AFC15 v Minister for Immigration

[2015] FCCA 906

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFC15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 906

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation:  
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10
Migration Act 1958, ss.36(2)(a), 36(2)(aa), 476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant: AFC15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 705 of 2015

Judgment of: Judge Street

Hearing date: 9 April 2015

Date of Last Submission: 9 April 2015

Delivered at: Sydney

Delivered on: 9 April 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Applicant: Ms Z. Taylor
Clayton Utz

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant to pay the First Respondent’s costs fixed in the sum of $1000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 705 of 2015

AFC15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within this Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal on 2 March 2015 affirming the decision of the delegate not to grant the applicant a Protection (class XA) visa. 

2. The application was listed for hearing at 9.30am today.  It has been called at 11:50am.  The applicant has not appeared.  The nature of the grounds identified in the application are:

   1. DIBP failed to take my personal circumstances when Minister delegate made his decision.

   2. RRT decision was based on wrong assumption.

3. The application identifies on the First Court date that the Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceedings. 

4. Those grounds clearly fail to identify any argument of jurisdictional error.  It is in those circumstances appropriate, in the default of appearance by the applicant, to consider whether the proceedings should be summarily dismissed. I take into consideration in respect to the Court’s summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60].

5. The applicant applied for a protection visa on 23 July 2013, which was refused by the delegate on 31 January 2014.  The applicant appeared before the Tribunal at a hearing of 8 December 2014 to give evidence and present arguments.  The Tribunal carefully identified the relevant law, and the claims and evidence of the applicant.  This was a case where the applicant’s credit was not accepted by the Tribunal.  The Tribunal accepted that the applicant is a national of Nepal, and the claims were assessed against Nepal as a receiving country.  Relevantly, the Tribunal made adverse findings.

   34. When I asked her about relocation to Kathmandu, and indicated I may find it is reasonable for her to relocate there, she agreed there were many more [P] in Kathmandu than [M]. She said, however that [M] come to Kathmandu and are in India. She said they will find her address and target her there.

   36. As to the applicant's credibility, while the Tribunal has, as detailed below, significant concerns regarding central aspects of her claims and evidence, especially those which led her to depart Nepal, there are other aspects of her basic, background circumstances which have remained consistent over time and which the Tribunal is satisfied are true.

   37. For the reasons that follow the Tribunal does not accept that the applicant is a credible witness as to having faced the difficulties she claims which led her to depart Nepal and why she fears return. It follows it does not accept as true she was ever politically active or actively involved with the Nepali Congress in Nepal; was kidnapped in 2013 and faced any difficulties from the [M] people or [M] groups in 2013 which led her to depart Nepal because of her ethnicity and/or because she was in a Government job. It finds her testimony to be inconsistent and lacking in detail as to these claims for the reasons that follow.

6. The Tribunal carefully addressed the applicant’s claims and made adverse findings: 

   42. Therefore based on this information together with the above concerns the Tribunal does not accept the applicant was ever kidnapped or threatened or abused by [M] groups or [M] people, co-workers or neigbours in 2013 and this was why she resigned and departed Nepal in July 2013.

   44. I do not accept this response and expect if her husband and children were in hiding or in fear of being kidnapped, or harmed because of their [P] ethnicity and support or perceived support of the Nepali Congress that they would not stay living at the same house as they have done so for many years or continue to attend the same school.

   45. On the basis of the evidence before me I do not accept the applicant ever moved places or was in hiding as she claimed in Kathmandu, nor were or are her husband and children in hiding moving places because of any fear of harm for the reasons she claims. It follows I do not accept her husband and children were threatened or in fear, as I expect that if this was case they would not stay living in the same house until a year ago and then live in the same house from that date until now.

   46. This leads me to find her husband and children are not in hiding, living in fear of being kidnapped or threatened because of their [P] ethnicity and her husband's involvement in the Nepali Congress or for any reasons related to the applicant's claims. This adds to my finding the applicant is not credible as to her claims.

   48. However for the reasons that follow the Tribunal does not accept she is credible as to her claim of active involvement in the Nepali Congress, including being a member or any past political activities.

   53. For these reasons I do not accept the applicant was ever actively involved in the Nepali party. I am of the view that if congress in the manner claimed or is or was a member of the she was genuinely involved in the manner she claimed she would have known the answers to the questions above. I do not accept on the evidence before me that basic matters relevant to Nepali politics, such as when the recent elections were held and her electoral area would be a matters she would know if she was genuinely involved in the Nepali Congress in Nepal. This adds to my finding the applicant was not actively involved in the Nepali Congress in Nepal in the manner she claims, nor a member, nor politically active and adds to my finding that she is not a credible witness. In making this finding the Tribunal has considered the letter as to her involvement and membership in the Nepali Congress but for the reasons outlined in a separate paragraph below places no weight on this as evidence of her involvement in the manner claimed.

   55. For all the above reasons, the Tribunal does not find the applicant to be a credible, truthful and reliable witness as to her claims of why she left Nepal, what happened to her in 2013 and why she fears return. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome. It follows it does not accept that the applicant was ever actively involved with the Nepali Congress, as a member or politically active in the manner claimed or was ever viewed as being a supporter because of any activities she claims she undertook, above and beyond voting. It does not accept she was targeted in the manner she claims in 2013 by Janatantrik Tarai Mukti Morcha (JTMM)Jwala, [M] Jana Adhiker Forum Nepal, [M] People's Rights forum, Tarai-[M] Loktantrik Party and her [M] neighbours or [M] co-workers, or that she was ever kidnapped, threatened, treated cruelly or inhumanely, verbally and physically abused, or tortured.

   56. In particular it does not accept that in the recent past, prior to her departure, particularly in2013 as she was of [P] ethnicity, a supporter of Nepali Congress and while working in the Government sector she was a prime target for continuous harassment, intimidation, threats, cruel and inhumane treatment from Janatantrik Tarai Mukti Morcha (JTMM) - Jwala, [M] Jana Adhiker Forum Nepal, [M] People's Rights Forum, Tarai- Madhesh Loktantrik Party and her [M] neighbours and co-workers. It follows it does not accept that on 2 June 20 J 3 the JTMM kidnapped her in the middle of the night, she was held in captivity for two days, they demanded 5 Lakhs in money, resignation from her government job and to leave the town immediately otherwise they would kill her and her family. It follows it does not accept her family managed to pay the money and to secure her release. It does not accept that during her captivity she was subjected to cruel and inhumane treatment and punishment, torture and verbal and physical abuse and she was kept without food. It does not accept that after her release from captivity she received numerous threatening phone calls to resign from her job and leave the town immediately, and so she resigned from her job and fled the country. It follows it does not accept she repeatedly complained to the Chief District Office in [B] about the constant threats against her but she received no reply or protection. It follows it does not accept people from JTMM o or the [M] forum or of the [M] ethnicity or her co-workers or anyone at all has repeatedly said over the phone that if she goes back they will kidnap and kill her.

   57. It follows it does not accept her family is in distress because of the constant threats to their lives for the reasons she claims, nor is her husband and children in hiding and her husband does not work and has not since soon after her departure for Australia because of a fear for the above reasons.

   58. In making the above findings the Tribunal has considered the Nepali Congress letter submitted as corroborative evidence, as well as letters to and from the District Administration submitted as corroborative evidence, as well as letters to and from the District Administration Management and their replies however places no weight on these documents on the basis of the high prevalence of document fraud in Nepal4 and on the basis of her lack of credibility. At the hearing information was raised with the applicant as to the widespread document fraud in Nepal and that this may lead the Tribunal to find the official letters and documents she has submitted from Nepal are not genuine. The applicant did not respond. On the basis of the independent information and her lack of credibility I place no weight on the membership letter as evidence she was ever a member or associated with the Nepali Congress or the letters to and from the District Administration Office that she ever went to the police or suffered the difficulties she claims or resigned for the reasons she claims in the letters.

   59. Further the Tribunal has considered the letter from the applicant's brother dated 2 September2013. The letter describes what the applicant told him about her claims two weeks after she arrived in Australia, around the same time she applied for a protection visa. I therefore do not consider this to be independent evidence and therefore persuasive as to the truth of her claims. The Tribunal therefore places no weight on it as evidence of her claims.

7. The Tribunal turned to the issue of whether the applicant had a well-founded fear of persecution, and relevantly made adverse findings as follows:

   60. For the reasons outlined above on the basis of the findings above as to the applicant's lack of credibility the Tribunal does not believe that the applicant is being truthful as to her claims and why she departed Nepal and fears return. The Tribunal therefore does not accept that the applicant was ever actively involved or a member of the Nepali Congress or viewed as an active supporter in either Nepal or Australia in the manner she claims or was ever targeted in

   2013 in the manner she claims as a result of her involvement.

   61. It does not accept, as outlined above in paragraphs 55 - 59, she faced the difficulties she claims, including but not limited to being threatened with death, abusive phone class, threatened to resign from her job, being kidnapped, paying a ransom of 5 Lakh or that she resigned from her job, went into hiding or moved to Kathmandu to avoid the harm or left Nepal for the reasons she claims. The Tribunal is not satisfied that at the time she left Nepal in July 2013, the Janatantrik Terai Mukti Morcha (JTMM)-Jwala, [M] Jana Adhiker Forum Nepal, [M] people's Rights forum, Tarai- [M] Loktantrik Party, [M] parties or her [M] neighbours and co-workers or anyone else had any interest in her for reasons associated with her [P] ethnicity, her nationality, her active involvement and membership with the Nepali Congress or perceived or imputed involvement with the Nepali Congress in Nepal because of her a relative being involved with the Nepali Congress or her husband or because she was a government worker.

   62. It follows it does not accept her husband was threatened and had to resign from his work, or that he and the children have been threatened or live in fear, live in hiding or that he cannot obtain work for the reasons she claims.

   64. Therefore on the basis of the above information and information in the attached appendix, and as the Tribunal does not accept on the basis of the applicant's lack of credibility that she was ever harmed, threatened, kidnapped, had to resign her government position or suffered any harm from [M] party members or JTMM and its factions or [M] People's Forum or [M] people which led her to leave Nepal, and as it does not accept she was ever in hiding or her family are or were in hiding but finds they are rather living without incident from these parties and people in Nepal, the Tribunal does not accept that there is a real chance she will face persecution involving serious harm were she to return to Nepal because of her [P] ethnicity or were she to work in the private or public sector.

   65. Based on this information and the information in the attached appendix and as the Tribunal has found she has not faced any difficulty in the past at the hands of [M] people, it further does not accept there is a real chance she will face persecution involving serious harm as she will return to a place where [M] are in the majority and they displace [P].

   …

   67. ... Based on the information before me, the Tribunal does not accept that there is a real chance she will face persecution involving serious harm were she to return to Nepal and vote for the Nepali Congress or because of her ethnicity she is perceived to support the Nepal Congress or because her husband supports Nepali Congress or even if she becomes a member. This finding is to live at the same home he has for ten years. It expects if she were to be targeted because of her involvement in Nepali Congress, or perceived involvement together with her [P] ethnicity, that he would have moved elsewhere as he would have faced difficulties. However the evidence indicates he has not.

   68. Further based on the above credibility findings and information above, it follows it does not accept were she to return to Nepal she will be threatened, killed, kidnapped, abducted, be forced to pay money to prevent her abduction or as a ransom, receive abusive phone calls, face harm, have to go into hiding or be unable to work for the government or privately for the reasons she claims, including her ethnicity, as she is, was or will be a government worker, because of her actual support of or membership of the Nepali Congress party or for any of the reasons she claims or her husband's support or because a relative was involved in a senior position in the Nepali congress party. It follows it does not accept there is a real chance she will face persecution involving serious harm were she to return to Nepal in the reasonably foreseeable future for the reasons she claims, considered individually and cumulatively, including her ethnicity, her claimed past and possible future government employment, any employment, because she worked for, was a member of or is associated with or is viewed as a supporters of the Nepali Congress party or for any of the reasons she claims.

   69. Therefore, on the basis of the evidence before me, considered individually and cumulatively, I am satisfied that the applicant does not now or in the reasonably foreseeable future have a well-founded fear of persecution arising essentially and significantly for one or more of the five Convention reasons if she returns to Nepal.

8. The Tribunal turned to the issue of complementary protection, and relevantly made adverse findings as identified:

   70. Having regard to my findings above as to the credibility of the applicant's claims I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first named applicant being removed from Australia to Nepal, there is a real risk that she will suffer significant harm, as defined in subsection 36(2A) of the Act from the Janatantrik Terai Mukti Morcha (JTMM)-Jwala, [M] JanaAdhiker Forum Nepal, [M] People's Rights forum, or [M] People's Forum or Tarai- Madhesh Loktantrik Party, [M] generally and her [M] neighbours and co-workersor or anyone else who she claims had any interest in her for reasons associated with her [P] ethnicity, her nationality, her involvement with or membership of the Nepali Congress or perceived or imputed involvement with the Nepali Congress in Nepal or because she was or will be a government worker.

   71. Similar to the reasoning above based in the independent information and her lack of credibility as to having faced any past harm, on the basis of the evidence before it the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first named applicant being removed from Australia to Nepal, there is a real risk that she will suffer significant harm as defined in subsection 36(2A) of the Act because she is of the [P] ethnicity.

   72. Based on this information and the information in the attached appendix and as the Tribunal has found she has not faced any difficulty in the past at the hands of [M] people it does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first named applicant being removed from Australia to Nepal, there is a real risk that she will suffer significant harm as defined in subsection 36(2A) of the Act as she will return to a place where [M] are in the majority and they displace [P].

   73. Based on the country information in the attached appendix, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that she will suffer significant harm as defined in subsection 36(2A) of the Act because she may vote for the Nepali Congress or because she will be perceived to vote or support them because of her ethnicity or because of her husband's involvement or a relative's involvement or because she may be imputed to be involved.

   74. Accordingly I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that she will suffer significant harm as defined in subsection 36(2A) of the Migration Act.

9. The applicant was found not to be a person in respect of whom Australia had protection obligations, and that the applicant failed to meet the criteria under s.36(2)(a) or s.36(2)(aa) of the Migration Act.  I am clearly satisfied that there is no substance in relation to ground 1, and the Tribunal carefully took into account the applicant’s claims and evidence. It was open to the Tribunal to make adverse findings of credit in respect of the applicant. Ground 1 is in substance an impermissible challenge to findings of fact.

1. Ground 2 fails to identify any error and there is not substance in the contention of an erroneous assumption. The Tribunal correctly identified the issues and made findings that were clearly open. The adverse findings cannot be said to lack an evident and intelligible justification.  The application is clearly doomed to failure.  It is in those circumstances that it is appropriate to summarily dismiss the application.  I am clearly satisfied the pleadings have no reasonable prospect of success.  The proceedings are summarily dismissed. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  14 April 2015