AGI18 v Minister for Home Affairs

[2018] FCCA 1836

FEDERAL CIRCUIT COURT OF AUSTRALIA

AGI18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 1836

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (subclass 866) visa – whether the Tribunal made inconsistent findings – whether the Tribunal’s decision was bias – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal failed to give proper consideration to the applicant’s claims – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 36, 423A, 424A, 424AA, 425, 438, 476

Applicant: AGI18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 144 of 2018

Judgment of: Judge Street

Hearing date: 6 July 2018

Date of Last Submission: 6 July 2018

Delivered at: Sydney

Delivered on: 6 July 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms C Hillary
DLA Piper

ORDERS

1. The oral application for an adjournment is refused.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $4,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 144 of 2018

AGI18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

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 Administrative Appeals Tribunal (“the Tribunal”) made on 22 December 2017 affirming a decision of the delegate not to grant the applicant a Protection (subclass 866) visa.

2. The applicant was found to be a citizen of Nepal and his claims were assessed against that country. The applicant arrived in Australia on 15 July 2008 and was the holder of a Student (TU-572) visa. The applicant applied for a further Student (TU-573) visa on 21 September 2010 which was granted on 29 November 2010. On 29 May 2013, the applicant applied for a further Student (TU-573) visa that was refused on 5 June 2013. The applicant lodged an application for review to the Tribunal on 25 June 2013 and the Tribunal found the application was made out of time on 15 August 2013. It was not until 13 May 2015 that the applicant applied for a protection visa.

3. The applicant claimed to suffer difficulties due to the effects of an earthquake in 2015, corrupted government, paying funds to rescue victims and the destruction of homes by the earthquake. The applicant alleges there is chaos due to the war between the Maoists and the government, including kidnapping, executions, planting of bombs and shootings. The applicant alleged that the Maoist army asked for protection money. The applicant alleges he tried to complain to the village development committee to no avail and the family moved to the city. The applicant alleged, although they are in a city, they are still not safe and that Maoists called every month and all districts were affected by Maoists. The applicant did not want to return home until the country was rebuilt.

4. The applicant contended the authorities could not provide protection and that the people are living in fear with the aftershocks and spreading of diseases. The applicant alleges he did not intend to reside illegally in Australia instead it was because of fear, financial problems and lack of good consultants. On 4 February 2016, the delegate found the applicant failed to meet the criteria for the grant of a protection visa.

The Tribunal

1. On 15 February 2016 the applicant lodged an application for review to the Tribunal. By letter dated 24 October 2017, the applicant was invited to appear before the Tribunal. On 17 November 2017, the applicant appeared before the Tribunal to give evidence and present submissions. The Tribunal, in its reasons, summarised the background to the application for the visa and set out the relevant law in an annexure and summarised the applicant’s claims and evidence. The Tribunal expressly referred to the existence of a certificate under s 438 of the Act and found the basis for the alleged public interest immunity was not made out and that the certificate was not valid. Accordingly, the Tribunal proceeded to treat the documents as if there was no certificate.

2. The Tribunal referred to discussing with the applicant some of the documents relating to the Department’s notes in relation to the offshore student visa, which were consistent with the applicant’s claim and did not have an effect on his case. The Tribunal referred to other documents raised with the applicant containing notes about the certificate and internal documents and the Tribunal found them not to be relevant to the case. In that regard, there was a reference to a name that was thought to be irrelevant and redacted. The remaining documents had pages printed from the applicant’s Facebook account, which were discussed with the applicant and the Tribunal considered were not relevant as they indicate that the applicant had done some event work in Australia. The Tribunal raised with the applicant a name subject to a certificate, but it was said should not be disclosed and it was treated as irrelevant and redacted.

3. The Tribunal was concerned about the inconsistent, changing and unlikely evidence given by the applicant. The Tribunal had concerns in relation to the applicant changing the dates as to contact from Maoists, changing addresses to avoid Maoists, and his claims that his home had been destroyed. The Tribunal was also concerned about the applicant’s inconsistent, changing and difficult to accept evidence in relation to the claimed threat to his life in 2011 when he returned to Nepal from his cousin brother’s wedding reception.

4. The Tribunal, through an adverse inference to s 423A of the Act in respect of the new claims and evidence, was concerned with the applicant’s delay in lodging his protection visa application. The Tribunal considered that if the applicant’s considered that he genuinely faced harm from Maoists, he would have made enquiries, including researching online, to see how he could lawfully stay in Australia. The Tribunal was not satisfied the applicant was a witness of truth on the basis of this inconsistent, changing, and unlikely evidence for which they ultimately drew adverse inferences.

5. The Tribunal was not prepared to accept the fact that the applicant had not returned to his home country since 2011 as corroborated with his claims. When the Tribunal put it to the applicant that the reason behind not returning was because he was unlawfully present from 2013, considering the evidence cumulatively, the Tribunal concluded the applicant was not a witness of truth and the applicant had fabricated accounts and events and his claimed fears, upon which his protection claims were based.

6. The Tribunal was prepared to accept that the applicant’s home village was destroyed by the earthquake. However, on the basis of credibility concerns, the Tribunal was not prepared to accept that the home had not been rebuilt. The Tribunal found the applicant was prepared to make false and changing claims to support his claims and the Tribunal did not accept that the applicant faced any threats or harm in Nepal or since being in Australia, and did not accept there was a real chance or real risk of Maoists having any interest in the family due to land or finances.

7. The Tribunal did not accept, taking into account country information, that the applicant faced a real chance or real risk of harm due to general violence relating to the upcoming elections. The Tribunal, having considered country information, was not satisfied the applicant faced a real chance of serious harm, or real risk of significant harm, as a result of returning to Nepal. The Tribunal was not satisfied the applicant faced a real chance or real risk of suffering serious or significant harm in being extorted or in relation to a need for police or state protection. The Tribunal was not satisfied the applicant came to Australia to escape harm or adverse interests in Nepal.

8. Having considered the applicants claims individually and cumulatively, the Tribunal found the applicant does not have a well-founded fear of persecution as a refugee for any of the reasons purported by him or on his behalf. The Tribunal concluded the applicant failed to meet the criteria under s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 18 January 2018. On 19 February 2018, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. On 26 April 2018, this Court made orders fixing the matter for hearing today, which included liberty apply and did not vacate the orders, giving the applicant an opportunity to put on submissions. No such documents were filed by the applicant.

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

3. At the conclusion of the evidence, the application indicated that he wished to seek an adjournment because he had not been able to find a lawyer. The applicant confirmed that no earlier notice of an adjournment application had been given to the first respondent. The applicant indicated that he only commenced trying to find a lawyer after the orders were made by the Registrar in February 2018 and the applicant alleged he had been to different places, including Legal Aid, and had been unable to obtain representation. The adjournment application was opposed by the first respondent.

4. The Court sought to explore with the applicant why the Court should have any confidence that if his application was adjourned he would be able to obtain legal representation. The applicant indicated that he would try his best, however there is nothing said by the applicant to identify any proper basis upon which the Court could be satisfied that the applicant would be likely to obtain representation if the matter was adjourned.

5. Further, the merits of the application, for the reasons below, do not warrant the Court granting an adjournment. In all the circumstances, the Court is not satisfied that an adjournment is warranted in the interest of the administration of justice. It is for these reasons the Court refused the oral application for an adjournment.

The grounds

1. The grounds in the application are as follows:

   1. The Second Respondent made jurisdictional error by making self-contradicting/inconsistent findings.

   Particulars

   a) The Second Respondent at [36] accepted that the living conditions and opportunities in Nepal may not be the same as Australia, and there may be corruption, yet concluding that the Applicant is very resourceful and an intelligent person.

   b) The Second Respondent at [47] was prepared to accept that the village home was adversely affected, yet, the Second respondent is not prepared to accept that the Applicant faces a real chance of serious harm as a result of the earthquake.

   2. The Second Respondent made jurisdictional error by making a biased decision.

   Particulars

   a) The Second Respondent at [10] was bias in concluding that an intelligent person such as the Applicant would face no difficulty and is expected to know right from wrong, even though the Applicant made the Second Respondent aware that Nepali authorities cannot provide protection.

   b) The Second Respondent at [43] decided that if the Applicant genuinely faced harm from Maoists in Nepal, he would made enquiries on safety, including researching online via the Department’s website. Thus, the Second Respondent intentionally conclude that the Applicant’s intention was to study and reside in Australia unlawfully, in addition to have no genuine fear of harm.

   3. The Second Respondent made jurisdictional error and/or failed to exercise jurisdiction and/by denying procedural fairness in contravention of ss.424AA and 425 of the Migration Act 1958.

   Particulars

   a) The Second Respondent at [46], [51] and [54] gave no opportunity to the Applicant to respond in regards to the threats encountered by him and his family and only relied upon information within the application form, therefore, the Second Respondent assumes that the Applicant was prepared to refer to any negative aspect regarding the history of future of Nepal to support a protection visa application.

   b) Further particulars will be provided on the receipt of hearing transcript.

   4. The Second Respondent at [8] made jurisdictional error by failing to make proper consideration of the fact that political issues and insecurity, would make it difficult for the Applicant to retrieve opportunities for a bright future.

Ground 1

1. In relation to ground 1 particular (a) does not correctly identify what was said by the Tribunal. The Tribunal was not satisfied as to the applicant’s assertion that he would not be able to get a job without connections. The Tribunal also sought to explore with the applicant his claim concerning his bright future not amounting to serious or significant harm and was not satisfied this is a genuine concern of the applicant. The Tribunal accepted the living conditions and opportunities in Nepal are not the same in Australia and referred to the possibility of corruption. The Tribunal recorded raising with the applicant that he was resourceful and intelligent and had almost completed a Bachelor of Business Information Systems, and the applicant has indicated he has work experience and that there is employment in Nepal and that the applicant would be able to obtain employment. The Tribunal did not accept the applicant’s assertion that his family would not support him and found that it was likely his family would be able to assist him while he was applying for work and that he would live with them again.

2. In relation to ground 1 particular (b), the finding in paragraph 47 was that the Tribunal was prepared to accept that the village was adversely affected by the earthquake in 2015. However, the Tribunal did not accept that the home had not been rebuilt. There was a no inconsistency in the findings made by the Tribunal. There was no illogicality of reasonableness in respect to the findings referred to above by the Tribunal. Those findings were not self-contradictory or inconsistent and give rise to no relevant legal error. The conclusion that the applicant did not face harm as a result of the earthquake was based on its finding that the applicant did not live in the home and that he could live with his parents. That reasoning was logical and open to the Tribunal on the material before the Tribunal. No jurisdictional errors alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, the particular support and the allegation of bias refer to paragraphs 10 and paragraph 43 of the Tribunal’s reasons. Paragraph 10 is a summary of the applicant’s claims and evidence at the interview and paragraph 43 was the start of the adverse credibility findings made by the Tribunal taking into account the applicant’s delay in lodging his protection application. An allegation of bias must be particularised and properly proved. The adverse findings by the Tribunal, in relation to the applicant’s credibility and the taking into account of what the applicant said at the interview are not conduct by reason of which a fair-minded lay-observer might reasonably apprehend that the Tribunal might not bring in an independent and impartial mind to the determination the merits of the application.

2. It was a relevant and reasonable matter for the Tribunal to take into account the delay by the applicant in seeking protection and that the applicant was prepared to continue studying and working while unlawfully present without pursuing a claim for protection. It was open to the Tribunal to take into account that the applicant could have made enquiries if he genuinely faced harm. That reasoning was proper, logical and rational. On the face of the material before the Court, the Tribunal approached the review with an open mind reasonably capable of persuasion as to the merits. No jurisdictional error is alleged in ground 2 as made out.

Ground 3

1. In relation to ground 3, the applicant alleges a breach of s 424AA of the Act. Nothing in the applicant’s particulars identify any information enlightening the Tribunal’s obligation under s 424A of the Act. The adverse credibility of findings are not information that are reliant on an obligation under s 424A of the Act. This is a case where the delegate had made adverse findings in relation to the applicant not providing a satisfactory, acceptable explanation for the delay lodging his application and did not accept that the applicant would be extorted by Maoists or other criminals if he wishes to open a business. The Tribunal’s reasons reflect raising the credibility issues with the applicant in the course of the hearing. On the face of the material before the Court, the applicant had a real and meaningful hearing.

2. The Court accepts the first respondent’s submission that nothing has been identified enlivening any obligation under s 424A of the Act. In the absence of a hearing transcript, the applicant could not, in any event, establish noncompliance with s 424AA of the Act. On the face of the material before the Court, the Tribunal complied with its obligation under s 425 of the Act and there was no obligation engaged under s 424A of the Act. No jurisdictional error as alleged in ground 3 is made out.

Ground 4

1. In relation to ground 4, the reference to the political issues and security and bright future of the applicant appears to be nothing more than an invitation to this Court to engage in impermissible merits review. The Tribunal clearly took into account the applicant’s claims concerning Maoists and insecurity as raised in the applicant’ claims. There was no express reference to the applicant fearing harm by reason of any perceived political opinion and no such claim arose in the material before the Tribunal.

2. The Tribunal also took into account the political situation generally in relation to the applicant’s claims and country information that it provided. The Tribunal referred to the new Constitution having been approved and tensions having been resolved. The Tribunal referred to putting to the applicant country information that it did not appear that he would face a real chance or be at risk of significant harm by being asked for donations, land or contributions from the Maoists, nor in relation to the upcoming elections or political situation. It was in that context the Tribunal found the applicant does not have any subjective fear or real chance or real risk of any harm for the reasons claimed. I accept the first respondent’s submission that no jurisdictional error is made out by ground 4 and that ground 4, in substance, invites the Court to engage in impermissible merits review. No jurisdiction error as alleged in ground 4 is made out.

Non-disclosure certificate

1. In respect of the non-disclosure certificate in the documents the subject of the certificate, it is apparent that the Tribunal treated the same as invalid and that the applicant suffered no procedural fairness in the conduct of the review given that the documents were disclosed and were the subject of the certificate and were in substance found to be irrelevant as referred to above. The documents have been tendered before this Court and the Court is satisfied the documents cannot be said to be significant, credible or relevant. There is no denial of procedural fairness in the conduct of the review by reason of the existence of the certificate and the documents the subject of the certificate in the present case. No jurisdictional error or denial of procedural fairness arises from the existence of the certificate of the documents and the certificate in the present case.

Conclusion

1. As the application fails to disclose any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Date:  31 August 2018