SZRNE v Minister for Immigration, Multicultural Affairs and Citizenship

Eligibility for a protection visa 7 A protection visa may only be granted if the Minister (or his delegate - see Migration Act 1958 (Cth), s 496) is satisfied of certain matters set out in s 65 of the Act. The criteria for the grant of a protection visa are primarily found in s 36 of the Act. First and foremost the appellant had to satisfy the Minister that Australia has protection obligations towards him: Migration Act, s 36(2). Those obligations arise under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("Refugees Convention"). Protection obligations also arise because of Australia's non-refoulement obligations under the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). 8 The protection obligations owed under the Refugees Convention are caught by s 36(2)(a) and the non-refoulement obligations by s 36(2)(aa). Protection from return from the type of harm that would engage Australia's international non-refoulement obligations is known as "complementary protection" because the protection complements that which is afforded by the Refugees Convention. 9 The requirements of s 36(2)(a) could only have been met if the decision-maker (in the first instance the delegate and on review the tribunal) was satisfied that the appellant was a refugee as defined by art 1A(2) of the Convention. Relevantly, that means that the decision-maker had to be satisfied that the appellant had a well-founded fear of being persecuted because of his political opinion (and/or because of his membership of a particular social group) and was unable or, owing to such fear, unwilling to avail himself of the protection of that country. Subdivision AL of the Migration Act contains additional criteria that apply to claims based on obligations under the Refugees Convention. They include the requirements under s 91R that the reason (or reasons) for the fear of persecution is (or are) the essential and significant reason(s); the persecution involves serious harm to the person (examples of which appear in s 91R); and the persecution involves systematic and discriminatory conduct. 10 The requirements of s 36(2)(aa) are met only if the decision-maker is satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Nepal, there is a real risk that he would suffer significant harm (defined in s 36(2A)).

The tribunal's decision 11 The Refugee Review Tribunal accepted that the appellant had difficulties with Maoists in Nepal in the past, was forced to flee his village and seek safety in Kathmandu. It also accepted that he was approached by the YCL in 2008, referring to independent evidence of the YCL engaging in extortion, intimidation and other violent activities. And it accepted that the appellant was afraid to return to Nepal for the reasons he gave. 12 But the tribunal did not accept that the appellant's claim to fear persecution was well-founded, that is, that it was objectively justified (Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 ("Chan") per McHugh J at 429). It came to this conclusion based on independent sources (independent country information) the effect of which, it considered, was that: • the RPP and the monarchists are a minor political force in Nepal; • they pose no threat to any of the dominant parties, including the Maoists; • conflict between the RPP and the Maoists is limited to political activists who confront each other at rallies and other similar activities; and • since the end of the civil war (in 2006) the only RPP members who continued to be of interest to the YCL and the Maoists were those who remained politically active. 13 The tribunal concluded that the appellant was not a political activist or a person implicated in any activity of a political nature which would attract the adverse interest of Nepalese Maoists or the YCL. I note that the appellant told the tribunal that he ceased to be politically active before he left Nepal and took no part in the 2008 elections. He said that his involvement with the RPP and with politics had only been superficial and that he had not been involved in any activities of a political nature in Australia. The tribunal raised these matters with the appellant and indicated to him that in spite of the accusations of espionage made against him in 2002, he did not appear to have been of interest to the Maoists or the YCL after he left his village. Although the appellant responded that they came looking for him in Kathmandu, the tribunal commented that he had such limited information as to who these people were that it was not possible to establish what, if any, risk they posed to him. 14 The tribunal also dealt with the claim made by the appellant's adviser that the appellant had a well-founded fear of being persecuted by Maoists as persons returning from Australia are targeted for ransom and donation. 15 The tribunal accepted that the Maoists have been implicated in criminal activities to raise money. Based upon external sources, however, it found that these activities "relate to monetary gain rather than political opinion". The tribunal accepted that extortion can exhibit elements of both personal interest and Convention-related persecution. At the same time, however, the tribunal noted the requirement in s 91R(1)(a) of the Migration Act that a Convention reason be "the essential and significant reason" for the persecution and said it was not satisfied that the appellant's political views or those attributed to him, or any other Convention reason, would lead to extortion demands by the Maoists or the YCL in Nepal. In any case, the tribunal decided that the appellant lacked the wealth to be a person of interest. Moreover, the tribunal said that even if the appellant were targeted by extortionists he could seek state protection. 16 Finally, the considered whether the appellant was entitled to the benefit of the complementary protection provision in s 36(2)(aa) but held otherwise. 17 Consequently, the tribunal dismissed the appellant's application.

The proceeding before the federal magistrate 18 The appellant then filed a show cause application in the court below seeking a writ of mandamus directed to the tribunal or the Minister requiring them to determine the application according to law. Relief in the Federal Magistrates Court was only available if the appellant could demonstrate that the tribunal committed a jurisdictional error. That is the effect of s 474 of the Migration Act and the High Court's decision in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476. 19 The application raised three grounds: 1. That only country information had been relied upon and his personal circumstances were not considered; 2. The decision was made on the basis of speculation; and 3. The tribunal suggested the appellant seek state protection, which "in real life" is not available. 20 His Honour accepted the Minister's submissions in their entirety. He agreed that: • there was no substance in the first ground and that the weight to be given to country information is a matter for the tribunal; • the tribunal's approach to the question of whether the appellant's fear was well-founded was based on a careful consideration of the appellant's claims of past harm and its analysis of independent country information about the current political situation in Nepal, consistent with the approach set out in Chan; • ground 3 was misconceived as the tribunal's reasoning did not rely on a finding of state protection; • the tribunal's decision was open to it on the evidence; and • the tribunal did not fall into jurisdictional error.

The appeal 21 The appeal is brought under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). Its success turns on whether the appellant can establish error on the part of the federal magistrate: SZLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11]. 22 The appellant filed no submissions in support of the appeal but made a number of oral submissions with which I will deal in context. 23 I now turn to the singular ground of appeal. 24 First, it must be said that the federal magistrate did not rely on country information; the tribunal did. There is no error in doing so. The tribunal was required to consider whether the appellant's claims were well-founded and was entitled to obtain any information it considered relevant. Having obtained the information, it was required to have regard to it: Migration Act, s 424(1). But the weight to be attached to it is a matter for the tribunal: NAH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]. 25 Secondly, the tribunal did not ignore the appellant's "feared risk and persecution". To the contrary, it accepted that he was in fear and that he had been persecuted. The federal magistrate's task was a different one. There is no basis for suggesting that he ignored the tribunal's findings in this regard. 26 The appellant submitted that the federal magistrate did not refer to his fear for his life by reason of his spying activities. There are two answers to this submission. First, the federal magistrate referred to it expressly in two places (at [7] and [14]), albeit only in the context of setting out the appellant's claims and the tribunal's reasons. Second, although his Honour did not expressly refer to the appellant's fears as a suspected spy when setting out his reasons, he accepted the Minister's submission that the tribunal had considered the appellant's claims. That necessarily included this claim. The tribunal recorded its findings at [53] of the decision record. They do not disclose any jurisdictional error. 27 Thirdly, the appellant submitted that neither the tribunal nor the federal magistrate considered the question of complementary protection. 28 It is true that the federal magistrate did not consider the question. But there is a simple explanation for that. The question was not raised by the appellant's show cause application. That means that leave is required to raise it in this proceeding and, unless it is "expedient in the interests of justice to do so", leave will not be granted: VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [46]. The Minister opposed the grant of leave. In this case it is preferable, however, to dispose of the argument on its merits. 29 At [66] the tribunal said: The Tribunal has also considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that he will suffer significant harm under the complementary protection criterion. The applicant did not raise claims in this regard and the Tribunal is not satisfied by the evidence that such a risk exists for the applicant. 30 Thus, the tribunal did consider the question of complementary protection, although its reasons on this question are certainly pithy. 31 But the tribunal's statements in [66] cannot be read on their own. At [16]-[18] the tribunal referred to the elements of the complementary protection criterion in s 36(2)(aa), the definition of "significant harm" in s 36(2A) and the exceptions in s 36(2B). There was also a substantial overlap between this aspect of the case and the appellant's claims based on the Convention where the tribunal found that the appellant's fears were not well-founded because he was not at risk of harm from those he feared. As I mentioned earlier in these reasons, the complementary protection provision only applies where the administrative decision-maker has substantial grounds for believing there is a real risk that the non-citizen will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to a receiving country. In view of the tribunal's findings in connection with the Convention claim, the tribunal's conclusion at [66] was plainly open. 32 The remaining question is whether the tribunal fell into jurisdictional error in making a finding that state protection was available. More accurately, the question is whether the federal magistrate erred in failing to hold that it did not. 33 The appellant submitted: The tribunal said that on the basis of country information and things like that, they don't feel that I will have - they don't see my well-founded fear in my country. They said they gave their decision on the basis of country information but they should know that Maoist is such a strong group that they can do anything and what's happening in our country now is that they said that Maoists are doing good things. Nothing has been reported but the fact is that still they are doing the things. People are being harmed in different places but the news don't publish it. They don't show it to the world what they are doing. That's all I have to say, your Honour. … Tribunal said that I don't have a founded fear and they're talking about the state protection. And I won't be harmed by the Maoists but then they say that I won't suffer harm - what do you call it - no harm but they said that - what you call that - yes, they say that I won't be harmed there. They said that I don't face any harm but only I know - yes - only I know how much I suffered in the seven years, how I had to be hiding in Nepal. They don't know. They just said on the basis of country information but I know what happened. Yes, I know what happened. 34 These submissions amount to no more than an attack on a finding of fact or, put differently, on the merits of the tribunal's decision. It is trite to observe that the question of merit is a matter for the tribunal alone and not open to review for jurisdictional error. Generally speaking, a wrong finding of fact would fall into the same category. It will not provide a basis for judicial review "unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision": NABE v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 144 FCR 1 at [53]. 35 There was certainly information before the tribunal that supported the tribunal's conclusion. At the hearing, the tribunal mentioned to the appellant reports of police in Nepal arresting Maoist/YCL cadres for their involvement in politically motivated violence. It referred to this information at [36] and [38] of its decision record. It also referred to reports indicating that the authorities were taking action against YCL members involved in extortion: see [43]. And it noted (at [44]-[45]) reports indicating a decline in extortion activities, in particular, an article in The Himalayan Times reporting a lull after a major police crackdown. 36 As the federal magistrate observed in his reasons (at [42]-[43]), no country can guarantee that all its citizens will always be safe from violence (referring to Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1) and that the test is whether the level of protection the State provides is adequate, not whether the appellant's safety can be assured. 37 The federal magistrate was also right when he said that the finding as to State protection was unnecessary because the tribunal had already found that the appellant's fears were not well-founded. In other words, the tribunal's reasons could be independently supported even if it had erred in its finding as to State protection. 38 The appellant said he was unable to understand how the tribunal decided that he was not entitled to protection when it had information about attacks in Nepal and had said there was a possibility he would be harmed. This is a misrepresentation of the tribunal's reasons. As I explained at [11]-[12] above and for the reasons summarised there, despite the independent accounts of violence, the tribunal did not accept that the appellant was at risk of harm if he were to return to Nepal. That conclusion (right or wrong) was open to the tribunal on the material before it.

Conclusion 39 For these reasons I am not satisfied that the federal magistrate fell into error. In these circumstances I am bound to dismiss the appeal. Costs should follow the event. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.