FEDERAL COURT OF AUSTRALIA

CZY16 v Minister for Immigration and Border Protection [2018] FCA 1171

ORDERS

THE COURT ORDERS THAT:

1.    The appellant is refused leave to raise his new ground of appeal.

2.    The appeal is dismissed, with costs.

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

REASONS FOR JUDGMENT

ROBERTSON J:

1    This appeal is from orders of a judge of the Federal Circuit Court of Australia (the primary judge) given on 2 March 2018 dismissing the application to that court, with costs. That application was for judicial review of the decision of a delegate of the Minister for Immigration and Border Protection (Minister) not to grant the appellant a Protection (Class XA) visa (Protection visa).

2    As found by the Administrative Appeals Tribunal (Tribunal) in its decision dated 26 September 2016, the appellant is a citizen of Nepal.

3    The grounds of review before the primary judge were as follows, as written:

1.    The Tribunal accepted my evidence and the criminal groups who asked me for donations who also may have had some connection to political parties yet the Tribunal accepted that these criminal groups may ask me for donations in the future and failed to see my subjective fear of harm at their hand in the future.

2.    The Tribunal erred in law by failing to accept that forced donations amount to degrading treatment or punishment.

3.    The Tribunal failed to accept, based on my evidence, that there is a risk whether low or high, that I will suffer harm in Nepal.

4    In this appeal, the appellant seeks to rely on a single but new ground, as follows:

1.    The Tribunal failed to complete the exercise of its jurisdiction as it made no finding on the applicant’s claim that he feared harm in Nepal from Tarun dal (sic) because of demands for money they had made, and would make on him, because of his wealth.

5    The appellant’s application to rely on a new ground of judicial review on appeal from the judgment of the primary judge was opposed.

The Tribunal’s findings and reasons

6    The issue is a confined one and it is not necessary to set out or refer to more than limited parts of the Tribunal’s findings and reasons.

7    At [7], the Tribunal set out the details of the appellant’s statement dated 20 September 2014 to the effect that because he was a successful businessman he was forced to pay criminals many times in donations, as well as the appellant’s claim that on 18 January 2014 a group of Nepali Congress Party members entered his apartment and demanded Rs. 2.2 million. There was a similar reference at [18]-[19] where the Tribunal set out that the appellant thought that Tarun Dal (the sister organisation of the Nepali Congress Party) were targeting him for donations because he had a successful business.

8    At [18], the Tribunal said:

He was asked if he was referring to Tarun Dal and the sister organisation of the Maoists as the criminal organisations who ask him for donations, or was he referring to other criminal organisations as well. He confirmed that he was referring to Tarun Dal and criminal groups associated with the Maoist political party in his area.

This reflects what was said in the appellant’s hearing before the Tribunal, which I reproduce in an uncorrected form, as follows:

Member    Okay so earlier on when you said you’re concerned about the criminals who were causing harm to you your business by asking for donations. When you say that those are criminals are you referring to Tarendal and also the sister organisation of the Maoistss or you referring to other criminal organisations as well?

Applicant    Member when I’m referring criminal I’m referring to the people from Tarendal and [inaudible] as well as the criminal group in my area and whenever I give the donations to these political sister organisation I was able to get some record but I didn’t get any record from these other criminal groups.…

9    At [26], the Tribunal stated the appellant’s fear that if he returned from Australia, Tarun Dal and the criminal groups will know and “they will think he has extra income and will threaten him and ask for donations”. At [43], the Tribunal referred to Tarun Dal approaching the appellant for a donation in 2013 and asking him for money twice since then.

10    At [44], the Tribunal noted a response of the appellant as follows:

The applicant responded that he feared Tarun Dal, the sister organisation of the Nepali Congress Party. He said that he had told the Tribunal about the key incident, which was the one involving Tarun Dal. He said that he was threatened to be killed for both reasons, because he was in the Maoists and because he could not pay the money.

11    At [46], the Tribunal did not accept that the appellant had been threatened by, amongst others, Tarun Dal for political reasons.

12    At [47], the Tribunal accepted that the appellant was a successful businessman and that he may have been asked for donations from criminal groups and that these groups may have had some connection to political parties. The Tribunal accepted that these criminal groups may ask for donations in the future. At [50], the Tribunal said it did not consider the asking of money for donations constituted serious harm.

13    At [51], the Tribunal said it did not accept that being asked for money, or having to pay, reached the level of harm set out in s 91R of the Migration Act 1958 (Cth) or any other similar type of serious harm. In light of the appellant’s confirmation that his businesses continue to do well, despite claims that he had been asked to pay donations and had done so in the past, the Tribunal did not accept that the harm which may arise in the future through being asked to pay or the payment itself would be such that it would cause significant economic hardship threatening the appellant’s capacity to subsist, or denial of any capacity to earn a livelihood or any similar kind of serious harm.

14    At [60], the Tribunal said it was not satisfied that there was a real chance of serious harm from any criminal groups, whether associated with political parties or not, or from Tarun Dal in particular, on the basis of the appellant’s inability to pay donations or any other reason associated with the donations. The Tribunal said:

60.    In this case, given the independent sources above, the Tribunal is not satisfied that there is a real chance of serious harm from any criminal groups, whether they are associated with political parties or not, or from Tarun Dal in particular, on the basis of the applicant’s inability to pay donations or for any other reason associated with the donations. For the same reasons, the Tribunal does not believe that he would suffer serious harm because he is in the real estate business. The Tribunal is also not satisfied that there would be a real chance of serious harm due to the fact that the applicant would be returning from Australia and would therefore be regarded as wealthy. Reports indicate a low risk of violence across Nepal, with little evidence of violence associated with forced donation and few “negative” activities from Tarun Dal. Reports indicate that there is no increased chance of harm as returnees from Australia. The Tribunal is satisfied that a chance of harm is remote or a far-fetched possibility only, rather than a substantial and distinct chance …

The submissions

15    The appellant submitted that, if leave were granted, the issue on the appeal was whether the Tribunal failed to determine an integer of his claim being that he feared harm from members of the Tarun Dal political party because he had not paid a donation they requested of him and he may be subject to future demands of payment to them because of his wealth.

16    The appellant submitted that it was expedient in the interests of justice to grant him leave to rely on the ground not raised before the primary judge. He submitted that his proposed ground of appeal had sufficient merit.

17    He submitted that in his original detailed statement dated 20 September 2014 he said that on 18 January 2014 in Kathmandu a group of Nepali Congress Party entered his apartment and demanded Rs. 2.2 million and threatened that if he refused to give them the money they would kill him at any time anywhere in Nepal. Although, he said, he could not pay them that much money, he nonetheless agreed to pay them Rs. 700,000 and promised them that he would pay the rest of the amount within three months. As he was unable to pay the money demanded, he decided to leave Nepal and came to Australia on 16 February 2014.

18    At the hearing before the Tribunal the appellant explained that the group were actually from Tarun Dal, a youth wing of the Nepali Congress Party.

19    The appellant was the owner of properties in Nepal. An issue arose at the hearing as to whether the Tarun Dal members were targeting him for donations because he was wealthy or because of his claimed association with the Maoists. The appellant responded:

Member I need to say that Tarun dal were after me for both the reasons. They were after me for the money as well as in the past I was involved with Maoists

20    The appellant submitted that in his evidence he made a clear distinction between being targeted by political groups for donations and being targeted by criminals. In the former case he would get a record of the amount paid, in the latter he would not. He said that he had paid donations to Tarun Dal twice in the past and he had paid criminal groups three times.

21    The appellant submitted that in its reasons the Tribunal separately considered his claims in relation to political groups from his claims in relation to criminal gangs. In relation to criminal gangs the Tribunal found, at [47], that these groups may have connections to political parties. Although the Tribunal did make a finding that the appellant did not have a well-founded fear of harm in relation to criminal groups, even those associated with Tarun Dal, if he failed to pay donations, there was no separate finding in relation to political parties independent of any connection with criminal groups.

22    The appellant submitted the Tribunal did find, at [46], that he did not have a well-founded fear of harm from Tarun Dal for political reasons. However, the appellant submitted, he had clearly articulated the fear that he was targeted for donations by Tarun Dal by reason of his wealth and not just political reasons. His claim was that he had not paid Tarun Dal in the past and they may target him in the future. This claim was not disposed of by the Tribunal’s findings that Tarun Dal would not target him for political reasons.

23    The Minister opposed the grant of leave. He submitted that the fact that an appellant was unrepresented at first instance on judicial review was not a sufficient basis to grant leave to raise a new ground of review on appeal. Nor was the fact that the Minister would not suffer prejudice enough. Further, it was relevant to have regard to the undesirability of this Court in its appellate jurisdiction becoming a first instance court of judicial review.

24    The Minister submitted that the appellant in his written submissions focussed solely on the asserted merit of the proposed ground of appeal. The appellant submitted that the Tribunal failed to consider his claim to fear harm if he failed to pay donations sought of him by Tarun Dal by reason of the appellant’s wealth and not just for political reasons.

25    The Minister submitted that the Tribunal did, however, deal with this claim. The Tribunal accurately summarised the appellant’s claims, at [7], including his claim that “[b]ecause he was a successful businessman … he was forced to pay criminals many times in donations …” Further:

(a)    at [8], the Tribunal acknowledged the appellant’s evidence to the Minister’s delegate, at interview, that “[h]e said that he feared criminal gangs as he is wealthy”;

(b)    at [19], the Tribunal acknowledged the appellant’s evidence to it, at its hearing, that the appellant thought that Tarun Dal was targeting him “because he had a successful business” and, at [22], it acknowledged his evidence that, “in 2013, he was successful in his business, and received income from his rent. Gangs were aware of his income. He got calls for donations”;

(c)    at [26], the Tribunal acknowledged the appellant’s evidence to it that if he returned to Nepal, “they” would know that he was returning from Australia, would think he had extra income, and would threaten him and ask for donations; and

(d)    at [43], the Tribunal again recorded the appellant’s evidence to it that Tarun Dal approached him for donations in 2013 and he “thought that they may have targeted him for money”.

26    The Minister submitted that the Tribunal gave express, and separate, consideration to whether the appellant had been threatened “for political reasons” by particular groups and found, at [46], that he had not.

27    The Minister submitted that the Tribunal then set out and considered under a separate heading whether the appellant had a well-founded fear of persecution from criminal groups, from [47]. The Tribunal accepted that the appellant was a successful businessman, and that he may have been asked for donations by criminal groups. It accepted that these groups may have had connections to political parties, at [47], this finding being consistent with the appellant’s own evidence (at [23]) that “[c]riminals are always associated with political parties.”

28    The Minister submitted that the Tribunal considered, from [49], whether, regardless of the reason, the appellant faced a real chance of serious harm from criminal groups asking him for money or through violence or other ill-treatment. The Tribunal found that asking for money for donations did not constitute serious harm, at [50] and following, for the reasons given. The appellant did not challenge this finding, which was dispositive of the appellant’s claim to fear harm by virtue of being asked for donations. This was not a case in which the Tribunal disposed of this claim by reference to whether it had a Convention nexus and/or by reference to a consideration of why the appellant would be targeted.

29    The Minister submitted that, having repeatedly acknowledged the appellant’s claim that Tarun Dal and other criminal groups would target him for donations including because of his wealth, the Tribunal found, at [51], that this did not amount to serious harm. This was a question of fact and degree, for it, and was not challenged. The Tribunal then made further findings at [60], set out at [14] above.

30    The Minister submitted that the Tribunal dealt with forced donations to Tarun Dal in its consideration of the well-founded fear from criminal groups at [47]-[60] of its reasons. The Minister also submitted that, when considering the complementary protection criteria, the Tribunal made findings at [73] which corresponded with the findings about Tarun Dal at [60] in relation to the claim for a well-founded fear of persecution.

Consideration

31    In my opinion, it is clear that the Tribunal made a finding on the appellant’s claim that he feared harm in Nepal from Tarun Dal because of the demands for money they had made, and would make on him, because of his wealth.

32    The question of donations arose because of the appellant’s apparent capacity to provide them. It was his evidence that the people from Tarun Dal were approaching him for money because they were trying to get money out of him from his business. The Tribunal was well aware of this and referred to it in its reasons. In effect the Tribunal accepted, at [66] and elsewhere, that the appellant had been asked for donations from criminal groups and they may have had some connection to political parties and that those groups may ask for donations in the future. This clearly encompassed Tarun Dal. That is, despite Tarun Dal technically being a ‘political group’, the Tribunal considered it under the category of ‘criminal groups with connections to political parties’. Although in one sense it may be said that criminal groups are associated with Tarun Dal but are not identical to it, as submitted on behalf of the appellant, the issue is discerning what the Tribunal meant on a fair reading of its reasons. In conducting that exercise it is not helpful to comb the transcript for nuances of expression by the appellant.

33    The matter is put beyond doubt by [60] of the Tribunal’s reasons, where the Tribunal stated, amongst other things, it was not satisfied that there was a real chance of serious harm from Tarun Dal, in particular, on the basis of the appellant’s inability to pay donations or for any other reason associated with the donations.

34    In light of the Tribunal’s findings, the purported distinction between political and non-political groups is an artificial one.

35    The Tribunal also considered whether the asking for those donations amounted to significant harm. The Tribunal held that it did not.

Conclusion

36    I find that the proposed ground lacks any self-evident merit. I take into account that the appellant represented himself before the primary judge but I do not regard that, in itself, as a basis for granting leave on the present appeal. If the application were allowed, the hearing at first instance, and the careful reasons of the primary judge, would become irrelevant. I do not regard it is expedient in the interests of the administration of justice to allow the new argument to be raised on appeal. In the circumstances the appropriate order is to refuse leave to the appellant to raise the new ground. The appeal should be dismissed, with costs.

Associate:

Dated:    7 August 2018