SZVDH v Minister for Immigration
[2016] FCCA 1909
•29 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVDH v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1909 |
| Catchwords: MIGRATION – Application for protection visa – review of decision of Refugee Review Tribunal – whether the Tribunal failed to consider the future when determining the applicant’s circumstances upon return to Nepal – whether the Tribunal rejected one of the applicant’s claims as speculation – question of onus of proof – whether the Tribunal failed to deal with all of the applicant’s claims – whether the Tribunal was unreasonable in its finding of the applicant’s credibility – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65 |
| Cases cited: Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14 |
| Applicant: | SZVDH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2636 of 2014 |
| Judgment of: | Judge Smith |
| Hearing date: | 3 June 2016 |
| Date of Last Submission: | 3 June 2016 |
| Delivered at: | Sydney |
| Delivered on: | 29 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Young |
| Solicitors for the Applicant: | Shamser Thapa & Associates |
| Solicitor for the Respondents: | Mr M Glavac, Clayton Utz |
ORDERS
The applicant have leave to file an amended application.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2636 of 2014
| SZVDH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal[1] to affirm a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
Background
The applicant is a citizen of Nepal who arrived in Australia on 10 November 2008 on a student visa. On 17 July 2013, almost 5 years later, he applied for a protection visa.
The applicant claimed that when he was at high school, the Nepalese Maoist Communist Party started to pressure him into joining its team, to go to their meetings and campaigns and to support them. Members of the group threatened that if he did not, they would kill him or physically take him to their meetings. When the applicant did not show any interest towards the Maoists, they started threatening his father and mother. As a result, his parents sent him to another town for his higher education. The Maoists then told his parents that the applicant had to return to the village.
The applicant claimed that because his parents used to support and help the Nepal Communist Party Maoists, the organisation continued to pressure his parents which made it difficult for the applicant to continue his study in the town he was sent to. The applicant was also pressured by another group called Terai Mukti Morcha[2] (JTMM) who discriminated against him on the basis that he was from a mountain hill area. As a result, the applicant’s parents asked him to move out of the country to continue his study and he came to Australia on 10 November 2008.
[2] This is the name used by the applicant in his visa application. The name used by his agent was Janatantrik Terai Mukti Morcha.
Finally, the applicant claimed in submissions attached to his protection visa application that if he were to return to Nepal “they will also ask me for the donation because the Maoists will assume that I must have a lot of money coming from a foreign country” and that the JTMM and Maoists would pressure him.
On 24 December 2013 a delegate of the Minister decided to refuse to grant the applicant a protection visa. One of the bases for the delegate’s decision was that the applicant had a right to enter and reside in India under the Treaty of Peace and Friendship and so fell within s.36(3) of the Migration Act 1958 (Cth). The applicant applied to the Tribunal for review of that decision.
On 2 June 2014 the applicant’s migration agent sent written submissions to the Tribunal in support of the application for review. Those submissions principally addressed the question of the application of s.36(3) of the Act. However, it also included the additional claims which were as follows:
If he [the applicant] is to return to Nepal, he will be asked for hefty donations and possibly kidnapped for getting the donations. As the applicant is not able to provide donations, he will possibly [be] killed by the armed revolutionary groups, especially Janatantrik Tarai Muki Morcha.
The applicant was invited to, and attended, a hearing conducted by the Tribunal on 30 July 2014. At the hearing he tendered the translation of the statement written in Nepalese that had been lodged with his protection visa application. He said that he had provided the translation at the time of his protection visa interview. The details of that statement are set out later in these reasons. The applicant also claimed at the hearing that he had been compelled along with other village youths, to attend classes by the Maoists on three occasions and that he was under pressure from the JTMM because they wanted to recruit him for activities such as bombings and kidnappings.
On 22 August 2014 the applicant’s migration agent sent a further submission to the Tribunal together with a number of documents setting out information concerning the circumstances pertaining to Nepal and India. In the submission, the agent stated that the applicant feared for “his life from the armed forces and on the other hand fears of living a neglected life if he is forced to reside in India”.
The Tribunal made its decision on 25 August 2014 affirming the decision of the delegate.
Tribunal’s decision
The Tribunal assessed the applicant’s claims regarding his fear of the Maoists and JTMM. The Tribunal’s assessment was on the basis that his fear of the Maoists was because of a political opinion, actual or imputed, of being opposed to them and, in respect of the JTMM that because of his race or ethnicity as being someone who does not belong to the Madhesi people of the Terai region of Nepal. It ignored the claim apparently made in the applicant’s agent’s last submissions sent to the Tribunal concerning the armed forces because the applicant himself had never raised it. No point is taken by the applicant in these proceedings in that respect.
The Tribunal found that the applicant’s written claims and evidence at the Tribunal hearing were notably brief, vague and devoid of circumstantial detail and that he had provided no substantiation of any kind of the claims as to what had happened to him. It noted that the nature of the information that he had provided, consisting as it did of little more than a number of simple unsupported assertions, cast some doubt over the general reliability of the applicant’s claims.
The Tribunal gave four further reasons to doubt the credibility of the applicant’s claim to fear harm in Nepal:
a)there was nothing in the information before it to indicate that the applicant was ever harmed by the Maoists or the JTMM at any time in Nepal and, in the absence of any indication that the situation had changed for the worse since he left, it was difficult to account for the alleged fear of harm from the same sources should he return to Nepal six years after he left. Further, the delay of three weeks before leaving the country after the applicant’s visa was issued supported the conclusion that the applicant had neither suffered any harm there nor anticipated doing so;
b)the applicant’s evidence that he was able to escape a number of deliberate attempts by the JTMM to kidnap, kill or otherwise harm him was not plausible and the applicant’s explanation for those incidents gave the Tribunal a strong impression of improvisation;
c)the claim that the JTMM would seek to recruit a non-Mahdesi such as the applicant was not only inconsistent with the country information before the Tribunal that that group was dedicated to advancing the interests of the Madhesi people at the expense of other ethnicities, but also in conflict with the reasons advanced for that group’s discrimination against him namely racial, social and cultural grounds;
d)the delay of nearly 5 years before seeking protection in Australia cast doubt on the truth of the applicant’s claim to fear harm in Nepal.
In light of those matters, the Tribunal was unable to be satisfied as to the credibility of the applicant’s claims regarding his experiences in Nepal. It was not satisfied that he or his family did in fact come under pressure for him to join the Maoists or that it was for this reason that he moved to a different city and studied there. It was not satisfied that he had ever come to the adverse attention of the JTMM and it was not satisfied that there was any reason to believe that the applicant would suffer harm from those sources if he were to return to Nepal.
The Tribunal noted the applicant’s claim that the Maoists would demand money from him if he returned to his village as someone who had been living in a foreign country but considered that it was no more than simple speculation on the applicant’s part and was not satisfied that there was a real chance that he would suffer harm in that way.
For those reasons the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason should he return to Nepal and was not satisfied that he was a refugee.
The Tribunal then considered the complementary protection criterion in sub-s.36(2)(aa) of the Act and concluded that there was no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal that there was a real risk that he would suffer significant harm as defined in s.36(2A) of the Act.
For those reasons the Tribunal was not satisfied that the applicant satisfied the criteria for the grant of a protection visa and affirmed the decision of the delegate.
Consideration
The application as originally filed had three grounds. The applicant sought leave at the hearing to amend the application to include three further grounds. While there was little explanation of the reason for the failure to raise these grounds earlier, they were not without merit and the Minister was able to respond to them without any prejudice. For those reasons, I grant leave to the applicant to rely on the grounds. It is convenient to deal first with the grounds as originally pleaded.
First ground: failure to consider the future
The essence of the first ground is that the Tribunal determined the question of whether the applicant satisfied the relevant criteria solely by reference to what had occurred in the past. The applicant emphasises the fact that the summary of the Tribunal’s findings at [29] of its reasons refer almost exclusively to past events. The ground is misconceived.
First, the applicant’s claims were almost exclusively based on past events. For that reason, it was necessary for the Tribunal to decide whether those events had occurred or not. At [29] the Tribunal stated: “He does not claim to fear harm in Nepal for any other reason and no other reason is apparent on the face of the information before the Tribunal.”
Secondly, the claim that relied only on future events was that the applicant would be targeted by the Maoist and JTMM groups as someone who had been living in a foreign country. The Tribunal dealt with that claim.
Thirdly, the Tribunal made it very clear that it was considering future possibilities. At [28] it said:
Given that he suffered no harm while he was in Nepal, and in the absence of any indication that the situation has changed for the worse since he left, it is difficult to account for his alleged fear of harm from these same sources should he return to Nepal six years after he left.
(Emphasis added)
In [29] of its reasons, the very paragraph focused on by the applicant, the Tribunal said: “I am not satisfied that there is a real chance that he would suffer harm in this way”, “… it would expose him to any risk of harm if he were to return to Nepal”, “… would translate into a risk of harm for him.” Each of those statements is addressed to the future.
The first ground is rejected.
Second ground: error in rejecting a claim of fear of persecution as “speculation”
This ground focuses on the following sentence in [29] of the Tribunal’s reasons for decision: “While I note his claim that Maoists would demand money from him if he returned to his village, as someone who had been living in a foreign country, I consider this is no more than simple speculation on his part …”.
The applicant argues that, contrary to the suggestion in the Tribunal’s reasons, speculation is in fact part of the real chance test. If the applicant suggests that the Tribunal was required to engage in conjecture or surmise, he is wrong. The relevant question is whether the claimed fear is “well-founded”. In order to meet that description, there must be a real substantial basis for the fear. In other words, there must be a real ground for believing that the applicant is at risk of persecution. A fear is not well-founded if it is merely assumed or mere speculation: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559; [1997] HCA 22 (“Guo”) at 576. Here, the Tribunal used the word “speculation” in the sense in which it was used by the plurality in Guo. That does not reveal that it misunderstood the question posed for it by ss.36(2)(a) and 65 of the Act.
Third ground – onus of proof
It is, as the Minister accepted, well-established that there is no onus of proof in proceedings such as those conducted by the Tribunal: Minister for Immigration & Multicultural & Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1; [2006] HCA 53 at [40] referring to Guo at 573-574 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ; Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at 544-545 [83] per Gleeson CJ and McHugh J; Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at 673 [195] per Callinan J.
The applicant argues that the Tribunal revealed that it imposed such an onus by stating, at [29], that it was “unable to be satisfied as to the credibility of the Applicant’s claims regarding his experiences in Nepal.” This argument proceeds on a misunderstanding of both the Tribunal’s reasons and the principle that there is no onus of proof in proceedings before the Tribunal.
In adversarial proceedings the party who bears the onus of proof on an issue will fail if he or she fails to adduce evidence that satisfies the decision-maker of the facts required to resolve the issue in his or her favour. In those instances, the decision-maker is ordinarily limited to considering the evidence adduced by the parties and must decide factual issues on the balance of probabilities or satisfaction beyond reasonable doubt. By contrast, the Tribunal is not limited to the material adduced by a review applicant. It can, and often does, obtain material of its own accord. Further, the question posed for the Tribunal is not to be answered on the balance of probabilities, but by reference to possibilities. Gleeson CJ and McHugh J explained this in Abebe at [83]:
The prosecutor carried no onus of proof in relation to these matters, and the fact that she might fail to make out an affirmative case in respect of one or more of the above steps did not necessarily mean that her claim for refugee status must fail. As Guo makes clear, even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution. The Tribunal “must take into account the chance that the applicant was so [persecuted] when determining whether there is a well-founded fear of future persecution.”
(Citations omitted)
The ultimate question for the Tribunal is whether it is satisfied that the applicant satisfies the criteria for the grant of a protection visa. If it is not so satisfied, the Tribunal must affirm the delegate’s decision not to grant the applicant a protection visa. This question inevitably requires the Tribunal to make findings of fact. Those findings are often expressed in terms of satisfaction (or lack of satisfaction). That is how the Tribunal’s findings in this case are to be understood. Understood in that way, the Tribunal’s lack of satisfaction about the credibility of the applicant’s claims had nothing to do with any onus of proof. It was a conclusion reached upon consideration of all of the material before the Tribunal. For that reason the third ground is rejected.
None of the original grounds of review succeeds. I turn, then, to the additional grounds.
Grounds 1A and 1B – failure to deal with a claim and the real chance test
In respect of ground 1A the applicant argues that he claimed to fear harm from both the Maoists and the JTMM because he would be returning to Nepal from a foreign country but that the Tribunal only dealt with the claim about the Maoists. Ground 1B is that the Tribunal did not properly consider the Maoists claim either but, rather, simply dismissed it as speculation.
The first of these grounds relies entirely on the Tribunal’s summary of the applicant’s claim at [16] of its statement of reasons:
If he returns to Nepal the Maoists and Janatantrik Terai Mukti Morcha can do anything to him. They will pressure him and ask for donations because they will assume he must be wealthy as he comes from a foreign country.
(Emphasis added)
The Minister argued that the word “they” in this summary was intended to refer only to the Maoists. That reading is open, but on its face, it being plural, is more likely to refer to both sets of potential antagonists. In order to determine what claim was in fact made, it is necessary to go beyond the Tribunal’s summary to what the applicant wrote.
The Tribunal’s summary was said to have been of a document presented by the applicant at the hearing on 30 July 2014. The applicant identified it as a translation of a document submitted with his protection visa application. The document produced by the applicant at the hearing was not reproduced in the bundle of relevant documents prepared by the Minister and tendered in the proceedings. There can be no criticism of that – the bundle of documents was prepared well before the applicant sought to rely on this ground. That said, the Tribunal’s reasons disclose that the document was in fact in evidence. The Tribunal stated, at [16], that the applicant “said he had, in fact, provided the translation at the time of his protection visa interview.” The translation provided by the applicant at that interview was in evidence (at pp.37-38 of Exhibit A). From that evidence, I find that that document contained the same information and claims as that given to the Tribunal at the hearing on 30 July 2014.
The relevant part of the document was:
At the present time, I have no way to go back to Nepal because if I go there, they can do anything to me and they will harm me and they will also ask me for the donation because the Maoists will assume that I must have a lot of money coming from a foreign country. If I go back to Terai, Terai Mukti Morcha will give me pressure and Maoists will also give me pressure, and so I cannot do anything at the present situation.
There is no claim in that document that the JTMM would ask for donations because its members would assume that he was wealthy because he had returned from a foreign country. In light of that, the Tribunal’s summary of the applicant’s claims at [16] is properly understood to mean only that the Maoists would ask the applicant for money. That being the case, the claim on which this ground is based was never made and the Tribunal was under no obligation to consider it and the ground must be rejected.
Ground 1B must also be rejected. The Tribunal rejected the claim relating to the Maoists as speculation. In essence, the applicant’s argument is that the statement that the claim was speculation was merely a conclusory statement and is not consideration. I disagree. The fact that the Tribunal gives a simple reason for rejecting a claim does not mean that it has not engaged in an active intellectual process in respect of that claim. Here, the statement that the claim was speculative meant that the Tribunal considered that there was no foundation for the claim. That means that the Tribunal did consider the claim.
Ground 4 – unreasonable finding of applicant’s credibility
The applicant argues that it was unreasonable for the Tribunal to doubt the applicant’s credibility on the basis of his failure to apply for a protection visa for nearly five years after he had arrived in Australia while he was the holder of a student visa. He submitted that it was an irrational and plainly nonsensical notion that a person with another form of visa should or would apply for a protection visa if they had genuine fears. I disagree. First, the argument does not address all of the relevant circumstances. The Tribunal found that doubt was cast on the applicant’s credibility because he took five years to apply for a protection visa. It is obvious that delay is relevant to the genuineness of a claim to fear harm on return to a person’s country of nationality. It then took into account the applicant’s explanation that he had a student visa and, when that was cancelled, he applied for review of the cancellation; however, it was not satisfied that that adequately explained why he would not have lodged a protection visa application earlier in light of the claim that he had been forced to flee Nepal and claimed to fear harm on return there.
There is nothing nonsensical about the Tribunal’s reasoning. While decision-makers might differ about the excuse given by the applicant, it is open to infer that a person who claims to fear persecution would seek a permanent visa rather than to rely on a temporary visa such as a student visa and then, when that was cancelled, to seek review of the cancellation decision instead of then applying for the permanent visa.
Ground four is rejected.
Conclusion
There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed with costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 29 July 2016
6
2