AAU17 v Minister for Immigration

[2019] FCCA 3618

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAU17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3618

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority made findings which were open to it – whether the Authority considered the applicant’s claims and evidence – whether the applicant had a real and meaningful opportunity to put on new information and submissions in support of the applicant’s claims – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AAA, 36, 473CB, 473DC, 476

Applicant: AAU17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 17 of 2017

Judgment of: Judge Street

Hearing date: 11 December 2019

Date of Last Submission: 11 December 2019

Delivered at: Sydney

Delivered on: 11 December 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms A Wong
Mills Oakley

ORDERS

1. The name of the First Respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $4,000.00.

DATE OF ORDER: 11 December 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 17 of 2017

AAU17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 14 December 2016 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa (“Protection visa”).

2. The applicant was found to be a citizen of Nepal and his claims were assessed against that country. On 20 December 2012, the applicant arrived in Australia as an unauthorised maritime arrival. On 26 May 2016, the applicant applied for a Protection visa.

3. The applicant claimed to be of the Dalit caste. The applicant claimed to fear harm from cadres of the Limbuwan Mukti Morcha Party (“LMM”), who allegedly tried to recruit the applicant to their political party. The applicant alleged that he was assaulted when he refused to join the LMM by members of the LMM. The applicant alleged that some of the LMM members who were involved in the assault were arrested and jailed. The applicant alleged that these persons were released after two to three months and that they were looking for him and wanted him harmed or killed.

4. The Delegate accepted that the applicant belonged to the Dalit caste. The Delegate, however, found that the applicant did not face a real chance of being persecuted because of his caste.

5. The Delegate made adverse findings in relation to the applicant’s claims concerning the release of the LMM members who allegedly wish to harm the applicant. The Delegate did not accept that those LMM members were released because of the influence exerted by their political party on the judicial system. The Delegate found that the LMM members who allegedly assaulted the applicant were convicted of assault but that their release after two to three months was due to the effluxion of their prison sentence.

6. The Delegate referred to the applicant’s evidence about being able to avoid being harmed by the LMM members when he moved to Kathmandu. The Delegate found that the applicant could relocate to Kathmandu where he had no well-founded fear of persecution.

7. On 7 November 2016, the Authority wrote to the applicant explaining that his application for a Protection visa had been referred to the Authority for review. The letter attached a factsheet and practice direction, which provided the applicant an opportunity to put on new information and submissions.

8. The Authority in its reasons expressly referred to the submissions provided on behalf of the applicant dated 25 November 2016 and, insofar as those submissions engaged with the Delegate’s decision, had regard to the same.

9. The submissions on behalf of the applicant expressly requested an opportunity to clarify and provide further information in relation to the findings that had been made by the Delegate and in relation to alleged insufficient evidence to support the Delegate’s findings and to give the applicant an opportunity to provide additional evidence. The Authority expressly referred to this request on behalf of the applicant in its reasons.

10. The Authority identified the background to the Protection visa application.

11. The Authority had regard to the material referred by the Secretary under s.473CB of the Act.

12. The Authority addressed the content of the applicant’s submissions. The Authority noted that the applicant’s migration agent who authored the submissions had represented the applicant before the Department of Immigration and Citizenship (“the Department”).

13. The Authority referred to listening to the Protection visa interview and the discussion by the Delegate with the applicant on the subject of the adverse findings. The Authority identified that the Delegate checked with the applicant whether he had raised all his claims for protection. The Authority identified that the Delegate told the applicant that any additional information provided to the Department prior to the decision would be considered. The Authority identified that the Delegate also informed the applicant that the Authority would only have regard to new information in exceptional circumstances. The Authority also referred to the letter dated 7 November 2016 providing the same information.

14. The Authority correctly identified that the substance of the applicant’s request was for the Authority to receive new information as described in s.473DC of the Act. The Authority referred to the statutory regime under Part 7AA of the Act and that the Authority did not have a duty to obtain new information just because the applicant requested the Authority to do so. The Authority correctly identified that it had a discretion in relation to considering new information and could only do so if there were exceptional circumstances.

15. The Authority expressly referred to the statutory regime in Division 3 in respect of Part 7AA and s.473DC of the Act. The Authority also referred to the practice direction that had been attached to the letter dated 7 November 2016. That letter, together with the attachments, provided the applicant an opportunity to put on new information and submissions. The Authority found that, in the circumstances, it was satisfied that it was reasonable to make a decision without exercising the powers under s.473DC of the Act.

16. The Authority’s reasons were logical and rational reasons in respect of the decision not to exercise the powers under s 473DC of the Act. In the circumstances, there is an intelligible and evident justification for the absence of the exercise of the powers under s 473DC of the Act. In the circumstances of the present case, including the Authority’s departure from findings made by the Delegate which was open to the Authority to do, there was no legal unreasonableness by reason of the Authority not exercising the power under s 473DC of the Act.

17. The Authority identified the applicant’s claims.

18. The Authority set out the relevant law, including an attachment incorporated by pagination in the Authority’s reasons.

19. The Authority referred to the applicant’s claims in relation to the LMM. The Authority was willing to accept that the applicant went to Malaysia on a lawfully obtained Malaysian work visa using his Nepali passport genuinely issued in his own name.

20. The Authority referred to the applicant telling the Delegate that he assumed the cadres thought he would join the LMM because he was from a lower caste. The Authority found the applicant’s evidence at the interview regarding the LMM movement to be vague. The Authority took into account, however, that the applicant did not claim to be a supporter of the LMM.

21. The Authority identified having concerns regarding the applicant’s claims that he was harmed in the past by the LMM cadres. The Authority referred to the change in the applicant’s claims. The Authority identified that, at the entry interview, the applicant only referred to his fear of harm from the Naga people in Assam as the reason he left Nepal to go to Malaysia and then come to Australia. The Authority noted that the applicant made no reference to being assaulted by LMM cadres or their threatening to harm him because he was making a police complaint about the assault.

22. The Authority referred to the statement accompanying the Protection visa acknowledging that the applicant did not raise any claims regarding the LMM cadres at his earlier interview. The Authority noted, in this regard, that no explanation was advanced by the applicant as to why that was the case.

23. The Authority referred to the applicant at that interview telling the Delegate that he did not mention his fear of the LMM cadres because the interviewer told him to give short answers, he had only just arrived in Australia, his health and condition was not so good and he was a little scared. The applicant alleged that he was unable to say everything he told at the Protection visa interview.

24. The Authority was not persuaded by that explanation. The Authority referred to having listened to the recording of the entry interview. The Authority accepted that the applicant was asked to answer questions briefly but noted that the Delegate, nonetheless, asked the applicant on multiple occasions why the applicant left Nepal and, on every instance, the applicant only referred to the Naga people causing his family to return to Nepal from Assam and that he could not return to Nepal and he had to save his life.

25. The Authority took into account the timing of the interview being shortly after the applicant arrived in Australia. The Authority also took into account that the purpose of the interview is not to assess the applicant’s claims and that the applicant was not represented. Notwithstanding taking those matters into consideration, the Authority found that it was reasonable to still have regard to the claims the applicant made at the entry interview.

26. The Authority found that the applicant making no reference to the LMM or the cadres at the entry interview strongly undermined the applicant’s credibility of his claims that he was harmed by the cadres in the past and in relation to his future fear of harm from cadres.

27. The Authority also referred to the applicant identifying that he left Malaysia because his work contract in Malaysia had come to an end and that it was unsafe for him to return to Nepal. The Authority found this to be inconsistent with the applicant’s evidence at the entry interview, where he said he became unlawful in Malaysia after a work dispute. The Authority referred to the applicant providing information about working unlawfully in Malaysia at the Protection visa interview. The Authority found that the applicant had given inconsistent information regarding his reasons for departing Malaysia as further undermining his credibility.

28. The Authority found that the applicant not mentioning the LMM in his entry interview undermines the credibility of his claims that he was harmed in the past by cadres of the LMM and in relation to his claimed future fear of harm.

29. The Authority referred to the implausibility of the applicant’s claims in respect of the cadres being released from jail because of political influence. The Authority found that the applicant providing implausible claims regarding the early release from jail further undermined his credibility.

30. The Authority referred to the certificate of office provided by the applicant dated 7 May 2013. The Authority identified concern in relation to there being no reference in the certificate to the cadres assaulting the applicant in the past, only to threats. The Authority was also concerned that there was no reference to the conviction of the cadres and no reference to the LMM. The Authority referred to the prevalence of fraudulent documents and found the certificate is not a credible document, which further impacted on the applicant’s credibility.

31. In these circumstances, the Authority rejected that the applicant’s claim that he was threatened by youth leaders of the LMM or any other pro-Limbuwan political party because he refused to join their political party. The Authority rejected the applicant’s claim that he was assaulted by LMM cadres or any cadres of any other pro-Limbuwan political party.

32. The Authority rejected the applicant’s claim that he made a complaint regarding being assaulted. The Authority rejected the applicant’s claim that any LMM cadres or cadres of any other pro-Limbuwan political party were arrested or jailed due to any complaint to the police by the applicant or a particular person. The Authority rejected the applicant’s claim that the LMM cadres or cadres of any other pro-Limbuwan political party threatened to harm the applicant due to their arrest and being jailed.

33. The Authority rejected the applicant’s claim that his family told him or that the applicant has otherwise heard LMM cadres or cadres of any other political party have threatened to harm him if he returns to Nepal. The Authority found that the applicant had fabricated these claims as a basis of applying for a Protection visa.

34. The Authority was not satisfied that the applicant faced a real chance of harm from LMM cadres or cadres of any other pro-Limbuwan political party for his claimed reasons. The Authority was not satisfied that the applicant refused to join the political party. The Authority was not satisfied that the LMM threatened or assaulted the applicant, or wished to harm the applicant due to his causing their arrest and being jailed, now or in the reasonably foreseeable future if the applicant returns to Nepal.

35. The Authority referred to the applicant’s claim to be a member of the Dalit caste. The Authority referred to the applicant telling the Delegate that he had been harmed in the past because of his caste. The Authority found the applicant’s evidence regarding his membership of the Dalit caste to be vague and, at its highest, not revealing any harm which would amount to serious harm.

36. The Authority referred to the two documents the applicant provided attesting to his membership of a Dalit caste.

37. The Authority referred to the content of the certificate and found it had the same features of the certificate of 7 May 2013, which was found not to be a credible document. The Authority found that the document dated 8 May 2013 was also not a credible document.

38. The Authority referred to another handwritten certificate dated 18 October 2016 on a particular letterhead. The Authority referred to the shading and artefact on the letterhead, which gave the Authority the impression that the certificate had been photocopied. The Authority also referred to the apparent handwritten signature above the wet stamp and a photograph of the applicant. The Authority noted that the certificate referred to the applicant’s father applying for the applicant’s registration of the applicant’s caste, but that the caste was identified as “Damai (Tailer)”. The certificate refers to the father’s name in the application and the caste is a different name to that advanced by the applicant elsewhere in his claims. The Authority referred to the prevalence of fraud and was not satisfied that this certificate was a credible document, which further impacted on the applicant’s credibility.

39. The Authority also took into account country information in relation to the Dalit and Damai castes in Nepal. The Authority was not satisfied that the applicant is a member of the Dalit caste or the Damai caste. The Authority considered that the applicant has fabricated his claims to be a member of the Dalit caste or the Damai caste. The Authority was not satisfied that the applicant faces a real chance of serious harm from any persecutor for reason of his claimed membership of the Dalit or Damai castes now or in the reasonably foreseeable future if he returns to Nepal.

40. The Authority, having regard to the applicant’s claims both individually and cumulatively, was not satisfied that the applicant has a well-founded fear of persecution. The Authority found that the applicant did not meet the requirements of the definition of “refugee” in s.5H(1) of the Act. Accordingly, the Authority found that the applicant did not meet the criteria in sub-s.36(2)(a) of the Act.

41. The Authority was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Nepal from Australia, there is a real risk the applicant will suffer significant harm. Accordingly, the Authority found that the applicant did not meet the criteria under sub-s.36(2)(aa) of the Act.

42. Accordingly, the Authority affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 4 January 2017. On 18 May 2017, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant maintained that he had given all the documents he could to the Department. The applicant also submitted that the Authority had not considered his documents.

4. It is apparent from the Authority’s reasons, as summarised above, that the Authority referred to all the documents, including the submissions of the applicant. On the face of the Authority’s reasons, the Authority had an active intellectual engagement with the applicant’s claims and evidence. There is no document that has been identified that the Authority failed to have regard to.

5. From the bar table, the applicant, in submissions in reply, submitted that there were documents missing from the Court Book. The Court gave the applicant an opportunity to look at the Court Book in that regard. The applicant confirmed that there were no documents he could identify which were missing from the Court book.

6. From the bar table, the applicant then identified that he wanted to stay in Australia. The Court explained to the applicant that the Court could not decide the matter on compassionate discretionary grounds and that the Court could only grant relief if satisfied that the Authority had exceeded its statutory powers in the conduct of the review. The applicant’s submissions from the bar table invited the Court to engage in merits review. This Court has no power to review the merits.

7. Nothing said by the applicant from the bar table identified any jurisdictional error.

Grounds in the Application

1. The grounds in the application are as follows:

   1. The Immigration Assessment Authority erred in its decision that the threat posed and applicant has fear for his life and harm from the LMM real if he return to Nepal.

   2. The Immigration Assessment Authority erred in its decision by not giving enough consideration to the applicant well-founded fear for persecution.

   3. The Immigration Assessment Authority denied the applicant procedural fairness by reaching adverse conclusion that the applicant claims of harm from LMM were not well founded.

   4. The Immigration Assessment Authority erred in its decision that the Applicant belong to Dalit community which is discriminated in Nepal and still arrived on conclusion that the Applicant does not meet definition of s.36(2)(a). The IAA has not considered this aspect and made factual and legal error.

   5. The Immigration Assessment Authority erred in its decision by not considering country information and applicant personal circumstances and not applying provision of complementary protection as prescribed under s.36(2)(aa).

   6. The Immigration Assessment Authority erred in its judgment that the applicant does not meet the complimentary protection criteria and accordingly IAA made legal error.

Ground 1

1. In relation to ground 1, this reflects a disagreement with the Authority’s adverse findings in relation to the applicant’s claims. The Authority provided logical and rational reasons for its findings which were dispositive of the applicant’s claims, as summarised above. The Authority’s adverse credibility findings were not based on trivial or insignificant matters and were logical, rational and open to the Authority.

2. The applicant’s disagreement with the Authority’s adverse findings does not of itself identify any jurisdictional error. It is apparent that the Authority made adverse credibility findings which, for the reasons given, were open to the Authority. The applicant’s disagreement with those adverse findings does not identify any jurisdictional error.

3. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the applicant asserts that the Authority gave insufficient consideration to whether he had a well-founded fear of persecution. This, again, reflects disagreement with the adverse findings by the Authority.

2. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, the Authority gave logical and rational reasons in support of its adverse findings in respect of the criteria under the 1951 Refugee Convention and in relation to complementary protection, as summarised above.

2. No jurisdictional error is made out by ground 3.

Ground 4

1. In relation to ground 4, the applicant alleges that the Authority erred by finding that the applicant belonged to the Dalit community. That misunderstands the decision of the Authority. The Authority found that the applicant did not belong to the Dalit community. That was a finding that was open to the Authority in the circumstances of the present case, for the reasons already given. The Authority was not bound by the findings of the Delegate. The applicant had a real and meaningful opportunity to put on new information and submissions in support of the applicant’s claims.

2. In the circumstances of the referral letter dated 7 November 2016, which provided an opportunity to the applicant to put on new information and submissions, as well as the content of what was identified in the Authority’s reasons, the adverse finding in relation to the applicant not being a member of the Dalit caste provides an evident and intelligible justification in relation to the absence of the exercise of the power under s.473DC of the Act.

3. No jurisdictional error is made out by ground 4.

Ground 5

1. In relation to ground 5, the applicant alleges that the Authority did not consider country information. The Authority’s reasons expressly referred to country information at paragraph 21. It was a matter for the Authority what country information the Authority accepted. It is also apparent that the Authority expressly addressed the applicant’s claims and circumstances in its adverse findings under the 1951 Refugee Convention and also in relation to whether or not the applicant met the complementary protection criteria.

2. In that regard, it was open for the Authority to take into account the adverse credibility findings made under the 1951 Refugee Convention. There was no failure by the Authority to consider the applicant’s claims under complementary protection. Ground 5 otherwise invites impermissible merits review.

3. No jurisdictional error is made out by ground 5.

Ground 6

1. In relation to ground 6, the applicant, again, disagrees with the Authority’s adverse findings in relation to complementary protection. The applicant also alleges legal error without any further particularisation. It is apparent that the Authority correctly identified the relevant law in relation to complementary protection and, on the face of the Authority’s reasons, made adverse findings in relation to complementary protection which were open to it, given the adverse credibility findings that the Authority had made under the 1951 Refugee Convention.

2. No jurisdictional error is made out by ground 6.

3. The Minister, as a model litigant, has drawn the Court’s attention to an obvious typographical error in the Authority’s reasons in paragraph 22, referring to Albania. It is clear from the Authority’s reasons that the Authority appreciated that the applicant was from Nepal and that the Authority was considering whether or not the applicant met the criteria under the 1951 Refugee Convention or in relation to complementary protection in respect of return of the applicant to Nepal.

4. That is apparent from the following paragraphs of the Authority’s reasons: paragraph 21 which refers to return to Nepal, paragraph 26 which refers to being removed to Nepal, paragraph 20 which refers to fraudulent documents in Nepal, paragraph 18 which refers to return to Nepal, paragraph 17 which refers to return to Nepal, paragraph 16 which refers to fraudulent documents in Nepal and from the references to Nepal at paragraphs 1, 2, 6, 9, 10, 12 and 13.

5. The reference to Albania was an obvious typographical error and does not give rise to any jurisdictional error in the circumstances of this case.

6. Accordingly, as the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 11 December 2019 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  27 February 2020