SZTPO v Minister for Immigration

[2016] FCCA 929

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTPO v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 929

Catchwords:
MIGRATION – Application to review decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) – whether the Tribunal failed to take evidence into consideration in a manner demonstrating jurisdictional error – whether alternative basis for the decision.

Legislation:

Migration Act 1958 (Cth), s.36

Cases cited:
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16
Minister for Immigration and Border Protection v SZUSU [2016] FCAFC 50
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35; [2013] FCAFC 91
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
SZOORv Minister for Immigration and Citizenship (2012) 202 FCR 1; [2012] FCAFC 58
SZTOX v Minister for Immigration and Border Protection [2015] FCAFC 77
V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408; [2001] FCA 1018
V872/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1019

Applicant: SZTPO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3010 of 2013

Judgment of: Judge Barnes

Hearing date: 2 April 2015

Date of Last Submission: 3 August 2015

Delivered at: Sydney

Delivered on: 29 April 2016

REPRESENTATION

Counsel for the Applicant: Mr J Young

Solicitors for the Applicant: G&S Law Group Pty Ltd

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.

2. A writ in the nature of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent made on 4 November 2013 in Tribunal case number 1218198.

3. A writ in the nature of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review of the decision of the delegate of the First Respondent made on 26 October 2012.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3010 of 2013

SZTPO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) dated 4 November 2013 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.

2. The Applicant, a citizen of Nepal, arrived in Australia on a student visa in January 2009.  He returned to Nepal in January 2012.  He came back to Australia in February 2012.  On 3 September 2012 he applied for a protection visa.  In his adviser’s submission and a written statement accompanying his protection visa application the Applicant claimed that he had been a member of the Nepal Students’ Union (NSU) (part of the Nepali Congress Party (NCP)) since 1996.  He claimed that he was targeted by Maoists because he was actively involved in the NSU and the NCP’s activities and that he feared for his life.

3. The Applicant claimed that he had started a hotel/restaurant business in the Chitwan District of Nepal in 1999 and that from February 2002 at the request of the Maoists he had provided free food and accommodation to members of the Maoist Party.  He claimed that the Maoists also took his vehicle, asked for financial support and forced his staff member to join their party.  The Applicant claimed they threatened and kidnapped his worker and threatened to kill him if he told anyone about the kidnapping.  

4. The Applicant also claimed that in January 2006 the Maoists asked him for about one million rupees “to support them and forced [him] to join their party as well”.  He claimed they wrote to him and informed him that if he did not do whatever they asked, they would kill him “within a month”.  He claimed that in February 2006 he and his wife moved to a different district to save his life.  After Maoist activities increased in that district he moved again in September 2006.  He claimed that because the Maoists had threatened him and hampered him in his business, he had to close down the business.

5. The Applicant claimed that in 2009 he and his wife came to Sydney to save his life.  They subsequently separated.  He returned to Nepal in 2012 for his grandfather’s funeral.  He claimed that only his family knew of his return and that he stayed at his sister’s house in Nepal.  After he heard that Maoists had killed a police inspector in the Chitwan District (near his home), he realised there was “no hope” to stay in Nepal and returned to Australia.

6. The Applicant claimed that he could not return to Nepal because he could not fulfil Maoist Party demands and he was at risk of being killed.  He claimed that the political and security situation had worsened and that Maoists were everywhere. 

7. The Applicant’s adviser characterised the Applicant’s claimed fear of the Maoists based on his refusal to continue to support them as a claim to fear persecution as a member of an (undefined) particular social group.  It was also claimed that he feared for his life by reason of his political opinion because he was actively involved in NSU and NCP activities and that he had been threatened and targeted “again and again” while in Nepal. 

8. The Applicant provided supporting documentation, including a business registration certificate for a hotel business and what was described as a reference letter from the NCP dated 21 September 2006 (sic) advising that the Applicant had been an active cadre of the Nepali Congress since “2053 BS” (1996), that he used to operate a particular hotel and restaurant, but because Maoist cadres had frequently ordered him to pay a lot of money and to assist them in their other activities and had threatened him with “physical action” if he did not comply, he had had to give up his business and “go abroad”.

9. On 26 October 2012 the delegate refused the application.  The delegate recorded that in the departmental interview the Applicant had explained that he had dealt with the Maoists for four years, but that the relationship was not smooth as he had advised other people against joining them.  He claimed that in 2006 after he gave the Maoists notice that he could no longer afford to provide free food and rooms, they demanded one million rupees.  He said that as he was renting the hotel building he was able to close the business and leave quickly.  He moved to his home town for seven months, then moved around Nepal until he came to Australia in 2009.  The delegate found that the Applicant had exaggerated in order to stay in Australia for non-Convention reasons and that the idea that the Maoists would be waiting for him after a nearly four year absence from Nepal was “fanciful”. 

10. The Applicant sought review by the Tribunal.  He was invited to and attended a Tribunal hearing.  The only evidence before the court of what occurred in the hearing is the Tribunal’s account in its reasons for decision. 

The Tribunal Decision

1. In its reasons for decision the Tribunal summarised the Applicant’s claims made in connection with his protection visa application.  It referred to the documents the Applicant had submitted to the delegate and to the elaboration of his claims in his departmental interview. 

2. The Tribunal also described, in some detail, the Applicant’s evidence at the Tribunal hearing.  Relevantly, the Tribunal recorded that at the hearing the Applicant claimed that he left Nepal because the Maoist party “had threatened to kill him and he was asked for money for extortion for 1 million rupees”.  He claimed that from 2002 on the Maoists had made demands for small amounts of money and food and shelter and that they “forcibly took his employees to join the Maoists”. 

3. He claimed that in February 2006 the Maoists sent him a written ultimatum to pay one million rupees or they would kill him.  He claimed that he could not pay the money so he left his business and moved to another town.  When asked what he feared on return to Nepal, the Applicant claimed he was scared they would kill him because two weeks earlier a Member of Parliament had been killed and that the Maoists sometimes “trouble” people because they are not in the same party and because they do not pay money. 

4. The Tribunal recorded that after a discussion of the Applicant’s political involvement in the NC and NSU, he claimed that even after he left the hotel business, he was the general secretary of the local area hotel business owners committee.

5. The Tribunal continued:

   33. The Tribunal noted that the applicant had stated in his original claims statement that in 2006 the Maoists had asked for about 1 million rupees and tried to force him to join their party.  The applicant said this was right.  The Tribunal queried that the Maoists would want someone with opposing political views – and who was actually a member of an opposing party – to become a member of their party.  The applicant replied that they only did so to give him trouble and a reason to kill him.  The Tribunal observed that it did not appear they had actually tried to kill him.  The applicant replied that after he was given the letter demanding 1 million rupees, there was a fire next to his restaurant the next week.  The Tribunal asked why they would do something after a week if they had given him a month to pay the money.  The applicant said it was not up to him to explain their intentions, they do these incidents to scare the person.  The Tribunal asked if he meant that the fire was just meant to scare him and not to kill him.  The applicant then said it was 100% to kill him and to terrorist him to pay as soon as possible.

   34. The applicant stated that after this, he closed down his business and never returned.  He was no longer running the business.  Asked how he then supported himself over the next three years, the applicant replied that he got support from his wife’s family.  Afterwards in Australia, he had a brother and also worked 20 hours a week and shared with friends to reduce expenses.

   35. The Tribunal suggested to the applicant that, having left his own place and closed his business, there would have been no reason for concern about ongoing demands for donations from the business.  The applicant replied that it does not work that way, because once they issue a letter with an ultimatum, his name is on a list and will not be taken off the list until he has paid.  The Tribunal queries whether a local Maoist group would have an ongoing interest outside that particular area.  The applicant said that it is not only local Maoists, they are all over the country and once they issue an ultimatum he is on the list nationally.

   36. When the Tribunal questioned whether this would be so, the applicant said that it was not only because of the business but also because he is in a different party.  The Tribunal put to the applicant that his party activity did not suggest that he was of national interest or significance.  The applicant then asserted that it was because he held a vital position at the hotel business committee.  All the hotels had been supporting the Maoists with food after hours; as long as the Maoists only asked for small support from each hotel they did not bother, but once the demands started to grow he told them all in 500 hotels in the area not to support the Maoists any more but to go against them, and this started becoming a very big issue because the hotel committee stopped supporting them and he became the main target and this created the situation. 

6. The Tribunal also recorded that it had discussed with the Applicant the lateness of his claim that he had such a “significant profile”.  He claimed that he was at risk because of his role in starting a campaign against the Maoists through the hotel business committee and because he was always advising against the Maoists. 

7. The Tribunal also raised with the Applicant the fact that he had not applied for a protection visa until some 3½ years after he first arrived, his return to Nepal in 2012 and the possibility that he could move to India (as discussed further below). 

8. In its findings and reasons the Tribunal observed generally that it had significant difficulties with the Applicant’s credibility, including the manner in which new claims had emerged at the hearing in response to difficulties raised by the Tribunal (as had been set out in its account of the hearing).  The Tribunal gave as an example the fact that it was satisfied that the Applicant had, in response to information about Maoists in India, fabricated a “last minute claim” that he had recently heard by phone (but had no other confirmation or evidence) that a person in exactly the same situation as himself had been seized in India by Maoists and handed to Nepalese Maoists who had killed him.  The Tribunal found itself unable to accept the Applicant’s claims uncritically at face value. 

9. The Tribunal summarised the Applicant’s claims (which it stated had been set out in full earlier in its reasons) as claims that he was a member of an (unspecified) particular social group; that he was threatened and targeted by the Maoists repeatedly because of his active NSU and NCP activities and feared for his life if he returned; that from 2002 the Maoists had forced business people to support them and had asked him to provide free food and lodging to their members and in January 2006 had asked him for one million rupees “and to join them” and that they had threatened that “if he did not they will kill him within a month”; that he could not return to Nepal because he could not meet the Maoists’ demands and as they had issued an ultimatum he was on a national list nationally that he would not be taken off until he had paid.  He claimed that he was threatened and targeted not only because of his business, but also because he was in a different political party and because he held a vital position in the hotel business owners’ committee which, at his direction, had stopped providing support to the Maoists.  He claimed that because of this he became the main target.  He also claimed that in any country in South Asia affected by the Maoists, including India, he would definitely be killed because he was targeted and the Maoists would find him.

10. The Tribunal found that it had serious concerns about the extent and genuineness of the Applicant’s stated fear.  It had regard to the fact that he had not applied for a protection visa when he first arrived in Australia in 2009, he had returned to Nepal in January 2012 and even after his return to Australia he had not applied for a protection visa for a further six months.  The Tribunal did not accept the Applicant’s explanation that prior to this time he did not know about the protection visa option. 

11. It also had regard to the fact that the Applicant had not travelled to India to avoid the harm he claimed to fear and had not left Nepal at all until three years after the claimed incident of February 2006. 

12. The Tribunal found that these concerns about the genuineness of the Applicant’s stated fear led it to conclude that his concerns “related primarily to the financial impact of past extortion demands on him as a local businessman, rather than a fear that his safety was at ongoing or prospective risk”. 

13. The Tribunal pointed out that the original protection visa application had focused on the Maoists’ demands on businesses and how this affected the Applicant as a local businessman, that he had emphasised that Maoists had forced business people (including himself) to support them with food, lodging and donations, that he had claimed that his business had been deteriorating and that after the demand for one million rupees in January 2006 (which he could not pay) he had closed his business and moved to another town.  However the Tribunal had regard to the fact that the Applicant was not threatened thereafter and that nothing further happened. 

14. The Tribunal acknowledged that in his original protection visa application the Applicant had also claimed that he was a member of an (unspecified) particular social group and that he was targeted by the Maoists because of his “active NSU and NCP activities”.  However it found that these claims had not been elaborated on to any extent, either in the original application or in the subsequent protection interview.

15. The Tribunal also found that, as documented in the delegate’s decision, the incidence of document fraud in Nepal and the reliability of Nepalese documents was such that it was not prepared to put weight on the document purportedly provided by the Nepali National Congress “where it appears inconsistent with the conclusions drawn from the Applicant’s own evidence”. 

16. It found, based on the Applicant’s own evidence, that it appeared that his political activity (save in relation to the local hotel owners’ committee, discussed elsewhere in the reasons for decision) was “quite limited”.  The Tribunal noted that the Applicant’s broad assertion (in response to a question at the hearing about his party political involvement) that he worked to bring about changes in society and build infrastructure, had not been elaborated on other than by the statement that he had handed out leaflets at national elections as a student in 1996 and thereafter at local elections in 1999 or 2001.  The Tribunal observed that this was well before the Applicant claimed to have received any demands or threats.  It acknowledged that, “when pressed”, the Applicant had said that after he moved to another town in 2006 he would still voice his opinions when talking to people.

17. The Tribunal continued: 

    59. The Tribunal had great difficulty with the applicant’s belated claim in relation to the district hotel business owner’s committee.  If this was of any significance, it is hard to understand why it was not mentioned at all in the applicant’s earlier claims.  Instead, it was raised for the first time at the review hearing when the Tribunal put to the applicant that after he moved in 2006 he appeared to have had a low profile and had not been politically involved.  He then said that he had retained in absentia the position of secretary of the local hotel business owners committee in the area where he had had his own business (by now closed), continuing to carry out this responsibility by telephone.  He made no further claim about the significance of this profile or his role until later in the hearing after the Tribunal put to the applicant that his political activity did not suggest that he was of national interest or significance.  Then, for the first time, the applicant advanced the new claim that he had a high profile and had attracted the particular attention of the Maoists because as secretary of the local hotel business owners committee he had taken the initiative to direct members of the organisation to stop providing any assistance to the Maoists.  This was (he now said) the main reason he had been targeted.  The Tribunal does not accept that if this was the case the applicant would not have made this claim previously, including earlier in the hearing when relevant matters were being discussed. 

    60. The Tribunal does not accept that the applicant had any particular political profile other than low-level involvement in the Nepali Congress Party’s student wing some years earlier.  It does not accept that in 2006 or subsequently he was (or remains) an “active cadre” of the Nepali Congress Party. 

    61. Although the applicant may have been involved as secretary of a local business committee, the Tribunal does not accept that this was a high profile position or that the applicant had any substantive involvement after he left his business in 2006.  In particular, the Tribunal is satisfied that the applicant’s claim to have been threatened and targeted by the Maoists because he led hotel-owners in the area to stop providing assistance to them is a fabrication. 

1. While the Applicant had provided no elaboration of his adviser’s initial claim that he was a member of an (unspecified) particular social group, the Tribunal considered this claim on the basis that it would presumably be suggested that the applicable social group would be businessmen or restaurant/hotel owners.  It acknowledged that, as suggested by the Applicant’s own evidence, there appeared to have been a very consistent pattern of extortion of businessmen in Nepal by, among others, the Maoists who, as the Applicant stated, asked for and forced business people to provide “financial help” to support their campaign.  However the Tribunal was satisfied that people like the Applicant who were running businesses “were asked for money opportunistically” as people in a position to provide money, but not in order to persecute them as members of a particular social group (be that businessmen or restaurant/hotel owners or some similar group).  In any event, the Tribunal had regard to the fact that the Applicant had divested himself of his business in 2006 and had stated that he was subsequently dependent on others.  It was satisfied that the Applicant was no longer a Nepalese businessman or restaurant/hotel owner and was not satisfied that he would become one again on return to Nepal.

2. Having regard to what it described as “the foregoing discussion” the Tribunal did not accept that the Applicant was (or remained after almost eight years), on a national list of some sort “for retribution because he did not accede to Maoist demands in Chitwan in January 2006”. 

3. The Tribunal acknowledged that the political situation in Nepal remained uncertain and that political conflict appeared to include a certain level of violence.  However it was satisfied that on return to Nepal the Applicant would not have the profile or engage in a level of political activity that would give rise to a real chance of serious harm or persecution for that reason.  It was satisfied that on return to Nepal the Applicant would not face a real chance of serious harm or persecution for any Convention reason.

4. The Tribunal considered the complementary protection criterion.  It accepted that in his own town in 2006 the Applicant “was threatened with extortion and that because of his non-payment he faced a real risk of significant harm at that time”.  However it had regard to the fact that the Applicant had remained in Nepal for a further three years without experiencing any further demands or threats or any specific intimation of harm.  It accepted that he had lived in two different places during that time, but did not accept that he was in hiding.  It did not accept there was some national list of persons who in the past had “failed to pay local Maoist extortion demands”.  It was satisfied that the Applicant did not face any real risk of significant harm now or in the reasonably foreseeable future arising out of his non-payment of extortion demands some eight years previously.  It found that there was no claim or evidence that on return to Nepal the Applicant would again establish a business and thereby speculatively be the possible target of future extortion demands. 

5. The Tribunal concluded that having regard to all the relevant circumstances the Applicant did not meet the complementary protection criterion.

6. Given these findings the Tribunal found that the issue of “Article (sic) 36(3)” (which was clearly intended to be a reference to s.36(3) of the Act) and third country protection “does not arise”.  It continued:

   72. Suffice it to note that had the Tribunal found that the applicant did on the face of it warrant protection by Australia, it would have been satisfied that there is nothing in the country information in relation to Nepalese nationals in India (as set out in Appendix B), or in the applicant’s own particular circumstances, which would exclude him from the provisions of subsection 36(3) of the Act (set out in Appendix A).  In particular, the Tribunal does not accept that in India the applicant would be pursued, targeted or harmed by Maoists. 

7. The Tribunal affirmed the decision of the delegate not to grant a protection visa to the Applicant. 

These Proceedings

1. The Applicant sought review by application filed in this court on 4 December 2013.  He now relies on an amended application filed after the hearing.  Only ground 4 (as amended) was pressed.  It is that the Tribunal made a jurisdictional error:

   …by failing to take into consideration evidence which was important to the Applicant’s claims and to the Tribunal’s findings namely that after he had refused the demands of the Maoists there was a fire next door to his restaurant. 

2. In the original application, this ground had been expressed as a claim that the Tribunal erred in failing to take into consideration “an integer of the Applicant’s claim … namely that after he had refused the demands of the Maoists, there was a fire next door to his restaurant”.  Pre-hearing written submissions addressed this ground. 

3. However, the Applicant’s oral submissions focused on the issue of whether the “evidence” about the fire was critical in relation to the Tribunal’s decision.  It was submitted that the Tribunal had failed to deal with this evidence and also with an integer of the Applicant’s claims, being the claim that he faced harm from the Maoists as a result of their February 2006 demand that he change his political party and join the Maoist political party.  This was characterised as a claim that the Maoists had pressured the Applicant to join their political party. 

4. It was submitted that the Tribunal’s findings about extortion of the Applicant as a businessman did not address the aspect of his claims that related to the Maoists pressuring him to join their political party or the evidence relevant to that claim.  Mr Young clarified that the Applicant’s contention was that there had been a failure by the Tribunal to deal with the Applicant’s evidence about the fire and that such evidence was critical to the Applicant’s claim about being pressured to join the Maoists’ political party.  On this basis it was submitted that the Tribunal’s failure to take this evidence into consideration amounted to a jurisdictional error in the sense considered in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 and Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16.

5. In the course of oral submissions Mr Young acknowledged that the ground should more properly be expressed as it now appears in the amended application.  The solicitor for the Minister had no difficulty with an amendment in such terms.  The First Respondent was given leave to file and serve post-hearing submissions to address the ground as redrafted, but did not do so. 

6. In support of this ground the Applicant referred to paragraph 33 of the Tribunal’s reasons for decision in which the Tribunal referred to evidence at the hearing, including his claim that the week after he received a letter demanding one million rupees in 2006 there was a fire next door to his restaurant.  The relevant part of the Tribunal decision is as follows:

   33.  The Tribunal noted that the applicant had stated in his original claims statement that in 2006 the Maoists had asked for about 1 million rupees and tried to force him to join their party.  The applicant said this was right.  The Tribunal queried that the Maoists would want someone with opposing political views – and who was actually a member of an opposing party – to become a member of their party.  The applicant replied that they only did so to give him trouble and a reason to kill him.  The Tribunal observed that it did not appear they had actually tried to kill him.  The applicant replied that after he was given the letter demanding 1 million rupees, there was a fire next to his restaurant they next week.  The Tribunal asked why they would do something after a week if they had given him a month to pay the money.  The applicant said it was not up to him to explain their intentions, they do these incidents to scare the person.  The Tribunal asked if he meant that the fire was just meant to scare him and not to kill him.  The applicant then said it was 100% to kill him and to terrorise him to pay as soon as possible. 

   34.  The applicant stated that after this, he closed down his business and never returned.  He was no longer running the business…  

7. Counsel for the Applicant submitted that the basic thrust of the Applicant’s Refugee Convention claims was a fear of the Maoists, both for reason of his membership of a particular social group and his political opinion.  This was said to be apparent from the fact that on the Tribunal’s account of the hearing it had not only raised with the Applicant his claim that the Maoists had asked him for one million rupees in 2006 but had also raised with him his claim (made in his protection visa application) that the Maoists had tried to force him to join their party (referred to for convenience as the Maoists Party claim).  

8. The Applicant acknowledged that the Tribunal had referred to his evidence about the fire in paragraph 33 of its reasons for decision in reciting what had occurred at the Tribunal hearing.  However, it was submitted that while the Tribunal had identified this evidence, it had not “considered” it (or the underlying claim about the Maoists attempting to force the Applicant to join their party) in its findings and reasons. 

9. The Applicant conceded that in some cases it may be apparent from the Tribunal’s account of a Tribunal hearing that it was rejecting certain evidence.  It was submitted that this was not the case in this instance. 

10. It was also submitted that it was not apparent from the Tribunal’s reasons for decision that the Tribunal had considered the evidence in question in making its findings.  It was pointed out that there was nothing in paragraph 33 of the Tribunal reasons that indicated what the Tribunal thought about this evidence and no discussion of this evidence in the “Findings and Reasons” part of the decision in relation to the Refugees Convention criterion or the complementary protection criterion.  It was submitted that the Tribunal could not be said to have engaged or dealt with this evidence in substance. 

11. The Applicant acknowledged that in the summary of his claims at the start of the Findings and Reasons part of its decision, the Tribunal had recorded his claims that the Maoists had asked him for one million rupees and to join them and had threatened that if he did not do so they would kill him within a month.  However it was submitted that the Tribunal had not considered and determined the Maoists Party claim in its entirety and in light of the evidence about the fire.  Rather, in dealing with the Maoists’ demands on the Applicant, the Tribunal had considered the past political activity, particular social group and extortion claims (and the likelihood of future extortion) but had not addressed the claim that the Maoists also sought to force the Applicant to join their party or the evidence about the fire which was said to be critical to this aspect of the Applicant’s claims. 

12. The Applicant submitted that the circumstances of this case were governed by the principles considered by the Full Court of the Federal Court in SZSRS.  The Tribunal was said to have ignored evidence that was critical to a claim and to the decision in that it was overlooked and not considered in the Tribunal’s determination of the Applicant’s claims.  It was submitted that the evidence of the fire was “critical” in circumstances where, regard to the course of Tribunal’s decision-making, it had acquired importance to the Applicant’s claims and to the exercise of the Tribunal’s jurisdiction (SZSRS at [54]).

13. The evidence about the fire was said to provide support for the Applicant’s claims based on political opinion because he had put those claims not just in terms of his political activity and extortion demands, but also on the basis that he had been told he must change his political party.  The evidence was said to be capable of providing support for the aspect of the Applicant’s political opinion claims that the Maoists perceived him to be a person with a political opinion that they wanted to change.

14. It was also contended that the Applicant’s claim about the events of early 2006 and the risk of future harm could not be dealt with by the Tribunal in the same manner as Maoist extortion of any businessman in Nepal, because he had claimed that a demand was also made to force him to join the Maoists’ political party and had referred, in support of this claim, to the fire which he thought was “100% to kill him”.  This evidence was said to be capable of being regarded by the Tribunal (if accepted) as relevant to the issue of whether the Maoists intended to harm the Applicant as claimed. 

15. The Applicant also submitted that the evidence about the fire also provided context in relation to his expressed fear in relation to his claim that he was being singled out as a businessman.  This was said to be important because the Tribunal had had regard to the fact that the Applicant had ceased to be in the hotel business in a manner which appeared to suggest that his decision was voluntary.  It was submitted that if it was accepted that the fire had occurred, then this would provide a very good reason the Applicant had closed down his business.  Hence the evidence of the fire was said to be capable of providing support for the Applicant’s claim in that respect such that it should have been considered by the Tribunal in the context of addressing this part of his claims. 

16. In addition, the evidence about the fire was said to provide context in relation to the Applicant’s claimed fear based on a combination of his membership of the hotel owners’ committee and his membership of the NCP and also to provide a reason why he might be on a Maoist “hit list”. 

17. It was acknowledged that if the Applicant’s claim had been limited to extortion as a businessman then arguably the evidence as to the fire would not be critical because it could be seen as purely part of the continuation of a criminal enterprise which the Tribunal found was opportunistic and not for reason of the Applicant’s membership of a particular social group.  However it was submitted that having regard to the additional element of the Applicant’ claim (that the Maoists were seeking to force him to change his political party), it was necessary for the Tribunal to address the evidence in relation to the fire in order to consider this issue. 

18. In these circumstances it was suggested that the Tribunal’s failure to consider the evidence about the fire was tantamount to a failure to consider an integer of the Applicant’s claim. 

19. Insofar as the First Respondent suggested that there was an alternative basis for the Tribunal decision (on the basis that the Tribunal was said to have found that the Applicant was excluded from protection by s.36(3) of the Act because he had a right to enter and reside in another country) the Applicant submitted that the Tribunal had not in fact made a finding in relation to s.36(3) of the Act. Rather it had merely noted that had it found that the Applicant on the face of it warranted protection by Australia “it would have been satisfied” that there was nothing in the country information in relation to Nepalese nationals in India (as set out in an Annexure to the decision) or in the Applicant’s own particular circumstances, “which would exclude him” from the operation of s.36(3) of the Act.

20. It was acknowledged that despite the manner in which this part of the decision was expressed, it may be seen as the Tribunal making a finding that it did not accept that the Applicant would be pursued, targeted or harmed by Maoists in India. However it was submitted that had the Tribunal in fact made findings as to whether s.36(3) applied, it would also have had to address whether or not the Applicant had a right of entry to India (see Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35; [2013] FCAFC 91 at [88]) and whether he had taken all steps to avail himself of that right. The Applicant submitted that the Tribunal had not addressed these issues. The fact that there was material in an attachment to the Tribunal decision on which the Tribunal could have based its decision in relation to the right to enter India was said not to be sufficient, as the Tribunal had not made the requisite finding. Hence it was submitted that the Tribunal’s remarks about whether the Applicant would be excluded from the application of s.36(3) did not amount to an alternative basis for the Tribunal’s decision.

21. The First Respondent acknowledged that a failure to refer to a critical piece of evidence may, in certain circumstances, result in jurisdictional error, but contended that this was not such a case. 

22. It was submitted that the Tribunal did consider the Applicant’s claims regarding a fire next door to his restaurant, both explicitly in paragraph 33 of its reasons in describing the evidence given at the Tribunal hearing and also implicitly in its findings and reasons in proceeding on the basis that it was prepared to accept that the Applicant was “threatened” for the purposes of extortion in his former town in 2006 (albeit it did not accept that he had faced a real chance of harm after he sold his hotel and moved to another town).  The First Respondent contended that it could not be said that the claim or evidence regarding the fire was “overlooked” by the Tribunal in the SZSRS sense and that when paragraph 33 of its reasons was read in conjunction with the other parts of the Tribunal decision, including its findings and conclusions, it was clear that the Tribunal had dealt fairly with the claims raised by the Applicant. 

23. The First Respondent also submitted that the Applicant’s reliance on SZSRS (or the earlier decision of Robertson J in SZRKT) was misguided, as the Tribunal not only referred to matters it needed to consider, including the submission relating to the fire, but also discussed those matters with the Applicant and invited further comment.  There was said to be no piece of “evidence” overlooked in this case such as to demonstrate a failure to consider a claim and no error of the nature contended for in the Amended Application. 

24. The First Respondent pointed out that in describing the initial claims made by the Applicant, the Tribunal had recognised that he had claimed in his protection visa application that in a letter of January 2006 the Maoists asked him for one million rupees and also “forced [him] to join their party” and had advised him that if he did not do whatever they asked they would kill him within a month, and that he “therefore” left his business and hid from the Maoists for about three years before he left Nepal.  This recognition was said to indicate that the Tribunal had understood and considered the two aspects of the claim the Applicant contended was associated with the evidence of the fire.

25. In any event, it was said to be clear from the Tribunal’s account (in paragraph 33 of its reasons for decision) of the Applicant’s response to questioning at the hearing, that his claim about being forced to join the Maoists’ party was not for reasons of his political views directly, but rather was in essence a claim that the Maoists “tried to force” him to join their party because they wanted to harass him in order to get him to pay them one million rupees as soon as possible.  This was said to be apparent from the Applicant’s remark that they only tried to force him to join the Maoist party “to give him trouble and a reason to kill him” and what was said to be his suggestion that the fire was to scare him and that it was “100% to kill him and to terrorise him to pay as soon as possible”. 

26. The First Respondent also referred to the fact that in the hearing the Tribunal had given the Applicant the opportunity to address the issue of why he would still be in danger some years after he left the Chitwan area and closed down his business.  It was said to be clear from the Tribunal’s account of what occurred at the hearing that even if the local Maoists had shown interest in the Applicant in 2006 (in the manner he claimed) the Tribunal was not satisfied that they would be interested in him outside that local area. 

1. The First Respondent also submitted that the fact that the Tribunal had set out the Applicant’s claim that in January 2006 the Maoists asked him for one million rupees “and to join them and threatened that if he did not they will kill him within a month” in the summary of his claims under the heading of “Findings and Reasons” revealed a continued consciousness on the part of the Tribunal that the Applicant’s claim was that he was scared of the Maoists because of the extortion attempts and also because of the political dimension of the claim. 

2. It was submitted that the Tribunal had impliedly indicated that it was not satisfied that the Applicant’s “adverse experiences” at the hands of the Maoists were politically, as opposed to economically, motivated in expressing the view that, while there was evidence of extortion of businessmen in Nepal by the Maoists, it was satisfied that people like the Applicant running businesses were asked for money opportunistically as people in a position to provide money, not to persecute them as members of a particular social group.  

3. The First Respondent also submitted that the Tribunal’s conclusion that it was satisfied that on return to Nepal the Applicant would not have the profile or engage in a level of political activity which would give rise to a real chance of serious harm or persecution for that reason indicated that to the extent that there was a political aspect to the Applicant’s claims to fear harm, it was clearly disposed of by the Tribunal in circumstances where it had given the Applicant every opportunity to provide it with some further basis on which it could find that he would be affected by the past events that the Tribunal found credible.  

4. It was submitted that the Tribunal had dealt with the evidence about the fire to the extent that it needed to deal with it in the conclusionary paragraphs of its decision. 

5. In the alternative, the First Respondent contended that even if there was an error of the nature contended for by the Applicant, there was an alternative basis on which the Tribunal had reached its decision that had not been impugned by the Applicant in the amended application. It was suggested that paragraph 72 of the Tribunal decision amounted to a finding that the Applicant was excluded from protection by s.36(3) of the Act, notwithstanding the manner in which it was expressed.

6. The First Respondent accepted that the Tribunal had to consider the issue of whether the Applicant had a right of entry to India in the context of s.36(3) of the Act. However it was submitted that as the Tribunal had referred to Appendix B to its decision which was said to note information from the Department of Foreign Affairs and Trade advising that a citizen of Nepal in possession of a valid Nepalese passport flying direct from Australia could gain entry to India, this amounted to such consideration.

7. It was also submitted that the Tribunal’s account of what occurred in the hearing was supportive of the proposition that it had considered this issue. Reliance was placed on the fact that the Tribunal recorded that at the hearing it had outlined to the Applicant the provisions of s.36(3) of the Act and put to him that it was well-documented that Nepali nationals could readily enter and reside in India under the Treaty of Peace and Friendship between India and Nepal (described as the Treaty of Mutual Friendship in the Tribunal’s account of the hearing) and ongoing administrative arrangements without a visa or further formality so that it appeared that, as a practical matter, he was able to enter and reside in India. It had also asked the Applicant if there was any particular reason why he could not have avoided difficulties or risks in Nepal by moving to India as well as putting to him country information it had consulted in relation to the rights and situation of Nepalese in India.

8. At the conclusion of the hearing the parties foreshadowed that a decision of the Full Court of the Federal Court in relation to the correct approach to be taken to s.36(3) issues was anticipated. I indicated that if either party sought to make further submissions in respect thereof, they should inform the court at the appropriate time.

9. After judgment was delivered in SZTOX v Minister for Immigration and Border Protection [2015] FCAFC 77, the parties filed and served further written submissions.

10. The Applicant reiterated the submission that in its decision the Tribunal had made the point that, given its findings, the issue of s.36(3) of the Act did not arise and that it had addressed only what it would have found in relation to the situation for the Applicant in India, not the issue of a right to enter and reside in India.

11. The Applicant referred to the principles considered by the Full Court of the Federal Court in SZRHU in relation to the proper construction of s.36(3) of the Act, in particular the remarks of Buchanan J (with whom Tracey, Robertson and Griffiths JJ agreed) at [88] to [90]. It was submitted that for there to be an alternative basis for the Tribunal’s decision under s.36(3) the Tribunal would have had to consider and decide whether persons from Nepal had a right to enter and reside in India and that in doing so it would have been bound to have regard to the actual terms of the relevant treaty and the administrative arrangements for entry by Nepalese citizens to India as well as to whether the Applicant had open to him steps to avail himself of any right so found and whether he had taken such possible steps. It was submitted that the statements in paragraph 72 of the Tribunal’s decision were not relevant findings as to these matters.

12. Moreover it was submitted that it was clear from the last sentence in paragraph 72 that what the Tribunal was addressing was directed to the exclusions from s.36(3) (in particular under s.36(4) of the Act) as the language of exclusion used by the Tribunal was appropriate to that subsection and ss.36(5) and (5A) but not to the elements of s.36(3) of the Act, which required clear positive findings.

13. The Applicant submitted that the effect of SZRHU and SZTOX (in particular at [29] to [42]) was that there was an established test to determine whether there was a right (in the sense of liberty, permission or privilege lawfully given) to which s.36(3) of the Act applied. It was submitted that it was apparent that in the case of the Nepalese, the 1950 Treaty of Peace and Friendship between India and Nepal did not appear to give any rights of entry to India and that administrative arrangements for entry facilitating the operation of the treaty had to be considered. It was contended that to simply state that there was nothing in the country information in relation to Nepalese nationals in India (meaning those who had already entered India) to exclude the Applicant from the provisions of s.36(3) did not address the requirements considered in SZRHU and SZTOX, as the Tribunal must first find that there was a right (in the SZRHU sense) to enter and reside in India (also see V856/00A v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408; [2001] FCA 1018 and V872/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1019).

14. To the extent that the Tribunal referred to the possibility of the Applicant entering and residing in India in its description of what occurred in the Tribunal hearing, it was submitted that such reference suggested that the Tribunal had an erroneous understanding of s.36(3), in that the statement that it was well-documented that Nepali nationals could enter and reside under the treaty of mutual friendship and ongoing administrative arrangements without a visa was contrary to what was said by the Full Court of the Federal Court in SZRHU and SZTOX.  It was pointed out that the Tribunal stated that it appeared “as a practical matter” that the Applicant was able to enter and reside in India and that such a formulation had been found to be erroneous (see SZTOX and V856/00A) and submitted that this demonstrated a misunderstanding of s.36(3) of the Act.

15. The Applicant reiterated that to the extent that paragraph 72 of the Tribunal reasons for decision amounted to findings, the Tribunal had not addressed the critical issue of the right of entry because it was considering only Nepalese nationals who had already gained entry to India and whether the Applicant would have been excluded by ss.36(4), (5) or (5A) if the requirements of s.36(3) had been satisfied.

16. The First Respondent submitted that the primary basis for the Tribunal’s decision was that the Applicant did not meet s.36(2) of the Act, so that any error in the Tribunal’s finding as to s.36(3) would only be capable of going to jurisdiction should the requisite level of error also be found in relation to the Tribunal’s findings as to s.36(2) of the Act (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [28] to [29], [55] to [59] and [91]; and SZOORv Minister for Immigration and Citizenship (2012) 202 FCR 1; [2012] FCAFC 58 at [95] to [102]).

17. It was submitted that the Tribunal did not err in the manner considered in SZTOX and that notwithstanding the use of the word “practical” in describing what occurred in the Tribunal hearing, the Tribunal had correctly applied the principles set down in SZRHU in considering whether the Applicant was excluded from protection under s.36(3) of the Act.

18. The First Respondent acknowledged that in SZTOX at [29] to [31] the Full Court of the Federal Court had found that a Tribunal had misapprehended the test to be applied under s.36(3) of the Act as being whether “as a matter of practical reality” a citizen had a right to enter and reside in a particular country and had confirmed that the relevant legal test as to whether an Applicant had a right to enter and reside in such a third country was that set out in SZRHU.  It was submitted however that the Tribunal in this case had not fallen into such an error and that the use of the word “practical” in one part of its decision could be distinguished from what occurred in SZTOX. The reference to a matter of practical reality in the description of the Tribunal hearing in this case was said to be more in the nature of a question rather than a finding and was said to be consistent with the fact that in SZTOX the Full Court had noted (consistent with SZRHU) that a right to enter and reside for the purposes of s.36(3) of the Act did not mean only a legally-enforceable right under domestic law but also included a liberty, permission or privilege lawfully given (SZTOX at [33] to [44]). It was also pointed out in this context that the description of the hearing was not part of the Tribunal’s findings and reasons. It was submitted that to imbue the use of the word “practical” in the description of what occurred at the Tribunal hearing with the meaning contended for by the Applicant would be to construe the Tribunal decision with an antenna too finely attuned for error contrary to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 271.

19. The First Respondent submitted that on a fair reading of the Tribunal’s decision the use of the word “practical” did not distort its demonstrated understanding of the correct test and evaluation of the Applicant’s right to enter and reside in India, having regard to its correct summation of the legal test in Attachment A to the decision and to the fact that the Tribunal referred to Attachment B which included not only country information about Nepalese in India but also about administrative arrangements concerning entry to India by Nepalese nationals and country information and commentary on the ability of Nepalese citizens to enter and reside in India. 

20. The First Respondent submitted that questions and propositions put to the Applicant at the hearing and the terms in which the Tribunal framed its findings supported the proposition that the Tribunal had assessed the country information and personal circumstances of the Applicant and was satisfied on this basis that he fell within the terms of s.36(3) of the Act.

Consideration

1. The ground in the Amended Application is expressed as a contention that the Tribunal failed to take into consideration “evidence” which was important to the Applicant’s claims and to the Tribunal’s findings, namely that after the Applicant refused the demands of the Maoists there was a fire next door to his restaurant.  It was clarified in both written and oral submissions that the assertion was that the Tribunal failed to consider evidence “which was, or was tantamount to, a claim in itself” being the Maoist Party integer of the Applicant’s claims. 

2. The Applicant bears the onus of proving that evidence was ignored, overlooked or not considered and that this demonstrates jurisdictional error (Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 at [53] and see SZSRS at [27]-[43]).

3. It is necessary to consider whether the Tribunal failed to consider this piece of evidence and, if so, whether this is indicative of jurisdictional error on the part of the Tribunal having regard to relevant authority. 

4. In SZRKT, after considering earlier authorities in relation to the Tribunal’s failure to consider evidence and the circumstances in which this would amount to jurisdictional error, Robertson J pointed out (at [98]) that “[a]lthough ultimately it is the claim which the Migration Act requires to be considered, there are many ways, actual or constructive, of failing to consider the claim”.  His Honour stated at [111]-[112]:  

   In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24]... The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.

   As the Full Court said in  VAAD v Minister for Immigration & Multicultural & Indigenous Affairs  [2005] FCAFC 117  at  [77]  whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims. To the extent that the Minister’s submissions involved the contention that it is always the case that these matters may be dealt with without reference to the Tribunal’s reasons I do not agree.

5. Selway J had considered the distinction between claims and evidence in SHKB at [24] as follows:

   A distinction can be drawn between the claim made by the applicant and the applicant’s evidence in support of that claim. However, it is not a ‘bright line’ distinction. The distinction between evidence supporting a claim, and the claim itself is often difficult to draw even in the context of a judicial proceeding. It is likely to be very difficult in the context of a Tribunal proceeding which is necessarily attended by considerable informality and where applicants rarely have the advantage of legal assistance. Significant aspects of the claim are likely only to be revealed in the evidence or information put before the Tribunal by the applicant. In such circumstances the difference between the claim itself and the evidence supporting it will often be blurred at least where the relevant factual issue involves an essential step in the applicant satisfying the Tribunal that he or she is a refugee: see Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196 at [79] per Allsop J (with whom Heerey J agreed) and see discussion of the relevant principles by Weinberg J in Applicant M31 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 533.

6. In MZYTS (at [67]-[70]) Kenny, Griffiths and Mortimer JJ referred with approval to Robertson J’s analysis in SZRKT of the principles in relation to the issue of when a failure to consider relevant material would amount to a jurisdictional error as demonstrating a failure by the Tribunal to perform its statutory task under the Migration Act “because of the nature of the claims and the nature of the material ignored” (at [68] and see MZYTS at [31]-[46]). In MZYTS (as here) an applicant had contended that the Tribunal had failed to take into account evidence (in that case, recent country information) and that in the circumstance of the case ignoring such particular relevant material demonstrated a failure to determine an aspect of the Applicant’s claims to fear harm within the criteria for  a protection visa.

7. Relevantly, the Court pointed out that a “failure to consider” evidence may not be an appropriate description in that “the error itself is a failure to perform the statutory task imposed on the Tribunal by the relevant provisions of the Migration Act” (at [32]). 

8. Their Honours continued (at [32]-[33]):

   32. The Tribunal’s task on review under s 414 of the Migration Act is to form, for itself and on the material before it, the requisite state of satisfaction under s 65 of the Migration Act in respect of the criterion (or criteria) for a visa in issue before it. Relevantly, and almost uniformly for the Tribunal (putting complementary protection to one side), the criterion is the one set out in s 36(2)(a) of the Migration Act, which picks up Art 1 of the Refugees Convention.

   33. The occasion on which the application of this criterion is to be considered is the prospect that a person currently in Australia will be returned to her or his country of nationality, the risks if any she or he might then face, and the reasons she or he may face those risks.  It is, as the authorities have consistently emphasised, a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 391, 432; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 571-573. 

9. In this case both the Refugees Convention criterion and the complementary protection criteria in s.36(2)(aa) are in issue. The latter criterion requires consideration of the harm, if any, a person might face on return to his or her country of nationality. This also involves “a predictive exercise involving speculation as to circumstances in the future” (MZYTS at [33]) having regard to, among other things, what has happened to the person in the past.

10. For the Tribunal to perform its statutory task it must have a correct understanding of the basis (or bases) on which an applicant claims that he or she has a fear or risk of harm in his or her home country, as well as of how “in respect of each of the bases articulated” (MZYTS at [34]) it is to be determined whether that fear is well founded or amounts to a real risk of significant harm within the complementary protection criterion.

11. The general principles considered in SZRKT and MZYTS were addressed by the Full Court of the Federal Court in SZSRS. Katzmann, Griffiths and Wigney JJ made the point (at [29]) that:

    The approach favoured in SZRKT and MZYTS is that the distinction between claims and evidence might be a useful tool of analysis but is not itself the fundamental question.  The fundamental question is the importance of the material to the exercise of the Tribunal’s function and the seriousness of the error.

1. In this case the Minister accepted that a failure to refer to a critical piece of evidence may, in certain circumstances, result in jurisdictional error but submitted that the Tribunal had considered the evidence and did not address in any detail the issue of when a failure to consider evidence will result in a jurisdictional error.  The Full Court in SZSRS referred with approval to the views of Robertson J in SZRKT in observing (at [54]):

   … it is too narrow an approach merely to ask in a case such as this whether the ignored material is a claim or part of a claim on the one hand or evidence on the other.  Such an approach may provide the answer in some cases, but not in all. That is because, as his Honour also pointed out (at [98]), the Tribunal can fail to exercise its jurisdiction or fail to consider a claim in a number of different ways, including by ignoring evidence that is important to a claim, or ignoring evidence that, having regard to the course of its decision-making, acquires importance to the exercise of its jurisdiction. Some cases … may not comfortably fall on either side of the supposed claims/evidence divide, yet the error in ignoring the material may be serious and go to the exercise of the Tribunal’s functions. We respectfully agree with Robertson J’s analysis.

2. Their Honours went on (at [55]) to consider whether the evidence in issue in that case (a potentially corroborative letter) was important to the Applicant’s claims and to the exercise of the Tribunal’s functions and found that it was “centrally important to the Tribunal’s decision making process” so that by failing to consider it the Tribunal committed a jurisdictional error. 

3. However, the Court acknowledged (in SZSRS at [58]) that jurisdictional error would not necessarily be established merely because “relevant” material was ignored (also see Robertson J in SZRKT at [97] and [122]) and that it would not always be a jurisdictional error to ignore relevant material or corroborative evidence (SZSRS at [59]).

4. In determining whether the evidence about the fire was considered by the Tribunal I have borne in mind that the Tribunal did set out the Applicant’s oral evidence about the fire.  It also recorded that the Applicant had claimed, both in his protection visa application and in the hearing, that in January 2006 the Maoists had demanded that he join their political party (as well as demanding money) and that he had claimed at the hearing that the Maoists had threatened that if he did not do so they would kill him. 

5. However while the Tribunal identified the evidence about the fire and the Maoist Party claim it made no findings at all about this evidence or this aspect of the Applicant’s claims.  Had it made a finding about the Maoist Party claim one would have expected express reference to the underlying evidence of the fire as this was the action the Applicant claimed was an attempt to kill him in response to his failure to join the Maoist Party after which he closed down his business and left the area. 

6. Contrary to the First Respondent’s submission, it is not clear from the Tribunal’s account of the Applicant’s oral evidence that the claim about being forced to join the Maoist political party was to harass the Applicant to get him to pay one million rupees (and in this sense was simply a piece of evidence in support of the extortion claim that was addressed in the Tribunal’s findings and reasons).  I am not satisfied that it is implicit in the Applicant’s evidence (in response to Tribunal questioning) that this aspect of his claim was not for reasons of his political views directly but was only to harass him as part of the extortion attempt.  The Applicant made a claim about being forced to join the Maoist Party in his protection visa application.  He also claimed that one of his employees was kidnapped and forced to join the Maoists and that the Maoists had warned people that if they did not support the Maoist party the Maoists would kidnap and kill them.  These earlier claims do not support an inference that the Applicant’s oral claim about the Maoist Party was merely part of the extortion attempt.  Further, the Applicant did not suggest the fire was just to scare him as the First Respondent seemed to suggest. 

7. Nor can it be said to be “clear” from the Tribunal’s account of the hearing that even if the local Maoists had shown interest in the Applicant in 2006 in the manner claimed (including his claims about being told to join the Maoist party and the fire) the Tribunal considered but was not satisfied that the Maoists would be interested in him outside his home area.  The fact that the Tribunal raised issues at a hearing does not mean that it had reached a concluded view on an issue raised. 

8. Moreover this is not a case in which a finding about the fire is necessarily implicit in more generally expressed findings (cf. Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184). While the Tribunal did make findings about the absence of consequences after the Applicant closed his business, it did so in the context of addressing his claims about extortion and the Maoists’ demands on businesses and how this affected him as a local businessman. While these findings may have sufficed as a consideration of the evidence about the fire had its only relevance been in relation to the extortion claim, they did not encompass the fire evidence in relation to the aspect of the Applicant’s claim relating to being told to join the Maoist Party. This part of the Applicant’s claim was not considered by the Tribunal.

9. It is the case that at the start of the findings and reasons part of its decision the Tribunal set out the Maoist Party claim.  However it showed no further consciousness of this aspect of the claim or the evidence about the fire in making findings.  Its consideration of extortion of businessmen did not address this aspect of the claim (or the fire evidence underlying such claim). 

10. Contrary to the First Respondent’s contention, the Tribunal’s reference to the Applicant’s evidence about the fire at the hearing and to its questioning of him did not mean that it had dealt with the evidence about the fire to the extent that it needed to do so in its concluding paragraphs under the heading “Findings and Reasons”.

11. I am not satisfied that the generally worded conclusion that the Tribunal was satisfied that the Applicant on return to Nepal would not have the profile or engage in a level of political activity which would give rise to a real chance of serious harm or persecution for that reason amounted to a sufficient consideration of the Maoist Party claim or the evidence about the fire in support of that claim.As stated MZYTS at [49]:

    The court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present — and what is absent — from the reasons may in a given case enable a court on review to find jurisdictional error: see Yusuf 206 CLR 323 at [10], [44], [69].

12. There is nothing in the Tribunal’s findings and reasons to warrant an inference that the Tribunal considered the evidence in question or that it dealt fully with the issues raised by this evidence in relation to the Maoist Party claim.  Rather, it can be inferred from the Tribunal’s findings that it considered only the extortion aspect of the Applicant’s claim and his claims based on his political activities in the NSU and NCP and his involvement in the district hotel business owners’ committee in relation to the Refugees Convention criterion and that it dealt only with the extortion claim in considering the complementary protection criterion.Contrary to the First Respondent’s suggestion, the Tribunal’s finding that it was prepared to accept that the Applicant (as a restaurant hotel owner or businessman) was subject to extortion consisting of demands for money with threats and its consideration of that claim, did not address the aspect of the claim that related to the Maoists demand that the Applicant join their political party (or the significance of the fire in that context). 

13. The Tribunal’s general conclusion in relation to the Refugee Convention criterion followed on from and clearly related only to the issues the Applicant had raised about his political activity with the NSU and NCP and the hotel owners’ committee and his extortion claim.  I am not persuaded that it is apparent from the Tribunal’s account of the Applicant’s evidence at the hearing that his evidence about the fire related only to his claim about attempted extortion and not to the Maoist Party claim, given the link he drew between this latter claim and the Maoists having a reason to kill him.

14. The Tribunal’s finding about “a hit list” did refer to the Applicant’s failure “to accede to Maoist demands in Chitwan in January 2006” but the Tribunal expressly stated that its conclusion in that respect was made “having regard to the foregoing discussion” which, in context, was clearly limited to the Tribunal’s discussion of the NSU and NCP and hotel owners’ committee claims and the extortion claim.  Similarly, the conclusionary finding that the Applicant would not have the profile or engaged in a level of political activity which would give rise to a “real chance of serious harm or persecution for that reason” cannot be said to encompass the Maoist Party claim or the significance of the evidence about the fire in that respect. 

15. Moreover, given the distinction between the Applicant’s extortion claim and his Maoist Party claim, the Tribunal’s findings in relation to complementary protection (which dealt only with the extortion aspect of the Applicant’s claim) did not sufficiently deal with the evidence about the fire or the underlying Maoist Party claim. 

16. The Tribunal did not refer to the evidence about the fire in the findings and reasons part of its decision.  There was no active intellectual engagement with the Maoist Party claim.  This is indicative of the evidence and the underlying claim having been overlooked by the Tribunal.  I have considered the First Respondent’s submissions, but I am not satisfied that it can be inferred from the Tribunal’s decision that it considered the Maoist Party claim or the evidence about the fire in that context in making its findings.  As the Applicant submitted, the Tribunal failed to consider (in the requisite sense) the evidence about the fire or the underlying Maoist Party claim. 

17. Hence it is necessary to consider the importance of the evidence in issue in the context of the application before the Tribunal. 

18. It is clear that it is not necessary for a Tribunal to refer to every single piece of evidence or material before it in its findings and reasons, or even every relevant piece of evidence (see Applicant WAEE at [46]; SZRKT at [97] and [122]; and SZSRS at [58]-[59]).  However, as the Applicant contended, the evidence about the fire (which was not rejected by the Tribunal) was significant and was important in relation to his claims for a number of reasons.  In particular it provided direct support and context for the Applicant’s claims to fear the Maoists.  He not only claimed to fear extortion in the traditional sense (which was considered by the Tribunal) but also claimed that he had been told that he must change his political party and was threatened that he would be killed if he did not do so.  The evidence about the fire (if believed) was capable of providing support for this aspect of the Applicant’s claims, including the proposition that the Maoists perceived him to be a person with a political opinion that they wished to change (consistent with his earlier claim at the Tribunal hearing that the Maoists sometimes troubled people because they were not in the same party and because they did not pay money) and, importantly, as evidence of a threat or attempt to kill the Applicant in circumstances where he had not joined the Maoist Party.  

19. In addition, the evidence about the fire provided context in circumstances where the Applicant’s fear was said to be based on a combination of matters.  Moreover, insofar as the Tribunal had regard to the fact that the Applicant had ceased to be in the hotel industry, the evidence about the fire was capable of providing support for the Applicant’s claims about the reason and circumstances in which he left the hotel business and why he might be on a Maoist hit list.  I note in that context that in its findings and reasons the Tribunal made a general statement (in addressing what it understood as an extortion demand) that the Applicant had divested himself of his business in 2006 and had stated that he was subsequently dependent on others.  However, contrary to the apparent inference in this part of the Tribunal’s reasons that the Applicant’s decision to divest himself of the business and become dependent on others was entirely voluntary, when asked about this in the Tribunal hearing the Applicant had said (according to the Tribunal) that after the demand and the fire he closed down his business and never returned.  In that sense the Applicant appeared to explain his action as, at least in part, a consequence of the fire. 

20. The evidence about the fire was a critical piece of evidence, being of particular importance to the Maoist Party aspect of the Applicant’s claims and to the exercise of the Tribunal’s jurisdiction such that the absence of any mention of this evidence in the Tribunal’s findings and reasons or any active intellectual engagement with the Maoist Party claim is such as to establish that the evidence and the underlying claim were overlooked by the Tribunal in a manner constituting jurisdictional error (see SZSRS at [54]).

21. I am satisfied that in overlooking a significant piece of evidence which was central to the Applicant’s Maoist Party claims in circumstances where the Tribunal also failed to consider the underlying claim, the Tribunal fell into error in the manner considered in SZSRS.

Section 36(3) issue

1. Hence it is necessary to consider the First Respondent’s contention that there was an alternative basis for the Tribunal’s decision.   

2. Subsections 36(3) to (5A) of the Act are as follows:

   Protection obligations

   (3)  Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

   (4)  However, subsection (3) does not apply in relation to a country in respect of which:

   (a)  the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

   (b)  the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

   (5)  Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:

   (a)  the country will return the non-citizen to another country; and

   (b)  the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

   (5A)  Also, subsection (3) does not apply in relation to a country if:

   (a)  the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

   (b)  the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

3. In my view, contrary to the Minister’s submissions, in paragraph 72 of its reasons for decision (read in the manner contended for in Wu Shan Liang) the Tribunal did not make the findings necessary for this part of the decision to amount to an alternative basis for the Tribunal’s conclusion unaffected by jurisdictional error. 

4. It is important to have regard to the manner in which paragraph 72 was worded and the context in which it appeared.  The Tribunal stated at 71-72:

   Article 36(3)

   71. Given the findings in paragraphs 65 and 70 above, this issue does not arise.

   72. Suffice it to note that had the Tribunal found that the applicant did on the face of it warrant protection by Australia, it would have been satisfied that there is nothing in the country information in relation to Nepalese nationals in India (as set out in Appendix B), or in the applicant’s own particular circumstances, which would exclude him from the provisions of subsection 36(3) of the Act (set out in Appendix A).  In particular, the Tribunal does not accept that in India the applicant would be pursued, targeted or harmed by Maoists. 

5. The most that the Tribunal did in paragraph 72 of its reasons (after having stated that the issue of s.36(3) did not arise) was to make a finding in relation to one of the issues that would have to be decided had it gone on to address in its entirety the requirements of s.36(3) of the Act. It addressed only the issue of whether, on the assumption that s.36(3) did apply, the Applicant would have been excluded by the operation of ss.36(4), 36(5) or 36(5A) of the Act.

6. The Tribunal did not consider issues relevant to whether the “exception” in s.36(3) applied in its terms, but rather whether there was anything in the Applicant’s circumstances or “country information in relation to Nepalese nationals in India” (emphasis added) “which would exclude him from the provisions” of s.36(3), that is, whether any of the exclusions in s.36(4)-(5A) applied.

7. Had the Tribunal in fact been considering the language of s.36(3) of the Act, it would have been necessary for it to consider the issue of whether it was satisfied that the Applicant had a right of entry to India (see SZTOX) and whether he had taken all possible steps to avail himself of any such right.  It did not do so.

8. The fact that material relevant to this issue was contained in an annexure (described as an attachment) to the Tribunal decision is not sufficient to satisfy me that the Tribunal considered (and found) that the Applicant had a right (in the SZRHU sense) to enter and reside in India within s.36(3), particularly as the Tribunal referred only to material in Annexure B (presumably meant to be a reference to Attachment B) in relation to Nepalese nationals “in” India. This aspect of the material in Attachment B related only to the s.36(4)-(5A) exclusions from the operation of s.36(3) of the Act.

9. Moreover the fact that the Tribunal raised issues about whether the Applicant had a right to enter India in the hearing (however worded) did not amount to or indicate a finding in that respect.  Hence it is not necessary to consider whether the Tribunal’s reference to its use of the expression “as a practical matter” at the hearing was demonstrative of jurisdictional error (as to which now see Minister for Immigration and Border Protection v SZUSU [2016] FCAFC 50).

10. Paragraph 72 of the Tribunal decision does not amount to an alternative basis on which the Tribunal reached its decision such as to warrant a refusal of relief. 

11. As jurisdictional error has been established the matter should be remitted for reconsideration according to law.

I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date: 29 April 2016