SZUWA v Minister for Immigration
[2015] FCCA 2329
•4 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUWA v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2329 |
| Catchwords: MIGRATION – Protection visa – review of decision of Refugee Review Tribunal – whether Tribunal committed jurisdictional error by relying on information that was fluid and out of date, by failing to give the applicant natural justice and by failing to consider whether the change in country circumstances was durable and substantial – no jurisdictional error – application dismissed. |
| Legislation: Constitution (Cth), s.75(v) Migration Act 1958 (Cth), ss.36(2)(a), 477 |
| Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114 Minister for Immigration & Multicultural & Indigenous Affairs v QAAH (2006) 231 CLR 1 |
| Applicant: | SZUWA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2157 of 2014 |
| Judgment of: | Judge Smith |
| Hearing date: | 4 August 2015 |
| Date of Last Submission: | 4 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 4 August 2015 |
REPRESENTATION
The Applicant appeared in person
| Solicitor for the Respondents: | Mr W. Sharpe, Minter Ellison |
ORDERS
The name of the second respondent be amended to Administrative Appeals Tribunal.
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2157 of 2014
| SZUWA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex Tempore & Revised)
The applicant in this matter seeks protection in Australia from harm in his home country of Nepal from Maoists who he says have targeted him because of his family background and because of his membership of a pro-royalist political party.
The Tribunal rejected those claims and affirmed a decision to refuse to grant the applicant a protection visa. The applicant now seeks review of that decision in this Court. His essential argument is that the Tribunal relied on independent information about Nepal which was fluid and out of date. Examination of that issue and the other issues raised by the applicant require a brief survey of the background facts as well as the Tribunal’s findings.
Before doing so, however, it is important to bear in mind the limited nature of the Court’s power. The Court’s jurisdiction is the same as that of the High Court under s.75(v) of the Constitution. That fact, together with the operation of s.477 of the Migration Act 1958, means that the Court is limited to acting only where there is jurisdictional error.
It is difficult to say exactly what jurisdictional error is. But, roughly speaking, it is an error which means that the Tribunal has not properly completed its task set by the Act. That central task is to review the decision of the delegate. In doing so the Tribunal is often required to make findings of fact including findings about the credibility of the Applicant and the claims made by him.
In that respect, where there is more than one finding open on the material before the Tribunal, it is a matter for the Tribunal to decide which of those findings it makes. Indeed, in making those findings where there is material that might support alternative findings, it is also a matter for the Tribunal to determine which material it relies on. Those stages of the Tribunal’s review are often referred to as the merits of the decision and are things that the Court is not entitled to enter into. Therefore, even if the Court were of the opinion that the Tribunal made a wrong finding of fact, that in and of itself would not justify any interference in the Tribunal’s decision.
Background
Bearing that in mind, I now turn to the applicant’s claims and the Tribunal’s decision. The applicant arrived in Australia in May of 2013 and lodged his protection visa in July of that year. In support of that application he claimed that his father had been a politician who was very loyal to the monarchy and was involved in the Rastriya Prajatantra Party (“RPP”) because of its support for the monarchy. However, because of his father’s active involvement with that party he and his family were surrounded in 1999 by a group of armed Maoists who took his father away. The Maoists then killed his father and his dead body was left near the family’s house. As a mark of respect to his father, the applicant joined the RPP party and he actively voiced his opposition to the Maoists for their terrorism in his village.
As a result of his opposition to that group, a group of thirteen to fifteen Maoists came to his house in his village and asked him and his family to leave. They then forced the applicant and his family to abandon the house and took the house and his land. The applicant moved from his village to Kathmandu where he established a number of successful businesses. However, as a businessman he was forced to pay Maoists many times, a total amount of “Rs 7,50000.00”. As a result of those payments, however, in November of 2005 the police came to the applicant and detained him for two days, accusing him of giving financial support to the Maoists. He was eventually released upon promise of assisting the police against the Maoists. Nevertheless, the demands for money from the Maoists continued and the applicant continued to make payments to the Maoists.
In 2007 the applicant became a member of the Rastriya Prajatantra Party Nepal (“RPPN”) and as a result, became a target of the Maoists in Nepal. In March 2013 a group of Maoist militia entered the applicant’s apartment and abducted him for criticising their activities. He was released upon promise of paying further amounts. Since he was unable to pay the amount demanded, however, he decided to hide. When he could no longer bear the Maoist threat, he decided to leave Nepal for his safety and came to Australia.
The applicant also provided to the Department of Immigration a number of documents in support of his application. They included documents relating to his move to Nepal, the certificate of incorporation of one of his businesses and a membership card of the Rastriya Prajatantra Party Nepal.
On 12 December 2013, a delegate of the Minister made a decision refusing to grant the applicant a protection visa. The delegate did not decide what might occur to the applicant if he were to return to Nepal but made a decision based upon the conclusion that the applicant had the ability to live and reside in India.
The applicant applied to the Tribunal for review of that decision and attended a hearing conducted by the Tribunal on 21 May 2014. At that hearing, the Tribunal asked the applicant a number of questions dealing with the circumstances relating to his claims in Nepal. Amongst the issues raised by the Tribunal was the result of the parliamentary elections in September 2013. The Tribunal suggested to the applicant that, in light of those results, it would be difficult to believe that he would be at risk of harm from the Maoists if he were to return, principally because they were now part of the government. The Tribunal also indicated to the applicant that it was aware of information that terrorist violence had not occurred for the last two years. The applicant replied that the Maoists were responsible for bomb blasts during the election and that there was no constitution or any law in Nepal.
The Tribunal set out in its statement of reasons a number of pieces of country information to which it will be necessary to return in due course. One of the issues dealt with in the country information was the availability of fraudulent documents in Nepal. The Tribunal noted that, but gave the applicant the benefit of the doubt and accepted that documents provided by the applicant were in fact what they purported to be. As a consequence, it accepted that the applicant’s father was a member of the RPP, who was killed by Maoists in 1999, and that the applicant himself was a member of the RPP and, after 2007, the RPPN. However, it was not satisfied about the credibility of his other claims and rejected them.
Its critical findings were set out at [24] and [25] of its reasons:
[24]In the light of all the information before the Tribunal I am not satisfied that the Applicant was ever identified as a political activist in Nepal or that for such a reason he was targeted by losing their home, their land and a family-owned hotel, or that in March 2013 he was abducted and presented with a demand for a large sum of money. Nor am I satisfied that his family in Nepal are receiving threatening telephone calls from Maoists. This being the case, and in the absence of any change in his circumstances, I am not satisfied there is a real chance that he would suffer harm of any kind because of his political opinion, real or imputed, on return to Nepal.
[25]I accept that the particular social group consisting of ‘wealthy businessmen’ can be said to exist in Nepal, in the sense that it is sufficiently identifiable by characteristics or attributes common to all its members, other than a shared fear of persecution, which distinguish it from society at large. I also accept that the Applicant could be said to be a member of this particular social group, given his business ventures in Nepal which I consider he still owns. As noted, however, I am not satisfied that he was targeted by the Maoists with extortion demands while he lived in Nepal, including in the alleged incident in March 2013. Nor am I satisfied that as a result of giving them money, under pressure, he was arrested by police in November 2005 on suspicion of having aided them. As there is nothing in the information before the Tribunal to suggest that the risk of his receiving extortion demands would be higher on his return to Nepal than it was before he left, I do not accept that he would face a real chance of serious harm from Maoists either because he was a wealthy businessman or because he was a member of a particular social group consisting of wealthy businessmen. Nor am I satisfied that in these ways he would come to the adverse attention of the authorities on suspicion of aiding the Maoists.
For those reasons, the Tribunal was not satisfied that the applicant met the criteria for the grant of the protection visa and affirmed the decision under review.
Consideration
Ground 1
The first ground in the application is that the Tribunal heavily relied on information about Nepal which was fluid and out of date. It may be accepted that it is part of the Tribunal’s obligation to review the decision of the delegate that its decision should be based upon the most up to date information available to it: Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114 at 73. In that case, the Full Court of the Federal Court however went on to say that that is not to say that decision makers cannot rely on information which was several years old. They may do so lawfully as part of a weighing process after considering all the information available to them and deciding which information best and most reliably supports the prediction of future risk they are called on to make.
In this case, the information relied upon by the Tribunal related to three matters. The first related to the 2013 elections, which were held on 19 November 2013. The Tribunal’s reasons reveal that the information available to it was fairly contemporaneous with those elections. Namely, they were from 19 November 2013 and following. There is nothing to suggest that there was any later information available to the Tribunal that was inconsistent with that information. In that respect, it may be noted that the Tribunal’s decision was made in June 2014. For those reasons, it cannot be concluded that any of the information relied upon by the Tribunal in respect to the elections was out of date.
The second topic dealt with by the country information was insurgent violence. In that respect, the Tribunal summarised the information as being that there had been a reduction in the level of such violence involving Maoists following the 2006 ceasefire. Further, it noted, from a particular source, that there were no reports of such violence in 2013. That information came from a report entitled Nepal Assessment 2014. Once again, there is no indication of any more recent information available to the Tribunal that might have suggested that the situation had changed for the worst since the end of 2013. For that reason, the information relied upon by the Tribunal was not or cannot be said to be out of date.
The third issue, as I have briefly mentioned before, concerned fraudulent documentation. In this respect, the information relied upon by the Tribunal was from as early as 2007 and as late as 2009. While that information is more than several years old, there is, in my view, nothing wrong with the Tribunal relying upon it. The simple reason for that is that, like the other information relied upon by the Tribunal, there is nothing to suggest that there was something more current to say that the situation had changed and that the Tribunal was aware of that.
In addition to that, as I have noted above, the Tribunal gave the applicant the benefit of the doubt in respect of the documents that he relied upon. Even if the Tribunal had made some error in connection with the use of the information concerning document fraud in Nepal, it did not affect its decision as it assessed the risk of the applicant facing harm on the basis of the truth of the documents that he put forward. For each of those reasons, I consider that the first ground raised does not give rise to any jurisdictional error.
Ground 2
The second ground is that the Tribunal failed to give the applicant natural justice. The application form itself has no particulars of that ground and the applicant filed no written submissions. Given that the applicant appeared unrepresented before me, I asked him what he meant by the ground. He explained that he had not done anything against Australian law, that he had a fear and that he wanted to live in a peaceful way. He said that he satisfied the United Nations requirements and that he wanted to live freely.
The question of whether the applicant satisfied the UN requirements can, broadly speaking, be taken to mean that the applicant says that he is a refugee. Part of the Tribunal’s role was to determine whether it was satisfied that the applicant was a refugee. Insofar as that determination involved findings of fact that were open on the material, and was based upon a proper understanding of the meaning of refugee in the Refugee Convention[1] and in the context of the Act, that was a question for the Tribunal alone. It was something that goes to the merits of the decision. As I have explained, this Court cannot interfere with the merits of the Tribunal’s decision. Thus the second ground is rejected.
[1] The Convention relating to the Status of Refugees done at Geneva on 28 July 1951 together with the Protocol relating to the Status of Refugees done at New York on 31 January 1967
Ground 3
The third ground is that the Tribunal failed to consider whether the change in circumstances in Nepal was durable and substantial. On one view, that ground is no more than another way of repeating the first ground. On that basis, this ground is rejected for the reasons I have given above. Another way of seeing it is that it reflects certain authorities concerning the meaning of Article 1C in the Refugee Convention.
Article 1C(5) provides that the Convention shall cease to apply to any person falling under its terms if he can no longer refuse to avail himself of the protection of the country of nationality because the circumstances have ceased to exist which related to him being recognised as a refugee. The cases concerning the meaning of that Article have taken the requirement to be that the changes referred to be of a substantial, effective and durable kind. Those cases ultimately ended up being decided by the High Court in the Minister for Immigration & Multicultural & Indigenous Affairs v QAAH (2006) 231 CLR 1, particularly at [39]. There, the High Court overruled the earlier decisions of the Full Court of the Federal Court. Clearly enough, as the applicant has not been recognised as a refugee, questions relating to Article 1C of the Refugees Convention are irrelevant.
The Tribunal made findings of fact about the circumstances as they currently pertain in Nepal and what they might reasonably be in the future. In that way, the Tribunal showed that it answered the correct question which was posed of it by sub-s.36(2)(a) of the Act. For those reasons, the third ground is rejected.
Conclusion
For the reasons I have given above, the applicant has not established that there is jurisdictional error in the Tribunal’s decision and the applicant must be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 31 August 2015
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