SZRSO v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRSO v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 112

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – whether issues raised by complementary protection criteria were addressed – no reviewable error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.36, 65, 91X, 474
Migration Amendment (Complementary Protection) Act2011 (Cth)

Cases cited:
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)(2004) 144 FCR 1
Norvill & Anor v Chapman & Ors (1995) 133 ALR 226

Applicant:

SZRSO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1797 of 2012

Judgment of:

Judge Lloyd-Jones

Hearing date:

7 February 2013

Delivered at:

Sydney

Delivered on:

26 April 2013

REPRESENTATION

Counsel for the Applicant:

Mr D. Godwin

Solicitor for the First Respondent:

Ms L. Buchanan of Australian Government Solicitor

The Second Respondent:

The Second Respondent filed a submitting notice of appearance

ORDERS

The application filed on 20 August 2012 and amended on 15 October 2012 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

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 SZRSO.

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT SYDNEY

SYG 1797 of 2012

SZRSO

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 2 October 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”), and marked Exhibit “A”.
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 16 November 2012. The applicant elected to file an Amended Application on 15 October 2012.
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the “Tribunal”) to affirm a decision of a delegate of the first respondent, the Minister, to refuse to grant the applicant a Protection (Class XA) visa under s.65 of the Migration Act. It is the decision of Tribunal Member P. Leehy dated 16 July 2012, RRT Case Number 1203687, that is the decision subject to review in this Court.

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 arrived in Australia on 23 May 2009 (CB 61) on a temporary student visa which was valid until 15 June 2011. In his application for a Protection visa lodged on 21 September 2011 (CB 1-28) the applicant claimed that he left Nepal for a good education and to be safe as his life was in danger in Nepal. He claimed to fear kidnapping and possible death from the Maoists and the youth wing of the Maoists, the Young Communist League (“YCL”). He claimed that in mid 2008 YCL members came to his school principal’s house in his village and demanded money. When the applicant and other village members intervened on the principal’s behalf a fight broke out during which he was slapped by one of the YCL members. They attempted to kidnap the applicant, but he ran away and remained in hiding as they came to his house looking for him, telling his parents that they would torture and kill him if found. The applicant claimed that the Maoists and YCL targeted him because he and his family were members of the Nepalese Congress Party (the “NCP”) and, as such, were perceived to be against the Maoists (CB 43-44).
The applicant was interviewed by a delegate of the Minister on 9 February 2012 and his application for a Protection visa was subsequently refused by that delegate on 17 February 2012 (CB 39-54). The applicant applied to the Tribunal for a review of the delegate’s decision on 21 March 2012 (CB 55-60) and was invited to attend a hearing before the Tribunal by letter dated 7 May 2012 (CB 64-65).

The Delegate’s Decision

The delegate found that the applicant’s claimed interaction with the YCL does not reasonably explain his treatment by the YCL. The delegate was not satisfied that the applicant would be of an ongoing interest to the YCL as a result of an isolated incident (CB 50). The delegate stated that such a finding was supported by the facts that the applicant encountered the claimed agents of persecution at a festival in Kathmandu and was not readily recognised by them. The applicant was also able to reside in Kathmandu for approximately one year prior to his departure for Australia. During this time the applicant was not subjected to serious harm (CB 50).
The delegate also noted that he was not satisfied that the applicant had an active political profile or that he would be engaged in political activities in Nepal, to the extent that he would face a real chance of persecution from the YCL for reasons of his political opinion, in the reasonably foreseeable future (CB 50).
The delegate also found that the applicant’s timing in seeking migration assistance and lodging his Protection visa application roughly coincided with the cessation of the Student visa on which he arrived and his consequent need to find an alternate means of remaining in Australia lawfully (CB 52).
The delegate concluded that the applicant did not have a genuine fear of harm and that there was not a real chance of persecution occurring if he were to return to Nepal. He found the applicant’s fear of persecution, as defined under the Refugees Convention, was not well-founded.

The Tribunal Hearing

The applicant attended a hearing before the Tribunal on 5 July 2012 (CB 82). At the hearing the applicant provided a printed internet page from Google Search showing internet search results for his name, which included three news articles from 2006 (CB 72). One article reported an incident involving the applicant who was beaten by Maoists in Banepa (CB 90-91 at [28]). The applicant also submitted a letter dated 9 November 2011 which he stated was from his father. The letter claimed that the applicant was still a wanted man by the Maoists and YCL (CB 71).
The applicant claimed to have been the person referred to in the report in the 2006 article, but he had forgotten to mention the incident in his Protection visa application and at the interview with the delegate (CB 91 at [30]). He claimed he was hit on the head when a fight broke out after he and another person had refused to hand money over to a YCL member which was being collected for people injured in Maoist related conflicts. The applicant claimed that after this event he was targeted by the YCL, including after the incident involving his principal and that he was also encountered a YCL member at a festival in Kathmandu, however, he was not recognised by this person (CB 91-92 at [33]-[35]).
It was further claimed by the applicant that since he had been in Australia he had received threatening telephone calls from people telling him not to return to Nepal, that his family had also received calls and that someone had recently come to their house asking about his whereabouts (CB 91 at [31], 92 at [38]). Before the delegate and the Tribunal the applicant also claimed that he had converted to Christianity and feared the possible harm from the Maoists arising as a result of his conversion (CB 93 [41], 96 at [57]).

The Tribunal’s Decision

On 17 July 2012, the Tribunal affirmed the decision under review refusing to grant the applicant a Protection (Class XA) visa. A summary of the Tribunal’s findings are:
a)The Tribunal noted it had concerns about the applicant’s credibility (CB 95 at [49]);
b)The Tribunal rejected the applicant’s claim that he was one of the two people referred to in the 2006 incident reported in the internet article. The Tribunal considered the applicant had omitted this incident from his previous evidence and was unable to provide a satisfactory explanation for his failure to mention it earlier. The Tribunal also found that even if it was the applicant who was involved in the events reported, the attack by the YCL was an opportunistic criminal event and it rejected the applicant’s claim that this incident was the start of harassment of him by the YCL (at CB 95 at [49]-[50]);
c)The Tribunal gave the letter purportedly sent from the applicant’s father in November 2011 little weight as the letter was composed in a style that indicated it was “extremely self-serving and implausible” (CB 95 at [49]);
d)The Tribunal took into account the applicant’s delay in lodging his Protection visa application and regarded this as inconsistent with the actions of a person fearing serious harm or death (CB 96 at [53]);
e)While the Tribunal accepted the applicant’s recount of the incident involving his principal and that he subsequently recognised a YCL member at a festival in Kathmandu, it noted (at CB 95 at [51]) that, on the applicant’s evidence, nothing happened to him due to this incident apart from possibly a slap he received at the incident involving the principal and that he had had no further encounters with the YCL or Maoists. It rejected the applicant’s claims that he and his family had continued to receive threatening telephone calls from the YCL and that his family had moved to Kathmandu after he came to Australia as a result of the threats. The Tribunal found no reasonable basis for accepting the YCL continued to have an adverse interest in him, noting his history since 2006 (CB 95-6 at [52]). The Tribunal was therefore not satisfied that there was a real chance that the applicant would be persecuted for his political opinion by the Maoists or YCL if he returned to Nepal (CB 96 at [54]);
f)In light of the lack of evidence before the Tribunal suggesting that the Maoists specifically target Christian converts in Nepal, the Tribunal was not satisfied that there was a real chance that the applicant would be persecuted for his religious beliefs in Nepal (CB 96 at [56]); and
g)The Tribunal then considered the alternative criterion in s.36(2)(aa) of the Migration Act, but it was not satisfied by the evidence before it that the applicant would face harm by anyone if he returned to Nepal. The Tribunal found there was no evidence that there was a real risk that any harm, significant or not, would be done. It was therefore not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Nepal, there was a real risk that the applicant would suffer significant harm as defined in the Migration Act (CB 96 at [59]-[60]).
The Tribunal affirmed the delegate’s decision to refuse to grant the applicant a Protection visa.

Legislative Framework

The decision of the Tribunal is a privative clause decision as defined by s.474(2) of the Migration Act. Section 474 operates to prevent the judicial review of all decisions under the Migration Act except those vitiated by jurisdictional error.

Proceedings before the Federal Magistrates Court

The applicant filed an application seeking review of the Tribunal’s decision on 20 August 2012. An Amended Application, with leave of the Court, was filed on 15 October 2012. The applicant sought the following orders:
1. An order that the decision of the Tribunal be quashed.
2. A writ of mandamus directed to the Tribunal requiring it to determine the applicant’s application according to law.
3. Costs.
The applicant’s Amended Application contained two grounds:
1. The Tribunal failed to complete the exercise of its jurisdiction
Particulars
The Tribunal failed to make findings in respect of the applicant’s claim that the Maoists would impute to him a political opinion adverse to them by reason of his family’s support of the Nepalese Congress Party.
2. The Tribunal did not engage in an active intellectual process to assess whether there were complimentary protection obligations to the applicant.

Applicant’s Submissions

The applicant’s representative, Mr Godwin, sought leave to rely on written submissions which were filed out of time. Leave was granted.
The applicant made claims in his Protection visa application that in mid 2008 a group of Maoists and YCL came to his school seeking out the school principal from whom they demanded money. The applicant claimed that he became involved and was slapped by the Maoists/YCL. They then tried to kidnap the applicant but he escaped. They came looking for him at his house and told his parents they would torture and kill him. He went into hiding. He was found again by the Maoists but escaped to Australia. The applicant claimed that the Maoists “knew that me and my family members are Congress Party family and they targeted me not only because I am talking against them because I was from different party from them” (CB 11).
At the hearing before the Tribunal the applicant made a further claim that he was attacked in 2006 by the Maoists after he had been collecting money for charity in his local area. The applicant also clarified that he personally was not interested in politics – it was his father who voted for the NCP (CB 92 at [39]).
The applicant contends that the Tribunal failed to address an integer of the applicant’s claims. If the Reviewer did fail to address one of the claimed bases for the applicant’s fear of persecution then there would be a basis for relief.
It is submitted that the Tribunal failed to appreciate that the applicant’s claim was of imputed, rather than actual political opinion. The opinion was imputed to him as a result of his family’s support of the NCP. However, the Tribunal used the applicant’s concession that he personally was not politically involved to dismiss his claimed fear of persecution, without addressing the separate issue of his claim of imputed political opinion.
The second ground in the Amended Application related to the way in which the Tribunal addressed the applicant’s claims for complementary protection. Having found that the applicant has been adversely involved with the Maoists and YCL on several occasions in the past it was incumbent on the Tribunal to assess the chance of harm in the future – not simply on the basis that the applicant faces targeted harm, but on the broader basis that he could be the victim of serious harm because of the prevailing condition in Nepal. The brutality of the Maoist insurgency is well documented. The most recent country information cited by the Tribunal indicated that instability was returning to Nepal. In order to complete its statutory task of meaningfully addressing the complementary protection with regard to country information, the Tribunal should have made reference to country information and its likely implications upon the applicant’s future safety.
Mr Godwin referred the Court to the “Findings and Reasons” contained in the Tribunal’s Decision Record at [59]-[60] (CB 96) where the Tribunal made a general finding that it was not satisfied the applicant had complementary protection or that there were any complementary protection obligations to the applicant. That was because, on the evidence, the Tribunal was not satisfied that the applicant would be targeted by anyone for harm if he returned to Nepal. However, it is argued by Mr Godwin there was no consideration in the Tribunal’s reasoning as to what the situation in Nepal currently was. The Tribunal sets out, in its reasons, country information about the current situation in Nepal (CB 93). At [42] the Tribunal refers to a BBC News report of 28 May 2012, which says that the three political parties have resigned from Nepal’s Maoist led government as fears grow about the country descending into constitutional chaos. At [44], there is a report from the New York Times, dated 5 June 2012, headed “Nepal on brink of collapse” which states:
The parties are using criminal groups to recruit stick-wielding youths to protest. Induced by a fistful of rupees, a rare treat of a meat meal and an illusion of empowerment, these youth have roughed up drivers and set fire to vehicles that attempt to pass the barriers. Some groups have attacked journalists. Reinforced by the former fighter, the Maoist party is among the most effective in demonstrating its street might…
(CB 93)
Mr Godwin submits that there is certainly some evidence before the Tribunal of a break down starting to occur in Nepal. The Tribunal had to make some finding about as to what the security situation was likely to be when the applicant went back there, in order to make a finding as to whether or not the applicant potentially suffering significant harm was a necessary and foreseeable consequence of him returning there, having regard to country information before it.

Respondent’s Submissions

Ground 1

Ms Buchanan, appearing for the Minister submits that the Tribunal did not fail to make a finding in relation to a claim made by the applicant that he would suffer harm due to his family’s membership of the NCP rather than his own political activities, nor did such a claim arise on the material before the Tribunal. The claim as stated in his Protection visa application and referred to by the Tribunal in its decision was that the applicant was threatened by the YCL during the incident in 2008. Both he and his family were threatened as a result of his actions and continued to receive such threats after he came to Australia (CB 71, 89-90 at [22]-[23], 91 at [31]). There was no claim made that the applicant might face harm as a result of any political opinion imputed to him due to the actions of any other person.
In its findings the Tribunal clearly considered the claims that arose on the material before it in relation to the applicant and his family. Although the Tribunal does not explicitly record in its findings a reference to the applicant and his family’s claimed NCP membership, it referred to the applicant’s evidence regarding this. It then considered and made findings rejecting the applicant’s claims that he would face persecution from the YCL and Maoists, including rejecting the claim that his family had received threats from the YCL as a result of which they moved to Kathmandu. The Tribunal then rejected the applicant’s claims generally and found there was no reasonable basis for finding that the applicant is of any adverse interest to the YCL or that he will face harm from the YCL or the Maoists (see CB 95-96 at [52]-[53]) and no jurisdictional error is apparent: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)(2004) 144 FCR 1; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630.

Ground 2

Ms Buchanan submits that there is no basis on which it could be inferred that the Tribunal did not bring an active, intellectual process to the task at hand. Ms Buchanan referred the Court to the formulation of that requirement as set out in Norvill & Anor v Chapman & Ors (1995) 133 ALR 226 per Black CJ, Burchett and Kiefel JJ. At [39], his Honour Black CJ stated:
39. The meaning of "consider" used as a transitive verb referring to the consideration of some thing is given in the Oxford English Dictionary, 2nd ed. as "to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of." Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission.
The Court has to infer from the evidence before it that the decision-maker did undertake an active, intellectual process, having regard to the nature of the claims before the decision-maker and the way in which the decision-maker has dealt with that. It is not an inference to be drawn lightly that a decision-maker has not engaged in an active, intellectual process.

Ms Buchanan submits that in the matter before the Court the Tribunal was required to go on to consider whether or not the applicant might face significant harm under the complementary protection provisions of the Migration Act upon his return to Nepal. Ms Buchanan contends that the Tribunal did so in the context of the applicant’s claim to fear harm from the Maoists and the YCL. He made no specific claim as to general violence. The country information does not go so far as to indicate that there is a particular situation of violence that it would need to consider separately from the fears of targeted violence from the Maoists which the applicant has already made.
Ms Buchanan submits that, to the extent that there might be a claim of a general situation in Nepal that the Tribunal had to consider separately from the applicant’s personal claim, it is something that is excluded within the complementary protection provisions. It is submitted that the Tribunal has clearly considered the personal harm the applicant claimed he faced, and that he would face harm from the YCL and the Maoists in the context of the evidence before it, including the country information that the Tribunal had sighted. The Tribunal found that the applicant would not be targeted by anyone and that is even in light of its findings of previous incidences of confrontation. The Tribunal has found the applicant will not be targeted in the future and it has gone on to consider that there is no evidence that there is a real risk of any significant harm. The Tribunal has clearly considered the claims before it, rejected that the applicant will face any significant harm and applied the correct test in light of the complementary protection provisions that are effectively summarised in the earlier section of the decision.

Consideration

In respect of Ground 1 the argument advanced on behalf of the applicant is that he was targeted because his family were supporters of the NCP and that imputed upon him a political opinion which was a cause of his difficulty. However, the applicant claims he personally did not have a political opinion. Mr Godwin directed the Court to a passage appearing in the original Protection visa application, under the sub-heading “45. Why do you think this will happen to you if you go back?”, where it states:
…and they also know that me and my family members are congress party family and they just targated (sic) me not only that they thought that I am being (sic) against them because I was from different party than them…
(CB 11)
The above material, is referred to in the Tribunal’s Decision Record at [23], where the following is recorded:
…He says that the Maoists know that he and his family are supporters of the Congress Party and they targeted him because he is from another party…
(CB 90)
Then at [39] of the Decision Record, it states:
The applicant was asked whether he was interest in politics. He said that he was not, though his father voted for Nepali Congress. He himself had not voted…
(CB 92)
In its “Findings and Reasons” at [54], the Tribunal found:
On the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant will be persecuted in a Convention sense by the Maoists or the YCL for reason of his political opinion if he returns to Nepal in the foreseeable future.
(CB 96)
The argument advanced on behalf of the applicant is that the Tribunal did not go far enough as it also had to make a finding as to whether an opinion imputed to the applicant might cause him to be targeted in the future. There is no finding by the Tribunal as to whether or not the applicant’s family was a NCP supporting family and, at a minimum, some finding on that issue needed to be made by the Tribunal to address the question of imputed political opinion which it is claimed arises clearly from the applicant’s claims.
In its “Findings and Reasons” at [51] the Tribunal stated:
51. The applicant has been consistent in his account of the incident in which YCL members attempted to intimidate his former school principal, and the Tribunal accepts that an incident of the kind recounted by the applicant took place. Nothing appears to have happened to the principal, who apparently negotiated with the YCL’s leaders. On his evidence, nothing happened to the applicant, apart from, possibly, a slap received in a scuffle with the YCL, after which he escaped and returned to study in Kathmandu. The applicant claimed to have recognised one of the YCL from the 2008 incident at a festival in Kathmandu. However, after the incident in his home village, he did not personally encounter any YCL or Maoists.
52. The applicant claims that he continued to receive threatening phone calls from the YCL, both in Nepal and in Australia. He claims that his family also received threats, moving to Kathmandu as a result of them after the applicant left for Australia. The tribunal rejects these claims. The Tribunal finds that there is nothing in the applicant’s evidence to provide a reasonable basis for accepting that the YCL continued to have an adverse interest in the applicant. The applicant studied in Kathmandu from 2006 and succeeded in completing Year 12 without incident. He claims to have no interest in politics, and was not involved in politics either in Nepal or in Australia.
53. In rejecting the applicant’s claim to have been targeted in the past and to fear persecution in the future by YCL or Maoists, the Tribunal has taken into account the fact that the applicant, having arrived in Australia in May 1999 (sic: 2009), did not apply for protection until September 2011. The Tribunal finds that this behaviour is not consistent with that of a person who was afraid that he would be seriously harmed or killed when he left his country and felt in need of protection.
(CB 95-96)
The Tribunal did not explicitly record in its findings a reference to the applicant or his family’s claimed NCP membership. However, it did refer to the applicant’s evidence regarding this. The Tribunal made findings rejecting the applicant’s claim that he would face persecution from the YCL and Maoists, including rejecting the claim that his family had received threats from the YCL, as a result of which they moved to Kathmandu.
In NABE (supra) per Black CJ, French (as his Honour then was) and Selway JJ at [58], their Honours stated:
The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901; (2000) 106 FCR 157 at 180 [114]… a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
The argument being advanced on behalf of the applicant is that a political opinion has been imputed to the applicant because:
a)He was a member of the NCP;
b)His family were members of the NCP; and
c)His father had voted for the NCP.
The specific claims made by the applicant all relate to him being targeted and his family being targeted only as a result of the applicant’s actions.
All the evidence before the Tribunal relates to the applicant’s claim to fear harm arising from an imputed political opinion arising from his own conduct and his father voting for the NCP. The evidence relating to his family is that they will be targeted because of his conduct. He claims that they have received threats, even after he had left for Australia, and continued to have received threats because members of the Maoist and YCL are searching to locate the applicant. The statement that his father voted for the NCP does not raise any claim that the father is carrying out any political activities which would be imputed to the applicant. The father merely voted for the party.
In Applicant WAEE (supra) per French (as his Honour then was), Sackville and Hely JJ at [46] –[47], their Honours stated:
46. It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised `with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
47. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
The Tribunal does not explicitly record in its findings a reference to the applicant and his family’s claimed NCP membership, although it does make specific reference to evidence provided by the applicant in relation to his family’s connection with the NCP particularly his father who had voted for the party in the past. The substantive finding by the Tribunal was that the applicant would not face persecution from the YCL and the Maoists, based on the rejection of the claims that the family had continued to receive threats from the YCL after their move to Kathmandu and the applicant’s move to Australia.
The delegate’s decision notes:
I also note that the applicant indicated at interview that he has not involved in any political activities or expressed his political opinion while in Australia. Accordingly, I am not satisfied that the applicant has a currently active political profile or that he would be engaged in political activities in Nepal to the extent that he would face a real chance of persecution from the YCL for reason of his political opinion in the reasonably foreseeable future in Nepal.
(CB 50)
In the acknowledgment of the application issued to the applicant on 22 March 2012, it states:
If you wish to provide material or written argument for the Tribunal to consider, you should do as soon as possible.
(CB 62)
In the Tribunal’s Decision Record at [26]-[27], it states:
26. The applicant provided no additional information with his application for review to the Tribunal. He attached to his application the Delegate’s decision refusing him a Protection Visa
27. The applicant attended a Tribunal hearing on 5 July 2012. The hearing was conducting in English, in which the applicant is fluent. He brought his Nepalese passport to the hearing.
As indicated in the extracts above, initially the applicant indicated to the delegate that he had no political affiliations and was not interested in the subject. Subsequently, when seeking a review of the delegate’s decision, he made no further attempt to raise the issue of any interest in politics and this was confirmed in the Tribunal’s decision. The only reference to a political NCP Party in the past. On this material, it is not immediately apparent that a claim that the applicant had an imputed political opinion could be sustained before the Tribunal. As indicated above, his father’s voting intention was noted. In the circumstances I am satisfied that this ground of review cannot be sustained.
In respect of Ground 2, there is a claim that the Tribunal failed to address issues raised by the complementary protection criteria of the Migration Act. The complementary protection amendments were proclaimed to commence on 24 March 2012, prior to the Tribunal hearing in this matter which occurred on 16 July 2012. At [16]-[18] of the Decision Record the Tribunal sets out the criterion as the Tribunal had acquired a jurisdictional obligation to address them in all pending matters (see Schedule 1, clause 35 to the Migration Amendment (Complementary Protection) Act 2011 (Cth)). These paragraphs have been adopted and appear under the heading “Relevant Law” which is almost invariably adopted in most Tribunal decisions.
The Tribunal in its “Findings and Reasons” includes statements which report to address the alternative to complementary protection criteria for a Protection visa provided under s.36(2)(aa):
58. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Nepal, within the meaning of the Refugees Convention.
59. The Tribunal has found that it is not satisfied on the evidence that the applicant will be targeted by anyone for harm if he returns to Nepal, even if it accepts that he has been involved in incidents of confrontation with the YCL in the past. There is no evidence before the Tribunal that there is a real risk that any harm, significant or not, will be done to the applicant as a necessary and foreseeable consequence of his being removed from Australia to Nepal.
60. The Tribunal is not satisfied on the evidence before it that there are substantial ground 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, as defined in the Act.
Conclusions
61. 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).
62. 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).
(CB 96-97)
Earlier in the Tribunal’s “Findings and Reasons” at [49] the evidence on which the Tribunal relies is set out as follows:
49. The Tribunal had concerns about the applicant’s credibility. At his Tribunal hearing the applicant submitted a document downloaded from Google, in which the applicant’s name appears as one of two persons attacked by Maoists in Banepa in August 2006. He had not mentioned this incident previously in evidence, and was unable to give a convincing explanation as to why he had failed to mention an incident which had been serious enough to be reported in a major daily newspaper in Nepal. The applicant also submitted at his hearing a letter purporting to have been sent by his father in November 2011 which appears to be extremely self-serving and implausible, in that it refers to events some years in the past to which both the applicant and his father would have been privy without the events having to be recounted by the father to the applicant. Accordingly, the Tribunal has given it little weight.
(CB 95)
The Tribunal then proceeds to examine the evidence that is available regarding the incident with the YCL at [50] as follows:
50. The Tribunal has considered the report of the incident where two people were allegedly beaten up by Maoists in Kavre in August 2006, as reported in the Kathmandu Post, and the applicant’s evidence on this matter. The account in the Kathmandu Post suggests that this was an opportunistic attack by the YCL on two people who had been collecting money for charity. This corresponds to the applicant’s account of events at the Tribunal hearing. There did not appear to be any lasting injury to the applicant, and indeed he did not consider it serious enough to remember it, or to mention it at all in his evidence up to the time of the hearing. The applicant does not claim that anything happened to him in the immediate aftermath of the incident, and indeed in 2006 he went to school in Kathmandu where he remained for most of the time until he came to Australia in May 2009. While the applicant claims that this incident was the start of harassment by the YCL, the Tribunal rejects this claim, and considers that the incident was the start of harassment by the YCL, the Tribunal rejects this claim, and considers that the incident as recounted un the Kathmandu Post, if indeed it was the applicant who was involved, was a random and opportunistic criminal event in which a group of YCL youth intimidated two young men (the applicant was 16 at the time) into handing over money.
(CB 95)
The Tribunal then proceeds to make findings as to the severity, together with the consequences of the alleged attack on him by the YCL at [51]:
51. The applicant has been consistent in his account of the incidence in which YCL members attempted to intimidate his former school principal, and the Tribunal accepts that an incident of that kind recounted by the applicant took place. Nothing appears to have happened to the principal, who apparently negotiated with the YCL’s leaders. On his evidence, nothing happened to the applicant, apart from, possibly, a slap received in a scuffle with the YCL, after which he escaped and returned to study in Kathmandu. The applicant claimed to have recognised one of the YCL from the 2008 incident at a festival in Kathmandu. However, after the incident in his home village, he did not personally encounter any YCL or Maoists.
(CB 95)
The Tribunal then proceeded to dismiss these claims at [52]:
52. The applicant claims that he continued to receive threatening phone calls from the YCL, both in Nepal and in Australia. He claims that his family also received threats, moving to Kathmandu as a result of them after the applicant left for Australia. The tribunal rejects these claims. The Tribunal finds that there is nothing in the applicant’s evidence to provide a reasonable basis for accepting that the YCL continued to have an adverse interest in the applicant. The applicant studied in Kathmandu from 2006 and succeeded in completing Year 12 without incident. He claims to have no interest in politics, and was not involved in politics either in Nepal or in Australia.
The findings of the Tribunal were such that it was relieved of the need to access the applicant’s evidence against the complementary protection criteria. In support of this view, the Full Federal Court in Applicant WAEE (supra) at [47] stated:
47. …It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected…
The Tribunal rejected the whole foundation of the applicant’s claim and in doing so necessarily rejected the only premise upon which a complementary protection claim could have been based. Having made those findings, the Tribunal was relieved of the need to consider any other claim which rested on the same account of the applicant’s circumstances.

A complementary protection claim requires a real risk that the non-citizen will suffer significant harm if removed from Australia to a receiving country, whereas the Protection visa criteria is that the applicant is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugee Protocol defined as:
[O]wing to a well-founded far of being persecuted for reasons of race, religion, rationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of protection of that country, or who, not having a nationality and being outside of the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
There is a real difference between these two criteria, however, on the material before the Court, it is based on an alleged brief confrontation with members of the YCL which can be reasonable characterised as a minor conflict with no resulting injury. The claim of receiving subsequent telephone calls from the YCL making threats against the applicant and his family was rejected by the Tribunal. This is a case in which the applicant’s evidence before the Tribunal presented an exhaustive statement of the circumstances in which caused him to depart Nepal. The Tribunal made findings of fact which, of their nature, excluded any complementary protection claim that might otherwise have been made. The Tribunal has come to the conclusion that the events relied upon by the applicant were minor in nature, did not result in any harm or injury, and the alleged continuance of the harassment was not believed to be credible and did not institute any future harm to the applicant. In these circumstances, this ground cannot be sustained and should be dismissed.

Conclusion

Accordingly, none of the pleaded grounds in the Amended Application can be sustained and the Application should be dismissed with costs awarded to the Minister.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Date: 26 April 2013

[2013] FCCA 112

26 April 2013

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction