SZVZP v Minister for Immigration

[2017] FCCA 3034

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVZP v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3034

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 took account of irrelevant considerations, applied the wrong test, made a finding of fact for which there was no evidence and failed to consider all of the applicant’s claims.

Legislation:

Migration Act 1958, ss.36, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559

Applicant: SZVZP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 104 of 2015

Judgment of: Judge Cameron

Hearing date: 28 November 2017

Date of Last Submission: 28 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

Solicitors for the Respondents: Ms S. Sangha of Mills Oakley

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 104 of 2015

SZVZP

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 first arrived in Australia on 12 June 2008 on a student visa.  He was granted a second student visa on 14 October 2008 which ceased on 11 July 2011. He thereafter remained unlawfully in Australia until 16 September 2013, when 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 from the Nepali 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 the delegate’s 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. In his protection visa application the applicant claimed that he left Nepal “for better and higher education” so that he could get a “decent job” to help his family and due to fear of Maoists and “political condition”.  In respect of the harm he might face upon his return to Nepal, the applicant stated that he feared that his return would create more problems and “mental pressure” for his family and that due to the “political and Maoist condition” he would be “useless and jobless”.  He claimed that the Nepalese authorities would not protect him if he returned as they were “all about money” and would not give him a job or allow him to do business unless he paid to get it.

2. The applicant relevantly made further claims in a statutory declaration that accompanied his application. These claims were summarised by the Tribunal in the following terms:   

   7.a.       During the Maoist revolt in Nepal, Maoist Party cadres sought donations from the owners of ‘every business’ – ordering ‘forceful donations’ if denied; and also demanded ‘one of the family member must join their Army’. This affected ‘every business’ including the business of his father, a small pashmina business owner and property developer.

   b.His father was ‘forced to shut down his business’ because he ‘denied’ to provide the Maoists ‘the donation they ordered’; and ‘closed the business’ as he was ‘not able to run the business’ ‘due to the unavailability of proper electricity and petroleum products’.

   c.After the closure of his father’s business, the Maoists tried to get the applicant to ‘join their army’ which he refused as he opposed their ideology.  In fear of being forcefully taken by the Maoists to ‘join their army’, he decided to come to Australia for further studies until the situation in Nepal eased.

   d.He went to Nepal in 2010 ‘to evaluate the situation’ and found it to be ‘even worse’ than when he left, so he returned to Australia.

   e.     His family in Nepal are living in very poor conditions as his father had to close his business and has no other source of income. If he returns to Nepal, he will be an extra burden on his father. He also fears that, as he is ‘still the target of Maoists cadres’, they will kidnap, torture and possibly kill him if they find him.

3. As summarised by the Tribunal, the applicant made the following relevant claims at his hearing before the Tribunal on 11 December 2014:

   8.a.          Because the Maoists were trying to ‘get him into their gang’, after finishing school, the applicant went first to Singapore (in February 2006), then New Delhi, India (in October 2006) for a year and to Australia in 2008, returning to Nepal in between.

   b.His family’s pashmina business declined because of the protection money they had to pay the Maoists; and in 2004 the Maoists tried to get the applicant into their ‘gang’ or ‘involved in their activities’.

   c.After he left for Singapore, he had not further contact with the Maoists but they contacted his family to try to get him back. Asked when the Maoist [sic] last contacted his family, the applicant first said it was in 2007 or 2008, then said it was in the middle of 2014. … the applicant said it was the Maoist leader [who had contacted his family] but could not name him; and that he wanted the applicant and his younger brother … to join their ‘group’ or activities. …

   d.The applicant’s parents told him not to come back to Nepal. Asked if the Maoists had harmed his parents in his absence, the applicant said they had destroyed their business in 2008.

   …

   f.The applicant is afraid to return to Nepal now because he fears the Maoists, who threatened him in 2005, will take his life because he has continued to hide from them; and if something happens to him it would be very bad for his family.

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.

2. The Tribunal accepted that the applicant’s family might have been required to pay protection money to the Maoists, especially before they came into government in 2008.  The Tribunal was not satisfied, however, that the applicant had been truthful in his claims regarding his experiences in Nepal and did not accept that he was in fear of persecution for a Convention reason or that there was a real chance he would suffer serious or significant harm if he was returned to Nepal. The Tribunal’s findings and reasons were summarised by the Minister in his written submissions in the following terms which I adopt:

   15.The Tribunal found the applicant’s evidence was “vague, inconsistent and unsupported, including by country information from independent sources”. It identified particular inconsistencies in his evidence and found they raised doubts as to the applicant’s truthfulness about these issues and whether they took place as claimed. The identified inconsistencies were:

   a.The applicant in his statutory declaration claimed that the Maoists tried to force him to “join their army” but at the hearing he “spoke vaguely” about the Maoists trying to get him into their “gang”, “group” or “involved in their activities” on which he did not elaborate;

   b.The applicant in his statutory declaration said his father was “forced to shut down his business” because he “denied” to provide the Maoists “the donation they ordered” but this was inconsistent with his evidence at the hearing that the business declined because of the protection money they had to pay the Maoists; and

   c.The applicant’s evidence on this issue was found to be “further confused” by his statutory declaration where he said his father closed his business due [to] the unavailability of electricity and petroleum products.

   16.The Tribunal also found it “significant” that the applicant made no claims that he experienced any specific harm in Nepal.  It noted his written claims reflected a “generalised fear” of the “political and Maoist condition” in Nepal, which created mental pressure for him and his family, and that Maoist policies had an economic impact on his father’s business and “every business” during the Maoist revolt.  It also noted the applicant, at the hearing, said he was “threatened” in 2005 but did not elaborate on this.

   17.The Tribunal had regard to the applicant’s claims that the Maoists were still targeting him, had contacted his parents variously in 2008 and the middle of 2014 to get him to join their group and if he returned to Nepal, the Maoists … would kidnap, torture and possibly kill him because he had continued to hide from them.  However, on the basis of country information it discussed with him at the hearing, the Tribunal did not accept the applicant’s claims were credible.  The Tribunal found that even if the applicant was of interest to the Maoists as a potential recruit in 2005, which it did not accept given the concerns it had about his truthfulness, it found it was “implausible” that the Maoists would seek to recruit him into their army in either 2008 or 2014, given the disarmament of Maoists armed groups following the peace settlement. It also found it was not plausible given the resounding defeat the Maoists suffered in the 2013 election; splits in their party; and current internal disarray, that the Maoists would have an interest in recruiting the applicant for their gang, involving him in their activities or harming him for the reasons he claimed.  (References omitted)

3. On the basis of the evidence before it, the Tribunal was not satisfied that the applicant was ever targeted by the Maoists for recruitment into their army, gang or activities; threatened as a result of his refusal or that he remained the target of Maoist cadres.  Consequently, the Tribunal was not satisfied that the applicant had a well-founded fear or persecution in Nepal for the reasons he claimed. Rather, the Tribunal concluded that the applicant had fabricated his claims in order to achieve a migration outcome.

4. For the same reasons, the Tribunal was not satisfied that Australia has complementary protection obligations to the applicant.

Proceedings in this Court

Pleaded grounds

1. In the amended application commencing these proceedings the applicant alleged:

   1.The Second Respondents made jurisdictional error by failing to comply with section 414 of the Migration Act 1958 … [portion abandoned].

   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 failing to adopt the real chance test.

   4.The Second Respondent made an implicit finding on which there was no evidence namely that there had been a “disarmament” of the Maoists.

   5.The Second Respondent made jurisdictional error by failing to deal with the Applicant’s claims in relation to extortion.

Ground 1

1. The applicant advised the Court that the first ground of the application was where his allegation of jurisdictional error was made and that the following paragraphs were to be treated as particulars of that allegation.

Ground 2

1. The applicant’s contention was that the Nepali Maoists’ electoral performance in the 2013 election was irrelevant to his claims to fear persecution in Nepal.  This contention was expressed in terms of irrelevant considerations but the matter in question was a matter of fact which was part of the background of the matter, not something which the law required the Tribunal to disregard.  As a factual matter, it was something which the Tribunal was free to consider and to accord whatever weight it considered appropriate. 

2. The applicant’s real complaint concerned the conclusion which was based on this evidence.  In his written submissions he argued that there was no rational connection between the Maoists’ 2013 electoral results and the splits and internal disarray in the Maoist party and their possible desire to harm him were he to return to Nepal.  I do not agree.  What the Tribunal held, in substance, was that the Maoists had become so distracted and diminished by their own difficulties that they would not be bothered with the applicant, or have the resources to do anything about him, even if they had once had an interest in him.  This conclusion was rationally open.

Ground 3

1. The significance of the applicant’s reference to the “real chance” test is elusive.  In the context of matters such as this one, the term “real chance” is no more than a common alternative for “well-founded”:  Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 572. Having canvassed the evidence before it and its views on that evidence, the Tribunal expressly considered in para.17 of its reasons whether the applicant’s claims to fear Convention-related harm were well-founded, as was required of it. No error is apparent in that connection.

Ground 4

1. Those parts of the Tribunal’s reasons in which reference to the “disarmament of the Maoists” was made were, relevantly, somewhat abbreviated.  However, based on what little was relevantly said, I infer that the Tribunal relied on country information to state that there had been a “disarmament of the Maoists” and so conclude that this was not a statement unsupported by evidence.

Ground 5

1. The applicant did not particularise the fifth allegation of the application by reference to any individual aspect or aspects of his claims in relation to extortion and so it must be inferred that he alleges that the Tribunal ignored them completely.  The summary of the Tribunal’s reasons set out above at [8] demonstrates that that was not so.

Submissions

1. Referring to the fact that English was not his first language, the applicant submitted that the Tribunal had placed unfair significance on the difference between his claim that the Maoists had sought to have him join their “army” and his claims that they sought to have him join their “gang” or “group” or become “involved in their activities”.  The applicant submitted that the Tribunal referred to this as an inconsistency.  That is not correct; it described these claims as being vague, as was open to it.  As the applicant did not lead any evidence to support a conclusion that he had been mistaken in the words he had used at the Tribunal hearing, it was open to the Tribunal to conclude, implicitly, that he meant to use those words and that he understood what they meant.  In those circumstances it was also open to the Tribunal to conclude that these differing characterisations of the involvement which the applicant contended the Maoists sought from him represented a vagueness in this aspect of his claims. 

2. The applicant also referred to his different accounts of what happened to his father’s business and submitted that the Tribunal had simply noted those inconsistencies and stated that they had raised “doubts”.  He argued that it had failed to exercise its jurisdiction in relation to these matters because it had failed to evaluate the evidence.  However, relevantly, the issue was not which of the accounts was correct but why the applicant did not provide a consistent version of events.  The evidence was evaluated in that context and by reference to the light it cast on the applicant’s credibility and I discern no error in that connection.

3. The applicant also submitted that the Tribunal had misdirected itself:

   … by considering that it had … made findings that the applicant had never been of interest to the Maoists as a potential recruit when in fact all it had done was to refer to different expressions which on any fair reading could be regarded as meaning the same thing.

   What the Tribunal found was that, after considering all the applicant’s evidence, it did not believe that he had been truthful and, further, that all his substantive claims were to be disbelieved.  Relevantly, the Tribunal implicitly was not of the view that the applicant’s different descriptions of the involvement which he said the Maoists had sought from him were inconsequential, as the applicant would now characterise them.  It was open to the Tribunal to view those differences as being of consequence and as important to its reasoning.

4. It was further submitted, implicitly, that the Tribunal had (mis)understood the applicant’s claim to be one of fear of harm from just the Maoist army rather than from “Maoists generally”.  The summary of the Tribunal’s findings set out earlier in these reasons demonstrates that that was not so.

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