SZMVK v Minister for Immigration and Citizenship

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT 1 The appellant appeals from the decision of Federal Magistrate Raphael delivered on 10 February 2010 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 3 August 2009. The Tribunal's decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship ('the Minister') to refuse to grant a Protection (Class XA) visa to the appellant.

BACKGROUND 2 The appellant is a citizen of Nepal who arrived in Australia on 6 November 2007. On 19 December 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. 3 A delegate of the first respondent refused the application for a protection visa on 27 February 2008. The appellant applied to the Tribunal for a review of that decision, and on 25 August 2008 the Tribunal affirmed the delegate's decision. The appellant sought judicial review of this decision and on 14 April 2009 the Federal Magistrates Court set aside the decision and remitted the matter to the Tribunal to be determined according to law. 4 Before the second Tribunal hearing the appellant claimed that he operated a construction company in Nepal and had been a supporter of the Communist Party of Nepal - Unified Marxist Leninist (CPN-UML) while he was a student. The appellant claimed that he belonged to a group called the Pahadi (also referred to as 'Hill People'); that Maoists started to treat CPN-UML together with other leftist parties as their enemies and demanded money and financial aid from them; and that contractors in Nepal were severely affected by such extortion demands. 5 The appellant claimed that he was targeted by Maoists insurgents, especially the Maoist Young Communist League ('the YCL'), at a number of electrical generating plant sites at which he was working; that insurgents sought financial donations at each of these locations; and that he had been kidnapped for four hours and later released after giving his Maoist captors money. The appellant claimed that Maoists continued to attempt to extort money thereafter; that his home came under attack from various groups such as the Janatantrik Terai Mukti Morcha ('the JTMM') and the Madhesi Mukti Morcha ('the MMM'); and that he was accused of being a police informant against the Madhesi who were at war with the Pahadis. The appellant claimed the JTMM had attacked him in February-March 2007. The appellant also claimed his company was no longer operating and that the JTMM had threatened his wife in Bara before she moved to Kathmandu. The appellant said that he was issued with a passport in March 2007 and applied for a visa to enable him to attend a building conference in Australia.

THE TRIBUNAL'S DECISION 6 The Tribunal was not satisfied the appellant's fear of Convention-related persecution was well-founded. It found the appellant to be vague and inconsistent regarding his claims that he was extorted, beaten, that threats were made against him by the YCL and that the JTMM continued to pursue him following an incident in February-March 2007. The Tribunal also found the appellant's reasons for a six month delay in coming to Australia after obtaining his passport cast doubt on the credibility of the appellant's claims that he was in fear of serious harm from Maoists and the JTMM. Accordingly the Tribunal did not accept the appellant's claims relating to the attacks on the appellant or his family. Nor did the Tribunal accept that there had been threats of ongoing harm. 7 The Tribunal accepted the appellant was the victim of extortion. However, based on the evidence and guided by s 91R(2) of the Migration Act 1958 (Cth) ('the Act'), it did not accept the appellant was denied the capacity to earn a livelihood in Nepal where such hardship threatened his capacity to subsist. Accordingly it did not accept that the extortion was sufficiently serious to amount to persecution. The Tribunal also held that the alleged kidnapping and threats were not genuine threats against his life and did not amount to persecution within the meaning of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (together, the Refugees Convention, or 'the Convention'). 8 The Tribunal concluded that the appellant's experience of extortion was primarily a result of criminal activity designed to raise funds for the Maoists, rather than a persecutory activity within the meaning of the Convention. The Tribunal was not satisfied that the appellant's membership of a particular social group was the essential motivation behind the various attempts to extort money from him. Rather, the Tribunal found that the construction industry had been targeted with extortion demands because the money involved within the industry was substantial and because such companies were a comparatively easy target. 9 Although the Tribunal accepted that the appellant was the victim of extortion by the Maoists, the Tribunal did not accept the appellant's claims that he had developed a high political profile with the Maoists such that he was specifically targeted for extortion by them. The Tribunal accepted country information which indicated a continuing risk of violence by the YCL and Maoists in Nepal. However, it did not accept the appellant would be targeted by these groups for a Convention reason and was not satisfied there was a real chance he would be subjected to persecution in the reasonably foreseeable future. The Tribunal also found that if a real chance of harm to the appellant by the JTMM existed, they would have sought to harm him in the nine month period before his departure to Australia. 10 On the basis of the above, the Tribunal was not satisfied that the appellant was a person to whom Australia has protection obligations under the Convention, and affirmed the decision under review.

FEDERAL MAGISTRATES COURT AND APPEAL TO THIS COURT 11 By Application filed in the Federal Magistrates Court of Australia on 3 September 2009 the appellant sought judicial review of the Tribunal's decision. Each of the grounds relied upon were rejected by Raphael FM. By Notice of Appeal dated 1 March 2010, the appellant appealed to this Court from the Federal Magistrate's decision. 12 In the appeal to this Court the appellant relies essentially upon the same grounds as those considered by Raphael FM, except that a further ground (Ground 4 in the Notice of Appeal) has been added. The final ground of appeal in the Notice of Appeal (Ground 5) is in all relevant senses identical to the final ground of appeal heard by the Federal Magistrate. 13 The appellant appeared before this Court on 12 May 2010 unrepresented but assisted by an interpreter. The appellant informed the Court of the occasions when extortion demands were made of him by Maoists, and of his difficulties in tendering for construction contracts because of interference by Maoists who demanded money from him. The appellant's testimony related to factual issues. The appellant made no submissions in respect of the issues raised in his Notice of Appeal. Accordingly, as the grounds of appeal are relevantly identical except for Ground 4, it is convenient to address the findings of Raphael FM and to then state the Court's findings in respect of each ground.

Ground 1: His Honour erred by not finding that the Second Respondent made jurisdictional error in relation to the scope and effect of s 91R(1)(b) and s 91R(2) of the Migration Act. 14 The appellant submitted, both before the Federal Magistrate and before this Court, that the Tribunal had erred by only considering whether, when extorting money from the appellant, the Maoists had denied him his capacity to subsist (see s 91R(2)(f) of the Act) rather than considering whether he had suffered serious harm within s 91R(1)(b) of the Act. The Federal Magistrate rejected such submission. His Honour found that the Tribunal's decision did not indicate an exclusive consideration of s 91R(2)(f) as claimed, but merely indicated that the Tribunal's assessment of the relevant conduct as serious harm was to be guided by s 91R(2).

Finding 15 Unlike the situation in VTAO and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332 (see [56]-[66]), there was no reason to infer that the Tribunal had only given consideration to the requirements of s 91R(2)(f). An argument raised to similar effect in NBFP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 95 had been rejected (see [63]-[64]) for the same reason as determined by his Honour in this application. 16 A fair reading of the Tribunal's finding shows that the Tribunal did consider whether the appellant had in fact suffered 'serious harm' and concluded that he had not done so. At [63] of the Tribunal's decision dated 3 August 2009, the Tribunal said: The Tribunal accepts that the applicant was the victim of extortion by the Maoists in Nepal. He was an employee and later the owner of construction companies, and his description of the methods of the Maoists in relation to building contracts indicate that there was a general expectation in the building industry that moneys would be demanded of contractors by the Maoists both at the time of tendering for business and at the time of the awarding of contracts. The applicant was inconsistent in his claims about the number and extent of the extortion demands he received from the Maoists. However, he stated that his company continued to operate in Nepal up to the time of his departure for Australia, despite the demands for money. On the basis of this evidence, and guided by s91R(2) of the Act, the Tribunal does not accept that the applicant was denied the capacity to earn a livelihood in Nepal, where such hardship or denial threatens the applicant's capacity to subsist. It does not accept that the extortion was sufficiently serious at [sic] to amount to persecution in a Convention sense.

17 The Tribunal's finding is not to be read 'minutely and finely with a eye keenly attuned to the perception of error': see Politis v Federal Commissioner of Taxation (1998) 16 ALD 707 at 708; see also Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; see also Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 272. The Court finds that there is no error in his Honour's finding.

Ground 2: His Honour erred in not finding that the Second Respondent made jurisdictional error by determining that, notwithstanding threats had been made against the life of the applicant, the threats could be discounted because of the findings that the threat5s [sic] to his life would not have been carried out. 18 The Federal Magistrate concluded that the appellant had incorrectly described the findings of the Tribunal. Raphael FM found that the Tribunal had carefully considered the events relied upon by the appellant before it reached its conclusion that the threats made against the appellant were not genuine.

Finding 19 By concluding that the threats that were made did not constitute serious harm, the Tribunal adopted the correct approach: see VBAO v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 233 CLR 1 per Gummow J at [18]. In such decision his Honour concluded that threats to life or liberty in the form of declarations of intent do not, without more, constitute the serious harm which persecution must involve; that the term 'threat' connotes 'risk' in the sense of a danger or hazard; and that the threat to life or liberty must manifest itself as an incidence of serious harm as distinct from the possibility of danger. 20 A reading of the Tribunal's reasons reveals that the Tribunal did not ignore the threats made against the appellant. However, it found that the threats and the kidnapping were not sufficiently serious to amount to persecution in a Convention sense. The Tribunal specifically referred to the fact that the kidnapping was only for a brief period of time (four hours) and that the appellant provided information to the effect that nothing had happened to him during the six months before he left Nepal for Australia. 21 The concept of threat or risk was considered in BRGAA of 2007 v Minister for Immigration and Citizenship and Another (2007) 164 FCR 381 in which Collier J at [24]-[26] referred to the requirement that to constitute a well-founded fear of persecution, any threat or relevant risk must be current or prospective rather than merely historical. Further, her Honour held that it was reasonable that a Tribunal have regard to events that had occurred in order to assist its decision as to whether the claimant would be likely, in the future, to suffer persecution. 22 This Court has reviewed the Federal Magistrate's findings. Those finding were made after his Honour had considered the issues referred to by Collier J. The Court finds no error as alleged.

Ground 3: His Honour erred by failing to find that the Second Respondent made jurisdictional error in its finds [sic] about the nature and Convention relationship concerning the extent to which the Second Respondent found the applicant had been subjected to extortion by Maoists in Nepal. 23 Before the Federal Magistrate the appellant submitted that his claim of fear of persecution on the grounds of his membership of the Pahadi people was a separate claim which had not been properly considered by the Tribunal. However the Federal Magistrate noted that there was no indication that the appellant, as a member of the Pahadi, raised his fear of the Madhesi (of which the JTMM is an associated group) other than in the general context of that which he had claimed at the Tribunal hearing. His Honour found that the Tribunal referred to the fact that the appellant had made this claim as a separate claim, but also observed that he did not make any further submissions in relation to it. In the absence of those submissions his Honour found that the Tribunal appeared to have considered that it was sufficient to conclude that the appellant did not have a well founded fear of persecution from the JTMM or 'associated Madhesi groups in Nepal'. His Honour considered that there was no error in the Tribunal adopting this approach.

24 The Court notes the finding of the Tribunal at [71]:

However, the Tribunal does not accept on the evidence before it that the applicant has made out a claim of being subjected to extortion for reasons of his political opinion, real or imputed.

25 The Court also notes that the Tribunal found at [71]:

The applicant has not claimed that he was targeted by the YCL for reasons of his race, religion or nationality and there is nothing in his evidence which would found a reasonable claim of such motivation. In making this finding, the Tribunal accepts that the applicant claimed to be the target of the JTMM for reason of his ethnicity, as well as his political opinion, but has rejected these claims, as detailed above. The Tribunal does not accept that the essential and significant motivation for the Maoists in subjecting the applicant to extortion was any of the five convention reasons.

26 Lastly the Court refers to the following finding of the Tribunal at [73]:

The Tribunal has formed the view that if in fact there was a real chance of harm being done to the applicant by the JTMM, for whatever reason, they would have sought to harm him in the period of nearly nine months in Nepal before his departure for Australia when he was living and travelling according to his usual routine. The Tribunal is not satisfied that the applicant as a well-founded fear of persecution within the meaning of the Convention by the JTMM, or associated Madhesi groups in Nepal.

27 Taking into account the reasoning set out above, the Court agrees with the Federal Magistrate's conclusion and considers that the findings of his Honour disclose no error as alleged.

Ground 4: His Honour erred as to the applicability of a failure by the Second Respondent to give proper, genuine and realistic consideration to the appellant's claims and/or evidence and to the availability of jurisdictional error as a result of such failure. 28 Without particularisation or submissions it is difficult to establish the precise scope of the fourth ground of appeal. Upon review of the reasons of the Federal Magistrate, the Court cannot discern any general error as alleged. However, as the final ground of appeal in effect particularises the penultimate ground, it is appropriate to assess the Federal Magistrate's 'proper, genuine and realistic consideration' of the appellant's claim under the fifth ground of appeal set out below.

Ground 5: His Honour erred by failing to find that the Second Respondent made jurisdiction error [sic] by failing to give proper, genuine, realistic consideration to the applicant's claim to fear harm from JTMM and instead applied a capricious and inflexible rule that if there was any chance that the appellant would be harmed by JTMM, the JTMM would have done so before the appellant left Nepal.

Further, the Tribunal does not accept that the Maoists were seeking the applicant to do him serious harm either before or after his departure for Australia, following the brief kidnapping incident. The applicant has given evidence at both Tribunal hearings that he continued to work with his company up to the time of his departure. He continued to live at his usual addresses either in his village in Terai or in his rented house in Kathmandu, or travelled in relation to his work projects. He has repeatedly claimed that the Maoists had very good intelligence about what was going on in his industry, and the Tribunal does not accept that if the Maoists had wished to pursue the applicant they would not have been able to discover his whereabouts, since, according to the applicant, they were well informed about him and the projects on which he was engaged. In particular, the applicant has given evidence that nothing happened to him for at least a number of months before he left for Australia. The Tribunal does not accept the claim that the applicant was sought by the Maoists either prior to or after his departure for Australia following his brief kidnapping, nor that any threats made by the Maoists to kill the applicant were genuine threats against his life.

The Tribunal has formed the view that if in fact there was a real chance of harm being done to the applicant by the JTMM, for whatever reason, they would have sought to harm him in the period of nearly nine months in Nepal before his departure for Australia when he was living and travelling according to his usual routine. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution within the meaning of the Convention by the JTMM, or associated Madhesi groups in Nepal.

31 The Federal Magistrate found that there was nothing capricious or inflexible in the approach taken by the Tribunal. His Honour noted that the decision of the Tribunal made it clear that it had not accepted the appellant's claims that he had almost been attacked by the JTMM or that threats were made against him. Whilst the Tribunal took into account the fact that the appellant had not been attacked in the nine months prior to his departure, this finding did not, as the appellant suggested, provide the sole basis for the finding on future persecution.

Finding 32 Such finding is not 'capricious'. The claims that there was no 'proper, genuine and realistic consideration' to the appellant's claims and that there was a failure to engage in 'an active intellectual process' are not grounds for review unless a jurisdictional error can be identified: see Craig v The State of South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]. 33 In NAIS and Others v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 470 at [37] the phrase 'proper, genuine and realistic consideration' was used in respect of the jurisdictional error disclosed. Such jurisdictional error related to excessive delays by the Tribunal which had compromised its ability to consider fairly the case before it and thereby to fulfil its obligations pursuant to s 425 of the Act. Such decision was referred to by Raphael FM in his decision. Further, his Honour referred to the decision in SZIIF v Minister for Immigration and Citizenship and Another (2008) 102 ALD 366 in which Weinberg J said at [98]: However, when one adds to the mix the fact that none of the inconsistencies identified were properly analysed, several seemed to have misstated the appellant's earlier position, and some involved summaries taken out of context, the entire process appears to have gone badly wrong. To use the language of Gummow J in NAIS, the Tribunal did not give "proper, genuine and realistic" consideration to the appellant's case. He was not afforded the hearing to which the law entitled him.

34 The facts in the present case bear no resemblance to those discussed in NAIS nor in SZIIF. There is no significant delay which impacted upon the ability of the Tribunal to properly consider the application before it. The Federal Magistrate noted at [23]: It is well established that past events are a useful guide to future events: Minister for Immigration v Guo (1997) 191 CLR 559. At [68] of its decision the Tribunal makes it clear that it did not accept the applicant's claims that he had almost been attacked by the JTMM or that threats were made against him. This is the real reason why the Tribunal rejected the possibility of any future harm. The fact that the applicant had not been attacked in the nine months prior to his departure went towards that finding, it did not, as the applicant suggests, provide the basis for the finding on future persecution.

35 The claim by the appellant that the Tribunal 'applied a capricious and inflexible rule that if there was any chance that the appellant would be harmed by JTMM, the JTMM would have done so before the appellant left Nepal' is no more than an attempt to challenge a factual finding of the Tribunal. This Court cannot review the factual findings of the Tribunal's decision: see Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391-392; Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 40-42; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]. 36 The Court concludes that there is no error of law identified in the Federal Magistrate's decision. 37 For the above reasons, the appeal is dismissed. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.