SZIMP v Minister for Immigration and Citizenship [2007] FCA 1797

FEDERAL COURT OF AUSTRALIA

SZIMP v Minister for Immigration and Citizenship [2007] FCA 1797

SZIMP v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1171 OF 2007

RYAN J

23 NOVEMBER 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1171 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIMP

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RYAN J

DATE OF ORDER: 23 NOVEMBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1171 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIMP

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RYAN J

DATE: 23 NOVEMBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from orders made by Cameron FM on 5 June 2007, dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). By a decision handed down on 23 November 2006, the Tribunal had affirmed a refusal on 15 November 2005 by a delegate of the Minister for Immigration and Citizenship ("the Minister"), to grant a protection visa to the appellant. 2 In an earlier decision signed on 31 January 2006 and handed down on 9 February 2006, the Tribunal, as then constituted, affirmed the delegate's decision. On 13 June 2006, the Federal Magistrates Court set aside that decision and remitted the matter to the Tribunal. The latter decision of the Tribunal is the subject of this appeal. 3 The appellant is a national of Nepal. Before the Tribunal, the appellant claimed to have a well-founded fear of persecution by Maoists as an active member and supporter of the Nepalese Congress Party. He claimed to have been a member for the last twenty years of the Nepalese Congress Party, including its student wing, and to have been involved in successive election campaigns in support of the Congress Party. 4 The appellant claimed that he had participated in campaigns opposing the Maoists and had been involved in organising rallies. He claimed that, during that period, he had received various letters from "Maoist district command" demanding that he cease his activities or face serious consequences. Some letters went so far as to threaten him with death. As a result of these threats, the appellant claimed, he removed himself from his residence and lived at different locations. 5 The appellant also claimed to have owned a bus business in West Nepal which had ended when Maoists damaged his buses after he had been forced to allow Army personnel to hire the buses to assist in retaliation against Maoist strikes. That use of his buses, he said, had led the Maoists to believe that he was supporting the government. After the loss of the business, he had, in 2003, opened a rice mill which operated for two years and was closed due to his refusal to pay donations to Maoists. He then found that Maoists had visited his home and wanted to take physical action against him. 6 The appellant provided supporting documents in support of his claims, including a letter from the Maoists dated 8 September 2004. 7 The Tribunal accepted various parts of the appellant's evidence observing at p 15 of its reasons; 'The Tribunal accepts that the Applicant owned a number of buses and that he bought a rice mill in 2003. The Tribunal accepts that the Applicant would be known in his community as a businessman and, therefore, as a member of a particular social group recognised in Nepal as "businessmen." The Tribunal accepts that "businessmen" have been and to some extent continue to be targets for illegal revenue-raising by Maoists for reasons of their money. The Tribunal accepts that the selection of businessmen for this kind of coercive revenue-raising is not merely a matter of their being perceived to be able to afford to part with the money,, and that it is also a means by which the Maoists can punish "businessmen" to a degree for being class enemies, i.e., on the basis of an imputed political opinion.' 8 The Tribunal discounted the evidentiary value of a letter from West Nepal Bus Entrepreneurs adduced by the appellant which, it said, contained information which was inconsistent with the appellant's own evidence. However, the Tribunal accepted that, in December 2003, Maoists had destroyed two buses belonging to the appellant but, in its view the appellant was merely a collateral victim of that incident and the focus of the attack had been on soldiers in the buses and on the Nepalese Army. As a result, it did not regard the attack on the appellant's buses as giving rise to a well-founded fear of persecution for a Convention reason. 9 The Tribunal also accepted that the appellant had paid money to the Maoists, but did not accept evidence that he had paid sums "so high in his case as to deprive him or his family in such a way as to amount to persecution". With regard to his claim to have received death threats, the Tribunal did not accept that the appellant had received death threats or had been in fear of his life because he had gone for many years without responding to requests for revolutionary taxes. Moreover, because the appellant had left his family at home during the whole of the time when he claimed to have been in hiding, the Tribunal rejected that part of the appellant's claim. 10 The Tribunal did not accept as genuine a letter to the appellant dated 8 September 2004, which, in translation, recited: 'Red Salute