Ada17 v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 283

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

ADA17 v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 283

File number(s):

SYG 68 of 2017

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

22 November 2021

Catchwords:

MIGRATION – Immigration Assessment Authority – Protection Visa – application for reinstatement – whether there are reasonable prospects of success – no reasonable prospects of success – application for reinstatement is dismissed.

Legislation:

Migration Act 1958 (Cth) s 36

Federal Circuit Court Rules 2001 (Cth) r 13.03

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Division:

Division 2 General Federal Law

Number of paragraphs:

36

Date of last submission/s:

16 November 2021

Date of hearing:

16 November 2021

Place:

Parramatta

Counsel for the Applicant:

The applicant appeared in person.

Counsel for the First Respondent:

Mr Reilly.

ORDERS

SYG 68 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ADA17

Applicant

AND:

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

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	22 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The name of the First Respondent be changed to Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2.The application for reinstatement is refused.

3.The Applicant to pay the First Respondent’s costs fixed in the amount of $1600.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

1. The applicant is a citizen of Nepal. The applicant arrived in Australia on 7 September 2013 as an unauthorised maritime arrival. On 24 November 2015, the applicant lodged an application for a Safe Haven Enterprise visa (“SHEV” or “Protection visa”).

2. On 27 October 2016, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant a Protection visa. The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 22 December 2016, the Authority affirmed the delegate’s decision to refuse the applicant a Protection visa. The applicant now seeks judicial review of the Authority’s decision.

3. The matter was listed for final hearing on 11 August 2021 by telephone. On that day the applicant failed to appear. On the application of the respondent, the Court dismissed the matter pursuant to r 13.03C(1)(c) of the then Federal Circuit Court Rules 2001 (Cth).

   APPLICATION TO REINSTATE

4. In an Application in a Case filed 2 September 2021, the applicant seeks the orders quashing the orders made on 11 August 2021 that his case be dismissed. In an Affidavit affirmed on 1 Sept 2021, the applicant states that technical issues with the telephone connection prevented him from attending the Court event. The applicant states that he followed the instructions on the advice sent to him by the Court, but states that the problems “were beyond my control and due to technical problems from the Court’s side connection failed”.

5. The principles in relation to application to reinstate matters are set out in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]. Reinstatement is a discretionary matter for the Court. Three factors need to be considered:

   a.   whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;

   b.   the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;

   c.   

   whether the applicant has a reasonably arguable prospect of success on the substantive application

   
   

   … If not, there is no purpose in reinstatement.

6. As to the first matter, the Court notes that there were no known technical issues with the Court’s telephone system on the 11 August 2021. The applicant told the Court that he had technical problems with his phone that he had experienced before. The applicant was unable to borrow another phone. As the applicant’s phone was broken he was unable, via email or any other means, to alert the Court that he was experiencing technical problems. The Court considers the explanation provided by the applicant as weak but plausible.

7. In relation to the second matter, being prejudice to the first respondent, the Court notes that a concession was made by Counsel for the first respondent that there is little prejudice to the first respondent other than in relation to costs. The Court considers this factor as neutral, in regards to reinstatement.

8. This leaves the third factor being whether the applicant has a reasonably arguable prospect of success on the substantive application.

   THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION

9. After setting out the relevant background, at paragraph 5 of its decision, the Authority noted the applicant’s claims as follows:

   ·     He is a Hindu Brahmin and his wife is a Buddhist Gurung.  Due to his inter-caste marriage, he was harmed by his relatives, in-laws and Nepali society.

   ·     He is a general member of the Rastriya Prajatantara Party (“RPP”).  He was harmed in the past by the Maoists.

   ·     He moved to Kathmandu to escape harm, he then went to work in Saudi Arabia.

   ·     After the applicant returned from Saudi Arabia, a Maoist relative told the applicant the Maoists are still looking for him.  The applicant then moved between Nepal and India before coming to Australia.

10. At paragraph 8 through to 13 of its decision, the Authority noted that the applicant’s claims had differed markedly over time and that he had made admissions of providing a false claims in the past. The Authority expressed considerable concerns regarding the credibility of his the applicant’s claims generally, but at paragraph 13 of its decision, for the purpose of the decision, was prepared to accept that he was a general member of the RPP; Maoists suspected him of involvement in the death of commander in 2005/2006; he is a Hindu Brahmin and his wife is a Buddhist Gurung, and that his in-laws beat him at the time of the wedding.

11. The Authority found that the applicant and his wife relocated to Kathmandu in 2005/2006.  The applicant went to Saudi Arabia to work in 2009 where he stayed 29 months and returned to Nepal in late 2012 or early 2013.  The applicant spent time between Nepal and India and left Nepal to come to Australia in around June 2013.

12. Paragraphs 15 through to 18 of the Authority’s decision deal with his membership of the RPP. At paragraph 16 of its decision, the Authority noted country information suggesting that there was a low risk of harm in Nepal for reason of political opinion and that there is room for people to have active political opinions within the Nepal’s diverse political parties.

13. At paragraph 17 of its decision, the Authority noted the claim of the applicant that he feared harm from Maoists.  The Authority noted that the applicant lived in Kathmandu from 2005/2006 to 2008/2009 and again from 2012 to 2013 without experiencing any harm from Maoists.  The Authority was not persuaded that local Maoists or Maoists in general continue to have any interest in the applicant regarding the death of the Maoist commander. The Authority accepted, however, that if the applicant returned to Nepal, he will continue to have a pro RPP political opinion and will be general member of that party.  At paragraph 18 of its decision, the Authority found that there was only a remote or speculative chance and therefore not a real chance the applicant would face serious harm from local Maoists, Maoists generally or other political opponents of the RPP, including any suspicion of causing the death of a Maoist commander in 2005.

14. Paragraphs 19 through to 22 of the Authority’s decision deal with claims of fearing harm as a result of his inter caste marriage.  At paragraph 19 of its decision, the Authority accepted that the applicant was harmed by his wife’s relatives at the time of his marriage.  The Authority noted that discrimination on the basis of caste or religion is illegal in Nepal and that societal attitudes are improving, although there was also been a politicisation of caste and ethnicity.

15. The Authority noted that the applicant married his wife and 2004/2005.  The applicant’s wife lived alone in Kathmandu while the applicant was in Saudi Arabia and India.  The applicant told the delegate that his wife continues to live in Kathmandu with their son.  The evidence before the Authority did not indicate the applicant or his wife had suffered any harm from the applicant’s relatives or in-laws since 2005/2006 or at any other time from Nepali society.  The Authority was not satisfied that the applicant would suffer harm in the future because of his inter - caste marriage from either his in-laws or from any other person if he returned to Nepal either now or in the reasonable foreseeable future.  Accordingly, the Authority was not satisfied the applicant met the criteria for being a refugee pursuant to

    
    

    s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”).

16. Paragraphs 24 through to 26 of the Authority’s decision deal with complimentary protection considerations. For the same reasons, the Authority was not satisfied that the applicant would face a real chance of significant harm if returned to Nepal and that he did not meet the criteria under s 36(2)(aa) of the Act. Accordingly, the Authority affirmed the delegate’s decision to refuse the applicant a Protection visa.

    GROUNDS OF JUDICIAL REVIEW

17. The grounds of judicial review relied upon are contained in an Amended Initiation Application filed with the Court on 24 April 2017. They are as follows verbatim:

    Ground one

    The Immigration Assessment Authority (the Authority) failed to accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of removing me from Australia to Nepal, there is a real risk that I will suffer significant harm as defined by the law.

    Ground two

    The Court Book on p.71 has a reference which was not considered by the Authority that I was an active in Rastriya Prajatantara Party (RPP) and that my life was threatened.

    Ground three

    The Authority does not have basis to ignore that there is a real risk and that I will be subjected to torture or to cruel or inhuman treatment or punishment or to degrading treatment in Nepal.

    Ground four

    The Authority failed to understand that even though I will be in Kathmandu but I will not be able to live a life free of harm and persecution if I want to live openly, especially that I gave evidence that I was staying in different places and that I was suspected by the Maoists of having assisted the Army in tracking down the Maoist Commander that led to the Commander's death.

    Ground five

    The Authority failed to consider my subjective well-founded fear of persecution and harm.

    THE APPLICANT’S SUBMISSIONS

18. The applicant appeared before the Court unrepresented.  The applicant was assisted by an Interpreter.  The hearing was conducted in person.

19. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court Books and that a copy of the first respondents written submissions had been interpreted to him.  The Court also ensured that the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wish to.

20. At the commencement of the hearing, the Court explained the factors that were relevant to a reinstatement application. In relation to the substantive application, the Court explained that it was limited to judicial review not merits review, and the difference between the two types of review.  The Court also explained the process by which the hearing itself would be conducted.

21. Despite Court orders, no written submissions or other material was provided by the applicant in support of his reinstatement or substantive applications.  The applicant told the Court that he felt there was legal error in the decision as it was still not safe for him to go back to Nepal. If it was safe, the applicant would have gone back to be with his wife and child. The applicant stated that the issues that caused him to leave Nepal were still there and the situation remains so today. The applicant’s life was at risk in 2013 and remains so today. The applicant felt that the Authority did not look at the evidence he provided. The applicant felt that he was prejudiced by being unable to afford a lawyer and did not understand what was needed from him in the case.

22. Following the first respondent’s oral submissions, the applicant was asked if he wished to say anything further in response.  The applicant again stated that he would not still be in Australia if it was safe for him to return to Nepal. If the applicant was forced to return to Nepal he would be the only one who would face any consequences.

    THE FIRST RESPONDENT’S SUBMISSIONS

23. The first respondent’s submissions are relatively short.  It was submitted by the legal representative that the matter should not be reinstated as the substantive application had no merit.

24. It was submitted that the grounds appear to claim that the Authority overlooked the document at casebook 71, however the Authority accepted that the applicant was a member of the RPP and was suspected of the death of a commander by the Maoists: (see; paragraphs 13 and 15 of the Authority decision).  There is no basis to infer that the Authority overlooked the document at casebook 71.

25. The Authority explained why it did not accept that the applicant had a well-founded fear of harm from Maoists in Kathmandu at paragraphs 17 to 18 of its decision.  The applicant’s disagreement with that assessment is no more than an appeal for merits review. 

26. Further, the applicant’s oral submissions consisted of various vague assertions not supported by particulars as to jurisdictional error. There is no matter that was raised by the applicant that the Authority did not engage with.

    CONSIDERATION

27. In terms of the reinstatement application, the Court accepts as plausible that the applicant had technical difficulties with his telephone such that he could not participate in the hearing on 11 August 2021.

28. The Court is satisfied that, except as to costs, there is no prejudice to the first respondent if the matter was reinstated.

29. In terms of the merit of the substantive application, it is well accepted that the Authority is not required to accept uncritically any and all claims made by the applicant: (see; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451). The onus of proof lies on the applicant to advance such evidence or argument that they wish to support the contention they have a well-founded fear of persecution. The Authority must then decide if that claim is made out: (see; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]).

30. In this case, notwithstanding that the applicant had made admissions of providing false claims in the past and expressing concerns as to his overall credibility, the Authority, for the purposes of the decision, accepted his claims in relation to fear from Maoists and other persons if he was returned to Nepal.

31. The Authority, based on the evidence that was before it and for the reasons it gave, was not satisfied even accepting his claims, that the applicant met the criteria for a Protection visa under either s 36(2)(a) or (aa) of the Act. The Court is of the view that there was nothing illogical, irrational or legally unreasonable in that decision.

32. Grounds one, three, four and five merely express disagreement with the outcome of the Authority’s decision and simply invite the Court to engage in impermissible merits review. They reveal no jurisdictional error and have no merit.

33. Ground two alleges that the Authority failed to consider a reference at case book 71 that the applicant was an active member of the RPP. This is factually incorrect. The Authority based its decision on the premise that the applicant had been a member of the RPP and would continue to be active upon return: (see; paragraph 17 and 18 of the Authority’s decision). Based on country information, the Authority concluded the applicant was not at real risk of serious or significant harm finding the chance of harm was only remote or speculative. Ground 2 has no merit.

34. The applicant’s oral submissions only went to matters of merit and did not identify any jurisdictional error.  As the applicant was unrepresented, the Court has perused he decision record but is unable to find any unarticulated jurisdictional error.

35. The Court is of the view that the substantive application, even at an impressionistic level, has no merit. In these circumstances, it would be pointless to reinstate the substantive matter.

    CONCLUSION

36. Accordingly, the application for reinstatement is refused.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Deputy Associate:

Dated:       22 November 2021