SZRUT v Minister for Immigration
[2013] FCCA 368
•15 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRUT v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 368 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant, who had lived most of her life outside of Nepal, claimed persecution there on several bases – whether the Tribunal overlooked an integer of the applicant’s claims considered – jurisdictional error established. |
| Legislation: Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.5, 36 |
| Applicant S v Minister for Immigration (2004) 217 CLR 387 STCB v Minister for Immigration (2006) 231 ALR 556 |
| Applicant: | SZRUT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2077 of 2012 |
| Judgment of: | Judge Driver |
| Hearing date: | 27 May 2013 |
| Date of last submission: | 17 June 2013 |
| Delivered at: | Sydney |
| Delivered on: | 15 July 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr J D Smith, pro bono publico |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari shall issue removing the record of the Refugee Review Tribunal decision made on 28 August 2012 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Refugee Review Tribunal to redetermine the review application before it according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2077 of 2012
| SZRUT |
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 (Tribunal). The decision was made on 28 August 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Nepal and had claimed protection on various bases.
In this judgment I have found that the Tribunal fell into jurisdictional error by failing to deal with an integer of the applicant’s claims that she would be targeted for extortion by the Maoists in Nepal because she had lived for many years outside the country and would be perceived as being wealthy.
Background facts in this matter were set out in an earlier interlocutory judgment by me in these proceedings[1]. Briefly, the applicant is a citizen of Nepal who lived most of her life in Singapore. She arrived in Australia on a student visa on 11 February 2006 and applied for a protection visa on 23 August 2011. A delegate of the Minister made a decision to refuse to grant the applicant a visa on 22 March 2012 and the applicant applied to the Tribunal for review of that decision.
[1] SZRUT v Minister for Immigration & Anor [2012] FMCA 1236
The Maoist claim
The applicant’s principal claim was that she feared harm from her family because of her Christianity. In addition to that, she also claimed that she would be harmed by the man who had molested her when she was a student in Singapore, would suffer as a single, unmarried female with a background of having grown up in Singapore, and because she was of the Rai caste. In addition to those claims, the applicant stated the following in a written submission to the Tribunal[2]:
In addition there was an incident happened during my nine months of stay in Nepal, which I did not mention in the interview, a [person who] claimed to be Maoist, out of nowhere came to our place and threaten to take my father away unless he gave him the money he asked for. I was hiding inside the room while, they were talking outside. My friend who shared gospel to me in Singapore, in different occasion, her father was also threatened by the Maoist. He wanted to take my friend away since she was so educated from Singapore if he did not give him the money he asked for. It’s still a mystery how this Maoist knew my father and my friend’s father. If I am to go back this is most likely to occur.
[2] Court Book (CB) 104
The Tribunal accepted that, like her friend, the applicant had lived in Singapore and was well educated. It also accepted that her father had been subjected to an extortion threat because[3]:
Extortion threats by Maoists, especially against people who have lived abroad and are considered to be wealthy, are well documented by organisations such as the US State Department.
[3] CB 153 [77]
The Tribunal purported to deal with this claim under the heading “Imputed political opinion – opposed to Maoists in Nepal”[4]. Its critical finding was:
… there is nothing in the applicant’s account of her experiences to elevate her profile such that she would be targeted for violence for any reason if she returned to Nepal in the foreseeable future.
[4] CB 156
On the basis of this finding, the Tribunal was not satisfied that the applicant “would be seriously harmed for her imputed political opinion if she returns to Nepal in the foreseeable future”[5].
[5] CB 156 [93]
The present application
The present proceedings began with a show cause application filed on 24 September 2012. The applicant filed an amended application on 12 December 2012. I dealt with that application on an interlocutory basis on 20 December 2012[6]. Pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth) (as they then were) I ordered the Minister to show cause why relief should not be granted in relation to the ground in the amended application and, in addition, in relation to the issue of whether the Tribunal gave meaningful consideration to the question of complementary protection, having regard to the applicant’s circumstances.
[6] SZRUT op cit
The amended application contains the following ground:
The Tribunal constructively failed to exercise its jurisdiction by failing to consider whether, on return to Nepal, the applicant might be subject to extortion threats by Maoists not by reason of connection to her family, but because she would belong to a particular social group, namely, people who had lived abroad and are considered to be wealthy.
I have before me as evidence the court book filed on 1 November 2012.
Both parties made written and oral submissions.
Consideration
The first question to resolve is whether the Tribunal overlooked an element or integer of the applicant’s claims. The amended application asserts that the Tribunal failed to consider whether the applicant might be subject to extortion threats by Maoists because of her membership of a particular social group of “people who have lived abroad and who are considered wealthy”. It is common ground that no such ground was expressly raised but the applicant asserts that the claim clearly arose from the incident recited above at [4][7].
[7] CB 104
The Tribunal did not specifically deal with that claim. The Minister contends that there was no error resulting from that failure as the recited facts submitted after the hearing conducted by the Tribunal cannot be said to raise “a substantial, clearly articulated claim relying upon established facts” as articulated in NABE v Minister for Immigration (No 2)[8] at [68]. The Minister also contends that there was no evidence or claim before the Tribunal that a particular social group of people who had lived abroad and are wealthy was cognisable in Nepal and that such a social group would not satisfy the requirements to establish a particular social group[9].
[8] [2004] FCAFC 263; 144 FCR 1
[9] See Applicant S v Minister for Immigration (2004) 217 CLR 387 and STCB v Minister for Immigration (2006) 231 ALR 556 at [39]
The Tribunal refers to the applicant’s claim concerning the Maoists at [54] of its reasons[10]:
The applicant claims that there was an incident which she did not mention in her hearing which happened when she was in Nepal. A man who claimed to be a Maoist came to the family home and threatened to take her father away unless he gave him the money he asked for. Her friend’s father had also been threatened by the Maoists. The Maoist threatened to take her friend away if her friend’s father did not give him money. It is a mystery to the applicant how the Maoist knew her father and her friend’s father. The applicant says that both her parents and her friend’s parents have moved house.
[10] CB 147
The Tribunal accepted that the applicant’s father was subjected to threats by Maoists but there was nothing to indicate that he was subject to further threats after he moved house or that there was any other harm to him or any other family members (including the applicant). At [93][11] the Tribunal rejected the applicant’s claim of political persecution. The Tribunal concluded that the applicant would not face Convention based persecution for any reason if she returned to Nepal in the foreseeable future[12]. However, I do not accept that those general words can be taken to have disposed of a claim of persecution as a member of a particular social group of persons who have lived outside Nepal and are perceived to be wealthy.
[11] CB 156
[12] CB 156 at [94]
The applicant contends that the Tribunal failed to consider the combination of four established facts:
a)the applicant had lived overseas most of her life and was educated in Singapore;
b)her family are clearly relatively affluent;
c)the man who had tried to extort money from the father of the applicant’s friend specifically identified the fact that the friend had been educated in Singapore as a reason for which he would abduct her;
d)the use of extortion by Maoists, especially against people who had lived abroad and are considered to be wealthy was well documented.
The common theme in the first, third and fourth of these facts is the fact of living abroad. In the first and third, being educated abroad is an additional factor. In the fourth, being considered wealthy is an additional factor. The third and fourth facts, together, suggest that there may possibly be a particular social group of people in Nepal who have lived abroad and that the Maoists target members of this group for extortion.
Given those four facts, I accept the applicant’s submission that it was incumbent on the Tribunal to consider whether there was such a particular social group. There is no question that, if there was, the applicant belonged to it. The next question, then, would have been whether there was a real chance that the applicant might be subjected to threats of extortion and abduction for that reason. If, as her family had done, she were to move in order to avoid those threats, would that have been because of those threats? Would living under those threats, even having moved, have constituted serious harm?
The propositions inherent in the applicant’s submission are well-rehearsed[13]. Here, the claim that the applicant feared harm from the Maoists was expressly raised by her[14]. The other elements of the claim arose from facts that were accepted by the Tribunal. In light of that, the only question is whether the Tribunal dealt with the claim.
[13] NABE v Minister for Immigration (No 2) op cit
[14] CB 104
As already noted, the Tribunal found that there was nothing to “elevate” the applicant’s profile so that she would be targeted for violence. This could feasibly be a finding that the fact of having lived, studied and worked overseas was insufficient to put the applicant at risk of extortion. However, that does not sit comfortably with its acceptance of what happened to her friend’s father or the general information about Maoists.
It is important, as always, to view the Tribunal’s findings in their context. Here, the immediate context was consideration of imputed political opinion. When seen in that context, the Tribunal’s reference to the applicant’s “profile” becomes more understandable. It is a reference to conduct that might give rise to a view that she had a view opposed to the Maoists. It may be that part of the Maoists’ motivation in extorting money from those who had lived abroad was that they may have views opposed to them. However, there are two difficulties with that proposition: first, it does not deal with the entirety of the Maoists’ motivation: there may still be an essential and significant purpose other than mere politics. Secondly, it does not sit comfortably with the evidence: first, the general information referred to living abroad and being considered wealthy; and secondly, the friend was threatened with abduction because she was educated in Singapore.
In light of these considerations, and in the absence of any proper explanation by the Tribunal as to what it meant, and any express reference to living and having been educated abroad in this context, the proper inference is that the Tribunal did not take into account those two factors in dealing with the threat by the Maoists. In failing to do so, it failed to consider a claim and constructively failed to exercise its jurisdiction.
The postulated particular social group of persons who have lived abroad and are considered to be wealthy was considered by the Tribunal in SZROR v Minister for Immigration & Anor[15]. In that case I was not persuaded that the claim as asserted clearly arose from the material. Further, the Tribunal in that case found that the extortion of people perceived to be wealthy by the YCL (the Maoists’ youth wing) in Nepal is essentially a criminal activity which is undertaken for monetary gain. The Tribunal found no Convention nexus with a hypothetical future targeting of the applicant for extortion in that case.
[15] [2012] FMCA 888
It may well be that it would have been open to the Tribunal to reach the same conclusion in the present case if it had considered this element of the applicant’s claims. The difficulty, however, is that the Tribunal did not give the case that consideration. I could not say with confidence that, if the Tribunal had considered the matter, it would have made a finding of fact that the sole reason why the applicant in this case would be targeted for extortion, if such extortion were to occur, would be because of what she possesses, or may be perceived by the extortionists to possess[16]. I am persuaded that a claim arose from the post hearing submission by the applicant to the Tribunal and that the Tribunal failed to consider it. In the circumstances of this matter, that failure constitutes a jurisdictional error and the applicant should receive the relief she seeks.
[16] see SZROR at [32]
Complementary protection
The Tribunal dealt with the issue of complementary protection simply by finding that the discrimination that the applicant may face on return to Nepal did not amount to significant harm within the meaning of s.36(2A) of the Migration Act 1958 (Cth) (Migration Act)[17]. That finding, however, did not deal conclusively with the claims made by the applicant. In particular, although the Tribunal found[18] that the applicant would not be seriously harmed by society for reason of her religion, it did not make any finding as to whether she would be criticised and whether that, alone or in combination with any other treatment of her as a woman with little local language, unmarried and a victim of sexual molestation, might constitute significant harm. Similarly, there was no consideration whether the violence against women common in Nepal, if inflicted on the applicant, might constitute significant harm.
[17] CB 157 [95]
[18] at [82]
Nevertheless, I accept the Minister’s submission that, on a fair reading of the Tribunal’s findings at [95][19] the Tribunal did not accept that the applicant would be subject to any violence constituting significant harm in Nepal. I accept that “criticism” simpliciter could not amount to “significant harm” given the definition of this term in ss.5 and 36(2A) of the Migration Act. Such criticism is, in any case, comprehended by the Tribunal’s acceptance that the applicant might suffer “discrimination”.
[19] CB 157
In the circumstances, the Tribunal’s consideration of the complementary protection criterion, while brief, was adequate and lawful. Nevertheless, the further consideration that the Tribunal must give to the review application as a result of the orders that I am making would properly extend to further consideration of the complementary protection criterion if the applicant is found not to be a refugee.
I will hear the parties as to costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 15 July 2013
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