SZVZE v Minister for Immigration and Border Protection
[2018] FCA 749
•24 May 2018
FEDERAL COURT OF AUSTRALIA
SZVZE v Minister for Immigration and Border Protection [2018] FCA 749
Appeal from: SZVZE v Minister for Immigration & Anor [2017] FCCA 3053 File number: NSD 2286 of 2017 Judge: REEVES J Date of judgment: 24 May 2018 Catchwords: MIGRATION – application for review of a decision of the Federal Circuit Court to uphold the Refugee Review Tribunal’s decision not to grant the appellant a protection visa
Held: appeal dismissed
Cases cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
SZVZE v Minister for Immigration & Anor [2017] FCCA 3053
Date of hearing: 18 May 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 11 Counsel for the Appellant: JR Young Counsel for the First Respondent: G Johnson Solicitor for the First Respondent: DLA Piper Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
NSD 2286 of 2017 BETWEEN: SZVZE
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
REEVES J
DATE OF ORDER:
24 MAY 2018
THE COURT ORDERS THAT:
1.The appeal filed on 27 December 2017 is dismissed.
2.The appellant is to pay the costs of the first respondent, 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
REEVES J:
THE PROTECTION VISA APPLICATION
This appeal concerns a narrowly confined aspect of the Refugee Review Tribunal’s decision on the appellant’s application for merits review, upon which the appellant claims the primary Judge erred, when considering his application for judicial review before the Federal Circuit Court of Australia.
The appellant is a citizen of Nepal. He first came to Australia on a Student (TU 572) visa on 25 November 2007. The last of the student visas he was subsequently granted expired on 15 March 2010. On 12 September 2013, after learning he would be unable to obtain permanent residence in Australia upon completing his studies, he applied for a Protection (Class XA) visa. That application was rejected by a delegate of the Minister on 18 March 2014. The appellant then sought merits review of that decision before the Refugee Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal). The Tribunal affirmed the delegate’s decision on 15 December 2014.
THE APPELLANT’S CLAIMS
The appellant accepts as accurate the Tribunal’s summary of the claims he made in his protection visa application as follows (at [6] of the Tribunal’s decision):
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 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 will happen because: his father refused to give them money which they would use for their rallies and paying their members; ‘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 in political power for the last couple of years and he was ‘just a normal citizen’.
THE APPELLANT’S EVIDENCE BEFORE THE TRIBUNAL
Additionally, the appellant does not challenge the accuracy of the Tribunal’s summary of the evidence he gave before it as follows (at [7] of the Tribunal’s decision: referring to the subparagraphs of [6] set out at [3] above):
a.The applicant said he thought the incident with the YCL at paragraph 6.a took place in ‘early 2007 ... March, I guess’; was his only face-to-face encounter with the YCL; and was the first time the YCL came asking his father for money; although he later said that they used to visit and make calls asking for money while he was at college; that there were lots of things happening in 2006-2007 and that the YCL came again after the incident but that his father did not give them money.
b.Asked if his father ever paid money to the YCL, the applicant said that once they started threatening and vandalised the shop, his father decided to give them money; but they demanded a lot, targeted the shop and kept threatening that they would harm the applicant if his father stopped paying. He said he was never a political activist in Nepal.
c.The applicant said that since he left Nepal the Maoist were still threatening his family and his mother told him not to come back until everything was ‘normal’. Asked when the YCL last threatened his family the applicant said he thought it was in 2008 or 2009; but that they always called them for money.
d.Asked whether his brother, who he said lives with his parents, had any encounters with the Maoists, the applicant said none apart from requests for money and arguments, which he tried to avoid.
e.Asked several times why he was the only one in his family targeted by the Maoists, the applicant said variously that the Maoists recruited ‘youngsters’, then confirmed that they had not tried to recruit him; that his parents told him when he last spoke to them 6-7 months ago that the Maoists were still targeting him; and that the reason his brother was not targeted was that he only had arguments with the Maoists, while the applicant had a ‘few punches’ with them.
f.As for what he fears may happen if he returns to Nepal now, the applicant said he was not sure what would happen – he just had fears.
g.The applicant said the Maoists were in power since 2007 and were still in power as their leaders were politicians and had connections. He had seen on the news a few weeks earlier that the political situation was not going well and there would be trouble like before. Because they were in power and had links with everyone, he feared that the Maoists might see him and harm him physically.
h.The applicant said that although he was not currently studying, he also wanted to finish his studies, so that if he could not live in Australia, he might be able to go to live somewhere else. He would not be able to study in Nepal if he returned now, as his parents could not afford the tuition fees over there; while Australia offered him the opportunity to study and work to pay for his tuition. The applicant said he ‘did not want to go through all these things ... refugee things’, was unsure what he could or could not do. Asked why he decided to apply for a Protection visa in Sept 2013 and did not apply for another Student visa, the applicant said variously that as he could not go back to Nepal, he decided to complete his study but was told that he could not do so; and did not get proper guidance from agents as he could have been doing something else by now.
i.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 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’.
j.In a discussion as to why the applicant waited till 2013 to seek a Protection visa when he claimed that the YCL started threatening him in 2007, the applicant said variously that at that time, he did not want to apply for a refugee visa and though he could study and then apply for permanent residence but found he could not; and later that he did not know he could apply for a Protection visa until he went to see his agent about his student visa and was told that his visa had expired.
(Footnotes omitted)
THE APPELLANT’S CONCERNS
The aspect of the Tribunal’s decision which is of concern to the appellant is the following passage, where it refers to the claims and evidence above and said:
13. Further, as discussed with the applicant, the Tribunal does not find it plausible that the applicant alone in his family has been targeted by the Maoists or YCL over his father’s refusal to pay them money, which he later said was paid; even if the Tribunal were to believe that he had a physical fight with them on that occasion, which for reasons elaborated above, it does not. Nor is it 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.
THE PRIMARY JUDGE’S DECISION
The primary Judge dealt with this aspect of the Tribunal’s decision in the following terms (see SZVZE v Minister for Immigration & Anor [2017] FCCA 3053 at [14], [15] and [17]):
14. 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:
[quoted at [5] above]
15. 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.
17. 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.
THE CONTENTIONS
The appellant’s counsel submitted that in [13] of the Tribunal’s decision, the Tribunal blurred the distinction between the Young Communist League (YCL), a sub group of the Maoists, and the political arm of the broader Maoist group which participated in the Government of Nepal until 2013. As a consequence, he claimed that the Tribunal failed to identify the true perpetrator of his harm. It then compounded this error, so he claimed, by taking account of the split within, and subsequent demise of, the political arm of the Maoists, to conclude that any threat to the appellant had disappeared. In that process it ignored the threat posed by the YCL which, he claimed, had continued to operate. To support this claim, he claimed that there was no mention of the YCL in this paragraph. Finally he claimed that the primary Judge had erred by failing to detect and correct this error.
In response, the Minister pointed to the summary of the evidence the appellant gave to the Tribunal (at [7] of the Tribunal’s decision: set out at [4] above), and contended that the appellant had there failed to make any distinction between the YCL and the broader Maoist group, and had instead identified the latter as the perpetrator of his harm. Accordingly, the Minister claimed that the Tribunal had made no error, but had simply dealt with the claims advanced by the appellant as those claims were supplemented by the evidence he gave to the Tribunal.
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, the High Court held that the reasons of an administrative decision-maker should not be read “with an eye keenly attuned to the perception of error” (at 272). In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30, the Court added that reviews of decisions of the Tribunal “must not become a pernickety and artificial scrutiny of the language of the Tribunal’s reasons” (at [153]).
Having regard to the evidence the appellant gave to the Tribunal (set out at [4] above), I agree with the Minister’s counsel that the appellant did not make a relevant distinction between the YCL and the Maoists. On a fair reading of the Tribunal’s decision at [13], I do not therefore consider that the Tribunal made any relevant error, either by taking account of an irrelevant consideration, or by failing to properly consider the claims made by the appellant in his application. It necessarily follows that the primary Judge did not err in failing to detect that non-existent error.
For these reasons, this appeal must be dismissed and the appellant ordered to pay the Minister’s costs.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate:
Dated: 24 May 2018
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