SZFBO v Minister for Immigration & Multicultural Affairs [2006] FCA 291 | Case summary

Federal Court of Australia|2006-03-06|Before: Emmett J

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Federal Magistrates Court refusing relief under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the second respondent, the Refugee Review Tribunal ('the Tribunal'), affirming a decision of the first respondent, the Minister for Immigration and Multicultural Affairs ('the Minister'), not to grant a protection visa to the appellant. 2 The appellant is a citizen of Nepal. He arrived in Australia on 21 January 2004. On 1 March 2004, he lodged an application for a protection (class XA) visa under the Migration Act 1958 (Cth) ('the Act'). On 14 May 2004, a delegate of the Minister refused to grant a protection visa. On 3 June 2004, the appellant applied to the Tribunal for a review of the delegate's decision. On 6 October 2004, the Tribunal affirmed the decision not to grant the protection visa. It published its reasons for that decision on 28 October, 2004. 3 On 22 November 2004, the appellant commenced a proceeding in the Federal Magistrates Court. An amended application, dated 2 March 2005, was subsequently filed by the appellant. On 1 December 2005, a Judge of the Federal Magistrates Court ordered that the proceeding be dismissed and ordered the appellant to pay the Minister's costs. By notice of appeal filed on 12 December 2005, the appellant appealed to the Federal Court from the orders of the Federal Magistrates Court. 4 The Tribunal, in its reasons, recorded that the essential claim of the appellant is that his father was a Maoist who deserted the Nepalese Maoist Party in 1999, and that his father was subsequently killed. The appellant claimed that the organisation deserted by his father has subsequently targeted the rest of his family. He says he therefore feels that, if he returns to Nepal, he will be targeted also and be killed by the Maoists. 5 The Tribunal began by considering the basis of the appellant's claim. It recorded that, even though the appellant did not articulate it in any clear way, the essence of his claim is that he fears persecution because of his membership of his family as a particular social group. The Tribunal accepted that a family is capable of constituting a particular social group within the meaning of the Refugees Convention. The Tribunal considered, however, that if an applicant is to sustain a claim based on membership of a family as a particular social group, it must be shown that the primary basis for the persecution of the family, as a particular social group, is Convention related. 6 On the evidence before it, the Tribunal saw no such relation. It considered that persecution for desertion was not necessarily, by itself, a Convention reason unless one is able to relate it specifically to a political or some other Convention reason. On the evidence before it, the Tribunal did not see such a connection. The Tribunal referred expressly to s 91S of the Act. Section 91S provides that, in determining whether a person has a well-founded fear of being persecuted for the reason of membership of a particular social group that consists of the person's family, any fear of persecution or any persecution that any other member or former member of the family have ever experienced, where the reason for the fear of persecution is not a reason mentioned in Article 1A(2) of the Convention, may be disregarded. Similarly, any fear of persecution which the person has ever experienced, or any other member or former member of the family has ever experienced, where it is reasonable to conclude that the fear of persecution would not exist if it were assumed that the fear of persecution just referred to had never existed, may also be disregarded. 7 The provision is slightly torturous in its syntax. However, the effect seems clear; that is, where a person claims to fear persecution by reason of being a member of a particular social group consisting of that person's family, the persecution of the family must be for a Convention reason. In his evidence to the Tribunal, the appellant repeated claims that his father had deserted the Nepalese Maoist Party and they wanted to avenge his father's conduct by bringing the appellant back to Nepal. In answer to a question regarding why the Maoists would want him, he said that the Maoists would normally kill the relatives of those who desert, so that the deserters will not inform on them. 8 The Tribunal considered that those answers indicate that the reason why the appellant's father was killed was because he deserted the Maoists, and that the appellant believes the reason why his family is being targeted is because his father deserted the Maoists who now consider his family to be traitors. Thus, the Tribunal concluded that the reason for persecution is the desertion as such. The Tribunal considered that persecution for desertion or being a traitor, by itself, was not a Convention reason. The Tribunal found, therefore, that on the evidence before it, the appellant's fear of persecution does not relate to a Convention reason. 9 The Tribunal then said: 'Even if the Tribunal accepted that his father may have deserted the Maoist organisation because of his ideological or political beliefs, and that the basis for the desertion and the subsequent persecution could therefore be his father's political opinion, it is does not necessarily assist the Applicant's claims for the following reasons.' 10 The Tribunal then dealt with three other matters. First, the appellant claimed that his mother and his sister were both abducted at different times, but that he and the rest of his family were able to secure the release of his mother and his sister with the assistance of the police and local members of Parliament. The Tribunal found the claims relating to abduction to be highly implausible and lacking in credibility. The Tribunal therefore rejected the claims. That matter seems to be an independent claim as to persecution, which does not presently have any bearing on the appeal. 11 Next, the Tribunal observed that, in spite of the appellant's allegations that he was at great risk of being persecuted by Maoist forces when he returns to Nepal, he had, in fact, been able to go there not once but, indeed, on two occasions. On the basis of the evidence, the Tribunal was not satisfied that the appellant has a genuine fear of persecution at the hands of the Maoists should he return to Nepal. The evidence relied on by the Tribunal in reaching that conclusion appears to be material provided by the appellant to the Minister's delegate in connection with his original visa application. That material does not appear to have been provided to the Tribunal in connection with the appellant's application for review. I shall come back to that matter shortly. 12 The third additional reason referred to by the Tribunal concerns the appellant's right to reside in India. The Tribunal recorded that, during the hearing, the appellant's attention was drawn to the fact that there was a treaty between India and Nepal which entitles Nepalese citizens to reside in India. The Tribunal considered the appellant's response that he sees no benefit in going to India because the economic conditions in India are not good, and that, in any case, the Indian Government is not able to look after its own citizens, were not valid justifications for not taking advantage of the treaty arrangement that permits Nepalese nationals to reside in India. 13 The Tribunal found, on the evidence before it, that the appellant is entitled to enter and reside in India, and that there is no evidence that the appellant faces persecution of any kind in India. Section 36(3) of the Act provides that Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself of a right to enter and reside in any country, apart from Australia. The Tribunal concluded that the appellant did not satisfy the criterion set out in s 36(2) of the Act, that the appellant is a person to whom Australia owes protection obligations under the Refugees Convention. 14 The grounds relied upon by the appellant before the Federal Magistrates Court were summarised by the primary judge in a way with which the appellant does not appear to have taken exception. The grounds were summarised by his Honour as follows: '(1) The Tribunal erred in holding that the killing of the [appellant]'s father by the Maoists did not constitute persecution for a Convention reason.

(2) The Tribunal, having found that the [appellant]'s brother was beaten because of their father's desertion,… failed to have regard to or deal with this finding in determining whether the [appellant] feared persecution and whether his fear was well-founded.

(3) The Tribunal erred in holding the appellant was not at any risk of being persecuted by the Maoists.

(4) The Tribunal erred in holding that the appellant did not fear being persecuted by Maoists.

(5) The Tribunal erred in holding that the appellant is not a person to whom Australia protection obligations…

(6) The appellant was denied procedural fairness in that the Tribunal breached section 424(A) of the Act in relation to the Tribunal's use of country information.

(7) The Tribunal was biased.' 15 The appellant's Notice of Appeal to this Court specifies the following grounds: (1) The Tribunal made an error of law and failed to exercise the proper procedure in relation to making a decision on the review of the applicant's protection visa application. (2) The Federal Magistrates Court repeated the same in that the Court has not considered all the legal issues that are applicable to the appellant's matter and, as such, the appellant has been denied natural justice by the Tribunal and the Court. (3) The Tribunal did not exercise procedural fairness, so far as the appellant is concerned, and did not act in accordance with the provisions of the Convention. (4) The Tribunal denied the appellant natural justice in determining the appeal in that the Tribunal was biased or, in the alternative, there was apprehension of bias, and the appellant was deprived of natural justice and procedural fairness.

16 No particulars are provided of those grounds. However, the appellant provided written submissions upon which he relied on the hearing of the appeal. The grounds specified in the written submissions, insofar as they are discernible, appear to be as follows: (1) The Tribunal made a jurisdictional error in that the appellant was denied procedural fairness and denied natural justice. (2) The Tribunal, in its decision, relied on country information and inconsistencies in the appellant's claims set out in the protection visa application and the claims made before the Tribunal as part of the reason for affirming the decision under review, and failed to put those inconsistencies in writing to the appellant for comment. (3) The Tribunal denied the appellant natural justice in determining the appeal, in that it was biased or there was an apprehension of bias in the making of the decision.

17 It is somewhat difficult then to follow the structure of the submissions. The submissions cite extracts from cases and texts. They also contain assertions that the Tribunal failed to assess and investigate the appellant's claim fairly. It then asserts that the Tribunal did not use the country information as specified. It makes the following assertions: 'The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against the applicant's case in the final outcome. The Tribunal used all the information for a matter of reasoning and evaluation of the applicant's case for the protection visa. The Tribunal "misjudged" the claim and did not have a fresh look onto the claim.' I do not quite understand what was intended to be raised, other than that the Tribunal misinterpreted country information, or did not give it the weight that the appellant says should have been given to it. 18 Next, the submissions assert that relocation by a protection visa applicant in his country of origin is an important issue that should be dealt with in the context of the appellant's country of nationality. The submissions complain that the Tribunal did not consider the Nepalese context and asserted that internal relocation is not an appropriate option for the appellant in Nepal, and that the Tribunal's decision ignores the reality of Nepal. 19 Finally, the submissions say, that if the appellant can relocate or seek refuge in the neighbouring country of India, then why not in Australia. That last contention is, in essence, the only contention that the appellant sought to make orally on the hearing of the appeal today. 20 I am mindful of the fact that the appellant is not represented by legal advisers, and much of his written submissions do no more than take issue with the findings of the Tribunal. In essence, the Tribunal's conclusions are factual ones that were open to it for the reasons it gives. That was the conclusion of the primary judge, who dealt with each of the grounds as they were summarised by him. 21 No complaint is directed in the appellant's submissions to the treatment of the grounds by the primary judge. The submissions make no attempt to particularise error on the part of the primary judge. So far as the issues are concerned, I do not consider that there was any error. 22 The Minister, however, has quite properly raised a possible concern following the recent decision of the Full Court in SZEEU v Minister for Immigration & Multicultural Affairs [2006] FCAFC 2. I have already set out the structure of the Tribunal's reasons. In relation to the appellant's ability to return to Nepal and the bearing that has on whether he has a genuine fear of persecution, the conclusions were based on evidence given or material given to the Minister's delegate, which was not given to the Tribunal. 23 If that material constituted information that was part of the reasons for the Tribunal's decision, there may be a basis for contending that there was a failure to comply with s 424A of the Act. If the only independent reasoning of the Tribunal were that the appellant did not have a genuine fear of persecution at the hands of the Maoists should he return to Nepal, and the basis for that conclusion was material that had not been given to the Tribunal by the appellant, I would be disposed to conclude that there was an error on the part of the Tribunal. 24 However, I consider that, on a fair reading of the Tribunal's reasons, there are three separate and independent bases for the Tribunal's decisions. One of those bases was the conclusion that the Tribunal was not satisfied that the appellant has a genuine fear of persecution. However, it is also clear that the Tribunal accepted that the appellant has a right to enter and reside in India, and that the appellant has not taken all possible steps to avail himself of that right. That, of itself, is sufficient to disentitle the appellant to a protection visa, by the operation of s 36(3) of the Act. 25 To the extent that the appellant took issue with the Tribunal's findings, those issues appear to be limited entirely to questions that did not involve any jurisdictional error on the part of the Tribunal. The submissions made by the appellant were directed, rather, at relocation within Nepal, which was not the subject of any finding made by the Tribunal. 26 The appellant also raised the question of the precise terms of the treaty between Nepal and India, without explaining how that would involve a different conclusion as to whether or not the appellant has right to enter and reside in India. That reasoning, involving the application of s 36(3), would be sufficient to overcome any concern as to possible non-compliance with s 424A. However, I also consider that, on a fair reading of the Tribunal's reasons, the conclusion that any persecution of the appellant or his family is not for a Convention reason was reached independently of the Tribunal's conclusion that the appellant does not have a genuine fear of persecution. 27 The Tribunal made an unequivocal finding that, on the evidence before it, which did not include any reference to the fact that the appellant had returned to Nepal twice, the appellant's fear of persecution did not relate to a Convention reason. The Tribunal made it quite clear that its reasoning was that it found that the appellant's family, to the extent that it was at risk, was at risk because his father had deserted, and that that was not a Convention reason. The Tribunal introduced its consideration of the other matters by the expression, 'even if the Tribunal accepted that the appellant's father may have deserted because of ideological or political beliefs'. That confirms, in my view, that the finding concerning the absence of a Convention reason was entirely independent of the ground that may have involved a failure to comply with s 424A. 28 I am not persuaded that there is any error on the part of the primary judge. It follows, in my opinion, that the appeal should be dismissed. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate: Dated: 23 March 2006 The appellant appeared in person. Counsel for the First Respondent: Mr T. Reilly Solicitor for the First Respondent: Australian Government Solicitor Date of Hearing: 6 March 2006 Date of Judgment: 6 March 2006

SZFBO v Minister for Immigration & Multicultural Affairs

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