FEDERAL COURT OF AUSTRALIA

SZIBR v Minister for Immigration and Citizenship [2008] FCA 502

PRACTICE AND PROCEDURE – where new grounds raised on appeal – whether it is appropriate to treat the Federal Court as a Court at first instance – whether grounds raised have any merit.

MIGRATION – whether Tribunal considered particular social group claim – where Tribunal found no serious harm inflicted on the appellant – where Tribunal made a finding on relocation adverse to the appellant – appeal dismissed.

Migration Act 1958 (Cth)

Abebe v The Comonwealth (1999) 197 CLR 510 cited

Attorney-General v Quin (1990) 170 CLR 1 cited

Metwally v University of Wollongong (1985) 60 ALR 68 cited

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 cited

SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 cited

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 cited

SZIBR v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2159 OF 2007

LANDER J

21 APRIL 2008

adelaide (heard in sydney)

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the first respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                          This is an appeal against an order of a Federal Magistrate made on 15 October 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 13 February 2007 and handed down on 22 February 2007.  The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a Protection (Class XA) visa to the appellant.

2                          The appellant is a citizen of Nepal who arrived in Australia on 29 April 2005.  On 7 June 2005 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.  On 5 August 2005 a delegate of the first respondent refused the application for a Protection visa.  On 31 August 2005 the appellant applied to the Tribunal for a review of that decision.

3                          The Tribunal (differently constituted) (the first Tribunal) affirmed the delegate’s decision on 24 November 2005 (handed down on 13 December 2005).  On 11 October 2006, upon review to the Federal Magistrates Court, the decision was quashed and the matter remitted to the Tribunal for reconsideration according to law.  That remitter led to the Tribunal’s decision which was the subject of the application for judicial review to the Federal Magistrates Court.

Background

4                          The appellant claimed fear of persecution by Maoists in Nepal for being thought to have caused one of their leaders to be imprisoned; for refusing to pay “donations”; and for his political opinion generally.  He also claimed to fear persecution from the Nepalese police for his imputed political opinion, in that it was perceived by the authorities that he supported the Maoists.

5                          The appellant gave evidence of his membership of the Nepal Student Union which is affiliated with the Nepali Congress Party.  He said that after he completed his study and before he commenced his own business he decided to join the Nepali Congress.  In 1990 he became an ordinary member of the Nepali Congress Party in which he remained active.  He said that his membership of the central committee of the Nepali Congress Party led the CPN-Maoists to think that he was actively undermining that party.  He was accused of giving false statements to the government which was then formed from the Nepali Congress Party and told to leave the district.  Civilians at that time were asked to make donations to the Maoists.  He learned that everyone else in his district gave donations to the Maoists except him.  He also claimed he had been attacked by Maoists for refusing to pay donations.  He said in that November 2001 in excess of 100 Maoist rebels came to his house at which they threw stones.  He said they were looking for him and his family.  The broke the windows and doors of the house and they looted his shop.  He reported the matter to the police.

6                          He said that he was not the only person attacked by Maoists.  They also attacked other members of the Nepali Congress Party.

7                          In December 2001, he and other members of the Nepali Congress Party moved to Kathmandu.  He built a house in Kathmandu which he and his family occupied.  He commenced a business in Kathmandu.

8                          The appellant stated that his house was raided by the police because the appellant had rented a floor of his house to a Maoist district level leader (known as Mr Rajendra).  The appellant said he did not know this person was a Maoist leader.  The appellant claimed that the police suspected that the appellant knew Mr Rajendra was a Maoist.  He was interrogated by the authorities as to his connection with Mr Rajendra.  He claimed the authorities forced him to sign a statement that he would report to them if he were to leave the country.

9                          The appellant claimed that after the Maoist leader was arrested by the authorities the leader’s friends assaulted him and broke his nose.  He said he was admitted to hospital unconscious.  He reported the matter to the police but received no response.

10                        Shortly after, Maoists invaded his house and made threats to his wife and children.  They said if their leader was not released they would kill the whole family.

11                        He said that he and his family decided to hide and they hid in a friend’s house in Satungal, which is nine kilometres from Kathmandu city.  Whilst hiding there, they decided to go to Australia.

12                        The appellant claimed that he could not seek protection from the authorities because they believed he was supporting the Maoists.  The appellant further claims that he fears the authorities will arrest him if he returns because he left the country without their permission.

13                        He said that he does not know whether Mr Rajendra is alive or dead, or whether he is still in custody.  He said if Mr Rajendra has disappeared or is dead then his followers will be angry with him.  In those circumstances, if he is not arrested by the authorities it is likely that he will be kidnapped and tortured by Mr Rajendra’s followers.

The Tribunal’s Decision

14                        The appellant attended a hearing before the first Tribunal on 25 October 2005 and gave oral evidence to the Tribunal.  The appellant also attended a hearing before the second Tribunal on 19 January 2007.  He was assisted by a Nepalese interpreter on both occasions.

15                        It is not entirely clear how the Tribunal categorised the appellant’s claims.  The Tribunal said, when discussing the appellant’s application that it had been submitted that the appellant’s fear of persecution related to his political opinion as a high profile political leader who was associated with the Nepali Congress Party and his membership of a particular social group as a businessman who was targeted by Maoists for donations.

16                        Later in its findings and reasons, the Tribunal said:

The applicant’s claims are based on the Convention ground of actual and imputed political opinion.  His case is essentially that he was a member of the Nepali Congress Party and he fears the Maoists essentially because he refused to pay them donations and because he is perceived to have played a part in the apprehension of his former tenant, a Maoist leader.  The applicant had also claimed a fear of persecution by the authorities, but has now expressly withdrawn his claim. 

17                        It is not clear in the Tribunal’s reasons where it was that the appellant had expressly withdrawn his claim of a fear of persecution by the authorities.

18                        Moreover, the Tribunal seems to have rolled up at that stage his claim that he would be persecuted by reason of his political opinion and his claim that he was a member of a particular social group which was targeted by the Maoists for donations.  I will return to that.

19                        The Tribunal accepted that the appellant became an ordinary member of the Nepali Congress Party in 1990 and that he was active in the affairs of the party.  It accepted that he was asked for donations by Maoists which he refused to pay.  It accepted that, as a consequence, he was threatened and that on one occasion his house was attacked.

Despite this, the Tribunal found that there was no serious harm inflicted on him or his family and the family had been able to move back into the house shortly after.  It found there was no evidence to suggest the Maoists had taken any other steps to act upon the threats levelled against the appellant.  The Tribunal found, on the evidence before it, that the Maoists were primarily attacking and extorting money from rich people, and it was not satisfied the threats and attack against the appellant were essentially and significantly motivated by the appellant’s political opinion or activities.

20                        The Tribunal noted that the appellant had successfully relocated to Kathmandu in 2001.  The Tribunal did not accept the appellant’s claim that the Maoists believed he had been somehow responsible for the arrest in 2004 of one of their leaders, who was also the appellant’s tenant.  The appellant had claimed in his evidence that his tenant was Mr Rajendra Dhakal.  However, the Tribunal had obtained an Amnesty International Report indicating that a Rajendra Dhakal from that area, who was a former Maoist leader, had been arrested in January 1999 and had not been active since.  The Tribunal found the appellant’s explanations far-fetched and unpersuasive, and noted that the appellant’s explanation and evidence of a police conspiracy surrounding this event not only cast doubt on the credibility of the appellant’s explanations in relation to this event, but also cast serious doubt on his assertion that he was assaulted by Maoists in 2004.  The Tribunal held that the appellant’s evidence regarding the arrest of his tenant for the reasons he provided was a concoction designed to strengthen his case.

21                        The Tribunal did not accept the appellant’s tenant was arrested because he was a Maoist leader or that the police led the appellant to believe that this person was Rajendra Dhakal.  The Tribunal did not therefore accept that the appellant had been assaulted by Maoists because they believed he was responsible for sending their leader to jail.

22                        The Tribunal had regard to the appellant’s six week delay before leaving Nepal and five week delay in lodging his Protection visa application for finding that, if he had had a genuine fear of persecution, such delays would have not have occurred.

23                        The Tribunal considered country information in relation to Maoists and members of the Nepali Congress Party and was not satisfied that if the appellant were to engage in the same level of political activity if forced to return to Nepal he would face harm.

24                        The Tribunal accepted that the appellant’s house was robbed in 2006 but not satisfied it was for a Convention reason.

25                        For those reasons, the Tribunal was not satisfied that the appellant held a well founded fear of harm for a Convention reason.

Before the Federal Magistrate

26                        On 21 March 2007 the appellant brought an application for judicial review of the decision of the Tribunal asserting a breach of s 425(1) of the Migration Act 1958 (Cth) (the Act).  Particulars provided by the appellant asserted that the Tribunal failed to give the appellant an opportunity to give evidence in relation to an issue arising in the decision under review, namely whether Rajendra Dhakal was or had been in police custody or had escaped police custody.  That was the sole issue relied on for the relief sought.  The appellant’s counsel submitted that the issue that was not put to the appellant in accordance with s 425(1) was that there were conflicting statements in the Amnesty International Report about whether Rajendra Dhakal had been arrested or was in police custody.

27                        In relation to this issue, the Federal Magistrate said:

The relevant part of the Amnesty International Report was put to the applicant in a s.424A letter and an internet reference given to obtain the full report.  That itself was sufficient to put the question of the arrest of Rajendra Dhakal to the applicant for him to give evidence and present argument in relation to it. 

28                        Further, his Honour noted that the Tribunal in its decision record stated it had raised the report with the appellant at the hearing.  The Federal Magistrate found that the Tribunal had accordingly complied with s 425: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592.   As there was no jurisdictional error established, the application was dismissed.

On Appeal

29                        The appellant’s notice of appeal was filed in this Court on 31 October 2007 raising two grounds of appeal which may be summarised:

1.         The Tribunal misapplied the meaning of “well founded fear” and failed to assess the cumulative effects of separate incidents; and

2.         The Federal Magistrate failed to find denial of natural justice and procedural fairness in that the Tribunal did not give weight to the appellant’s evidence; made a decision based on assumptions and the evidence prepared by the first respondent; “ignored to evaluate” the political situation in Nepal; was confused as to the facts; and raised irrelevant issues and ignored relevant issues.

Appellant’s Submissions

30                        The appellant provided written submissions in support of the appeal.  However, he has mainly repeated the facts upon which his claims were based.  In that respect, the appellant has mistakenly assumed that this Court’s jurisdiction includes merit review.

31                        The appellant submits that he was denied procedural fairness when the Federal Magistrate “failed to hold that the Tribunal member concentrated only on one issue to discredit all other oral and written evidence in support of his claim for the protection visa.”  Of course, the issue on appeal is not whether the Federal Magistrate denied the appellant procedural fairness.  The issue on appeal is whether the Federal Magistrate erred in not identifying a want of procedural fairness on the part of the Tribunal.

32                        The appellant also submitted that the Tribunal “asked more irrelevant question (sic) connected with the real issue. The real issue is that whether he has fear from the Maoists or not?”  The appellant states “the Tribunal member ignored the cumulative effects of fear and made decision without assessing the well-founded fear from the Maoists.”

33                        Finally, in terms of the appellant’s written submissions, the appellant appears to assert bias when he submits “the Tribunal made a jurisdictional error when he made up his mind before the hearing and designed the questions to discredit all the evidence presented by the Appellant.”

First Respondent’s Submissions

34                        The first respondent submits that neither of the grounds of appeal were grounds for review before the Federal Magistrate.  The first respondent contends that, in any event, there was no error in the Tribunal’s approach as to whether the appellant’s claimed fear was well founded.

35                        The first respondent further submits that any weight to be given by the Tribunal to evidence was a matter for the Tribunal: Abebe v The Comonwealth (1999) 197 CLR 510 at [197].

36                        Finally, the first respondent submits that there was no error in the way in which the Federal Magistrate dealt with the issue of s 425 and that the appellant was properly on notice of the issue in relation to the tenant generally.

Conclusions

37                        The first respondent’s contention that the grounds of appeal raise matters not raised before the Federal Magistrate must be accepted.  The sole issue before the Federal Magistrate was whether there had been compliance with s 425 by the Tribunal putting to the appellant conflicting statements in the Amnesty International Report.  The Federal Magistrate ruled against the appellant on that sole ground.  The appellant has not made that ruling the subject matter of this appeal.

38                        A party is not entitled to raise new grounds which were deliberately or by inadvertence not put to the Court from which the appeal is brought: Metwally v University of Wollongong (1985) 60 ALR 68 at 71.

39                        If the appellant were entitled to raise these new grounds, it would mean that this Court would have to sit, as it were, as the Court at first instance to determine whether these new grounds would give rise to the relief sought in the application before the Federal Magistrate.  Parliament has given the responsibility for hearing these applications exclusively to the Federal Magistrates Court.  The parties, whether they are represented or unrepresented, ought to articulate all of their complaints in relation to the Tribunal’s reasons in the Federal Magistrates Court so that that Court can make the appropriate findings and reach a considered decision on all aspects of the Tribunal’s decision.

40                        To allow the appellant to articulate these grounds on appeal would be to allow the appellant to treat this Court as a Court at first instance.  Such a course of action is unsatisfactory, not only for this Court but also for the High Court which would hear any application for special leave from this decision.  It would put the High Court, as it were, in a position of hearing applications for special leave from a court of first instance: SZKMS v Minister for Immigration and Citizenship [2008] FCA 499.

41                        However, authority seems to suggest that I need to consider whether the grounds have merit before I determine whether I should give leave for the appellant to raise the matters: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158.

42                        The Tribunal considered the question of a well-founded fear of persecution conventionally.  The Tribunal said:

Fourth, an applicant’s fear of persecution for a Convention reason must be a “well-founded” fear.  This adds an objective requirement to the requirement that an applicant must in fact hold such a fear.  A person has a “well-founded fear” of persecution under the Convention if they have genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason.  A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation.  A “real chance” is one that is not remote or insubstantial or a far-fetched possibility.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

43                        The Tribunal stated the correct test which it applied to the facts.  It found that the appellant did not have a genuine fear of persecution.  That being the case, the appellant could not satisfy the test of well-founded fear of persecution as determined by the authorities.

44                        Insofar as it is submitted that the Tribunal was in error in determining the absence of fear on the part of the appellant, that was a matter for the Tribunal and not for this Court.  The weight that the Tribunal put upon the evidence for the purpose of determining that issue was also for the Tribunal and not for this Court: Abebe 197 CLR 510.

45                        The second ground seems to be a complaint going peculiarly to the merits or to the weight which the Tribunal put upon the evidence which gave rise to the Tribunal’s ultimate decision, disguised as it were as a complaint of bias.  Insofar as it is a complaint about the merits, that is not a matter for this Court: Attorney-General v Quin (1990) 170 CLR 1 at 35-36; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67].  Insofar as it is a complaint of apprehended bias or bias, there is simply no evidence to support a claim of prejudgment.

46                        Neither ground of appeal has merit.  In those circumstances, I would not grant leave to the appellant to raise those matters on this appeal.

47                        Although the appellant did not address the issue that was before the Federal Magistrates Court, the first respondent did so for the purpose of demonstrating that the Federal Magistrate had not erred.  The issues before the Federal Magistrate were mainly directed to that aspect of the appellant’s claim which dealt with Mr Rajendra.  Principally, the Tribunal was concerned with “the plausibility” of the claim.  Sub-issues concerned the identity of the tenant who was living in the appellant’s house and his whereabouts subsequent to his leaving.  The thrust of the appellant’s case was that there were two persons of the same name who came from the same locality and were both lawyers who had been wanted or arrested by the police.  The Tribunal thought it implausible that there were two persons by the name of Rajendra Dhaka, both of whom were lawyers from the Gorkha District.  The Tribunal rightly, so the Federal Magistrate found, addressed that issue in the s 424A letter and also discharged its liability under s 425.  It is clear from a reading of the s 424A letter and the transcript that the appellant was put on notice of that issue.  The Federal Magistrate was right to find that the Tribunal had complied with its obligations under s 424A and s 425.

48                        I raised with counsel for the first respondent a matter not raised by the appellant either before the Federal Magistrate or on appeal.  It is tolerably clear from the appellant’s claims and the Tribunal’s reasons that apart from claiming a fear of persecution because of his political opinion, the appellant also claimed a fear of persecution by reason of his membership of a particular social group as a businessman who was targeted by Maoists for donations.  I raised with the first respondent’s counsel whether that matter had been appropriately addressed by the Tribunal.  The first respondent’s counsel accepted that the appellant had made such a claim but at the same time contended that his claim had been properly addressed by the Tribunal who was not satisfied that he was entitled to a Protection visa on that ground.

49                        The Tribunal found that the appellant was asked for donations by the Maoists which he refused to pay.  In particular, it found:

The Tribunal accepts that as a consequence he was threatened by the Maoists and on one occasion his house was attacked whereby the family’s possessions were robbed and the house was padlocked.

50                        Later, it found that whilst the appellant’s house was robbed in June 2006 it was not satisfied that the house was robbed by Maoists or for the reasons of the appellant’s political opinion or for any other Convention reason.  The findings appear to be contradictory.  However, the first respondent’s counsel argued that the first finding did not include in it a finding that the house had been attacked by the Maoists.  That is a very generous reading of the Tribunal’s reasons and a reading I would not be prepared to give to those reasons myself.

51                        The Tribunal clearly found that the attack on the appellant’s house was not motivated by his political opinion or activities.  It did not address, it seems to me, whether the attack was motivated by his membership of the political social group as a businessman targeted by Maoists for donations.  I think it ought to have addressed that question because I think on a reading of the Tribunal’s reasons, notwithstanding the second finding to which I have referred above, the Tribunal was of the opinion that the attack on the appellant’s house was carried out by the Maoists.

52                        The first respondent’s counsel argued that if that result were right the appeal had to fail for two reasons.  First, the Tribunal made a finding that the robbery which was carried out during the attack on the house had not inflicted any serious harm on the appellant or members of his family.  In that regard, she relied upon a finding of the Tribunal:

The applicant’s evidence does not suggest that the robbery had inflicted serious harm on him or members his family.  Prior to the attack the applicant and his family had managed to leave the house.  Nobody was injured and they had been able to move back into the house shortly after and remained there for 25 days before moving to Kathmandu without further incident.  He did not claim to have suffered significant economic loss and the Tribunal is satisfied that this was the case.  Apart from the attack on his house, the applicant did not claim and there was no evidence before the Tribunal to suggest that the Maoists in Okhaldhunga had taken any other steps to act upon the threats they had levelled against him.

53                        I think those findings would, as was contended by the first respondent, be fatal to a claim that the Tribunal’s failure to consider the specific claim in relation to the particular social group made by the appellant meant that the Tribunal fell into jurisdictional error.

54                        The first respondent’s counsel also argued that the Tribunal had made a finding on relocation adverse to the appellant which would mean that even if the Tribunal had erred, as suggested above, the appeal would have to be dismissed.

55                        The Tribunal did find that the applicant had successfully relocated himself to Kathmandu in late 2001.  It found that he did not suffer any persecution after he had relocated.  Indeed, in that regard it relied upon the appellant’s own evidence.  In particular, it found:

That said, the applicant’s own evidence clearly indicates that while he remained a member of the Nepali Congress Party in Kathmandu, he was not politically active, there was no evidence to suggest that he occupied a political position, let alone a high profile position, in Kathmandu and was never targeted for harm by the Maoists for the reason of his political affiliation, membership of a particular social group, including being a businessmen (sic) in Kathmandu, or any other Convention reason.

56                        In that finding the Tribunal has considered the appellant’s claim, albeit in considering relocation for the reason of his political opinion and his membership of a particular social group.  In those circumstances, the contention of the first respondent’s counsel must be accepted.  If the appellant were to return to Nepal he could live in Kathmandu without fear of persecution for his membership of a particular social group, namely a businessman who was targeted by Maoists for donations.

57                        For all of those reasons, all grounds raised fail and the appeal must be dismissed.

Associate:

Dated:         21 April 2008