FEDERAL COURT OF AUSTRALIA

SZUWA v Minister for Immigration and Border Protection [2015] FCA 1300

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs to be taxed, if not agreed.

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

REASONS FOR JUDGMENT

1    The appellant is a male citizen of Nepal who applied for a protection (class XA) visa under the Migration Act 1958 (Cth) on 8 July 2013.

2    The appellant claims to fear he will be seriously harmed or killed by Maoists if returned to Nepal because he is an activist member of the Rastriya Prajatantra Party (RPP)/Rastriya Prajatantra Party Nepal (RPP-N) who supports the monarchy and is opposed to Maoists. He further claims that, as a wealthy businessman, he will be targeted by Maoists with extortion demands.

3    The appellant says his father was a politician loyal to the monarchy during the period of the king’s direct rule in Nepal, who then became actively involved with the RPP in opposing Maoists after the commencement of the People’s War in 1996. He says, as a result, his father was abducted and murdered by Maoists on 20 October 1999.

4    The appellant claims that he became a member of the RPP in August 2000, following his father’s death, and that he actively voiced his opposition to Maoists in his home district and village. He says that as a result, on 29 May 2003, Maoists forced him and his family to leave his house and took control of the property.

5    He says he then moved to Kathmandu, where he established several businesses. He claims that, as a businessman, he was forced to make donations to the Maoists from 2005 to 2007 to ensure his safety and business operations.

6    The appellant says that in November 2005, the police detained him for two days and subjected him to physical and mental torture, accusing him of financially supporting Maoists. He says he was released from detention on the condition that he present to the police when required and stop supporting Maoists, and says if the police detected that he had helped Maoists, they would murder him.

7    He claims that following his release from police detention, Maoists continued to extort money from him, threatening to kill him if he refused, and he arranged to make payments in secret. He says he lived in constant fear of being extorted or harmed by Maoists.

8    The appellant further claims that after becoming a member of the RRP-N in 2007, he was abducted by Maoists on 25 March 2013 because he criticised Maoist activities. He says the Maoists held him for one day and demanded “Rs 25,00000.00”, threatening to kill him if he refused to pay. He says he paid them “Rs 5,00000.00” and promised to pay the rest within one month.

9    The appellant claims he could not rely on the Nepalese authorities for protection because they are corrupt and the Maoists control the authorities. He says that he made reports to the police and requested help from RRP-N, the National Human Rights Commission and the Nepal Bar Association following his release, but received no help.

10    Unable to pay the remaining sum to the Maoists, he claims he hid at his uncle’s house until he left Nepal.

11    The appellant arrived in Australia on 25 May 2013 as a business visa holder.

12    On 12 December 2013, a delegate of the Minister for Immigration and Border Protection refused to grant the appellant a protection visa.

13    The appellant sought review of this decision before the Refugee Review Tribunal, but the Tribunal affirmed the delegate’s decision on 30 June 2014.

14    The Federal Circuit Court of Australia gave judgment on 4 August 2015, dismissing the appellant’s application for judicial review of the Tribunal’s decision. See SZUWA v Minister for Immigration & Anor [2015] FCCA 2329.

15    The appellant now appeals from the Federal Circuit Court’s decision by a notice of appeal filed 25 August 2015.

DELEGATE’s DECISIOn

16    The delegate did not find it necessary to decide whether the appellant had a well-founded fear of persecution or was at a real risk of suffering significant harm in Nepal. The delegate simply found that, for the purposes of s 36(3) of the Act, the appellant had a right to enter and reside in India and had not unsuccessfully taken all possible steps to avail himself of his right to enter and reside in India.

17    The delegate considered the appellant provided no credible, compelling reasons why he could not enter India and safely reside there, and there was no country information that suggested India would return a Nepalese national with a well-founded fear of persecution, or at real risk of significant harm, to Nepal.

18    The delegate therefore found that Australia did not owe the appellant protection obligations in accordance with s 36(3), (4), (5) and (5A) of the Act.

TRIBUNAL’s decision

19    Despite the basis of the delegate’s decision, the Tribunal considered the appellant’s claims that he had a well-founded fear of persecution or faced a real risk of significant harm in Nepal.

20    The Tribunal had regard to country information about the elections for Nepal’s Constituent Assembly in 2013, in which the Unified Communist Party of Nepal (Maoist) (UCPN(M)) won only 26 seats. It noted that following the election the UCPN(M) announced unconditional support for the Nepal Congress Party-led government and joined in an agreement with other major political parties. Further, the Tribunal said that information before it indicated a reduction in the level of insurgent violence involving Maoists since the 2006 ceasefire in the country, and put to the appellant that Nepal does in fact have functioning police and security forces and a judicial system.

21    The Tribunal then made adverse credibility findings in relation to key elements of the appellant’s claims.

22    Despite doubts as to their legitimacy, the Tribunal accepted that documents produced by the appellant indicated that his father was a member of the RPP and was killed by Maoists in 1999, and that the appellant was a member of the RPP and, after October 2007, the RPP-N.

23    However, the Tribunal found the appellant’s responses to a number of questions about his political activities as a member of the RPP and RPP-N were notably vague and was not satisfied that he expressed his political opinions in public in a way which would have given him any form of political profile, or involved himself in politics at a level which drew him to the adverse attention of Maoists. The Tribunal further noted the appellant did not claim to have involved himself in Nepalese politics in any way since arriving in Australia. Given the length of time which had elapsed and the major political changes which had occurred over the intervening years, the Tribunal was not satisfied that the appellant’s father’s murder by Maoists in 1999, even in combination with the appellant’s membership in the RPP/RPP-N, gave him a political profile in Nepal.

24    Further, the Tribunal did not accept as credible the appellant’s claim he was abducted in 2013 and confronted with a demand for a large amount of money under the threat that, if he did not pay, he and his family would be killed. The Tribunal found it was implausible he would leave his wife and children behind in Nepal in the face of such a threat, making no attempt to relocate them or take other action to reduce the danger to them.

25    The Tribunal also noted it was difficult to accept the appellant’s claim the Maoists gave him one month to pay the balance of the amount they demanded when he remained in Nepal for nearly three weeks after his Australian visa was issued. The Tribunal further doubted the credibility of the appellant’s claims he was targeted for extortion over a number of years, that he had been arrested by police in November 2005 on suspicion of having aided Maoists, and that the appellant’s family in Nepal were receiving threatening telephone calls from Maoists.

26    Therefore, the Tribunal was not satisfied there was a real chance the appellant would suffer harm of any kind because of his political opinion, real or imputed, on his return to Nepal. Further, the Tribunal did not accept he would face a real risk of serious harm because he was a wealthy businessman, either from Maoists or from the authorities on suspicion of aiding Maoists.

27    As such, for the purpose of s 36(2)(a) of the Act, the Tribunal was not satisfied the appellant had a well-founded fear of persecution for a Convention reason (the Tribunal referred to the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees). Nor was the Tribunal satisfied, for the purpose of s 36(2)(aa) of the Act, that as a necessary and foreseeable consequence of the appellant being removed from Australia to Nepal, there was a real risk that he would suffer significant harm.

JUDICIAL review in the federal circuit court

28    In his grounds of judicial review before the Federal Circuit Court, the appellant contended the Tribunal:

(1)    heavily relied on independent information about Nepal which was fluid and out of date;

(2)    failed to provide natural justice; and

(3)    failed to consider whether the changes in circumstances in Nepal were durable and substantial.

29    The primary judge found that ground 1 did not give rise to jurisdictional error for the following reasons:

    While the Tribunal was obliged to base its decision upon the most up to date information available to it, it may rely on information that is several years old as part of a weighing process after considering all the information available to it and deciding which information best and most reliably supports the prediction of future risk it is called on to make. The Tribunal relied on fairly contemporaneous information relating to the 2013 elections in Nepal, the elections having been held on 19 November 2013, before the Tribunal’s decision in June 2014, and there was nothing to suggest there was any later, inconsistent information available to the Tribunal.

    The country information on insurgent violence relied on by the Tribunal showed there had been a reduction in the level of violence involving Maoists following the 2006 ceasefire and there were no reports of such violence in 2013. There was no indication any more recent information was available to the Tribunal which suggested the situation had changed for the worse since the end of 2013.

    The Tribunal also relied on country information concerning fraudulent documentation. While the information relied on was several years old, there was nothing to suggest there was more current information that the Tribunal was aware of which provided the situation had changed. In any case, the Tribunal gave the appellant the benefit of the doubt in respect of the documents he relied on, so the use of the information pertaining to document fraud did not affect its decision.

30    While the appellant’s ground 2 alleged failure to provide natural justice, his Honour noted the appellant made oral submissions to the effect that he satisfied the United Nations requirements and he wanted to live freely. His Honour found this submission went to a question of merits, which was for the Tribunal alone, and that the Tribunal’s findings of fact were open on the material and based upon a proper understanding of the meaning of refugee in the Convention.

31    With regard to ground 3, the primary judge said to the extent it repeated ground 1, it was rejected. However, it could also reflect certain authorities concerning the meaning of Art 1C in the Convention. His Honour noted Art 1C(5) provides that the Convention shall cease to apply to any person falling under its terms if he can no longer refuse to avail himself of the protection of the country of his nationality because the circumstances which related to him being recognised as a refugee have ceased to exist, referring to the High Court’s decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1; [2006] HCA 53. However, his Honour found that questions relating to Art 1C of the Convention were irrelevant because the appellant had not been recognised to be a refugee. His Honour held the Tribunal answered the correct question as posed in s 36(2)(a) of the Act and made findings of fact about the current circumstances in Nepal and what they might reasonably be in the future.

32    The primary judge dismissed the application for judicial review.

appeal to this court

33    The appellant raises three grounds of appeal in his notice of appeal filed 25 August 2015, as follows:

1.    I do not agree with the judgement of the Federal Circuit Court … because his honour failed to find an error of law committed by the Administrative Appeals Tribunal despite the fact that the decision has been affected by lack of natural justice.

2.    I claimed the truth that I am a businessman and I am a victim of extortion by the criminals including the Maoists. I have serious problems with the anti-monarchists including the Maoists because I am a member of the Rastriya Prajatantra Party Nepal and I am a committed royalist. The Tribunal member did not want to believe me because the Member appeared to establish disbelief of my credibility and ignored my entire evidence in which my case was taken in breach of the rules of natural justice.

3.    It is contended that the Tribunal Member failed to consider the totality of my claims and it gave no consideration whatsoever, as it was obliged to do.

(As in original.)

34    The Minister submits that both the first and second grounds of appeal contend that the primary judge erred by failing to find that the Tribunal’s decision was affected by a lack of natural justice. It is submitted these grounds essentially reflect the second ground of the application before the Court below, albeit the second ground of appeal appears to raise matters regarding the Tribunal’s credibility findings that were not argued below.

35    The Minister further submits that ground 1 does not provide any details of the basis on which it might be asserted that there was a failure to comply with the procedural obligations in Div 4 of Pt 7 of the Act, thus there is no appellable error established in the primary judgment.

36    It is contended the second ground of the appeal is, likewise, a generalised contention that the Tribunal did not afford the appellant natural justice, along with complaints that the Tribunal did not accept the appellant’s evidence as being true. The Minister repeats his submission that the appellant has not established that the Tribunal did not afford the appellant natural justice, and that no appellable error is established in the primary judgment on that basis.

37    Further, to the extent the appellant complains about the Tribunal’s credibility findings, the Minister submits the credibility findings that the appellant seeks to impugn are generally findings of fact par excellence: Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 58 ALD 609 at [67] (McHugh J); [2000] HCA 1; AFU15 v Minister for Immigration and Border Protection [2015] FCA 770 at [11]. Further, in the Minister’s submission, there is nothing apparent in the Tribunal’s reasoning in relation to the appellant’s credibility that would suggest any error in its approach: cf SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089 at [14]-[23]. The Minister submits this ground does not establish any appellable error in the primary judgment.

38    The Minister submits the appellant’s third ground of appeal raises a complaint not pleaded or argued in the Court below and he therefore requires leave to argue this ground.

39    It is submitted leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: see, for example VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [46]. The Minister refers to [48] of the Full Federal Court’s decision in VUAX:

The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

40    It is submitted that in deciding whether it is expedient in the interests of justice to grant leave to raise a fresh ground of appeal, it is thus relevant to consider the merits of the proposed ground.

41    The Minister notes that in the absence of any particularisation, it is difficult to give meaning to the pleaded ground that the Tribunal did not consider the totality of the appellant’s claims, nonetheless submits that the Tribunal did in fact consider the claims raised by the appellant (namely his claims to fear harm from Maoists as a result of his claimed status as a wealthy businessman and as a result of his political activities), and that no error is apparent in the Tribunal’s treatment of these claims.

42    The Minister submits that this third ground of appeal would enjoy insufficient prospects of success and that it would not be expedient in the interests of justice to grant leave to argue this ground of appeal.

43    Ultimately, the Minister submits the appeal should be dismissed with costs.

44    The appellant did not file any written submissions prior to the hearing of the appeal but at the appeal made submissions that reflected the grounds of appeal set out above.

45    In the event, those grounds of appeal, are, as the Minister submits, very generalised and do not raise any clear or distinct allegations of error by the Federal Circuit Court, save to say the decision was attended by a lack of natural justice and that the totality of the claims were not properly considered. At the hearing, the appellant agreed that grounds 1 and 3 were related to ground 2, which was the substantive ground of appeal. This makes good sense, as ground 3, it will be noted, is in the form of a contention. Generally, for the reasons submitted by the Minister, the appeal should be dismissed.

46    Any fair reading of the Tribunal’s decision discloses that the Tribunal carefully considered the facts before it but, in the end, having regard to relevant country information and to the range of claims made by the appellant, the credibility of which had been put in issue, did not consider that the appellant had a well-founded fear of persecution for a Convention reason or that, as a necessary and foreseeable consequence of being returned to Nepal, there was a real risk he would suffer significant harm.

47    Ground 1 expresses disagreement with the judgment of the Court below and asserts it was affected by a lack of natural justice. This, in effect, asserts disagreement with the Court’s finding, nothing more. No breach of “natural justice” is indicated. To the extent it asserts a breach of natural justice by the Tribunal which was not detected in the Court below, ground 2 appears to develop the natural justice issue in greater particularity.

48    Ground 2 also disputes the merits of the findings made below – this time in the Tribunal – and suggests natural justice rules were breached, possibly including the bias rule. Assuming that one way or the other these issues were raised in the Court below, there is nothing that discloses error by the Court below, which found the Tribunal’s findings of fact were open to it.

49    Ground 3 may or may not be a ground not argued in the Court below, as the Minister submitted. As noted above, however, it is in the form of a contention and the appellant agreed it followed the substance of ground 2. In my view, it is a reformulation of ground/s 1 and/or 2, and as such was considered and rejected by the Court below and no error is disclosed.

50    There is nothing in what the Tribunal did or said to indicate that it did not fully consider all the claims made and properly relate them to the Convention and complementary protection questions that it needed to ask and did ask of itself.

51    In those circumstances, there is nothing to indicate that, in dismissing the judicial review proceeding of the appellant, the Federal Circuit Court erred because it failed to recognise any alleged jurisdictional error committed by the Tribunal.

52    In these circumstances, the appeal should be dismissed with costs.

COnclusion and orders

53    The Court orders:

(1)    The appeal be dismissed.

(2)    The appellant pay the first respondent’s costs to be taxed, if not agreed.

Associate:

Dated:    23 November 2015