SZVZE v Minister for Immigration

[2017] FCCA 3053

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVZE v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3053

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal had applied an incorrect test, had had regard to an irrelevant consideration and made an incorrect finding of fact.

Legislation:

Migration Act 1958, ss.36, 414, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZVZE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 62 of 2015

Judgment of: Judge Cameron

Hearing date: 15 November 2017

Date of Last Submission: 15 November 2017

Delivered at: Sydney

Delivered on: 12 December 2017

REPRESENTATION

Counsel for the Applicant: Mr J. R. Young

Solicitors for the Applicant: Shamser Thapa & Associates

Counsel for the First Respondent: Mr G. Johnson

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 62 of 2015

SZVZE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Nepal who arrived in Australia on            25 November 2007.  On 12 September 2013 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Nepal because of a previous confrontation there with Young Communist League Maoists.  On 18 March 2014 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow the application will be dismissed.

Background facts

1. The applicant first arrived in Australia holding a Student (TU 572) visa and was granted a subsequent Student visa which ceased on 15 March 2010.  The applicant remained in Australia illegally until he applied for a protection visa on 12 September 2013. The applicant claimed that if he returned to Nepal he would be harmed by the Young Communist League Maoists.  In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for protection:

   6.a.          Because his father refused to give money to a  group of Young Communist League (YCL) Maoists when they came to their house, the applicant was involved in a fight with them – he pushed and hit them in self- defence and was beaten by them. As a result, the YCL vandalised the shop, threatened they would come back and that they would kill the applicant.

   b.After the incident the applicant lived at his aunt’s house in Kathmandu until he applied for his Student visa. His parents thought it better to send him out of the country, fearing he would not be able to continue studying in Nepal; and the Maoist [sic] might take him into their custody and torture him if they found him.

   c.He fears that, if he returns to Nepal, the YCL may kidnap him and blackmail his parents for money; or kill him if they can’t get what they want and make his body disappear – because he was involved in the argument and fight. The YCL were still threatening his family that when the applicant comes back they will beat him to death.

   d.The applicant thinks this [being harmed by members of the YCL] will happen because: his father refused to give them money…; ‘they don’t leave anyone who [is] against them’; and their leaders were in political power and could control the government and corruption was everywhere. The authorities would not protect him as the Maoist leaders were [sic] in political power for the last couple of years.

2. The applicant made the following relevant claims at his hearing before the Tribunal:

   a)after the Maoists started to threaten and vandalise the family shop, his father decided to give them money but they continued to threaten that they would harm the applicant if his father stopped paying them. The applicant claimed the Maoists last threatened his family in 2008 or 2009 and would “always call them for money”;

   b)the reason the applicant’s brother was not targeted was that he only had arguments with the Maoists, whereas the applicant “had a few punches with them”;

   c)although he was not currently studying, he wanted to finish his studies so that if he was not able to live in Australia, he might be able to live somewhere else. He claimed it would not be possible for him to study in Nepal if he returned as his parents could not afford the Tuition fees there, while Australia offered him the opportunity to study and work to pay for his tuition;

   d)when asked why he decided to apply for a protection visa in September 2013 and did not apply for another student visa instead, he responded that as he could not return to Nepal, he decided to complete his studies but was told he could not do so; and

   e)the Tribunal drew the applicant’s attention to relevant country information which stated that the Maoists were no longer in power and, in light of the party split in 2012 and their resounding defeat in the November 2013 election, the Maoists were generally regarded as a ‘spent force’. In response, the applicant claimed that while the Maoists were not in power at that time, they would behave as they had before and that news reports had indicated the Maoist group were trying to get into power. 

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), or s.36(2)(aa) of the Act. The Tribunal’s findings and reasons were summarised by the Minister in his written submissions in the following terms which I adopt:

   6.The Tribunal was not satisfied that the applicant was a truthful witness. In support of the adverse view it took of the applicant’s credit, the Tribunal found:

   (a)   The applicant’s evidence on central issues to be ‘vague, inconsistent, and implausible’, by reference to discrepancies in his written claims and oral evidence given to the Tribunal, and by reference to ‘internal inconsistencies’ in the applicant’s oral evidence to the Tribunal;

   (b)The vagueness in the applicant’s account of when the incident he described in his claims involving the YCL took place;

   (c)That it was implausible that the applicant alone in his family had been targeted by the Maoists or YCL over his father’s refusal to pay them money, or that the Maoists after their election defeat and internal disarray would be focussing on the applicant the following year.

   7.[Because] of its concerns expressed as to the applicant’s credibility, the Tribunal was not satisfied that the applicant had a physical fight with the Maoists or YCL over his father’s refusal to pay money, or that he was threatened with death as a result. Further, and consequently, the Tribunal did not accept that the applicant would encounter the harm he claimed to fear in Nepal if he returned.

   (References omitted)

2. On the basis of the evidence before it the Tribunal was not satisfied that the applicant had a well-founded fear of persecution in Nepal arising from a Convention reason. The Tribunal concluded that the applicant had fabricated his claims in order to achieve a migration outcome, noting in this regard the applicant’s own evidence that it had been his intention to seek permanent residence in Australia upon the completion of his studies and that it was only when he learnt that this was not possible that he applied for a protection visa.

Proceedings in this Court

1. In the application commencing these proceedings, as slightly amended at trial, the applicant alleged:

   1. The Second Respondent made jurisdictional error by failing to comply with section 414 of the Migration Act 1958 [remainder of allegation not pressed].

   2.     The Second Respondent made jurisdictional error by having regard to an irrelevant consideration, namely the electoral performance of the Maoists in the 2013 election in determining whether there was a real chance that the Maoists would in the future subject the applicant to harm.

   3.     The Second Respondent made jurisdictional error by inappropriately adopting a test of whether the applicant’s evidence raised doubt as to his credibility and assuming that an affirmative answer was sufficient to reject his claims.

   4.     The Second Respondent made jurisdictional error by construing inconsistency with the Applicant providing greater clarity in his written claims as to what might happen in the future.

   5.       [not pressed]

Ground 1

1. At the time of the Tribunal’s decision, s.414 of the Act provided:

   414 Refugee Review Tribunal must review decisions

   (1) Subject to subsection (2), if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision.

   (2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).

2. At the hearing of this application the applicant advised the Court that the second, third and fourth grounds of the application were particulars of this allegation.  Consequently, it is not necessary to give it separate consideration.

Ground 2

1. The applicant’s argument in relation to the second ground of the application drew a distinction between the YCL and the Nepali Maoists.  He submitted that the Tribunal had also implicitly drawn a distinction between the YCL and the Maoists when it referred in paras.11 and 13 of its decision record to “the Maoists or YCL” and he argued that it had never been suggested that the YCL had been in government.  He submitted that the Maoists’ loss of government in 2013 had no obvious relevance to the YCL or its conduct and that it was not open to the Tribunal to have found that it would have.

2. When summarising what happened at its hearing, the Tribunal relevantly recorded:

   The Tribunal drew to the applicant's attention that, in considering his claims, it would have to consider relevant country information from independent sources.  This included that the Maoists were no longer in power and, in light of the party split in 2012 and the resounding defeat the Maoist government suffered at the November 2013 election, they were generally regarded as ‘a spent force’.  While there was information that the Maoists in Nepal were involved in the extortion of money from businesses and private citizens before they gained power, reports indicated that there was a significant decline in YCL activities, especially violent ones, after 2010 and that they focused mainly on their rival groups.  The applicant responded variously that:  while the Maoist [sic] may not be in power right now, they would behave as before -going into the jungle and training; and according to news reports the Maoist group was trying to get into power.  Asked to which Maoist group he was referring, the applicant said there was 'only one Maoist group'.  (Reference omitted)

3. The applicant’s statement that there was “only one Maoist group” reflected what he had said in his protection visa application form where he said twice that his worries concerned a “group of Maoists called ‘YCL’”.  He went on to say in that form:

   Unfortunately I was directly involve [sic] in one of the fights at my own house and that was for self-defence.  They took these matters very seriously and may kill if they want.  They think they are outlaws.  Their leaders are on [sic] political power.  Now they can control government.

4. In light of the evidence given by the applicant, it was open to the Tribunal to conclude that the YCL was a part of the Nepali Maoist political movement whose leaders, at the time of the visa application, were members of the Nepali government.  In its reasoning, the Tribunal relevantly said in para.13 of its decision record:

   [It is not credible] in the face of the resounding defeat the Maoists suffered in the 2013 election and their current internal disarray, that in 2014 the Maoists would be focusing on the applicant, who by his own evidence was never politically active, over an alleged incident which took place seven years ago with unidentified people who may now be anywhere.

5. Because it was open to the Tribunal to conclude that the YCL was related to the Maoists who had been in government, which I infer was implicit in what it said in para.13 of its reasons, no error attached to it also concluding that the loss of government and the party’s “general disarray” were relevant to whether the YCL would pursue the applicant years after he had allegedly been involved in an affray with some of its members. Consequently, the second ground of the application is not made out.

Ground 3

1. The applicant did not identify where an inappropriate test of the sort contended for in the third ground of the application, as amended, had been adopted by the Tribunal and it is not apparent that one was. 

2. In his address, counsel for the applicant questioned the Tribunal’s reasoning in para.13 of its decision record where it had also explained why it did not believe that the applicant had been in a fight with YCL members.  Although imaginatively presented, this argument did not identify any arguable, reviewable error and was in substance a

   complaint about the Tribunal’s fact finding.  The Court cannot review that.

Ground 4

1. The fourth ground of the application was also an invitation to the Court to review the Tribunal’s fact finding. 

2. Further, in light of the applicant’s address to the Court I understand the fourth ground of the application to relate not to the applicant’s fears of future harm but to accounts of what had supposedly happened in the past. The applicant argued that it had not been open to the Tribunal to find that there had been an inconsistency in his versions of events. This was said to be because the allegations the applicant had made in his protection visa application form did not, in terms, say that his father had never made a payment to the Maoists and so his later statement that his father had made such a payment was not inconsistent with what had been originally asserted. The applicant submitted that what he had said in the protection visa application form did support a finding that no payment had been made.

3. Notwithstanding this argument I find that, given the evidence available to it, it was open to the Tribunal to conclude that the applicant’s second version of events was indeed different from his first.  The clearest evidence of this was the applicant’s answer to the protection visa application form’s question 47 where he said that he feared harm from the YCL in Nepal because “[w]e refused to give them money”.

4. In the circumstances, there was evidence to support the relevant finding and the conclusion in question was not unreasonable in the relevant sense.  Consequently, no reviewable error has been identified in connection with the fourth ground of the application.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  12 December 2017