MZZVL v Minister for Immigration for Immigration & Border Protection

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Federal Circuit Court dated 24 July 2014, in which his Honour Judge Jarrett dismissed the appellants' application for judicial review of a decision made by the Refugee Review Tribunal on 11 October 2013 affirming the decision of a delegate of the Minister to refuse to grant the appellants Protection (Class XA) visas. The appellants are husband and wife, who applied together for protection visas as members of the same family unit. The wife's appeal is dependent upon that of her husband and is made as a member of the same family unit. Both appeared in person on the appeal to this Court and were assisted by an interpreter. 2 The appellants are Nepalese citizens who first arrived in Australia in 2008. The first appellant was initially granted a Class DC Subclass 457 (Business (long stay)) visa in February 2008, which was then cancelled in May 2008 when he ceased to be employed by the sponsoring employer. The first appellant then applied for, and was issued, a second business visa upon commencing employment with a new sponsoring employer. The second appellant and the couple's two children arrived in Australia as dependants of the first appellant in October 2008, however the children returned to Nepal in November 2008. The second business visa was similarly cancelled in May 2009 because the first appellant had ceased to be employed by a sponsoring employer. An application by the first appellant for a third Business visa was unsuccessful. The first appellant challenged the refusal of his third Business visa application, and remained in Australia, together with the second appellant, pursuant to bridging visas granted to them for the duration of the review process before the Migration Review Tribunal. That process was concluded against the first appellant in March 2012, and the appellants' bridging visas expired approximately one month later. 3 On 20 April 2012, the appellants made their application for protection visas. The claims made by the first appellant, and on which the second appellant relied, included that he and his family were active members of the anti-communist Nepali Congress party ('the NC') and had been targeted for this reason by supporters of the Maoist party. The first appellant stated that he had been an active supporter of the NC in his home village of Gulmi, and had 'attended all their rallies and meetings', handed out pamphlets and hung up political posters, and provided financial contributions to the party. The first appellant claimed that in response to this activity the appellants' home was attacked, that he was assaulted on one occasion whilst canvassing on behalf of the NC, and that he received death threats from supporters of the Maoist party. The first appellant had claimed that in the lead up to the April 2008 elections, violence escalated between the rival parties and he made arrangements to leave Nepal together with the second appellant, and that his parents were forced to flee Gulmi with the appellants' two children, and resettle in Kathmandu following his departure. The first appellant claimed to fear persecution for his political opinion, real or imputed, if he were to return to Nepal. 4 The Minister's delegate found that this fear was not well-founded, in particular because the delegate considered that the first appellant had sought to embellish his claims for protection and was not satisfied that he had been as actively involved as he had claimed, or that he had previously experienced any harm for his involvement in the NC. On review of the delegate's decision the Tribunal's heard evidence from the appellants, who were represented by a registered migration agent, and from the first appellant's cousin. The Tribunal did not, however, accept much of that evidence. In rejecting the application for review, the Tribunal found that the first appellant had attempted to embellish his claims in his evidence before the Tribunal and did not accept that he had participated in politics to the extent claimed or had been a particular target of the Maoist party. In particular, the Tribunal noted that the first appellant had raised a number of matters for the first time in his evidence before the Tribunal, including a claim that a particular Maoist leader had a 'personal vendetta' against the first appellant because of a dispute between them when they were at school together which the Tribunal dismissed as 'implausible'. The Tribunal concluded that there were no substantial grounds to believe that the appellants would be at risk of significant harm on return to Nepal, either due to the first appellant's actual or imputed political opinion or due to the appellants falling within a particular social group, namely, Nepalese who have lived in a foreign country. 5 The appellants sought judicial review of the Tribunal's decision before the Federal Circuit Court, on the ground that '[t]he decision of the tribunal was made without jurisdiction or is affected by an error of jurisdiction', and gave six particular errors that the Tribunal was alleged to have made. These included allegations that the Tribunal had wrongly concluded that the first appellant was not telling the truth and had failed to take into account a number of factual matters. Regarding the appellants' arguments in support of those grounds, the learned Federal Circuit Court judge relevantly noted (at [24]): The applicants' contentions of fact and law do not grapple with what they need to demonstrate to succeed in this application. Primarily, the complaint is that some of the tribunal's findings of fact and the conclusion that it reached were wrong. In that sense, it is clear from the applicants' contentions of fact and law that what is sought is merits review of the tribunal's decision. That is something that this Court cannot undertake in these proceedings. That the applicants were really seeking merits review of the tribunal's decision became more apparent during their oral submissions to me. His Honour went on to consider each of the sub-grounds raised by the appellants but found that each of the Tribunal's findings impugned by the appellants were open to it on the evidence and that no reviewable error had been identified in the Tribunal's approach. 6 The appellants have now sought to appeal the decision of the Federal Circuit Court with the grounds raised on the appeal to this Court being essentially identical to those raised before the Federal Circuit Court below, namely: 1. The decision of the Refugee Review Tribunal and the Federal Circuit Court by affirming its decision, is affected by jurisdictional error. PARTICULARS a. The tribunal has erred by concluding that just because he was not harmed in Kathmandu between 2002 and 2008 by this Maoist official, it does not mean that he will not suffer harm in the future. b. The tribunal is wrong to conclude that because the applicant did not mention the Maoist official in his protection visa application, then he must not be telling the truth. There are occasions when particular facts are omitted and the tribunal has failed to take into account circumstances that persons who are making protection visa applications are faced with. c. The tribunal has failed to properly take into account the circumstances that face returning asylum seekers, although it makes a short note of Country information that was available to the tribunal. d. The tribunal has failed to take into account the fact that such political parties/ organisations main tactic is to instil fear and it does so by making threats and for the tribunal to conclude they have never carried out these threats and that nothing has happened to his children, vindicates that they pose no problem. e. The tribunal has erred by concluding that there is no real chance that the applicant will be seriously harmed by the Maoists in the reasonably foreseeable future, as that is based on the conclusion that the applicant was not an active member or that he was a well known and strong supporter of the NC. f. The tribunal has erred in its assessment of the Complimentary protection criteria by not finding that there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Nepal there was a real risk that the applicant will suffer significant harm from the Maoists. The appellants have also filed an affidavit in support of their appeal and a document entitled 'Applicants Contentions of Fact and Law'. The affidavit, dated 8 August 2014 and sworn by the first appellant, replicates the notice of appeal as set out above. The appellants also appeared in person at the hearing of the appeal and added briefly to their evidence through an interpreter. The oral evidence was, in substance, to repeat their claim of fear for their safety if they were to return to Nepal. 7 The Minister filed written submissions before the appeal submitting that grounds 1(a), (b), (d), (e) and (f), sought merits review which did not disclose a reviewable error made by the Federal Circuit Court or the Tribunal. The Minister contended that ground 1(c) was expressed as a failure by the Tribunal to have considered a matter but that the ground could not be made out because the matter had been expressly considered by the Tribunal as the Federal Circuit Court had found. The Minister's submissions are correct. 8 Ground 1(a) was a claim the Tribunal had erred by concluding that the first appellant would not suffer harm in the future just because he had not been harmed in Kathmandu between 2002 and 2008 by a Maoist official. This ground was considered by the learned Federal Circuit Court judge at [25]-[28] when his Honour said: 25. Ground (1)(a) asserts that the tribunal erred by concluding that just because the primary applicant was not harmed in Kathmandu between 2002 and 2008 by the Maoist official nominated by him, it does not mean that the primary applicant will not suffer harm in the future. In that respect, at paragraphs 40, 41 and 42 of the reasons for decision, the tribunal recorded the primary applicant's claim and evidence relevant to this ground as follows: 40. The applicant told the tribunal said that they are specifically targeting him because when he was still living in the village he had a fight with a particular Maoist whilst he was still at school. That person said he would seek revenge and would threaten to kidnap him and impose the death sentence. He began to issue the threats when he became a Maoist and had a weapon. The applicant's parents had told him that he was still making these threats. The fight had been about their studies and personal issues the Maoist was a person from the lower caste and it was about that. This person is still living in the village. His parents are aware that he is making threats because news travels between the village and Kathmandu where they are now living. 41. At the hearing it was put to the applicant that he lived in Kathmandu between 2002 and 2008 and he had not been harmed by this particular person why would he be harmed him now. He said because of the past threats and they approached people who returned from overseas. He was worried not only for his own sake but the sake of his children if something happened to him. They are focusing on people overseas because they believe that they have got lots of money. When they asked the applicant's father for money he tells them that he does not have it. The Maoists know that the applicant is in Australia because people in his village know he is here and they have contacts with people in Kathmandu. He said that the person who has a personal vendetta against him is the chief of the Maoist party. 42. The discrepancies between what the applicant told the delegate and what he told the tribunal were discussed with him and he was invited to comment pursuant to s424AA of the Act. The applicant conceded that he did not tell the delegate that there was a particular Maoist leader who had a personal vendetta against and him in hindsight he realised that this was a mistake. It was put to him that he had not told the delegate that the Maoists were demanding money in Kathmandu. In his written comments provided pursuant to s424AA of the Act the applicant said that he had a fight with the Maoist leader when he was at school. When they finished high school this person joined the Maoists party and became a district leader he was in charge of all the Maoists in the area and started to target the applicant and others. 26. The tribunal's finding about this matter is set out at paragraph 44 of the reasons as follows: 44. The tribunal does not accept that there is a particular person in the Maoist party with whom the applicant had a personal dispute and that this person then targeted him. The applicant only made this claim in his evidence to the tribunal and did not mention it in his protection visa application or when interviewed by the delegate. Further the applicant's evidence was that he had not been harmed by this person. The tribunal finds it implausible that the applicant could be targeted over many years by a Maoist leader but not encounter any difficulties from him, particularly when they were living in the same village. The tribunal finds that the applicant's claims regarding being targeted by a particular Maoist leader was an embellishment. 27. The approach adopted by the tribunal was open to it and reveals no error. It was a matter for the tribunal to decide the veracity of this claim by the primary applicant. In any event, even if the finding was wrong and the primary applicant was at a real risk of harm from the person he identified, that risk was not for a convention reason. It was a risk that arose from an interpersonal dispute between the primary applicant and the person identified by him. 28. This ground has no merit. The reasoning and conclusion of the Federal Circuit Court were correct and open to it on the material. The Tribunal reached conclusions that were open to it on the material available for its consideration. The task of ascertaining the facts relevant to the proceeding has been conferred upon the Tribunal by parliament: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253, [28]. The Tribunal's findings were not those the appellants wished, but they were open to the Tribunal on the evidence. Neither it, nor the Federal Circuit Court on appeal, were in error in their conclusions. 9 Ground 1(b) contended that the Tribunal was in error to conclude that the first appellant must not be telling the truth because he had not mentioned the Maoist official in his protection visa application. The same ground was rejected by his Honour in the Federal Circuit Court with his Honour noting that the Tribunal was entitled to use the fact of the first appellant's failure to mention the Maoist official in assessing the first appellant's credibility. His Honour also noted that the failure was not the only matter to which the Tribunal had referred when concluding that the first appellant's claims in respect of the matter were "an embellishment". His Honour said at [29]: 29 Ground 1(b) asserts that the tribunal was wrong to conclude that because the applicant did not mention the Maoist official in his protection visa application, then he must not be telling the truth. Two things might be said about this assertion. First, the tribunal was entitled to use the fact that the applicant did not mention the Maoist official in his protection visa application to assess the primary applicant's credibility on this issue. Secondly, as paragraph 44 of the tribunal's reasons demonstrate (extracted above), that was not the only matter to which the tribunal referred when it concluded that the applicant's claims in respect of this matter were an embellishment. This ground has no merit. There is no error in the decision of his Honour or of the Tribunal. The Tribunal's evaluation of the first appellant's credibility was a matter for the Tribunal and it was permitted to use an omission in the visa application as a factor bearing upon credit. 10 Ground 1(c) maintained that the Tribunal had failed properly to take into account the circumstances that face returning asylum seekers. The matter was dealt with by the Federal Circuit Court at [30]-[33]: 30. Ground (1)(c) asserts that the tribunal failed to consider the circumstances that are faced by returning asylum seekers. Although not articulated by the applicants in this way, this appears to be a reference to either: a) the claim made by the primary applicant to the benefit of complementary protection pursuant to s.36(2)(aa) of the Migration Act 1958; or b) a claim that by reason of their membership of a particular social group, namely failed asylum seekers returning to Nepal, they would suffer persecution. 31 The applicants made express claims in terms just set out. The tribunal dealt with them. As to the first, under the heading "Harm feared as a result of living outside of Nepal for a period", the tribunal considered the primary applicant's claim that he would be imputed with a political opinion by reason of his absence from Nepal. Of that claim, the tribunal said at paragraph 53: ... Based on the evidence before it the tribunal does not accept that the applicant would be imputed with a political opinion as a result of living in a foreign country and that any fear of persecution on this basis is not well-founded. For the same reasons the tribunal is satisfied that there is no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Nepal there is a real risk that he will suffer significant harm as a result of being imputed with political opinion. 32. As to the second category of claim (membership of a particular social group), the tribunal said: 54. It was submitted that the applicant feared persecution for reasons of his membership of a particular social group as there was more focus on him because he had been living overseas. 55. The tribunal asked the applicant whether the fact he had been in Australia would cause problems when he went back to Nepal. He said he thought there would be a big problem as he did not have money and had not worked much in Australia. At other times in his evidence he said that he believed that he would be targeted for extortion because he would be regarded as having money because having lived overseas he would be perceived to be wealthy. 56. The applicant lived in Kathmandu before he came to Australia. The tribunal does not accept that he would be known in the Kathmandu as having been living overseas. The country information set out in Annexure A indicates that person and organisation are asked for money by the Maoists. The groups listed could be perceived as people who have money. Although the tribunal accepts that the applicant may be asked for money he has been asked for money in the past and this has not lead to serious to significant harm. 57. The tribunal finds that there is no real chance that the applicant would be harmed in the reasonably foreseeable future because he has returned from a foreign country. For the same reasons the tribunal finds that there are no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Nepal there is a real risk that he will suffer significant harm for this or any other reason. 33. It is clear that the tribunal examined all of the claims and evidence advanced by the applicants insofar as they related to their claim for protection arising from their absence from Nepal for a number of years. In my view, this ground raises no reviewable error. It is clear from these passages that the Tribunal did consider the matters which the first appellant contended had not been taken into account. 11 Ground 1(d), as his Honour noted, claimed that the Tribunal had failed to take into account the fact that the main tactic of political parties or organisations such as the Maoists was to instil fear by making threats, but essentially took issue with a finding or conclusion of fact made by the Tribunal. The first appellant repeated the claim in oral submissions in the hearing in this Court. He contended orally that it was unsafe for him and his wife to return to Nepal because the Maoists were still instilling fear and making threats. Such a ground seeks a review of the facts as found by the Tribunal. The ground was considered by the Federal Circuit Court at [34]-[37] where his Honour said: 34. Ground (1)(d) asserts that the tribunal has failed to take into account the fact that the main tactic of political parties or organisations such as the Maoists is to instil fear and they do so by making threats. The ground asserts that for the tribunal to conclude they pose no problem because they have never carried out these threats and that nothing has happened to the applicants' children was wrong. 35. This ground, however, takes issue with a finding or conclusion of fact made by the tribunal. As the first respondent argues, it appears to seek to impugn the reasoning of the tribunal that the primary applicant is unlikely to be harmed in the future because he has not suffered serious or significant harm in the past. Paragraph 51 of the tribunal's reasons demonstrates that the tribunal's conclusion about the risk of future harm to the primary applicant was based on its findings about his political activities, his past experiences and country information accepted by the tribunal. The tribunal said: The tribunal must consider whether there is a real chance that the applicant would be seriously harmed by the Maoists in the reasonably foreseeable future. The country information set out in annexure A does indicate that NC activists have been targeted for violence by the Maoists. The tribunal has not accepted that the applicant is an active member or that he is a well-known strong supporter of the NC. Any involvement he had with the party was according to his evidence prior to 1996 and the tribunal has found that he was only a low level supporter and not an activist. The applicant's lack of political knowledge indicates to the tribunal that he does not have an interest in politics and that he would not become a NC activist on return to Nepal. In these circumstances, coupled with the fact that he had not been harmed in the past, the tribunal does not accept that there is real chance that the applicant would be seriously harmed by the Maoists in the reasonably foreseeable future. It does not accept that he would be persecuted including being kidnapped or that his children would be kidnapped and his fear of persecution on this basis is not well-founded. 36. Whilst the tribunal did not expressly refer to the primary applicant's claim that the main tactic of political parties or organisations such as the Maoists is to instil fear and they do so by making threats in that paragraph, the tribunal certainly considered that matter as it considered all of the claims made by the primary applicant. 37. I accept the first respondent's submission that the primary applicant's criticism of the findings and reasoning of the tribunal in this regard does not allege any jurisdictional error and merely takes issue with the fact finding of the tribunal. I agree that it is an impermissible attempt to impugn the merits of the tribunal's decision. No jurisdictional error is demonstrated by this ground. The findings made by the Tribunal, and confirmed by his Honour, were findings which were open to be made on the materials before the Tribunal. The appellants did not show any reviewable error in the findings of the Tribunal or conclusions of the Federal Circuit Court. 12 Ground 1(e) challenged the Tribunal's conclusion that there was no real chance that the appellants would be seriously harmed by the Maoists in the reasonably foreseeable future. The error was said to be based upon the conclusion that the first appellant was not an active member or well known as a strong supporter of the NC. This ground was dealt with by the learned Federal Circuit Court judge at [38]-[39] where his Honour said: 38. Ground (1)(e) asserts that the tribunal has erred by concluding that there is no real chance that the applicant will be seriously harmed by the Maoists in the reasonably foreseeable future, as that is based on the conclusion that the applicant was not an active member, or that he was a well-known and strong supporter of, the Nepalese Congress. 39. This ground too, seeks to take issue with the findings of fact underpinning the conclusion reached by the tribunal about the future risk of harm to the primary applicant. The tribunal explains its findings on these matters in paragraphs 48 - 52 of the reasons, and especially at paragraph 51 (extracted above). No jurisdictional error is revealed by this ground. The Tribunal's findings relevant to this ground, referred to in [39] of the Federal Circuit Court's reasons above, were those extracted in earlier quotes in these reasons. The Tribunal's findings were open to it on the material and his Honour was correct to conclude that no jurisdictional error was revealed. 13 The final ground relied upon was that in 1(f), namely, that the Tribunal had erred in its assessment of the complementary protection criteria by not finding that there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Nepal there was a real risk that the appellants will suffer significant harm from the Maoists. His Honour dealt with this ground in [40]-[41]: 40. Ground (1)(f) asserts that the tribunal has erred in its assessment of the complimentary protection criteria by not finding that there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Nepal there was a real risk that the applicant will suffer significant harm from Maoists. 41. Again, this ground seeks to impermissibly impugn the merits of the tribunal's findings. The tribunal considered the applicant's claims in this regard in paragraph 52 of its reasons. The conclusion arrived at by the tribunal in that paragraph was open to the tribunal in light of the evidence and its other findings. No error is demonstrated by this ground. This ground also seeks merits review by challenging the Tribunal's findings on the material available to the Tribunal. The Tribunal's findings were ones that were open to it on the material and no reviewable error has been identified. 14 Accordingly, the appeal must be dismissed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.