SZUPK v Minister for Immigration

[2016] FCCA 2095

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUPK v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2095

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for a Protection visa – extension of time to apply to FCCA necessary – extension granted – alleged jurisdictional error by failure of Tribunal to fully consider claims and legal unreasonableness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 417, 477

Migration Regulations 1994 (Cth)

Cases cited:

Applicant WAEE v Minister for Immigration (2003) 236 FCR 593
NABE v Minister for Immigration (No.2) (2004) 144 FCR 1

SZTAP v Minister for Immigration (2015) 238 FCR 404

Applicant: SZUPK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1781 of 2014

Judgment of: Judge Dowdy

Hearing date: 16 February 2016 and 18 April 2016

Date of Last Submission: 18 April 2016

Delivered at: Sydney

Delivered on: 16 November 2016

REPRESENTATION

Counsel for the Applicant: Mr D Petrushnko of Counsel

Solicitors for the Applicant: G & S Law Group

Counsel for the First Respondent: Ms M Stone and Ms C Hillary

Solicitor for the First Respondent: DLA Piper

The Second Respondent: The Second Respondent filed a submitting appearance.

THE COURT ORDERS AS FOLLOWS:

1. Order pursuant to s.477(2) of the Migration Act 1958 (Cth) that the time for the Applicant to file his application in this proceeding be extended up to and including 27 June 2014.

2. The application filed in this Court on 27 June 2014 is dismissed with costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1781 of 2014

SZUPK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant is a male citizen of Nepal aged 30 years, having been born on 27 November 1985.

2. By Application filed in this Court on 27 June 2014 he seeks to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (at the time of the decision the Refugee Review Tribunal) (Tribunal) dated 27 November 2013 affirming a decision of a Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 26 September 2012, refusing to grant the Applicant a Protection (Class XA) visa (Protection visa).

3. The Application to this Court was not filed within the period of thirty-five days required by s.477(1) of the Migration Act (Act) which expired on 1 January 2014 and accordingly the Applicant is approximately six months out of time and needs an extension up to 27 June 2014 pursuant to s477(2) of the Act.

General Background

1. The Applicant entered Australia on 4 July 2008 on a Student (Class TU) (subclass 572) visa which was renewed until 14 November 2011.

2. He then departed Australia on 24 November 2009 to visit his family in Nepal and returned to Australia on 7 January 2010.

3. The Applicant then applied for a Protection (Class XA) visa (Protection visa) on 26 July 2012, which was the day a check showed he did not have permission to work.

4. In his Protection visa application the Applicant claimed that members of the Young Communist League (YCL) had tried to recruit him to their group and had threatened him and his family with harm if he did not do so. He said that Maoists might cause him harm if he did not join them and would also force him “to give them a huge amount in ‘donation’.”

5. In a written statement attached to his Protection visa application he said that he was a Hindu Brahmin by caste and that Nepal was now ruled by Maoists which are “a terrifying political group”.

Decision of Delegate

1. The Delegate in his Decision Record of 26 September 2012 was not satisfied that the Applicant was a person to whom Australia had protection obligations under the Refugee Convention and therefore found that the Applicant did not meet the criteria under s.36(2)(a) of the Act and sub-cl.866.221(2) of sch.2 to the Regulations. The Delegate was not satisfied that there were substantial grounds for believing that there was a real risk of the Applicant suffering significant harm as a consequence of being removed from Australia and therefore found that the Applicant also did not meet the complementary protection criterion under s.36(2)(aa) of the Act and sub-cl.866.221(4) of sch.2 to the Regulations.

2. The Delegate noted that the Applicant claimed that he had been threatened and intimidated by Maoist cadres because of his lack of support for them and that he did not receive State protection.

3. The Applicant attended an interview with the Delegate on 25 September 2012. The Delegate said that country information indicated that the United States of America had delisted the Maoists as a terrorist group and that there had been a marked lessening of violence and political instability in Nepal since the 2006 elections and that whilst Nepal had not achieved full peace it was a place of “great calm” at the present time.

4. The Delegate then noted that the Applicant had not sought a Protection visa when he arrived in Australia but rather over four years later, and only after he had failed to comply with his Student visa conditions and his Student visa had been cancelled and he had failed at the Migration Review Tribunal in his application for review of that cancellation. It appeared to the Delegate that his Protection visa application was a means of further delaying his departure from Australia and that the Applicant had effectively admitted to this.

5. The Delegate then went on to find that rather than fleeing persecution and fearing for his safety if he returned to Nepal, the Applicant had exaggerated those claims in order to remain in Australia to study. The Delegate found that there was no substantial reason for the Applicant to fear for his safety if he returned to Nepal and he refused the grant of a Protection visa.

Application for Review to the Tribunal

1. On 10 October 2012 the Applicant lodged an application for review of the Delegate’s decision with the Tribunal.

2. The Applicant appeared before the Tribunal at a hearing on 22 November 2013 during which he communicated entirely in the English language. The Tribunal stated at paragraph 9 of its Decision Record that at the hearing it had informed itself by a “detailed exploration of the applicant’s claims”. In its Decision Record the Tribunal recited that the Applicant said that he feared harm in Nepal from Maoists, that his family had been adversely targeted by Maoists in the past due to their perceived wealth, and that he feared harm from the Maoists in the reasonably foreseeable future. The Tribunal further recited that the Applicant’s written statement and oral evidence to the Tribunal claimed that when he returned to visit his family in Nepal for a month or so in 2009/2010 he was asked to donate to the Maoists and threatened with harm if he did not do so.

3. The Tribunal then went on at paragraph 11 to note that the Applicant impressed it as consistent and forthcoming in his evidence. However, the Tribunal also noted that the Applicant was “very candid” in telling it that, while the Applicant faced some risk in Nepal, all he wanted was a visa allowing him to study in Australia for one more year so that he could return to Nepal with a qualification and that if he had a visa which allowed him to continue his study, “he would not have thought about seeking protection”.

4. Notwithstanding this evidence from the Applicant, the Tribunal went on to consider his claims in some detail. In the result, the Tribunal was not satisfied that the Applicant faced a real chance of serious harm in Nepal in the reasonably foreseeable future for any of the reasons claimed or arising on the evidence, either singly or cumulatively, and therefore the Tribunal was not satisfied that the Applicant was a refugee under s.36(2)(a) of the Act.

5. The Tribunal then considered the complementary protection criterion and found that it was not satisfied that the Applicant faced a real risk of being subjected to significant harm in the reasonably foreseeable future for the purposes of s.36(2)(aa) of the Act and it affirmed the Delegate’s decision not to grant the Applicant a Protection visa.

Extension of Time

1. As referred to in paragraph 3 above, the Applicant needs to obtain the leave of the Court under s.477(2)(a) of the Act to extend the time for the filing of his Application up to 27 June 2014. He has complied with s.477(2) in that an application for an extension order has been made in writing to this Court which specified why he considered that it was necessary in the interests of the administration of justice to extend time, namely:-

   1.The Applicant sought ministerial intervention under s 417 of the Migration Act 1958. The decision on this application was made on 6 May 2014 and mailed to the Applicant.

   2.The Applicant has been suffering from back problems causing him pains, and reducing his mobility which has delayed this application in time.

2. The Applicant relied on his affidavit sworn on 27 June 2014 and his further affidavit of 5 February 2016. He was also cross-examined by Ms Hillary and re-examined by Mr Petrushnko.

3. In my view, the grounds for extending time are generally weak and in particular the election by the Applicant to pursue the route of applying for ministerial intervention under s.417 of the Act militates, on the authorities, rather against granting an extension.

4. Nevertheless, on balance and in the result, I have come to the view and am satisfied that it is in the interests of the administration of justice to grant an order of extension of the required period and that I should do so.

5. The reasons for my granting the extension are as follows:-

   a)Whilst the delay is lengthy, in the nature of cases of this type it is not for a very long period;

   b)The Minister did not suggest prejudice;

   c)I have come to the view that the Applicant’s arguments in favour of judicial review warranted scrutiny by the Court; and

   d)If leave were not granted, the Applicant would have no right of appeal to the Federal Court.

6. Accordingly, I propose to order that pursuant to s.477(2) of the Act the Court is satisfied that it is necessary in the interests of the administration of justice to extend the time for the filing of the Application made by the Applicant to this Court up to and including 27 June 2014.

Grounds of Attack on Tribunal Decision in this Court

1. At the hearing on 18 April 2016 the Grounds put in support of the application for judicial review of the Tribunal’s decision were refined by reference to the Amended Application filed on 8 February 2016, and now are as follows:

   “1.The Second Respondent made jurisdictional error failing to have proper regard to the Applicant’s claims.

   Particulars

   a.At paragraph 11, the Tribunal misconstrued the Applicants claim. The applicant did not claim that he would ‘not have applied for protection if he had a student visa’ he said that he ‘did not need to apply for protection while he had his student visa’. The obvious reason is that he will not be returned to Nepal while he had a valid visa.

   e.The Second Respondent failed to deal or consider the Applicant’s claim noted by it at [5] CB 95 that the Young Communist League (“YCL”) had tried to recruit and threaten to harm him and his family if he ‘didn’t join them’ (which he did not) and the Applicant feared such harm in the future. He also made this claim in his statement at CB 33. At [24] CB 100 the Second Respondent did not deal with the claim but only considered whether YCL cadres continued to be involved in extortion in 2013. The Applicant had claimed that the Maoists, not the YCL, were involved in extortion demands.

   2.The Second Respondent made jurisdictional error by making a decision that was unreasonable or capricious.

   Particulars

   a.The Second Respondent found that the Applicant sole reason for apply for a protection visa was that he lost his student visa, when in fact he claimed that he did not hold fear of being returned to Nepal until his student visa was cancelled and there was a risk that he would have to return to Nepal.”

   [Counsel for the Applicant said that this Ground was the same as 1(a) above.]

   “b.The Second Respondent made misconstrued or stereotypical assumptions, not based on evidence nor having any regard to the facts of the case in assuming that the Applicant would not have had a fear for a convention reason unless he lost his student visa.”

   [Counsel for the Applicant said that this Ground was the same as 1(a) above.]

   “c.The Second Respondent made a decision which was legal unreasonableness in relation to the issue of extortion, in the context of the decision of the full federal Court in SZTAP v MIPB [2015] [17] and [42 to 64]. At [26] at CB101 the RRT considered the issue of extortion only as to whether person targeted had been harmed in the process of extortion or as a consequence of resisting payment. Given the nature of threat of extortion as described in SZTAP this is irrational or illogical and amounts to legal unreasonableness.

   d.The Second Respondent made findings of fact not open to it on the evidence.”

   [Counsel for the Applicant said that this Ground was the same as Ground 2(c) above.]

   “e.The Second Respondent made findings of fact without considering the multi-faceted effect of extortion per se and extortion claimed by the Applicant.”

   [Counsel for the Applicant said that this ground was the same as Ground 2(c) above.]

   “3.The Second Respondent made jurisdictional error by misconstruing the evidence of the applicant on the subject of his claimed fear from the Maoists and his particular social group.

   a.The Second Respondent made findings of fact not open to it on the evidence.

   b.The Second Respondent made findings of fact without considering the multi-faceted effect of extortion per se and extortion claimed by the Applicant.”

   [Counsel for the Applicant said that these Grounds fall under Grounds 2(c) (d) & (e).]

Consideration of Grounds

Ground 1(a)

1. At paragraph 11 of its Decision Record the Tribunal relevantly stated as follows:

   The Tribunal asked the Applicant whether he would have sought Australia’s protection if it was not for his desire to continue study in Australia. He responded to the effect he feels there are risks for him in Nepal but if he had a visa which allowed him to continue studying he would not have thought about seeking protection.

2. The assertion in Ground 1(a) is that this is a wrong construction of what was said at the Tribunal hearing by the Applicant, and that he really said words to the effect that:

   he did not need to apply for protection while he had his student visa.

3. On 16 October 2014 the following order was made by the Court:

   2.The Applicant must file and serve, by way of affidavit, any additional evidence to be relied upon, including any transcript of a Tribunal hearing, by 13 November 2014.

4. At the hearing in this Court the Applicant did not tender a transcript of the Tribunal hearing. Further, he did not lead any affidavit evidence of what was said in the Tribunal hearing in support of this Ground. In the absence of any evidence of what was actually said at the Tribunal hearing, the Applicant has failed to establish that what the Tribunal recorded in paragraph 11 of the Decision Record was wrong. Accordingly, Ground 1(a) fails.

Ground 1(e)

1. This Ground relies on the submission that there was a clear distinction made by the Applicant between two different groups in Nepal, namely the YCL and the Maoists, and that the Tribunal failed to deal with the Applicant’s claim to fear harm from the YCL in particular, as distinct from the Maoists. This submission is clearly based on the well-established principle that the Tribunal is required to deal with the case raised by the material or evidence before it and where it fails to make a finding on “a substantial, clearly articulated argument relying upon established facts”, that failure can amount to a failure to afford procedural fairness and a constructive failure to exercise jurisdiction: NABE v Minister for Immigration (No. 2) (2004) 144 FCR 1 at 17 ([55]) per Black CJ, French and Selway JJ.

2. Another statement of the principle is that of the Full Court of the Federal Court comprised of French J (as his Honour then was) and Sackville and Hely JJ in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604-605 ([47]):

   [47]The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons.  But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.  It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.  Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

3. However, in my view this Ground fails for two reasons.

4. First, the Applicant at no point made any assertion that there was a substantive distinction and differentiation between Maoists and the YCL.

5. In section 44 of his Protection visa application form he asserted that members of the YCL had tried to recruit him to their group, and threatened that they would cause harm to him and his family if he did not join them. In section 45 he claimed that Maoists would try to force him to join them and might cause him harm if he did not join them and would also force him to give them “a huge amount in ‘donation’”. In section 46 he stated that he thought it would be Maoists who would harm him if he went back to Nepal.

6. Then in his written statement attached to his Protection visa application the Applicant wrote:

   Politically, Nepal is now a country ruled by Maoists which is actually a terrifying political group which has so many other sub divided groups within itself which are causing a real fatal damage in the society and the whole country. Every youth is forced to be a member of the sub group under Maoists called Young Communist League (YCL) who actually cause a terrorizing behaviour within the society with the guns and ammunition on their hands… Then I was asked to be a member of the Maoists or give the donation by the YCL group and in case if I could not give the donation or become a member, they gave me life threatening warnings. [emphasis supplied]

7. Accordingly, in my view the argument that the Applicant claimed that there was some clear dividing line substantially differentiating Maoists from the YCL is misconceived. The Tribunal did not make any error of fact amounting to misconstruction of the Applicant’s claims. Rather, the Applicant did not make a claim of fear of harm from the YCL as distinct from the Maoists and a reference to the Maoists could reasonably have been taken in context by the Tribunal as a reference to the YCL and vice versa.

8. The second reason why this ground fails is that in any event, an examination of the Decision Record shows clearly that the Tribunal did in terms consider the Applicant’s claim that the YCL had tried to recruit him and threatened him and his family if he did not join them. 

9. First, at paragraph 5 of its Decision Record the Tribunal records that very claim. It there states the claims in his protection visa application that:

   …he came to Australia to study and to have a safe life; the Young Communist League (YCL) had tried to recruit him and threatened to harm him and his family if he didn’t join them…

1. Then at paragraph 17 the Tribunal records that at the hearing, after it had asked the Applicant to give any further adverse experiences he or his family members had suffered from Maoists in Nepal, in response:

   …the applicant referred in general terms to members of the YCL asking him to become a member of their league before he first came to Australia. He did not identify any harm flowing from this request, despite him declining to join the Maoists.

2. Paragraph 17 then goes on to further record that the Applicant had claimed that during his visit to Nepal in 2009/2010 boys had approached him asking for money in order for him to join the Maoist party, telling him that he had to pay to become a member, and the Applicant told these boys that he did not want to donate or to be a Maoist.

3. Accordingly, paragraph 17 further evidences that the Applicant made no meaningful distinction before the Tribunal between the YCL and the Maoists.

4. At paragraph 19 of the Decision Record the Tribunal recorded its acceptance of the Applicant’s recital of the experiences he had claimed of approaches by the YCL (ie. in paragraph 17) and Maoists (ie. in paragraphs 15-18) to join them, but noted that it was not satisfied that any of the instances identified either singly or cumulatively amounted to relevant serious harm.

5. Then at paragraph 27 the Tribunal found that it was not satisfied that there was any country information which supported the Applicant’s claims to face a real chance of serious harm from the Maoists for any reason, including for a Convention reason, in the reasonably foreseeable future. At paragraph 29 it found that the Applicant did not face a real chance of serious harm in Nepal in the reasonably foreseeable future for any of the reasons claimed or arising on the evidence, either singly or cumulatively.

6. In my view, the Tribunal properly considered the Applicant’s claim that the YCL was attempting to recruit him and accordingly this Ground fails.

Ground 2(a)

1. This Ground is the same as 1(a) and also fails for the same reasons.

Ground 2(b)

1. This is the same as Ground 1(a) and fails for the same reasons.

Grounds 2(c), (d) and (e)

1. The findings of the Tribunal in this case are quite different from those considered by the Full Court of the Federal Court in SZTAP v Minister for Immigration (2015) 238 FCR 404. In SZTAP (supra) the Applicant had sought refugee status on the basis that he would face persecution if returned to Sri Lanka because of his race and/or imputed political opinion. The Tribunal was satisfied that if the Applicant did return to Sri Lanka corrupt officers from the CID might continue to visit his mother and extort money from her as they had done for the past six years or so but found that the applicant in those circumstances did not face a real chance of abduction on return to Sri Lanka because his mother would continue to make the payments demanded. The Full Court had no hesitation in these circumstances in finding that the Tribunal’s decision was perverse and illogical and amounted to legal unreasonableness, and set the decision of the Tribunal aside.

2. However, that is not the position here. At paragraph 16 of its Decision Record the Tribunal recorded that it asked the Applicant to detail any experiences he or any of his family members had with Maoists in Nepal, and he responded by saying that his father had been approached for forced donations. The Applicant did not know how much money was requested from his father or how many times his father had been approached, or whether his father had given them money each time they asked. He also did not know what consequences flowed from a refusal to pay a donation, or the impact of the donation sum on his family’s capacity to pay its expenses. Although at paragraph 19 the Tribunal accepted that the Applicant’s father’s business had been approached for donations, it recorded in the last sentence of paragraph 16 as follows:

   His evidence in its totality did not reveal his father or any of his father’s employees being harmed or their capacity to subsist being compromised by the forced donations sought by the Maoists.

3. In this case, the Tribunal found that whilst it accepted the Applicant’s claims, such as being approached by boys for money or donations and simply walking away, and being asked by members of the YCL to join and he declining to do so, no identifiable harm resulted to him.

4. Then at paragraph 26 of its Decision Record it found as follows:

   [26]The Tribunal considers the evidence before it, specifically the independent sources referred to above, to reveal that, while extortion and forced donation activities on the part of Maoists continue in Nepal, there is also some level of state protection from such activities. The evidence in its totality, including the independent sources above and the applicant’s own evidence, do not indicate that those from whom the Maoists have sought money have been harmed in any way in the process of extracting the money or as a consequence of resisting payment. Nor does the information before the Tribunal identify any instances of people having their capacity to subsist in Nepal compromised by being forced to make donations to the Maoists. The same is true of the direct experienced the applicant claims he and his family members have had in Nepal.

5. As I have stated at paragraph 43 above, the Tribunal was not satisfied that the Applicant faced a real chance of serious harm in Nepal in the reasonably foreseeable future for any of the reasons claimed or arising on the evidence. In these circumstances the suggestion that SZTAP (supra) has any relevance to this case is in my view misconceived.

6. I cannot discern any illogicality or legal unreasonableness or lack of an intelligible justification for the Tribunal’s reasons in this regard. The findings that the Tribunal made on this issue seem to me to have been reasonably open to it and these Grounds must fail.

Grounds 3(a) and (b)

1. These Grounds were said to fall under Grounds 2(c), (d) and (e), and fail for the same reasons.

Conclusion

1. In my view none of the Grounds relied upon by the Applicant are made good and the Application must be dismissed with costs.

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

Date:     16 November 2016