AFD15 v Minister for Immigration
[2015] FCCA 3175
•4 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AFD15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3175 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Refugee Review Tribunal – whether the Tribunal considered all of the applicant’s claims – whether the Tribunal imposed an expectation on the applicant – whether the Tribunal considered the applicant’s relocation upon return to Nepal – writs issued. |
| Legislation: Migration Act 1958 (Cth), s.476 |
| Glew v Frank Jasper Pty Ltd [2010] WASCA 87 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | AFD15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 706 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 12 October 2015 |
| Date of Last Submission: | 20 October 2015 |
| Delivered at: | Sydney |
| Delivered on: | 4 December 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitor for the Respondents: | Ms H. Musgrove, Sparke Helmore |
ORDERS
The name of the second respondent be amended to Administrative Appeals Tribunal.
A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 2 March 2015.
A writ of mandamus issue directed to the second respondent requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 31 January 2014 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 706 of 2015
| AFD15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant claims to be a refugee because she faces persecution in Nepal for a number of reasons, including her ethnicity. The Refugee Review Tribunal[1] did not accept many of her claims. It did accept, however, that her ethnicity was Pahade and that people of that ethnic group were in the minority in the town where the applicant had been educated and had previously worked. It also accepted that there had been violence in the past in that town between members of the majority ethnic group, the Madhesi, and those of the applicant’s ethnic group.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015, s.3 sch.2.
The Tribunal did not accept that there was a real chance that the applicant would face persecution because she would return to Kathmandu, where her ethnic group was in the majority, and it did not accept that she has faced any difficulties in the past from the Madhesi group.
A person will not be a refugee where there is a region within the country of nationality in which there is no appreciable risk of the persecution of which the person has a well-founded fear; and, if so, it would be reasonable for the person to locate within that region on return to his or her country of nationality: Minister for Immigration & Border Protection v SZSCA [2014] HCA 45; 89 ALJR 47 (“SZSCA”) at [41] (Gageler J). The issue in this case is whether the Tribunal’s findings dealt with the second of those two matters. In my view it did not and the Tribunal fell into the error identified in the reasons of the majority in SZSCA.
Background and claims
The applicant arrived in Australia on a visitor visa in July 2013 and lodged application for a protection visa later that month. Her claims in support of that application were accurately summarised by the Tribunal at [1]:
… She fears return as she claims she is from the Pahade ethnicity, as she worked in the Government sector in Biratnagar in the Terai region of Nepal and is a supporter of the Nepali Congress Party. As a result while working in Biratnagar she claims she was a target for continuous harassment, intimidation, threats, and cruel and inhuman treatment from the Madhesi groups, including the JTMM. She claims she moved to Kathmandu and was threatened with death and kidnapping. She claims she agreed to pay them 10 Lakh for the threats to stop. She said two weeks after they paid the money, the threats continued and as a result she left her job and fled Nepal. She claims her husband and children, who remain in Nepal, continue to be threatened with harm by the JTMM and other Madhesi separatist groups.
On 31 January 2014 a delegate of the first respondent made a decision to refuse to grant the applicant a visa and she applied to the Tribunal for review of that decision. The applicant attended a hearing conducted by the Tribunal on 8 December 2014 and on 2 March 2015 the Tribunal made a decision to affirm the decision of the delegate.
Tribunal’s decision
The Tribunal accepted certain aspects of the applicant’s claims including the following:
a)the applicant is of Pahade ethnicity and was born in in Morang;
b)she is married with two children and her husband and children live in Kathmandu;
c)the applicant moved to Kathmandu from Biratnagar at the time of her marriage in approximately 1999/2000 and her husband and children have always lived in Kathmandu;
d)her husband owned a convenience store in Kathmandu for 8 or 9 years and stop working approximately 2 years ago. He moved to Kathmandu from Biratnagar, before they were married; and
e)the applicant’s mother lives alone in the Biratnagar area in the same house she has lived in for many years and her younger sister also lives in Biratnagar with her husband, who works in a government job.
However the Tribunal did not accept that the applicant was a credible witness. It did not accept as true that she was ever politically active or involved with the Nepali Congress in Nepal, ever worked for the Department of Industry in Biratnagar or Kathmandu, was ever threatened with kidnapping and extortion or faced any difficulties from the Madhesi people or Madhesi groups in the manner she claimed. The Tribunal also considered that the applicant gave inconsistent and confusing evidence that was lacking in detail.
The Tribunal found that if the applicant were to return to Nepal she would return to live with her husband and children in Kathmandu. It accepted the applicant’s evidence that Pahades are in the majority in Kathmandu as that was in accordance with country information available to the Tribunal. It also accepted the applicant’s evidence that Pahades constitute 30% of the population in Biratnagar, where Madhesis are in the majority. The Tribunal accepted that in the past, particularly in 2007/8, in the area where Biratnagar is situated there had been violence between the Pahades and Madhesis and other Madhesi parties including the Janatantrik Terai Mukti Morcha (JTMM) and other factions.
The Tribunal then made the following findings:
[63]On the basis of the above information, and as the Tribunal does not accept on the basis of the applicant’s lack of credibility that she was ever harmed, threatened, had to resign her government position or suffered any harm from Madhesi party members or JMMT factions or Madhesi people in Kathmandu, 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 Kathmandu, the Tribunal does not accept that there is a real chance she will face persecution involving serious harm were she to return to Kathmandu, where she lived for over ten years before departing Nepal because of her Pahade ethnicity or where (sic) she to work in the private or public sector.
[64]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 Madhesis are in the majority as they displace Pahades, as her evidence is that in Kathmandu Pahades are in the majority and the Tribunal has found she has not faced any difficulty in the past by Madhesi people.
The Tribunal concluded that the applicant did not have a well-founded fear of persecution arising for one or more of the five Convention[2] reasons if she returns to Nepal.
[2] Convention on the Status of Refugees (1951) as amended by the Protocol on the Status of Refugees (1967)
Consideration
The applicant now seeks judicial review of the Tribunal’s decision under s.476 of the Migration Act 1958 (Cth). In order to succeed she must establish that the Tribunal’s decision was affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
The grounds in the application for review are:
1.Department of Immigration did not take my personal circumstances when it made its decision.
2.RRT made decision based on wrong assumption.
Neither of those grounds raises any question of jurisdictional error.
First, as the decision of the delegate of the Minister was reviewable under pt.7 of the Act, it is a primary decision and for that reason is not subject to review in this Court.
Secondly, even if the applicant had identified the wrong assumption referred to in the application (which she has not) this complaint goes only to the merits of the Tribunal’s findings of fact rather than as to whether they were legally open to the Tribunal. As such, the complaint is beyond the proper scope of judicial review.
The applicant appeared at the hearing unrepresented. In those circumstances it is incumbent upon the Court, as part of its duty to ensure that the applicant has a fair hearing, to intervene so that an unrepresented person does not suffer a disadvantage from exercising his or her right to be self-represented: see Jones (Bankrupt), Re; Jones v Porter (Trustee) [2015] FCA 644 (Katzmann J) referring, to Neil v Nott [1994] HCA 23; 121 ALR 148, Glew v Frank Jasper Pty Ltd [2010] WASCA 87, and SZRUR v Minister for Immigration & Border Protection [2013] FCAFC 146.
In light of that duty, I asked the Minister’s representative at the hearing whether the Tribunal had fallen into the error identified by the majority of the High Court in SZSCA. I allowed time for this issue to be addressed in further written submissions by both parties.
In SZSCA the Tribunal had accepted that an Afghani truck driver faced a real chance of persecution if he continued to drive a truck on roads outside Kabul, but rejected his claim to be a refugee because it found that he could remain in Kabul safely and go back to his original occupation as a jeweller. Both this Court and the Full Court of the Federal Court found that the Tribunal had erred by imposing an expectation on the visa applicant rather than by considering what he would actually do upon return to Afghanistan. The Minister appealed by special leave to the High Court. None of the Justices agreed with the conclusions of the lower courts; however, a majority (French CJ, Hayne, Kiefel and Keane JJ) found that the Tribunal had erred by failing to consider the reasonableness of the visa applicant returning to live in Kabul. Their Honours said:
[31]In the present case it is not just the living conditions for the respondent in Kabul – and whether he would face a real chance of persecution if he stayed there – which should have been considered by the Tribunal. Rather, it was necessary for the Tribunal to consider the impact on the respondent of remaining in Kabul and not driving trucks on the roads he usually frequented in the course of his business. Addressing this question properly may have raised various issues for the Tribunal's consideration. At the least, the question clearly directs attention to the respondent's ability to earn an income from other sources and to his needs and those of his family.
[32]The Tribunal did not address this question. It did not address what was necessary to an inquiry whether it was reasonable to expect the respondent to remain in Kabul and not drive trucks outside it. It made one assumption – that the respondent would be able to work as a jewellery maker in Kabul, as he had formerly done in Jaghori. This assumption does not appear to have been put to the respondent for his comment. The respondent had raised concerns about his ability to earn a living if he were to return to Afghanistan, but the Tribunal did not explore this subject with him.
[33]This matter does not fall to be decided on grounds of procedural fairness. Even if the Tribunal's assumption were correct, that assumption could not provide a complete answer to the question the Tribunal should have addressed. Without addressing the question whether it would be reasonable to expect the respondent to remain and work in Kabul, having regard to the circumstances in which that would place him, the Tribunal could not make a final determination as to whether he could be said to have a well-founded fear of persecution. Failure to address this question constituted an error of law.
Justice Gageler, in dissent, found that the Tribunal had addressed the question of whether it was reasonable for the visa applicant to remain in Kabul: SZSCA at [50].
In this case, the Minister argued in his written submissions that the question in SZSCA did not really arise because not only did the Tribunal find that there was no real chance that the applicant would face persecution in Kathmandu, but it did not accept that there was a real chance that she would face persecution elsewhere in Nepal for the reasons she claimed. This argument relied upon the following paragraphs in the Tribunal’s reasons:
[66]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, receive abuse (sic) 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. It follows it does not accept there is a real chance she will face persecution involving serious harm were she were to return to Nepal in the reasonably foreseeable future for the reason 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 views as a supporter of the Nepali Congress party or for any of the reasons she claims.
[67]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.
The problem with this argument is that it ignores the fact that all of the conclusions in these paragraphs have, as their premise, the Tribunal’s earlier finding that if the applicant were to return to Nepal, she would return to Kathmandu to live with her husband and two children. That much is made clear from [63] and [64] of the Tribunal’s reasons which are set out above. Further, it does not take into account the finding at [59] of the Tribunal’s reasons that in another part of Nepal there had been violence between the two relevant ethnic groups in the past. The only resolution of that finding in terms of the question posed by the definition of a refugee was, in essence, that the applicant would not be harmed by such violence because she would be living in Kathmandu. The Tribunal did not, for instance, make any finding that that violence was unlikely to occur again in the future or that if it did, that the applicant would not be harmed as a result of it. Once that is accepted, the issues that arose in SZSCA also arose in this case. In light of that, it was insufficient for the Tribunal to determine the applicant’s claims of harm on the basis of her ethnicity simply by finding that that harm would not occur to her in Kathmandu.
As explained by Gageler J in SZSCA:
[35]The definition of “refugee” in Art 1A(2) of the Refugees Convention contains four cumulative elements: (1) the person concerned must fear “persecution” in the country of his or her nationality; (2) the persecution so feared must be “for reasons of race, religion, nationality, membership of a particular social group or political opinion,” (3) that fear of persecution for one or more of those Convention reasons must be “well founded,” and (4) the person must be outside the country of his or her nationality “owning to” that well-founded fear.
(Reference omitted)
The fourth of these elements requires the Tribunal to ask two questions. Firstly, whether there is a region within the country of nationality in which there is no appreciable risk of the persecution of which the person has a well-founded fear. Secondly, if there is an appreciable risk of persecution, whether or not it would be reasonable for the person to locate within that region on return to his or her country of nationality: see SZSCA at [41] (Gageler J). By failing to ask the second of these questions, the Tribunal failed properly to address the issues required by law and so fell into jurisdictional error.
Conclusion
For those reasons, there will be orders for the issue of writs of certiorari and mandamus setting aside the Tribunal’s decision and requiring it to complete its review of the delegate’s decision according to law.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 4 December 2015
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