Aiu15 v Minister for Immigration

[2015] FCCA 1581

FEDERAL CIRCUIT COURT OF AUSTRALIA

AIU15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1581

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

Legislation:  

Migration Act 1958 ss.36(2)(a), 36(2)(aa), 476.

Applicant: AIU15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 910 of 2015

Judgment of: Judge Street

Hearing date: 5 June 2015

Date of Last Submission: 5 June 2015

Delivered at: Sydney

Delivered on: 5 June 2015

REPRESENTATION

No appearance by the Applicant

Solicitors for the Respondent: Ms S. Burnett
Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6825.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 910 of 2015

AIU15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 15 March 2015 affirming a decision not to grant the applicant a protection visa.  The matter was listed for hearing at 2.15 pm.  The matter has been called outside the Court, and there is no appearance, and it is now 2.25 pm.  The applicant was informed when the matter was fixed for hearing the matter would be dealt with if the applicant failed to attend the hearing when the applicant was given a copy of the orders made by the Court.

2. There has been filed a Court book and a supplementary Court book.  The grounds of the application are as follows:

   I. I cannot afford to be a victim of the Refugee Review Tribunal Member's purported decision.

   2. I argue that the Tribunal Member made a negative mind on accepting my written and oral evidence in support of my genuine claims and ignored my evidence based on strong assumption rather than facts and I believe the Tribunal's decision has involved an error of law.

   3. It is contended that the Refugee Review Tribtu1al fanned a negative view on my circumstances of my arrival in Australia and failed to address and deal with my circumstances and claims appropriately.

   4. I argue that the Refugee Review Tribunal Member's decision was taken in breach of procedural fairness and natural justice.

3. The Tribunal found that the applicant was not a credible witness.  Relevantly, at para.14 the Tribunal found:

   (a) the applicant's evidence to be "vague and evasive", with the Tribunal having to repeat questions several times to elicit a meaningful response. The applicant could not recall when he joined the Student Union, and suggested a time of year inconsistent with his written statement. The Tribunal also found that the applicant's  knowledge of the party and its policies was inconsistent with his claimed level of involvement (CB 79 [14]);

   (b) the applicant was unable to provide a cogent explanation for his lack of supporting documentation, which he claimed to have left in Nepal (CB 79-80 [14]);

   (c) the applicant provided inconsistent evidence as to when he was attacked and threatened, and the apparent motives of the perpetrators . The Tribunal also found the applicant's delay in seeking protection, and failure to take steps to avoid harm, to be inconsistent with any genuine fear (CB 80-82 [16]); and

   (d) after considering available country information, the Tribunal did not accept that the applicant faced a real risk of significant harm on the basis of his illegal departure from Nepal. The Tribunal rejected the applicant's concerns regarding gangsters as "mere peculation" (CB 86 [23]-[34]).

4. It was in those circumstances that the Tribunal was not satisfied the applicant was a person to whom Australia had protection obligations and affirmed the decision of the delegate.  Ground 1 identifies no jurisdictional error, and to the extent that is seeks to complain of adverse findings of credit, it is a matter for the Tribunal to make findings on credibility.  Ground 1 fails to identify a jurisdictional error.

5. In relation to ground 2, the assertion of a negative mind appears to stem from the adverse finding by the Tribunal in not accepting the applicant’s credit.  A fair minded person would not believe that the Tribunal might not bring an impartial and independent mind to the determination of the matter on its merits because of adverse findings of credit.  There is no substance in the proposition of any allegation of bias.  I accept the respondent’s submission that to the extent such an allegation had been raised, it has not been distinctly made or clearly proved.  Ground 2 accordingly fails to disclose any arguable jurisdictional error.

6. Ground 3 appears to be a repetition of the same substance as raised in ground 2, and for the reasons I have identified, fails to identify any jurisdictional error.  Further, in relation to ground 3 asserting the denial of procedural fairness and natural justice where there is no specificity provided in relation to that ground  does not identify any jurisdictional error.  To the extent relevant, it is clear that the Tribunal has set out the relevant law and carefully summarised the applicant’s claims in relation to the issue the subject of the review, which was that of whether Australia owed the applicant a protection obligation under the complementary protection provisions.

7. The applicant’s claim in relation to s.36(2)(a) had been determined by the Tribunal in a decision dated 6 January 2012. The Tribunal considered the applicant’s claims and evidence in respect of complementary protection under s.36(2)(aa). The Tribunal set out the reasons why it formed the view that there were inconsistencies, as a result of which, the applicant had not been truthful in his claims which led to the finding at para.17 as follows:

   17.    Overall, the Tribunal has found the applicant’s claims to be inconsistent, vague and largely implausible. The Tribunal has formed the view that the applicant has not been truthful in his claims.

8. The Tribunal noted that the applicant had used a false passport to depart the country according to his assertion, which was accepted by the Tribunal, and, relevantly, the Tribunal found:

   27. Having regard to the above information, the Tribunal is of the view that the applicant will certainly not be tortured by the authorities and he is unlikely to be jailed or even charged for the use of the false passport. Although he committed an offence under the law of Nepal by departing, and possibly returning, using a false passport, the information cited above suggests that many people avoid any formal sanction through the payment of a bribe to corrupt officials at the airport. In the Tribunal’s view, the most likely effect of the departure and arrival on the false passport is that the applicant will pay a bribe and that no further action will be taken against him.

   28. However, even if the applicant is charged with an offence for the use of the false passport, the Tribunal finds that the penalty for the breach would not constitute a death penalty or an arbitrary deprivation of life. To the extent that the applicant claims any penalty for breaching the law relating to the use of false passport to enter and depart the country constitutes torture, cruel or inhuman treatment or punishment or degrading treatment or punishment, there is nothing before the Tribunal to indicate that such treatment is intentional, as is required by the law in Australia. 

   29. The Tribunal does not accept that there is a real risk that the applicant will be subjected to ‘torture’ as defined while he is on remand for a relatively short period. The definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act requires that pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation.

   …

   32. The Tribunal has formed the view that the applicant’s claim is nothing more than mere assertions that are not substantiated by any evidence. The Tribunal has formed the view that there is no real risk of that occurring.

   33. The applicant’s evidence to the Tribunal is that he has been providing financial support to his family. The Tribunal is of the view that it would be known in the local area that the applicant is living overseas (and earning money) and it is likely to be implied that he has been providing financial support to his family. The applicant’s own evidence is that the mere fact of residence in a western country would be associated with wealth. Yet, the applicant claims that no attempts had been made to kidnap or attack his family. The applicant suggested that his wife lives with her parents but he conceded that he has been sending money transfers to the parents. The applicant claims that if he returns, things would be different because he will live with his family and people will presume he is rich. The Tribunal does not accept that the risk of harm will be heightened upon the applicant’s return because the Tribunal does not accept that such risk exists. Firstly, the Tribunal notes that no action had been taken against the applicant’s family in the past, despite the applicant’s financial support to his family. Secondly, as the Tribunal discussed with the applicant at the hearing, thousands of Nepalese nationals travel overseas for work. There is no evidence – and the applicant conceded that in his evidence to the Tribunal – that those returning from overseas are harmed or abducted because of their perceived wealth.

   34. The Tribunal has formed the view that the applicant’s claims are mere speculation. The Tribunal finds there is no real risk of harm as a result of the applicant’s residence in Australia.

   35. Having considered the applicant’s circumstances singularly and cumulatively, the Tribunal is not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there would be a real risk that he would suffer significant harm.

9. It is clear the applicant attended before the Tribunal for a hearing on 20 February 2015 to give evidence and present arguments, which was assisted with benefit of the interpreter.  I am satisfied that the applicant had a genuine hearing.  I am satisfied that the adverse findings by the Tribunal were open on the material before the Tribunal, and that there was no failure to comply with the requirements of procedural fairness, and that the Tribunal complied with the statutory regime.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  10 June 2015