SZMPX v Minister for Immigration and Citizenship

THE TRIBUNAL DECISION 5 The Tribunal considered the two grounds on which the appellant claimed to fear persecution, those being his political views and affiliations and his status as part of a particular social group. 6 As to the appellant's political views and affiliations, the Tribunal accepted that he was a member of the RPP. However, the Tribunal did not accept that either the appellant or members of his immediate family had any political profile, even at a local level. It came to this conclusion based on factors such as his involvement in only menial tasks in support of the RPP; his vague knowledge of the RPP's political platform and activities; and the absence of a claim that he or his father (who had introduced him to the party) had been a candidate for any public office. The Tribunal accepted that the appellant had supported the King and that he was known to be a member of the Thakuri which had been royalty until the unification of the kingdom. However, it did not accept that this fact alone would lead to his persecution. As the Tribunal did not accept that the appellant had engaged in activities which would bring him to the attention of other political parties or to groups that would wish to harm him, it concluded that he would not be persecuted for political reasons. 7 As to the social group claim, and in particular the extortion claims, the Tribunal accepted that the appellant had been abducted on two occasions in 2005, and that he had paid 400,000 of a 1,000,000 Nepalese rupee extortion demand. However, the Tribunal did not believe this meant that he would suffer persecution if he was to return. It noted factors such as the absence of any threats relating to the extortion demands since 2005; the appellant's ability to live in his own home, bought from his father in around 2005, and his parent's houses in the period subsequent to the extortion demands such that it could not be said that he was in hiding; and the fact that his family, in the same social group to himself, had not been subjected to any threats by Maoist insurgents. The Tribunal also noted that the appellant's remaining in Nepal for more than two years after the initial extortion demands cast further doubt on his claims that he feared persecution. In the broader ambit of the claim of membership to a particular social group, the Tribunal did not accept the contention that all members of the social group of businessmen (and in particular construction industry businessmen) would be subject to persecution in Nepal. The Tribunal concluded that the appellant would not fear persecution related to his social status if he were to return to Nepal. 8 As a consequence of the above reasons the Tribunal was not satisfied that the appellant held a well-founded fear of Convention-related persecution in Nepal. Accordingly, the Tribunal found that Australia owed no protection obligation to the appellant.

APPLICATION IN THE FEDERAL MAGISTRATES COURT 9 By application filed in the Federal Magistrates Court of Australia on 31 July 2008 and by amended application filed on 24 November 2008 the appellant sought judicial review of the Tribunal's decision. 10 Before Federal Magistrate Cameron the appellant claimed in his amended application that: (i) The Second Respondent made a jurisdictional error by failing to provide the Applicant with an opportunity to comment on adverse information as required by s424A of the Migration Act 1958.

(ii) The Second Respondent made a jurisdictional error by failing to take account of relevant facts and instead taking account irrelevant considerations.

(iii) The Second Respondent made jurisdictional error by failing to give proper, genuine and realistic consideration to the Application's claims to fear future persecution by reason of events of past persecution accepted by the Second Respondent.

(iv) The Second Respondent made jurisdictional error by adopting a rule or policy inflexibly and without regard to the merits of the case.

(v) The Second Respondent made jurisdictional error by failing to comply with section 475 [sic] of the Migration Act by failing to accord the Applicant procedural fairness and/or by putting him on notice in relation to the issues arising on the review.

11 At the hearing, the first, second and fourth grounds were not pressed. 12 In relation to the third ground and the argument by the appellant that the Tribunal's decision was illogical, Federal Magistrate Cameron found that the Tribunal's findings did not disclose a 'lack of rationality or logic which, even if that were to be a ground which would support a finding of jurisdictional error, would justify the Court making such a finding.' His Honour believed that in making the claim on this ground the appellant had simply misconstrued the reasons the Tribunal provided in making its conclusions. 13 In relation to fifth ground and the alleged breach of s 425 of the Migration Act 1958 (Cth) ('the Act'), Cameron FM found that the appellant's failure to leave Nepal immediately after the extortion events in 2005 was not an issue determinative of the appellant's review application. The word determinative was used by his Honour in the context the judgment of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [43]-[44]. His Honour also said at [22] 'to the extent that it is capable of an alternative characterisation, the passage in question may be considered not as a conclusion in its own right but as part of the conclusion that the appellant was not a credible witness, a matter which had been put directly to him'. His Honour was therefore of the opinion that the Tribunal had complied with its obligations under s 425 of the Act. 14 Having found no jurisdictional error, Federal Magistrate Cameron dismissed the application.

APPEAL TO THIS COURT 15 On 23 December 2008 the appellant filed in this Court a Notice of Appeal from the decision of Federal Magistrate Cameron. The appellant raises the following grounds of appeal:

1. His Honour failed to have proper regard to the jurisdictional error made by the Second Respondent by failing to provide the Applicant with an opportunity to comment on adverse information as required by s 424A of the Migration Act 1958.

2. His Honour erred in finding that the Second Respondent did not make a jurisdictional error by failing to take account of relevant facts and instead taking account irrelevant considerations

3. His Honour erred in finding the allegation that the Second Respondent made jurisdictional error by failing to give proper, genuine and realistic consideration to the Application's [sic] claims to fear future persecution by reason of events of past persecution accepted by the Second Respondent.

4. His Honour erred in finding that the Second Respondent did not make jurisdictional error by adopting a rule or policy inflexibly and without regard to the merits of the case.

5. His Honour erred in failing to find that the Second Respondent did not make jurisdictional error by failing to comply with section 475 [sic] of the Migration Act by failing to accord the Applicant procedural fairness and/or by putting him on notice in relation to the issues arising on the review.

16 The appellant appeared before the Court unrepresented but was assisted by an interpreter. The appellant did not advance any new claim in support of his grounds of appeal and merely restated his claims that he was forced to move around from place to place after the extortion demand from the Maoists which resulted in him being obliged to cease his involvement with his business.

First Ground of Appeal 17 As to the first ground of appeal, the Court observes that such ground was raised but not advanced before Cameron FM. Accordingly, leave is required before the Court can entertain this ground: see Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22]-[24]. Leave may be granted if it is 'expedient in the interests of justice to allow the new ground to be argued and determined': see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at [26]. Such consideration necessarily requires the Court to consider the merits of the ground sought to be raised: see Iyer at [24]; VAAC at [26]. The Court will now examine the merits of this ground. 18 The decision of the Tribunal establishes that it considered information from three categories, namely country information obtained by the Tribunal; material provided by the appellant for the review; and material provided by the appellant relating to the delegate's decision. The first two categories comprise information which is the subject of s 424A(3)(a) and s 424A(3)(b) of the Act. The last mentioned category is information which is the subject of s 424A(3)(ba) of the Act. 19 Each category of information is exempt from the requirements of s 424A(1) of the Act. Accordingly this ground could not have succeeded even if leave were granted by the Court. Leave is not granted to rely upon such ground.

Second Ground of Appeal 20 As to the second ground of appeal, namely that his Honour erred in failing to find that the Tribunal had made a jurisdictional error by failing to take into account relevant facts and instead taking into account irrelevant considerations the Court notes that such issue was also not pressed before the Federal Magistrate. Accordingly, leave is required for the reasons set out in paragraph [17] of this judgment. 21 The appellant has not provided particulars or meaningful submissions in relation to this ground. He has not identified any relevant facts which the Tribunal did not take into account, nor has he identified any irrelevant considerations which it did take into account. Accordingly, leave to raise this ground is refused.

Third Ground of Appeal 22 In the third ground of appeal the appellant submits that his Honour erred in failing to find that the Tribunal made a jurisdictional error by failing to give 'proper, genuine and realistic consideration' to his claims to fear future persecution by reason of events of past persecution that were accepted by the Tribunal. 23 It should be observed at the outset that a claimed failure to give 'proper, genuine and realistic consideration' to a claim is not recognised as a basis of jurisdictional error: see Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at [59] and [66]. Nevertheless, the Court makes the following observations. 24 Before this Court the appellant claimed that his circumstances were not considered by the Federal Magistrate. The appellant claimed before Cameron FM that the Tribunal had acted unreasonably and illogically in that it had found that the appellant had been subjected to acts of persecution but then concluded that the appellant had no subjective fear of persecution because he did not immediately flee Nepal following the actions of the Maoists in 2005 ('the delayed departure'). The appellant claimed that proper, genuine and realistic consideration was not given in such circumstances. 25 Whilst noting that the Full Court in VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 at [18] had determined that a want of logic in the Tribunal's reasons was not an available ground of review, Cameron FM found that the Tribunal's decision did not disclose a lack of logic or rationality. Contrary to the appellant's submission, his Honour did consider the appellant's claim regarding the Tribunal's finding relating to the appellant's delayed departure. Cameron FM rejected the submission that the Tribunal should not have found that the appellant did not have a fear of persecution because of his delayed departure, and found that the appellant's submission did not reflect accurately the basis of the Tribunal's conclusion. His Honour observed that the Tribunal reached its conclusions relating to persecution not upon the appellant's failure to flee, but rather based upon a wider range of evidence before it. 26 Nothing has been advanced by the appellant which warrants this Court departing from his Honour's findings. There was evidence before the Tribunal that the appellant was unlikely to be persecuted in Nepal in the foreseeable future merely because of his support of the deposed monarchy; there was evidence that the appellant had no significant political profile; there was evidence that there was no real chance that the appellant would be persecuted by Maoist insurgents for non-payment of extortion demands; and there was evidence that businessmen as a social group were not a group that could expect to be persecuted. It was this evidence which was relied upon to support the Tribunal's conclusion that the appellant would not suffer persecution, not the failure of the appellant to flee in 2005. Therefore it could not be said that the Tribunal failed to give 'proper, genuine and realistic consideration' of the appellant's claims. Accordingly, the Court dismisses this ground of appeal.

Fourth Ground of Appeal 27 As to the fourth ground of appeal, namely that the Tribunal made a jurisdictional error by adopting a policy or rule inflexibly and without regard to the merits of the case, the Court notes that this ground was not raised before Cameron FM. Therefore, for the reasons outlined in paragraph [17] of this judgment, leave is required to raise this ground. In the absence of particulars it is not possible to determine what 'policy or rule' is referred to by the appellant. Leave to raise this ground is refused.

Fifth Ground of Appeal 28 The appellant submits that his Honour erred by failing to find that the Tribunal made a jurisdictional error by failing to accord the appellant procedural fairness. The appellant had argued before Cameron FM that the Tribunal had failed to comply with s 425 of the Act by failing to raise an issue with him, namely his delayed departure from Nepal after his detention and the extortion demands in 2005. 29 In SZBEL the High Court considered the requirements of procedural fairness created by s 425 of the Act. The Court, at [44] found that the Tribunal's decision before it lacked procedural fairness for the following reason: The Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review.

The decision in SZBEL is authority for the proposition that procedural fairness requires an appellant be given the opportunity to 'give evidence and present arguments relating to issues arising in relation to the decision under review' as stipulated by s 425 of the Act and such opportunity includes the need for the Tribunal to put issues to the appellant which it considers to be determinative to its decision. 30 In his judgment Cameron FM at [21] made the following statement: Properly understood, the passage from the Tribunal's decision quoted above at [10] [which was referring to the appellant's failure to flee in 2005] is an additional comment made to emphasise the conclusions which the Tribunal had already articulated, based on other evidence which it identified, that the applicant did not have a well founded fear of persecution for a Convention reason whether on account of his political opinions and activities, his distant family connection with the former King of Nepal or his membership of the relevant particular social group. Consequently, the fact that the applicant had not left Nepal earlier than he did was not an issue determinative of his review application.

31 On a fair reading of the Tribunal's decision Cameron FM is correct. It is apparent from the Tribunal's decision that the appellant's delayed departure because of his treatment by the Maoists could not be described as an issue determinative of the Tribunal's decision. In the sentences preceding the statement the Tribunal at paragraph [63] of its decision said: Accordingly, given all of the above… the Tribunal does not accept that after such a lengthy period [referring to the lapse of time since the last extortion demand of the Maoists] there is a real chance that the applicant would be subject to serious harm amounting to persecution because of his failure to provide this second donation. Moreover, the Tribunal has not been able to satisfy itself… that every businessmen [sic] in Nepal is at risk from the Maoists and, on this basis… the applicant has a well-founded fear of serious harm amounting to persecution for a Convention reason. Nor does the Tribunal accept that there is another Convention related reason such as his political opinion. [The Tribunal had already discussed and rejected this ground in previous paragraphs.]

32 Only after the above did the Tribunal then say in the same paragraph: Indeed, the Tribunal is satisfied that if the applicant had a well founded fear of persecution for a Convention reason on the basis of his particular social group, his political opinion, or for any other reason, then he would have immediately fled Nepal after the first, let alone second, abduction in 2005, but accepts he did not do so.

33 Such observation was unnecessary to the conclusion which the Tribunal had already reached that the appellant was not at risk of persecution if he returned to Nepal. The comment was accordingly otiose, and appears to have been added as a further comment. However, this does not detract from the fact that the reasons for decision demonstrate that the Tribunal had made up its mind based on other evidence, rather than its comment in relation to the appellant's delayed departure. In this sense, the Tribunal's remarks were not determinative to the decision under review. Accordingly the requirements of procedural fairness did not demand that the delayed departure be put to the appellant at the hearing. 34 It follows that the appeal must be dismissed.

COSTS 35 The Minister claims costs in the amount of $2,700 and relies on the affidavit of Nicola Johnson sworn on 25 February 2009 in support of such claim. The Court considers that the evidence satisfies the requirements to justify an assessed sum being awarded to the Minister in that amount pursuant to O 62 r 40C(4) and Item 43H of Schedule 2 of the Federal Court Rules. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate: Dated: 4 March 2009 Counsel for the Appellant: Appellant appeared in person

Solicitor for the First Respondent: Sparke Helmore