AIT15 v Minister for Immigration

[2016] FCCA 1259

FEDERAL CIRCUIT COURT OF AUSTRALIA

AIT15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1259

Catchwords:
MIGRATION – Application for protection visa – review of decision of Refugee Review Tribunal – applicant arrived in Australia on false passport – whether the Tribunal ignored the applicant’s claims and evidence based on assumption – whether the Tribunal’s decision was affected by an apprehension of bias – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 44A, 65, 425, pt.7

Cases cited:
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 33, [2011] HCA 48
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, [2001] HCA 17
NADH v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264, [2004] FCAFC 328

Applicant: AIT15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 909 of 2015

Judgment of: Judge Smith

Hearing date: 5 May 2016

Date of Last Submission: 5 May 2016

Delivered at: Sydney

Delivered on: 5 May 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms N. Blake, Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,825.

3. The name of the second respondent be amended to Administrative Appeals Tribunal.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 909 of 2015

AIT15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

1. This is an application for judicial review of a decision of the Refugee Review Tribunal[1] made on 2 March 2015. The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa. In order to succeed, the applicant must establish that the Tribunal’s decision was affected by jurisdictional error. Very broadly speaking, that means that the applicant must establish that the Tribunal made an error that affected the exercise of its duty under the Migration Act1958 (Cth) to review the delegate’s decision.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

2. At the hearing the applicant appeared unrepresented. The applicant argued that she had been dealt an injustice because the Tribunal did not accept her claims. The applicant asked that the Court consider her true situation and send the matter back to the Tribunal for it to reconsider her application. Those submissions do not address what is required to establish a jurisdictional error. It is not a matter for the Court to determine whether or not the applicant’s claims in support of her protection visa application were true or whether they were false. That was a matter for the Tribunal.

3. For that reason, the applicant’s submissions at the hearing do not support her application for constitutional writs. However, in her written application the applicant has four grounds of review which, on one view, could amount to allegations of bias and denial of procedural fairness. For those reasons, it is necessary to consider the Tribunal’s decision and to determine whether its decision has been affected by jurisdictional error. In order to understand the Tribunal’s decision it is necessary to set out some background to it.

Background

1. The applicant is a citizen of Nepal who entered Australia on 12 June 2010 using a false passport. On 16 September, she applied for a protection visa which was refused by a delegate of the Minister on 19 October 2010. The applicant applied to the Refugee Review Tribunal for review of that decision but on 20 March 2012 the Tribunal found that it did not have jurisdiction to review the delegate’s decision. On 9 May 2013 the applicant made a further application for a protection visa.

2. The claims made in that visa application were set out as follows:

   I was forced to become a member of Maoists Young Communist League. I had no option to avoid the Maoists YCL because I was threatened that they would harm me if I refused to obey them. It was impossible for me to stay safely in Nepal if I dissociated myself from the YCL. The only option I had to disassociate from them was that I had to go overseas where they would not locate me. I left Nepal in search of my protection.

   I fear I will face real risk of significant harm including torture, degrading, cruel, and inhuman treatment because I defected from the Maoists. I fear I can not get state protection because the Maoists have influence and network in Nepal. I fear even if I move to other parts of Nepal, I will face real risk of harm because the Maoists have well established net work and influence.

   See my detailed statement to follow.

   (Errors in original)

3. The applicant said that she would also refer to a detailed statement that was to follow. That statement followed some time later in April 2014. The claims made in those two documents can be summarised as follows: first, that she would suffer harm from Maoists because she had disassociated herself from that group; secondly, that she would suffer harm in Nepal because she was a lesbian; thirdly, that she would be subject to a jail term because she had entered Australia on a falsified passport; and, fourthly, she would suffer harm in Nepal as a single woman.

4. On 17 April 2014 a delegate of the Minister made a decision to refuse to grant the applicant a visa and she applied to the Tribunal for review of that decision. By letter dated 23 January 2015 the Tribunal wrote to the applicant giving her particulars of certain information that it thought would be the reason, or a part of the reason for affirming the decision under review. That information included certain information contained in the first protection visa application and information given by the applicant in interviews with the delegate in connection with that application.

5. The applicant was invited to respond to that information in writing by 6 February 2015. The applicant did not do so. Nevertheless, the Tribunal held a hearing attended by the applicant on 27 February 2015. At that hearing the Tribunal raised with the applicant a number of its concerns about the credibility of her claims. On 2 March 2015 the Tribunal made its decision affirming the decision of the delegate.

Tribunal’s decision

1. The Tribunal first addressed the overall credibility of the applicant. It found that she had been previously untruthful in her dealings with the Department. First, it noted that in her interview with the first delegate in connection with the first protection visa application, the applicant said that she had never previously applied for another visa to come to Australia. However, she subsequently agreed that she had made an application for a student dependant visa in 2008.

2. The Tribunal found it significant that the applicant informed the delegate that she was never married to the primary student visa applicant and that the marriage certificate that was provided with that application was bogus. The Tribunal found, in light of that, that the applicant was willing to falsify evidence and claims where she considered it beneficial. The Tribunal next dealt with her claim connected to her involvement with the Maoists.

3. In this respect the Tribunal first found that there were a number of significant inconsistencies and discrepancies in her claims compared with her first protection visa application. The Tribunal set out eight of those inconsistencies and discrepancies at [23] of its reasons. In light of those, the Tribunal found that the applicant had not been truthful in her claims.

4. Secondly, the Tribunal found that the applicant’s description of the events prior to her departure from the Maoists was unrealistic. In particular, it found that it made little sense that she would tell the Maoists of her decision to quit, that they would let her do so without doing anything at all and allow her to continue with a normal life but then wait until her departure from the country before threatening to kill her.

5. Thirdly, the Tribunal found that the very basis of the applicant’s claims were implausible and unrealistic. It found that her involvement with the Maoists was minimal and it was implausible that in light of that, she would be targeted having left the organisation some five years previously. The Tribunal found that the applicant had fabricated her claims concerning her political involvement and that there was no real risk that the applicant would be harmed on that basis.

6. The Tribunal then turned to consider the applicant’s claim to be a lesbian. It was particularly concerned that it was not until April 2014, four years after her first entry to Australia, that the applicant first raised the claim. The applicant had offered various reasons for the delay but the Tribunal rejected them and gave full reasons for doing so at [34]. The Tribunal concluded that the applicant’s claimed homosexuality was nothing more than an empty assertion to assist her in her protection visa application and did not believe any part of the claim.

7. In the alternative, the Tribunal found that even if it accepted that she was a lesbian, that fact would not give rise to a real risk of harm in Nepal. It supported that conclusion by reference to various independent country information. The Tribunal next turned to the claim concerning the applicant being a single woman. It acknowledged that she may be considered single in the sense of not living with a partner or male partner but did not consider there was a real risk that she would be harmed as a result.

8. In this respect, the applicant noted that in the past when she was undertaking studies she was living away from her village and her parents. She did not claim to have experienced any problems and was able to lead a normal life. For that reason the Tribunal did not consider there was a real risk she would be harmed if she was a single woman. Finally, the Tribunal considered the claim concerning the use of a false passport.

9. The Tribunal found that it would not be possible to establish the applicant’s use of a false passport upon her departure from Nepal because it would be “impossible to link the applicant’s departure on a false passport in a different name and her return using a genuine passport in her genuine name”. The Tribunal found that the applicant’s claims were entirely untruthful and fabricated. It was not satisfied that the applicant had satisfied the criterion in sub-s.36(2)(aa) of the Act. The Tribunal was not obliged to consider the criterion in sub-s.36(2)(a) because the applicant had already made an application for a protection visa on the basis of that criterion. For that reason the Tribunal affirmed the decision of the delegate.

Consideration

1. The first ground is that the Tribunal ignored the applicant’s claims and evidence based on assumption rather than facts.

2. It is clear from the brief summary I have given above, that the Tribunal did deal with each of the applicant’s claims and, that its findings were based upon material and inferences available on the material before the Tribunal. It is therefore not true to say that the Tribunal ignored her claims or that there was no evidence or other material to support the Tribunal’s findings.

3. The second and third grounds are properly understood as an allegation of bias. The grounds are:

   2.It is contended that the Tribunal Member made a negative mind on accepting my reasons, explanation and claims as to why and how I was able to come to Australia.

   3.It is contended that the Refugee Review Tribunal has rejected my involvement with the Maoist YCL and my sexual orientation as a lesbian because I believe the Tribunal Member has formed a negative view on my circumstances of my arrival in Australia despite the fact I had problems with the Maoists YCL and I am a lesbian so I was forced to flee my country to save my life and freedom. It is argued that the Tribunal Member failed to deal with my circumstances and claims appropriately.

4. Insofar as they raise an allegation of a reasonable apprehension of bias, the grounds run into the difficulty that they rely solely on the findings of fact made by the Tribunal. As explained by the High Court in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at 33; [2011] HCA 48, this runs the risk of eliding a reasonable apprehension of bias with actual bias. A reasonable apprehension of bias poses an objective test.

5. Actual bias is a matter established when a decision maker has a mind that is not open to persuasion or is unwilling to evaluate all the material fairly (see NADH v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 and Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17). Such an allegation must be clearly proved and it is difficult to do so simply by finding or asserting that the decision maker rejected an applicant’s claims. It is important to understand that the Tribunal’s reasons stand at the very end of the process of review, and in this case, reveal that they were the result of the consideration of all the material before the Tribunal, as well as all of the arguments put forward by the applicant in support of her claims. In my view, there is nothing in the reasons of the Tribunal or anything else in the material before the Court to establish either a reasonable apprehension of bias or actual bias.

6. The fourth ground is that the Tribunal member’s decision was taken in breach of fairness and natural justice. There are no particulars of this ground and the applicant did not address it in her oral submissions. Nevertheless, I have had regard to all of the material before the Court and I am not satisfied that there was any denial of procedural fairness or denial of natural justice. More particularly, I am satisfied that the Tribunal complied with its procedural obligations under pt.7 of the Act.

7. To the extent that there was information before the Tribunal that might have fallen within s.424A, ie, that was adverse to the applicant, the Tribunal gave particulars of that information to the applicant in writing and invited her to comment upon it. Similarly, although, on one view, it was not obliged to, the Tribunal held a hearing, pursuant to s.425 of the Act. While there is no transcript of that hearing before the Court, the Tribunal’s reasons show that the Tribunal raised with the applicant a number of the difficulties it had with her claims and gave her the opportunity to address those difficulties. In those circumstances, I can see no breach of s.425.

8. There is no jurisdictional error in the Tribunal’s decision and, for that reason, the application must be dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate:

Date:  27 May 2016