AEB19 v Minister for Immigration
[2020] FCCA 1426
•4 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AEB19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1426 |
| Catchwords: MIGRATION – Protection visa – where the applicant held a student visa and bridging visas – where the applicant made request for deportation – where the applicant was removed into detention – where the applicant deposed to financial hardship and an inability to produce documents – where there was a delay in applying for protection – claim for protection from the Maoist political party – where the applicant introduced new claims – where there was a concern as to the credibility of evidence and claims – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36, 65, 189, 430, 474, 476 |
| Cases cited: Craig v South Australia (1995) 184 CLR 163 |
| Applicant: | AEB19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 113 of 2019 |
| Judgment of: | Judge A. Kelly |
| Hearing date: | 12 May 2020 |
| Date of Last Submission: | 12 May 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 4 June 2020 |
REPRESENTATION
| The Applicant: | In person |
| Solicitor advocate for the First Respondent: | Mr C. Orchard |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
By consent, pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The applicant have leave, now for then, to file the application dated
15 January 2019.
The application dated 15 January 2019 be dismissed.
The applicant pay the costs fixed the first respondent at $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 113 of 2019
| AEB19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 15 January 2019, the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 10 December 2018 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Protection visa (Class XA, Subclass 866) (visa) pursuant to s 65 of the Migration Act 1958 (Act).
The application should be dismissed. I have concluded that the Tribunal did not fail to consider information comprised in the Departmental file. Nor did it fail to provide reasons for its decision. There was no constructive failure to consider the claim and the assessment of the applicant’s credibility was a matter open to the Tribunal.
Background
The applicant, a male citizen of Nepal aged 33 years, first came to Australia on 23 April 2008 holding a Student (Subclass 572) visa (Student visa) which visa expired on 27 October 2010.
From October 2010, the applicant held a series of bridging visas.
On 13 June 2018, the applicant was detained under s 189 of the Act. On the same day, he signed a request for removal. On 27 July 2018, the applicant attended an interview with a delegate of the Minister. In 2019, the applicant was released from detention.
The applicant claimed that he had come to Australia to study but could not complete his study due to financial constraints and further that he was unable to have his visa extended on the basis of financial hardship. The applicant deposed that he could not relay his situation to his family due to shame, and spent time living between friends’ houses and being homeless. At one point, a friend forced the applicant into contacting his relative in Nepal and he told them he would be returning home.
The applicant claimed he had lost his passport and that it had expired. He later deposed that his passport had been stolen at a time when he was homeless. He claimed to have left Nepal due to threats from the Maoist political party after having witnessed the killing of two army officers and being asked to identify the rebel responsible for the killing and who was subsequently killed in prison.
The applicant claimed that after this, unidentified people had come to his house, which they vandalised, and threatened to kill him. The applicant also claimed there were spies within the government for the rebel forces and this was how he was identified. The applicant made claims to having been tortured. He claimed to have moved several times in an effort to remain hidden from the rebel forces.
The applicant also claimed that the situation in Nepal worsened.
The applicant further claimed that an immigration officer informed him he could obtain a bridging visa but he refused as he wanted to return to Nepal. When this became untenable, he had applied for a protection visa.
Delegate’s decision
On 10 August 2018, a delegate of the Minister refused to grant the visa.
The delegate did not accept that any of the events the applicant described had occurred or that he left Nepal for the reasons claimed, and also considered that there had been significant delay in seeking a visa.
The delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations: Act, ss 36(2)(a)-36(2)(aa).
Tribunal Decision
On 14 August 2018, the applicant applied to the Tribunal for review of the delegate’s decision.
On 16 October 2018, the applicant appeared before the Tribunal.
On 10 December 2018, the Tribunal made a decision affirming the delegate’s decision to refuse the visa application. In affirming the decision to refuse the visa, the Tribunal provided a statement of reasons for doing so (Reasons).
The Tribunal had a number of concerns about the applicant’s claims, including that new claims had been introduced at the hearing and that his oral evidence had been vague, evasive and at times, inconsistent and somewhat implausible.
The Tribunal noted that the applicant had not applied for protection in the period of over ten years since first arriving in Australia.
The Tribunal was concerned with the applicant’s evidence that, for a month immediately afterwards, he had remained in the village where the incident occurred and that he had also remained in Nepal for a further seven years without anything happening, despite claiming Maoists wanted to harm him out of revenge. It found that the applicant’s evidence concerning friends telling him the Maoists had arrived in Bharatpur to be vague and did not accept that it had occurred as claimed. It also found that the applicant’s claims were undermined by his inconsistent evidence in relation to how often he had visited his parents in Rampur: [19].
The Tribunal noted that there was no copy of any police reports on the department file, despite the applicant having stated in his visa application that his mother was going to the police about the unidentified people and such a report would be provided: [21].
The Tribunal accepted that Nepal could at times be unstable but considered country information indicating that it had “improved dramatically” and was not satisfied that the applicant would face a real chance of serious harm as a result of the security situation for any refugee related reason as defined in s 5J(1)(a): [22]-[23].
In circumstances where the Tribunal did not accept that the applicant had been targeted by Maoists, the Tribunal considered country information and found the chance of the applicant being kidnapped and/or disappearing to be remote: [24]-[25]. It did not accept that there was a real risk that the applicant would face significant harm from Maoists or people sympathetic to Maoists as a result of having witnessed an incident: [28]. The Tribunal found that, as the applicant’s fear of being caught up in the unstable security situation in Nepal was a real risk faced by the population generally and not the applicant personally, there was taken not to be a real risk that the applicant would suffer significant harm by force of s 36(2B)(c) of the Act: [29].
Having considered the applicant’s claims singularly and cumulatively, the Tribunal found that the applicant did not satisfy the criteria under ss 36(2)(a)-36(2)(aa) of the Act and affirmed the delegate’s decision to refuse the visa application: [30].
Procedural History
On 14 January 2019, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit affirmed by the applicant to which he exhibited a copy of the Reasons and adducing some further evidence in support of the application for judicial review.
The applicant deposed to his migration history including that following the expiry of his visa in 2010 he had “overstay since then”. He further deposed that he had consulted a solicitor in 2012 but could not afford the legal fees of legal representation and that in 2015, and again in 2018, he had attended the Department of Immigration, in Sydney and Adelaide respectively to gain assistance in seeking a protection visa without result. The applicant further deposed that in June 2018 he had signed a “deportation paper” following which he was placed in detention. He stated that he had been advised not to return to “Nepal because of some serious risk for my life” but to instead apply for a protection visa.
On 18 February 2019, a response was filed on behalf of the Minister in which an order was sought for dismissal of the application on the basis that the Tribunal’s decision was not affected by jurisdictional error. By the response it was further contended that the applicant impermissibly sought a merits review of the Tribunal’s decision for which the court had no jurisdiction.
Judicial review
If the Tribunal’s decision was a privative clause decision[1], it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[2] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[3] Whether it should do so is a separate issue.
[1] Act, s 474(2).
[2]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[3] Act, s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[4] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[4]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
The grant or refusal of a visa application turns upon whether an administrative decision-maker is satisfied that the criteria for the grant of the particular visa have been satisfied. A decision upon those matters is a decision upon a jurisdictional fact.[5] By s 65 of the Act, the decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[6] Conversely, where the decision-maker is satisfied that the criteria have been met, the application must be granted.
[5]Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [102] (Crennan and Bell JJ).
[6]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Consideration
As the applicant was self-represented before me, I have examined the materials on the court book, the decisions of each of the delegate and Tribunal and the application for judicial review. An interpreter was provided for the applicant; he did not seek that assistance. While I reflected upon whether it was necessary for the interpreter to become involved in the hearing, it appeared readily apparent to me that he did not need such assistance.
The application contains five grounds of review. His submission was largely repetitious of matter set out in his application and affidavit and I have examined that submission in light of his sworn evidence. In particular, a matter which the applicant referred to was that he had undertaken some parts of his study in Nepal by travelling around the country and being in hiding. I am satisfied that those matters were considered by the Tribunal.
Ground 1: failure to consider information
Ground 1 of the application reads:
The Tribunal ignored relevant information to be taken into consideration in facts finding when resolving errors of facts been used for its reasoning.
Contrary to the applicant’s submission, there is nothing on the face of the Reasons, nor revealed by the material that was before the Tribunal, which would support such a contention.
The Tribunal had regard to the applicant’s written claims and oral evidence, and rejected each of the applicant’s claims based on identified credibility concerns with his evidence that were clearly open to it. The applicant had not provided any documentary material in support of his claims. Further, the Tribunal noted that the applicant had not provided a copy of his mother’s complaint to the police despite indicating that he would do so: [21].
To the extent that the applicant contends the Tribunal made an errant finding of fact that affected its reasoning, he does not particularise the finding of fact which he seeks to impugn. Nor is any such error apparent from the Tribunal’s reasons.
Ground 1 is rejected.
Ground 2: compliance with s 430
Ground 2 of the application reads:
Tribunal fail to comply with the Act on section 430 where the Tribunal required to set out the reasons for the decision or any other material on which of the finding of facts and then refer to the evidence were based. Duty need to be carried out by the Tribunal before putting in its written statement.
I am satisfied that the Tribunal complied with s 430 of the Act. By its Reasons, it provided a statement which clearly set out its decision, the reasons for its decision, its findings of fact and the material on which those findings were based. I consider that the findings in those Reasons were logical and open to it on the evidence and material before it.
Ground 2 is rejected.
Grounds 3-4: constructive failure to consider claim
Grounds 3-4 of the application read:
Tribunal misapprehended and misconceived my claim resulting in erroneous findings used in its reasoning.
The Tribunal misconceived my claim as a result asking the wrong question and then applied in its wrong decision.
I do not accept that the Tribunal misconceived his claim or that this resulted in it asking the wrong question or making erroneous findings.
The Tribunal set out the applicant’s initial claims and considered the applicant’s oral evidence given at hearing. It identified a number of credibility concerns with the applicant’s claims and evidence and rejected in their entirety his claims to hold a well-founded fear of harm.
Having considered country information, the Tribunal noted that the Nepalese security situation had improved dramatically. It was not satisfied the applicant would suffer serious harm for any refugee related reason. As noted above, the Tribunal also found that the unstable security situation was one which would be faced by the population generally and not the applicant personally, such that there was taken not to be a real risk that the applicant would suffer significant harm for this reason.[7] The applicant’s contention that a Human Rights Watch World report on Nepal showed otherwise is undermined as there is no evidence such a report was before the Tribunal. The solicitor for the Minister confirmed that the Human Rights Watch World report was not in evidence before the Tribunal.
[7]Act, s 36(2B)(c); SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245, [10]-[11] (Rares J).
It was for the applicant to make out his case before the Tribunal, including by submitting any evidence he wished to rely on. There can, in general, be no error on the part of the Tribunal in not considering material that was not before it. Nor is the court permitted to consider material that was not before the Tribunal or otherwise consider the merits of the applicant’s claims. That is beyond its jurisdiction.
Grounds 3-4 are no more than a request for impermissible merits review.
These grounds of review are rejected.
Ground 5: credibility
Ground 5 of the application reads:
The Tribunal doubting the applicant’s credibility claim with the sole reason in delaying in application of protection by the applicant.
This ground is without substance and rises no higher than a request for impermissible merits review. The Tribunal’s credibility findings were based upon numerous identified concerns, including new claims being raised at hearing, vague and evasive oral evidence and inconsistencies, together with the inherent implausibility of some of the applicant’s claims and his delay in applying for protection: [18]-[19]. Those findings were clearly open to the Tribunal following its assessment of the evidence before it for the reasons it gave.
Ground 5 is rejected.
Conclusion
For the reasons above, the application should be dismissed.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 4 June 2020.
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