SZUPK v Minister for Immigration and Border Protection
[2017] FCA 741
•10 May 2017
FEDERAL COURT OF AUSTRALIA
SZUPK v Minister for Immigration and Border Protection [2017] FCA 741
Appeal from: SZUPK v Minister for Immigration & Anor [2016] FCCA 2095 File number: NSD 2107 of 2016 Judge: LOGAN J Date of judgment: 10 May 2017 Catchwords: MIGRATION – application for protection visa – decision of Refugee Review Tribunal refusing protection visa – decision of primary judge affirming decision of Tribunal – whether failure to consider claim – whether Tribunal erred in failing to consider ground of political opinion – whether extortion can amount to persecution for a Convention reason – whether failure to consider whether extortion amounts to persecution in circumstances – where Tribunal did not accept that the appellant had been targeted or threatened for extortion as claimed – appeal dismissed Legislation: Migration Act 1958 (Cth) Cases cited: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088
Rajaratnam v Minister for Immigration and Multicultural Affairs (2000) 62 ALD 73
SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404
Date of hearing: 10 May 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 17 Counsel for the Appellant: The appellant appeared in person Solicitor for the Respondents: DLA Piper ORDERS
NSD 2107 of 2016 BETWEEN: SZUPK
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
10 MAY 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of and incidental to the appeal to be taxed, if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
The appellant is a citizen of Nepal. He came to Australia on 4 July 2008. That entry was lawful, being made pursuant to a student visa (subclass 572) issued under the Migration Act 1958 (Cth). On 26 July 2012, the appellant applied under the Act for that class of visa known as a protection visa. It is important for the purposes of determining this appeal to set out the basis of the claim for the protection visa as it appears in the appellant’s protection visa application. In response to the question, “Have you experienced harm in that country?” (that country being Nepal), the appellant stated:
The members of Young Communist League (YCL) had tried to recruit me in their group. They had threatened me that they would cause harm to me and my family if I didn’t join them.
In response to question 45, “What do you fear may happen to you if you go back to that country?” the appellant stated:
Maoists will
try toforce me to join them. They might cause me harm if I didn’t join them. As I have lived overseas for more than four years, they will also force me to give them a huge amount in ‘donation’. They will cause me physical harm if I didn’t accept their order.In response to question 46, “Who do you think may harm/mistreat you if you go back?” he answered, “Maoists”. As to question 47, “Why do you think this will happen to you if you go back?” the appellant stated:
This has happened before to many people who have returned from overseas. They have threatened me in the past.
As to question 48, “Do you think the authorities of that country can and will protect you if you go back?” he stated:
Because the Maoists are very powerful. Even the Prime Minister himself is a Maoist leader. Government authorities do not do anything against the Maoist leaders and their supporters.
A delegate of the first respondent, the Minister for Immigration and Border Protection (Minister), refused to grant the appellant a protection visa on 26 September 2012. Thereafter, he applied to the then Refugee Review Tribunal (Tribunal) for the review on the merits of the Minister’s delegate’s decision. On 27 November 2013, for reasons published that day, the Tribunal decided to affirm the Minister’s delegate’s decision. There was some delay in the appellant’s seeking of the judicial review of the Tribunal’s decision. It is not necessary to refer to the reasons for that, only to note that the Federal Circuit Court of Australia (Federal Circuit Court) granted to him the requisite extension of time. That court then embarked upon a consideration on the merits of the appellant’s judicial review application.
On 16 November 2016, the Federal Circuit Court dismissed with costs the appellant’s judicial review application. It is from that order that the appellant now appeals to this Court.
The appellant had the benefit of legal representation before the Federal Circuit Court. He appeared on his own behalf on the hearing of the appeal. I mean him no disrespect in observing that his submissions orally in respect of the merits of the appeal were abbreviated. That is not to say that the grounds of appeal as specified in the notice of appeal are devoid of meaningful content. Those grounds are as follows:
(1)His Honour erred, at paragraphs [30] – [44] inclusive by failing to find that the Second Respondent [the Tribunal] had failed to deal with a clearly articulated argument made by the Appellant.
(2)His Honour erred at paragraph 51 by finding that the principle in SZTAP v Minister for Immigration [2015] 238 FCR 404 did not apply and ought to have found that the Second Respondent failed to consider the legal test in relation to persecution in the form of extortion.
As to ground (1), the point taken before the Federal Circuit Court was that there was a clear distinction made by the appellant between two different groups in Nepal, namely, the YCL and Maoists and that the Tribunal had failed to deal with the appellant’s claim to fear harm from the YCL, as distinct from the Maoists. It may readily be accepted that the Minister and his delegates and, in their place, the Tribunal, will fall into jurisdictional error if they fail to appreciate and then consider on the merits what are termed the integers of a particular claim for a protection visa: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088.
The conclusion reached by the learned primary judge was that there was no merit in respect of this particular alleged jurisdictional error. The primary judge did this by reference to the Tribunal’s reasons, particularly at [17]. His conclusion, (reasons for judgment at [41]), was that:
.. the Applicant made no meaningful distinction before the Tribunal between the YCL and the Maoists.
When one goes back to the claim for the protection visa, the material elements of which I have set out, that same feature emerges. The Tribunal’s reasons were reactive to, and must be read in light of, the claim as originally made and as subsequently developed by the appellant in the evidence which he gave to the Tribunal. The transcript of that evidence was not before the Federal Circuit Court, only a summary of it as offered by the Tribunal in the Tribunal’s reasons. The accuracy of that summary was evidently not gainsaid on the hearing of the judicial review application. Viewed against the background not just of that summary but also the claim as made, the characterisation adopted by the learned primary judge at [41] is correct. The Tribunal dealt with the claim as made. That claim made reference, without any particular distinction, to the activities of the YCL and Maoists in Nepal as if the YCL was a subset group under the wider Maoist umbrella. There is no error demonstrated by ground (1) in the judgment below.
That then leaves for consideration the second ground of appeal. That particular ground also engages a basis upon which jurisdictional error can be found on particular facts. The particular facts arise in circumstances where extortion is present and the absence of harm can be seen to be preferable to compliance with extortion in circumstances where at least one basis for the extortion can, in turn, be seen to be membership of a particular social group and in the further circumstances where the authorities in the country concerned are unable or unwilling, perhaps because some elements thereof are the authors of the extortion, to provide protection to the members of the target social group.
Such claims do require particularly careful analysis, as the Full Court held in SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 (SZTAP) and as also discussed in the earlier case, Rajaratnam v Minister for Immigration and Multicultural Affairs (2000) 62 ALD 73, particularly at [46] and [48] per Finn and Dowsett JJ. The learned primary judge concluded that the findings made by the Tribunal in this case were quite different from those considered in SZTAP. In developing the reasons for that conclusion, the primary judge stated at [48]:
… 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 [19] the Tribunal accepted that the applicant’s father’s business had been approached for donations, it recorded in the last sentence of [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.
The primary judge continued, reasons for judgment at [49]:
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.
The learned primary judge then made further reference to the Tribunal’s reasons, setting out [26] of those reasons. It is not necessary to set out again that paragraph from the Tribunal’s reasons, only to record its conclusion that the evidence in its totality, including independent sources as well as the applicant’s own evidence, did not indicate that those from whom the Maoists had sought money had been harmed in any way in the process of extracting the money or as a consequence of resisting payment.
The Tribunal’s resultant conclusion had been that there was no resultant well-founded fear of persecution and neither was there any real chance of serious harm being suffered by the appellant in Nepal in the reasonably foreseeable future for any of the reasons claimed either in the protection visa application or arising on the evidence. The primary judge concluded that on the facts as found by the Tribunal, the case was one in respect of which no error of the kind found by the Full Court in SZTAP existed.
I respectfully agree, on the facts found, that the case is quite distinguishable from SZTAP. It does not exhibit on the part of the Tribunal the same perversity of reasoning process because the facts found are different. It necessarily follows from the above that neither ground of appeal has merit. The appeal must, accordingly, be dismissed.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 5 July 2017
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