FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v SZRUT [2013] FCA 1276

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Minister pay the first respondent's costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1        This is an appeal by the Minister against a decision of the Federal Circuit Court granting constitutional writ relief to the applicant below, whom I will call the claimant: SZRUT v Minister for Immigration [2013] FCCA 368. The relevant facts are in a narrow compass. The trial judge held that the Refugee Review Tribunal had constructively failed to exercise its jurisdiction because it failed to consider a claim that the claimant feared persecution by Maoists for reasons of her being a member of a particular social group were she returned to Nepal. I will explain the characteristics or attributes of the group later in these reasons. The Minister contends that the trial judge erred on two bases. First, he argues that on a fair reading, the Tribunal had found that the claimant did not have a well-founded fear of harm from Maoists in Nepal for any reason whatever her claims, and secondly, that no such claim had been clearly or squarely raised before the Tribunal so as to require it to be addressed.

Background

2        The claimant was a citizen of Nepal who had lived most of her life in Singapore. She arrived in Australia on student visa on 11 February 2006 and applied for a protection visa on 23 August 2011. The Minister’s delegate decided to refuse to grant her a protection visa on 22 March 2012 and she applied to the Tribunal for a review of the decision. She had made a number of claims in the period prior to the hearing before the Tribunal which are not presently relevant.

3        After the hearing, in response to its invitation to comment on adverse material put to her, the claimant who is fluent in English, wrote a written submission to the Tribunal. She wrote that when she had returned to Nepal for nine months between April 2005 and February 2006, an incident occurred that she had not mentioned previously, including during her earlier interview by the Tribunal. She asserted that a man who claimed to be a Maoist had come out of nowhere to her parent’s place, where she was staying, and threatened to take her father away unless he gave the man the money he demanded. The claimant wrote the following assertion that has given rise to the two issues in the present appeal:

“I was hiding inside the room while, they were talking outside. My friend who shared gospel to me in Singapore, in different occasion, her father was also threatened by the Maoist. He wanted to take my friend away since she was so educated from Singapore if he did not give him the money he asked for. It’s still a mystery how this Maoist knew my father and my friend’s father. If I am to go back this is most likely to occur. This is an honest incident occurred; I did not know or was not sure whether to say this during the interview. I really thank God, I am in Australia. According to Country reports on Human Rights Practices 2011, Section 1 part b, indicates abductions occurred for ransoms, however the government turned a deaf ear to the human rights. My parents have moved place, so did my friend’s parents.”

The Tribunal’s reasons

4        In its reasons given on 28 August 2012, affirming the delegate’s decision to refuse to grant the appellant a protection visa, the Tribunal referred to this assertion in is recitation of the material that had been placed before it. It then turned to country information identifying reports published in May and June 2012 by the BBC and the New York Times identifying the state of political crisis arising from the then current political situation in Nepal, where its Maoist-led government had failed to bring order to the country and fears that Nepal was descending into a constitutional crisis and was on the brink of collapse. The latter article described the situation as involving criminal groups recruiting stick-wielding youths to protest and the tactics of various members of the political debate, including the Maoist parties, using “street might”.

5        In its findings and reasons, the Tribunal referred to the claimant’s critical assertion in [77] where it said:

“The applicant has claimed that her father has been subjected to extortion threats by Maoists in Nepal. Extortion threats by Maoists, especially against people who have lived abroad and are considered to be wealthy, are well documented by organisations such as the US State Department (see, for example, their most recent Country Report on Human Rights Practices 2011, published in April 2012). The Tribunal therefore accepts that the applicant’s father has been subjected to threats by Maoists. However, the applicant does not claim that extortion attempts have been made against her father since they have moved house, nor that her father or any family member has been otherwise harmed be Maoists. She does not claim that she herself has come to any harm because of any actions taken by Maoists against her father.” (bold emphasis added)

6        The Tribunal next recorded its finding that the claimant had not suffered harm in the past for a Convention reason, and made findings concerning claims, other than the one the subject of this appeal. In [79] the Tribunal identified what it conceived to be the claims made by the claimant as follows:

“The Tribunal has considered whether there is a real chance that the applicant will be persecuted in a Convention sense if she returns to Nepal in the foreseeable future. She has claimed to fear persecution in future for the following reasons: because she is a Christian; because she is an unmarried female; because she is of the Rai caste; because she has an imputed political opinion which is anti-Maoist. She claims to be in fear of persecution by a range of individuals and a political organisation, as well as society and the state.” (emphasis added)

7        The Tribunal then dealt in turn with, and used as headings, each of the claims it had identified in [79] and rejected them on the basis that it was not satisfied that, if the appellant returned to Nepal in the foreseeable future, there was any real chance that she would be seriously harmed for reasons of her religion, her being a member of a particular social group as either an unmarried female or a member of the Rai caste. It finally turned to deal with the claim it had identified as one based on an imputed political opinion saying:

“Imputed political opinion – opposed to the Maoists in Nepal

91.    In her post-hearing submission the applicant raised for the first time her concerns about her family being the victim of extortion threats by Maoists. While the Tribunal has accepted that her father may have been approached on one occasion, the applicant has submitted no evidence to indicate that her father or anyone in her family was harmed. She said in her post-hearing submission that both her family and her Christian friend’s family had been the victims of extortion but that they had moved house. The applicant did not submit any evidence that her family had been subjected to any harm by the Maoists since 2005-6 when she had been living in Nepal. This was before the peace treaty ending the Maoist insurgency was finalised.

92.    The independent information set out above indicates that Nepal’s current situation is one of continuing volatility and at time violence. However, the Tribunal finds that there is nothing in the applicant’s account of her experiences to elevate her profile such that she would be targeted for violence for any reason if she returned to Nepal in the foreseeable future.

93.    On the evidence before it, the Tribunal is not satisfied that the applicant would be seriously harmed for her imputed political opinion if she returns to Nepal in the foreseeable future.

94.    Having considered the applicant’s claims cumulatively, as well as individually, the Tribunal is not satisfied that she will face Convention-based persecution for any reason if she returns to Nepal in the foreseeable future. It is not satisfied that the applicant has a well-founded fear of persecution in Nepal, within the meaning of the Refugees Convention.

95.    The Tribunal has found that while the applicant may experience discrimination if she returns to Nepal, she will not be seriously harmed there for any reason. The Tribunal does not accept that discrimination amounts to “significant harm” within the meaning of the Complementary Protection legislation. It therefore follows that he [sic] Tribunal is not satisfied on the evidence before it that there is a real risk that the applicant will suffer significant harm if she is removed from Australia to Nepal.” (emphasis added)

The Federal Circuit Court’s decision

8        The trial judge held that the Tribunal’s findings in [91]-[95] of its reasons did not address the claimant’s claim of persecution as a member of a particular social group of persons who had lived outside Nepal and were perceived to be wealthy. He concluded that while the Tribunal had said that the claimant would not face Convention based persecution “for any reason” and would not be seriously harmed, were she to return to Nepal in the reasonably foreseeable future “for any reason”, those general words could not be taken to have disposed of her claim that she was a member of a particular social group of persons who had lived outside Nepal and were perceived to be wealthy. His Honour held that that claim arose on the material before the Tribunal, based on the post-hearing submission to which I have referred. He found that the reference (in [92] of the Tribunal’s reasons) to the claimant’s profile was a reference “to conduct that might give rise to a view that she had a view opposed to the Maoists”. He held that the Tribunal’s reasons did not deal with the entirety of her claims about the Maoists’ motivations that went beyond mere politics. He also said that the Tribunal’s reasons did not sit comfortably with the evidence.

9        The trial judge found that the Tribunal had constructively failed to exercise its jurisdiction by not addressing the most recent claim. He also found that the claimant’s reliance on a failure by the Tribunal to address her complimentary protection claims should fail, but that finding is not the subject of this appeal.

The Minister’s submissions

10        The Minister argued that, on a fair reading of the Tribunal’s reasons, in accordance with the well-known requirement in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, the Tribunal had squarely addressed the question before it; namely, whether the claimant had a well-founded fear that she would face harm for a convention reason were she to return to Nepal in the reasonably foreseeable future. The Minister submitted that, indeed, the Tribunal’s findings went beyond that, and on the three occasions that I have emphasised, in [92], [94] and [95] in its reasons, found emphatically that the claimant would not face serious harm “for any reason”, including but not limited to any Convention based persecution, were she to return to Nepal. The Minister argued that, fairly read, the Tribunal’s reasons indicated that it had considered her claim based on the extortion threat that in 2005 or 2006 it accepted had occurred, and the country information in relation to those matters, and found that since nothing had happened to the claimant’s family after she had left Nepal in 2006, her claim was not established.

11        The Minister emphasised that the Tribunal had found that both her family, and the claimant’s friend’s family, had moved houses after the incidents in the period between 2005 and 2006, and that the peace treaty had also been signed subsequently. He contended that effectively the Tribunal had found that, although the past events, on which the claimant relied for this purpose had occurred, she was not at a risk of future harm based on the absence of any occurrence of intermediate adverse consequences to her family since those incidents, the intervening peace treaty, and the lack of any foreseeable threat that would be posed to her, were she to return now or in the reasonably foreseeable future. He contended that whether or not the Tribunal had identified as an issue that the claimant was a member of a particular social group, it had found that she did not hold a well-founded fear of persecution within the meaning of s 91R(1) of the Migration Act 1958 (Cth) for any Convention reason. Therefore, he submitted, it mattered not that, for the reasons given by Greenwood J in SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 at [78], the Tribunal may not have addressed correctly the issue of her membership of a particular social group as the claimant had argued before the primary judge and on appeal.

12        Alternatively, the Minister argued that the claimant had never made a claim to be a member of a particular social group of people who had lived abroad and were considered wealthy or to fear harm from the Maoists for that reason. He contended that the Tribunal did not have before it a clearly articulated claim that arose on the materials and accordingly it did not fail constructively or at all to exercise its jurisdiction.

Consideration: Did the claimant make a claim of membership of a particular social group?

13        It is convenient to deal first with the Minister’s assertion that no clearly articulated claim was before the Tribunal. I reject that ground. In my opinion, the passage I have set out from the post-hearing written submission made by the claimant was a clearly articulated claim that persons, and their families, who had lived abroad and were considered to be wealthy were liable to extortion threats by Maoists, and that the claimant’s family, her friend, and her friend’s family had been subjected to those threats in the period between April 2005 and February 2006. The Minister accepted in the course of argument that the country report to which the claimant referred in her post-hearing submission was the same as the report of the United States Department of State that the Tribunal cited in [77] of its reasons as identifying the then current position in Nepal.

14        The Tribunal accepted the facts asserted by the claimant as to what had happened in 2005 or 2006 to her family, her friend and the friend’s family, and the country information as to the then current position concerning Maoists’ use of extortion threats on which she had relied. Accordingly, the Tribunal had before it and was bound to consider a substantial, clearly articulated claim that relied on established facts that the claimant feared persecution for a Convention reason: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 22 [68] per Black CJ, French and Selway JJ. However, the Tribunal appears to have summarised erroneously that claim in [79] as being a claim that the claimant had a well-founded fear of persecution simply because she had “an imputed political opinion which is anti-Maoist. She claims to be in fear of persecution by a range of individuals and a political organisation, as well as society and the state”. In its consideration of facts raised in the claim under the heading “Imputed Political Opinion – Opposed to the Maoists in Nepal”, the Tribunal confined itself to considering factual matters relating to the claimant’s fear of harm to her family and herself from extortion threats by Maoists.

Consideration: Did the Tribunal’s findings dispose of the additional claim?

15        The Tribunal, having accepted that the threat occurred to her father, as the claimant asserted, in 2005 or 2006, made the finding in [91] of its reasons that she had “submitted no evidence to indicate that her father or anyone in her family was harmed”. I am of opinion that a fair reading of that passage is that the Tribunal conveyed its finding that no immediate physical harm had been done to the claimant or her family and that there had not been a threat of serious harm to her father’s life or liberty within the meaning of s 91R(2)(a) of the Act, rather than being a finding that was in contradiction to its earlier finding that the claimed extortion had occurred in 2005 or 2006.

16        The Tribunal proceeded to refer to the fact that the claimant’s parents had moved house after she had again left the country, and that there been a peace treaty. But, it did not address its previous finding that the country information as at the time of the hearing supported the ongoing use of such tactics by the Maoists as being “well documented”. The Tribunal then reasoned in [92] that independent country information which, the Minister accepted in argument, was a reference to the BBC and New York Times stories concerning the political unrest in Nepal, established contemporary continuing volatility and violence there. But, it concluded that there was “nothing in the applicant’s account of her experiences to elevate her profile such that she would be targeted for violence for any reason if she returned to Nepal in the foreseeable future”.

17        The appellant asserted a fear that she would be persecuted because she was a member of a social group of persons, including her family, who had lived abroad, were considered to be wealthy, and were liable to extortion threats by Maoists. The Tribunal had found that that situation existed in Nepal at the time it was considering the claim, and the claimant’s family in the past had been subject to such threats, as had her friend and her family. The Tribunal attributed to the claimant that she claimed to have a profile that was elevated so that she would “be targeted for violence for any reason”. That attribution could, as the Minister argues, be read as referring to an all-encompassing finding within the meaning of “violence” that included the concept of serious harm amounting to threats to the claimant’s life or liberty, such as being the victim of actual or threatened kidnap to enforce extortion demands by reason of membership of a social group of persons who had lived abroad and were considered to be wealthy.

18        But in my opinion, fairly read, the Tribunal’s reasons at [91]-[95] do not address such a finding. Rather, it appeared to have addressed a different issue of the claimants’ political profile, as the judge below found, based on an imputed opinion of opposition to Maoism. There is a clear disjunction between the Tribunal’s findings in [91]-[92], and its earlier finding in [77] as to the contemporary political situation in Nepal of persons in the claimed position of the claimant and her family. That lack of coherence suggests that the Tribunal was not addressing in terms the issue raised by the claimant’s clearly articulated claim, but was dealing with another aspect of her claims.

19        In Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at 400-401 [36], Gleeson CJ, Gummow and Kirby JJ said that a particular social group, within the meaning of Art 1A(2) of the Refugees Convention, had to be identifiable by a characteristic or attribute common to all members of the group, and that that characteristic or attribute could not be the shared fear of persecution, but that possession of that characteristic or attribute had to distinguish the group from society at large. They then went on to say:

“As this Court has repeatedly emphasised, identifying accurately “the particular social group” alleged is vital for the accurate application of the applicable law to the case in hand.” (citation omitted)

20        In my opinion, that is what the Tribunal failed to do. It is difficult to understand how, in [91]-[95] of its reasons, the Tribunal could have been addressing the question whether the claimant had a well-founded fear of persecution by reason of being a member of a family that had lived abroad and was considered to be wealthy and was thus subject to extortion threats by Maoists. That is because it said that her account of her experiences had not “elevate[d] her profile such that she would be targeted for violence for any reason”. That finding does not reflect the Tribunal being focused on addressing the question of the claimant’s asserted fear of persecution based on her membership of a particular social group having regard to its findings at [77] that she fell within such a group and that Maoist extortion threats against members of that group were occurring. The Tribunal was not addressing that question in [91]-[95] of its reasons. As its reasons there made clear, it only addressed there an imputed political opinion that the claimant was anti-Maoist and rejected it.

21        Accordingly, when the Tribunal’s reasons are read fairly, as a whole, as having been written by an administrative decision maker, its three findings in [92], [94] and [95] to the appellant not being at risk of serious harm or Convention based persecution “for any reason” are related, and must be related only, to the limited claims that the Tribunal was considering as it conceived them mistakenly to be.

22        I am not persuaded that his Honour erred by reading, as the Minister argued, the Tribunal’s reasons minutely and finely, with an eye keenly attuned to the perception of error, or that the construction that his Honour placed on those reasons resulted from scrutiny of them “upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”: Wu Shan Liang 185 CLR at 272. In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 614 [47], French, Sackville and Hely JJ said that the inference that the Tribunal had failed to consider an issue might be drawn from its failure to deal expressly with that issue in its reasons. They said that such an inference was not readily to be drawn where the reasons were otherwise comprehensive and the issue had been at least identified at some point but that it might be unnecessary to make a finding on a particular matter because it was subsumed in findings of greater generality or because there was a factual premise upon which the contention rested that had been rejected. They continued:

“Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved in one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

23        In my opinion, that inference is the correct one to draw here. As I have said, there is a lack of connection between the way in the Tribunal found the country information to support the existence of what, had the Tribunal turned its mind to it, was a claim based on membership of a particular social group, and its reasoning in dealing with the claim of imputed political opinion. The latter reasoning emphasised the “elevation” of the applicant’s profile and rejected this as supporting a finding that she was at risk in the future of being targeted for violence “for any reason”. In my opinion, the lack of connection of the reasoning at [91]-[95] to the findings at [77] demonstrates that the Tribunal overlooked a proper evaluation of the claimant’s claim and constructively failed to exercise its jurisdiction in accordance with law.

24        I am not satisfied that a fair reading of the Tribunal’s reasons indicates that it had made a comprehensive rejection of any possibility of harm to the claimant for any Convention reason. Rather, because of the way in which the reasons were expressed, and having regard to what they omitted, I am of opinion that its reasoning dealing with a lack of a fear of harm “for any reason” was addressed, to and only addressed to, the claims it had identified and not to the one it had failed to perceive. The Tribunal’s failure to identify accurately the particular social group which the claimant alleged to be part of and then deal with her claim based on her membership of that group was a jurisdictional error: Applicant S 217 CLR 400-401 [36].

Conclusion

25        In my opinion, the trial judge was correct to uphold the claimant’s claim for constitutional writ relief on this basis. The appeal should be dismissed.

Associate:

Dated:    27 November 2013