunal cited[40]. As the Tribunal noted, the appellant in that case claimed to fear extortion on return to his home village by reason of his having gone abroad and returned with money. Burchett J found[41]:
In the present case, quite apart from the difficulty of seeing wealthy Punjabis living in circumstances which make them vulnerable to extortion as a sufficient group, it is the greater difficulty of saying that the attacks feared by the appellant would be for reasons of his membership of that group which, it seems to me, he cannot overcome. Plainly, extortionists are not implementing a policy; they are simply extracting money from a suitable victim. (emphasis added)
[38][52]-[63], CB 96-98
[39] (1995) 57 FCR 565
[40] [58], CB 96-97
[41] at 569
Also in that decision, Burchett J said[42], in a passage approved by the High Court in Applicant A v Minister for Immigration[43]:
In my opinion, there is a unity of concept about the whole definition of a refugee contained in the Convention, so far as it relates to membership of a particular social group, which should always be kept firmly in mind. That concept flows through the separate elements of the definition. The well-founded fear of which it speaks is a fear of "being persecuted". Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. Not every isolated act of harm to a person is an act of persecution. Consistently with the use of the word "persecuted", the motivation envisaged by the definition (apart from race, religion, nationality and political opinion) is "membership of a particular social group". If harmful acts are done purely on an individual basis, because of what the individual has done or may do or possesses, the application of the Convention is not attracted, so far as it depends upon "membership of a particular social group". The link between the key word "persecuted" and the phrase descriptive of the position of the refugee, "membership of a particular social group", is provided by the words "for reasons of" — the membership of the social group must provide the reason. There is thus a common thread which links the expressions "persecuted", "for reasons of", and "membership of a particular social group". That common thread is a motivation which is implicit in the very idea of persecution, is expressed in the phrase "for reasons of", and fastens upon the victim's membership of a particular social group. He is persecuted because he belongs to that group." (emphasis added)
[42] at 568
[43] (1997) 190 CLR 225 (per Dawson J at 242, Gummow J at 284)
In the present case, the Tribunal made a finding of fact that the sole reason why the applicant would be targeted for extortion, if such extortion were to occur, would be because of what he possesses, or may be perceived by the extortionists to possess[44]. Implicit in that reasoning is the conclusion that the reasons why the extortionists might hold that perception (eg because the applicant and his father had departed Nepal) could not supply the missing Convention nexus because those reasons would not themselves be the motivating force behind the act of extortion. On the Tribunal's findings, the extortionists' motives were purely criminal and any targeting of the applicant would be purely opportunistic.
[44] [57], CB 96; [64], CB 98
There will sometimes be cases requiring fine judgement by a decision maker as to whether an extortion demand is made on a personal basis or because of some attributes of an asylum seeker as a member of a class. The applicant in this case contends that the Tribunal did not consider, or perhaps did not fully consider, this aspect of his claims arising from the material on the basis of his membership of a particular social group. The applicant did not contend that he would face extortion from the Maoists or the YCL as a member of the particular social group of persons returning to Nepal from overseas who might be perceived as wealthy. Rather, the claim now sought to be constructed appears to be that the applicant faced a risk as a member of the social group of persons having relatives living abroad, thus creating the perception of wealth. If the applicant returns to Nepal, then obviously, he could not support the construction of such a social group. The social group, if cognisable in Nepal, could only be supported by the presence overseas of the applicant’s father. This is consistent with the applicant’s claims before the Tribunal, that his “family background” (that is, his father’s involvement with the Nepalese military) placed him at risk of harm. Earlier extortion demands from the YCL had drawn that connection. The 2009 extortion demand was different but it was not put forward by or on behalf of the applicant on a different basis to the other extortion demands. Nevertheless, the Tribunal properly considered whether any Convention nexus could be drawn from that extortion threat. The Tribunal reasoned that it could not. Simply put, the Tribunal reasoned that the extortion threat was made in 2009 simply because of the perceived wealth of the applicant’s family and not because of any other attribute. I see no error in the Tribunal’s approach.
Conclusion
The applicant has failed to demonstrate a jurisdictional error by the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 16 November 2012
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