AJB18 v Minister for Home Affairs
[2019] FCCA 607
•13 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AJB18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 607 |
| Catchwords: MIGRATION – Protection visa – family unit – child born in Australia of Nepalese parents – mother’s previous refugee claims rejected – effect of s.48A of the Migration Act 1958 (Cth) – whether mother entitled to complimentary protections – whether child at risk of harm because of mother’s previous political activity and parents’ marital status – whether Tribunal’s decision unreasonable, illogical or irrational – whether claims and evidence overlooked – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5J, 36, 48A, 65, 91R, 91S, 416, 417, 476, 499 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act2014 (Cth), sch.5, Pts.2 and 4, its.7 and 28 |
| Cases cited: AMA15 v Minister for Immigration & Border Protection (2015) 244 FCR 131 |
| First Applicant: | AJB18 |
| Second Applicant: | AJC18 |
| Third Applicant: | AJD18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 49 of 2018 |
| Judgment of: | Judge Christopher Kendall |
| Hearing date: | 10 September 2018 |
| Date of Last Submission: | 19 November 2018 |
| Delivered at: | Perth |
| Delivered on: | 13 March 2019 |
REPRESENTATION
| Counsel for the Applicants: | Mr D Blades |
| Counsel for the First Respondent: | Mr P Macliver |
| Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The applicants’ application for judicial review is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 49 of 2018
| AJB18 |
First Applicant
AJC18
Second Applicant
AJD18
Third Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 23 December 2017.
The Tribunal’s decision affirmed a decision of a delegate of the then Minister of Immigration and Border Protection (the “Minister”) made on 27 May 2015 to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (Cth) (the “Migration Act”).
Background
Matters such as this weigh heavily on the minds of judges charged with hearing them. In effect, this Court is asked to determine whether a seven year old child, born in Australia, should be denied a protection visa and, most probably, be returned to Nepal with his parents in circumstances where he neither speaks the language of, nor has no real ties to, that nation. Were this matter heard in Canada (or a host of other countries), the child in question would have a birth right to residency. That is not the case here.
The factual and procedural background to this matter is lengthy and, for a host of reasons, complex. That background was summarised correctly by the Tribunal as follows.
The first applicant is the seven year old biological child of the second and third applicants. As indicated above, he was born in Australia. His parents (the second and third applicants) are a de facto couple who are citizens of Nepal.
The third applicant (the first applicant’s father) arrived in Australia on a student visa in July 2008. In March 2010, he applied for a further student visa. That application was refused by a Ministerial delegate. The third applicant then applied to the Migration Review Tribunal (the “MRT”) for a review of that decision.
The second applicant (the first applicant’s mother) arrived in Australia on a student visa in September 2008 as the dependent of her former husband. She and her former husband are separated but not divorced. She lodged a protection visa application in February 2011. Her protection claims included a fear that she would suffer harm at the hands of Maoists in Nepal because of her political activity. That application was refused by a Ministerial delegate. In August 2011 the Refugee Review Tribunal (the “RRT”) affirmed the delegate’s decision. The second applicant then applied to the then Federal Magistrates Courts (the “FMC”) for judicial review of the RRT’s Decision.
In late 2011, the second and third applicants commenced a relationship.
In June 2012, the MRT affirmed the decision to refuse to grant the third applicant a student visa.
At the same time, the FMC remitted the second applicant’s protection visa matter to the RRT for reconsideration.
In July 2012, the third applicant applied to the Minister for Ministerial Intervention in relation to his student visa application.
In August 2013, the RRT affirmed the decision to refuse to grant the second applicant a protection visa.
In October 2013, the second applicant also applied to the Minister for Ministerial Intervention pursuant to s.417 of the Migration Act.
The Minister did not exercise his intervention powers and advised the second and third applicants of that decision in April 2014 (Court Book “CB” 267).
The three applicants made a combined protection visa application on 16 May 2014. Part C of the protection visa application (which relates to applicants with protection claims) was completed on behalf of the first applicant (the child of the second and third applicants). In effect, he claimed to fear harm on account of his mother’s political activity (for which she claims to have been previously persecuted in Nepal). He also claimed that, as his mother is his primary carer, if she is harmed in Nepal then he will not be cared for and (because he will be with her), that if she is harmed, he will also be harmed.
The second and third applicants completed Part D of the protection visa application form (which is for applicants who do not have claims for protection and are included in the application as a member of the same family unit).
Initially, the second and third applicants made no protection claims in their protection visa application. The second applicant was, to some extent, prohibited from doing so by virtue of s.48A of the Migration Act (discussed below). As discussed below, the second applicant eventually made various complementary protection claims.
The applicants were represented before the Ministerial delegate. The delegate was provided extensive documentation and written submissions prior to and after the applicants were interviewed by the delegate on 21 January 2015 (CB 154-179 and 182-231).
The delegate refused the applicants the protection visa they were seeking (CB 254-297).
The applicants then applied to the Tribunal for review of the delegate’s 2015 decision.
The applicants attended four hearings before the Tribunal on 13 January 2017, 3 February 2017, 24 March 2017 and 24 April 2017. They gave evidence and presented arguments, with the second applicant being assisted on all four occasions by an interpreter in the Nepali and English languages (CB 335, 356, 426 and 450).
On 23 December 2017, the Tribunal affirmed the delegate’s decision not to grant the first applicant and his parents (as members of the same family unit) protection visas (CB 471-487). The applicants were advised of the Tribunal’s decision by a letter dated 2 January 2018 (CB 464-470).
By way of a final amended application filed on 5 November 2018, the applicants now seek judicial review of the Tribunal’s 2017 decision.
This matter was heard on 10 September 2018. The applicants were represented by Mr Blades of counsel. The Minister was represented by Mr Macliver of counsel. The Court thanks Mr Blades and Mr Macliver for their considerable assistance.
On 31 August 2018, the Court received undated written submissions from the applicants.
On 6 September 2018, an outline of written submissions was received from the Minister.
At the hearing of this matter, it was agreed that the applicants could amend their second ground of review and that both the applicants and the Minister could provide further written submissions addressing those amendments.
Further written submissions dated 5 November 2018 were then received from the applicants.
Supplementary written submissions dated 19 November 2018 were then received from the Minister.
The Court also received, and has reviewed a Court Book numbering 497 pages. The Court has also reviewed the transcript of the hearing dated 10 September 2018.
This proceeding is brought pursuant to s.476(1) of the Migration Act. To obtain assistance from this Court, the applicants must show jurisdictional error on the part of the Tribunal.
The applicants have advanced six grounds of review, outlined and assessed in detail below.
Relevant Legislation
The Tribunal began its decision with a detailed and accurate overview of those provisions in the Migration Act relevant to the applicants’ application for a protection visa.
The Tribunal assessed, as it was required to do, the legislation as at the date of the applicants’ application for a protection visa (that being 16 May 2014).
The Tribunal’s legislative overview merits repeating here, as much of the applicants’ concerns in relation to the Tribunal’s decision is grounded on concerns about the Tribunal’s understanding of the various legal tests imposed by the Migration Act. Other than as amended below, the Tribunal’s overview of the law that governed it was as follows.
At the relevant time (16 May 2014 – the date of the application for the protection visa) the criteria for a protection visa were set out in s.36 of the Migration Act and Schedule 2 to the Migration Regulations1994 (Cth) (the “Regulations”).
At the relevant time, an applicant for a protection visa was required to meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c) of the Migration Act. Specifically, an applicant needed to be either a person in respect of whom Australia had protection obligations under the “refugee criterion”, or on other “complementary protection” grounds, or because that person was a member of the same family unit of a person that held a protection visa of the same class.
Refugee criterion
At the relevant time, s.36(2)(a) of the Migration Act provided that a criterion for a protection visa was that the visa applicant was a non-citizen in Australia in respect of whom Australia had protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (together, “the Refugees Convention”, or the “Convention”).
Australia is a party to the Refugees Convention and has protection obligations in relation to people who are refugees – as that term is defined in Article 1 of the Convention.
Article 1A(2) of the Convention defines a refugee as any person who:
[O]wing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
In 2014, ss.91R and 91S of the Migration Act qualified some aspects of Article 1A(2) for the purposes of the application of the Migration Act and the Regulations to a particular person such that there were four key elements to the Convention definition relevant to the Tribunal’s determination here.
First, an applicant needed to be “outside his or her country”.
Second, an applicant needed to “fear persecution”. Under s.91R(1) of the Migration Act persecution needed to involve “serious harm” to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of “serious harm” were then set out in s.91R(2) of the Migration Act.
Third, the persecution which the applicant feared needed to be for one or more of the reasons enumerated in the Convention definition: race, religion, nationality, membership of a particular social group or political opinion.
Fourth, an applicant’s fear of persecution for a Convention reason needed to be a “well-founded” fear. This adds an objective requirement to the requirement that an applicant must, in fact, hold such a fear. A person has a “well-founded fear” of persecution under the Convention if they have genuine fear founded upon a “real chance” of being persecuted for a Convention stipulated reason. A “real chance” is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
Complementary protection criterion
At the relevant time, if a person was found not to meet the refugee criterion in s.36(2)(a) of the Migration Act, he or she could nevertheless meet the criteria for the grant of a protection visa if he or she was a non-citizen in Australia in respect of whom Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there was a real risk that he or she would suffer significant harm: s.36(2)(aa) (“Complementary protection criterion”).
“Significant harm” for these purposes was defined in s.36(2A): s.5(1). A person would be deemed to suffer significant harm if he or she would be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, were further defined in s.5(1) of the Migration Act.
Section 36(2)(aa) then referred to a “real risk” of an applicant suffering significant harm. The “real risk” test imposed the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Convention definition: Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505 (“SZQRB”).
Member of the same family unit
At the relevant time, under s.36(2) of the Migration Act, an applicant needed to either be owed protection obligations or be a member of the same family unit as someone who holds a protection visa. Subsections 36(2)(b) and (c) of the Migration Act provided as an alternative criterion that the applicant is a noncitizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant (the family member criterion).
Section 5(1) of the Migration Act provided that one person is a “member of the same family unit” as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.
Section 5(1) also provided that “member of the family unit” of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg.1.12 of the Regulations to include children and parents, as well as de facto partners.
Further protection visa applications
Section 48A of the Migration Act imposed a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused.
The Full Federal Court in SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235 (“SZGIZ”) held at [38] that the operation of s.48A, as it stood at the time of the visa application made by the applicants on 16 May 2014, was confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa.
The Federal Court in AMA15 v Minister for Immigration & Border Protection (2015) 244 FCR 131 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a).
In this matter, the second applicant was refused a protection visa application on the basis of the refugee criterion by a delegate in relation to a previous protection visa application she made in February 2011. The decision made by the RRT in August 2013 affirming the delegate’s decision was made in relation to both the refugee criterion as well as the complementary protection criterion which was introduced on 24 March 2012.
In SZRNJ v Minister for Immigration & Border Protection [2014] FMCA 782, the Court extended the principle established in SZGIZ, finding that even where the Tribunal had considered the complementary protection criteria in refusing an application post 24 March 2012, a further application would not be prevented if the original application was not based on complementary protection.
In light of the above authorities and as the second applicant’s previous protection visa application was made and refused by a delegate only on the basis of the refugee criterion, the Tribunal in this matter considered the second applicant’s claims in relation to the s.36(2)(aa) complementary protections, as well as the s.36(2)(b) and (c) family unit provisions.
The Tribunal’s Decision
By way of background, the claims for protection the Tribunal was required to consider were that:
a)the first applicant would not be able to obtain evidence of his citizenship or have his birth registered and would be denied basic rights and suffer hardship;
b)the second applicant’s political activism against Maoists, in the past and intended in the future, would bring harm to her and the first applicant;
c)the relationship of the second and third applicants would bring societal and familial disapproval causing harm, including that the first applicant would be looked down upon and be a member of the “illegitimate children in Nepal” social group;
d)there would be inadequate access and availability of the health care services that the first and second applicants required; and
e)the family would face financial hardship as Nepal has poor employment opportunities and the transition for the first applicant, who was born in Australia and has never lived elsewhere, will affect his development and wellbeing.
After providing a detailed overview of the legislation relevant to the protection visa application in question (canvassed above at [33]-[57]), the Tribunal made a number of observations and statements prior to considering the applicants’ claims and evidence.
Relevantly, the Tribunal:
a)noted that the first and second applicants each made protection claims, but stressed that the first applicant’s protection claims were made on the basis that he would suffer harm on the basis that the second applicant would be harmed and would be unable to care for him or he would be harmed because he would be with the second applicant (CB 472 at [3] and CB 477 at [35]);
b)noted that the third applicant made no protection claims and was included in the application solely as a member of the family unit. The Tribunal noted that while the third applicant may face some degree of harm as a result of societal attitudes toward his de facto relationship with the second applicant, he had stressed that he was making no claims for protection and was simply a member of the family unit (CB 477 at [35]);
c)briefly summarised the visa history of the second and third applicants, including, relevantly, that the second applicant had applied for, and been denied, a protection visa in 2013 (CB 472 at [4]-[9]);
d)considered the legal authorities in respect of s.48A of the Migration Act and determined that it would only consider the second applicant’s claims against the complementary protection criterion (CB 475-476 at [29]-[30]);
e)noted the policy guidelines and Department of Foreign Affairs and Trade (“DFAT”) country reports it was required to take into account (CB 475-476 at [28]-[30]); and
f)noted an attachment of sourced country information, including that provided by the applicants in support of their protection visa application, that the Tribunal had relied upon, and referred to, in the its decision (CB 486-487 at [66]-[71]).
When considering the claims and evidence before it, the Tribunal:
a)noted that the evidence presented to the Tribunal included medical evidence regarding the physical and mental health of the second applicant who had been consulting a counsellor for years. The Tribunal accepted that the second applicant suffers from physical and mental ill health (CB 476-477 at [34]);
b)determined that while the second applicant had some difficulty testifying due to her physical and mental ill health, the Tribunal was satisfied that she had a genuine opportunity to give evidence and present arguments at the hearing (CB 476-477 at [34]);
c)noted that it had taken into account the second applicant’s physical and mental health in assessing her testimony (CB 476-477 at [34]);
d)noted that written and oral submissions were made that showed that the first applicant receives treatment for a kidney condition and has some developmental delay. Despite this, the Tribunal found that, as the child’s parents testified on his behalf, no issue about his ability to give evidence and present arguments arose (CB 476-477 at [34]);
e)found that the first applicant was a Nepal national by descent;
f)was satisfied that the evidence indicated there was a real chance the first applicant would be unable to have his birth registered or obtain evidence of his Nepalese citizenship as his parents were not married and there was a real chance the second and third applicants would not marry in the reasonably foreseeable future – hence, there was a real chance he would not be issued with any Nepalese identity or citizenship documentation in the reasonably foreseeable future (CB 477-478 at [36]-[39]);
g)explained that, at the hearing, the Tribunal questioned whether the harm the first applicant would face in Nepal without birth registration and documentary evidence of his citizenship amounted to serious harm or significant harm;
h)explained that the applicants claimed that the first applicant would be deprived of basic rights such as the right to: vote, obtain a drivers’ licence, access health services, access higher education, own property, file a court application, or travel overseas for employment;
i)concluded that, while the first applicant would not have access to the same level of government services or rights as citizens who can evidence their citizenship, this does not amount to serious or significant harm. The Tribunal was satisfied that the effects of not having his birth registered and not being able to access citizenship documentation would be significantly offset by having two parents to care for him and the financial support of the child’s father (CB 478-479 at [40]);
j)found that the restricted opportunities, limited rights and limited access to government services the first applicant would have is not harm rising to the level of serious harm (CB 479 at [40]);
k)was not satisfied that there is a real chance that, without having his birth registered and having evidence of his Nepalese citizenship, the first applicant would be arbitrarily deprived of his life, or that severe pain or suffering will be intentionally inflicted on him which could reasonably be regarded as cruel or inhuman, or that the first applicant will be subjected to an act or omission intended to cause extreme humiliation. Further, the Tribunal found that there was no question of the death penalty being carried out, or any pain or suffering being intentionally inflicted for one of the five purposes mentioned in the definition of torture. Hence, the Tribunal found that the first applicant did not face significant harm in Nepal because his birth will not be registered and he will not be able to obtain evidence of his citizenship (CB 479 at [40]);
l)considered the relationship between the second and third applicants and the societal attitudes and familial disapproval of their being “de facto”. The Tribunal found that the third applicant’s evidence that he would end the relationship if returned to Nepal was not convincing when considered against the other evidence provided at the hearing and that this claim had been invented to strengthen their claims of societal and familial disapproval of the relationship (CB 479 at [41]-[43]);
m)was satisfied that this relationship would continue and that both the second and third applicants would remain together and continue to support their son;
n)was satisfied that, although de facto relationships are not legally recognised in Nepal and not generally socially accepted (such that the first applicant may be looked down upon), the social and familial disapproval that might arise does not amount serious or significant harm (CB 480-481 at [43] and [45]);
o)accepted the second applicant’s claim that she will not be able to divorce her husband in the reasonably foreseeable future, but rejected her claim that her family would force her to reunite with the husband because of their religious and conservative views as the second applicant has lived independently of her family and husband for nearly a decade, had been in a de facto relationship and had borne a child from that relationship – such that her family would not influence her. Nor was the Tribunal satisfied that the second applicant’s family would force her to return to her husband (CB 480-481 at [44]-[46]);
p)accepted that the second applicant had previously suffered harm by Maoists due to her political activity but found that she would be unable to engage in political activity due to her health (CB 481 at [49]);
q)found that the country information suggested that the political situation in Nepal had changed such that political activity was now generally respected and political violence was low. As such, the second applicant (and, by consequence, the first applicant) did not face a real chance of significant harm for this reason (CB 481-483 at [48]-[53]);
r)under the heading “Health Issues”, was satisfied that the first and second applicants would have adequate access to health care facilities for their respective conditions and that the third applicant would finance these services – such that there was not a real chance the first applicant would be denied access to health and developmental services of a sort that amount to serious harm. The Tribunal also found that the first and second applicants would not face a real risk of significant harm arising from them being unable to access health services or treatment (CB 483-484 at [54]-[57]);
s)under the heading “Economic and Transition Difficulties”, considered it plausible that the applicants may face some economic hardship immediately upon return and that, while the families of the second and third applicants may be unwilling to support the applicants financially, this did not amount to significant harm. Further, as the third applicant was a highly motivated, articulate, confident, intelligent and resourceful person, he would be well placed to find good employment in Nepal and meet the basic and essential needs of the first applicant – such that there would be no real chance or real risk of serious or significant harm in the reasonably foreseeable future. Those findings in full provide:
58.It is claimed that the applicants will face economic hardship in Nepal due to the extremely poor employment opportunities in Nepal and because the families of the second and third named applicants in Nepal would not support them. The third named applicant indicated that he may need to travel overseas to work like many other Nepalis do. He also claimed that as the first named applicant was born and raised in Australia, his transition to a new place along with the risk of severe economic hardship is likely to affect his development and well-being. I do not accept that the first named applicant will be so affected or that the employment and economic circumstances of the applicants will be as poor as claimed.
59.As I put at the hearing sources I have consulted indicate that the unemployment rate in Nepal is not as a grave as suggested by the applicants - only about 2-3%. Further, even though the third named applicant downplayed his education, information in the applicants’ protection visa application indicates he has had a post-secondary school education and has past work experience in Nepal and Australia. In addition, I have concluded from the support the third named applicant has given his partner and son to date, his demeanour at the hearing, his ability to communicate orally and in writing to a high standard, the written statements and submissions he has prepared, the internet research and inquiries he has undertaken in support of the applicants’ case that he is a highly motivated, articulate, confident, intelligent, and resourceful person. I believe he has attempted to underestimate his ability to find employment and to support himself, his partner and child in Nepal. I conclude on the evidence before me that while it is plausible that the applicants will face some economic hardship in Nepal and their standard of living will not be equivalent to that in a country like Australia, especially on their immediate return, I am satisfied that the first named applicant is very well placed to find good employment in Nepal and to re-establish himself, his partner and son in Nepal, and facilitate the third named applicant’s transition to life in Nepal and meet the basic and essential needs of the first named applicant even though his birth will not be registered and he will not be able to obtain evidence of his citizenship.
(CB 484 at [58]-[60])
t)considering, both individually and cumulatively, the findings it made above in relation to the risk of Convention-related harm the first applicant would face in the reasonably foreseeable future in Nepal, concluded that he does not face a real chance of serious harm amounting to persecution for one or more of the Convention grounds. The Tribunal thus found that the first applicant did not have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion in Nepal (CB 484-485 at [61]);
u)was not satisfied that the first applicant did not satisfy the criterion set out in s.36(2)(a) (CB 484-485 at [61]);
v)having regard to the findings it made above in relation to the risk of significant harm the first applicant would face in Nepal, individually and cumulatively, concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the first applicant being removed from Australia to a Nepal, there was a real risk that he would suffer significant harm as that is defined in s.36(2A) and thus was not satisfied that the first applicant was a person in respect of whom Australia had protection obligations under s.36(2)(aa) (CB 485 at [62]);
w)on the basis of the findings it made above in relation to the risk of significant harm the second applicant would face if she returned to Nepal, considered individually and cumulatively, concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the second applicant being removed from Australia to a Nepal, there was a real risk that she would suffer significant harm as that is defined in s.36(2A), and thus was not satisfied that the second applicant was a person in respect of whom Australia had protection obligations under s.36(2)(aa) (CB 485 at [63]);
x)noted that as the third applicant had only sought to be considered in relation to the family member criterion and neither the first and second applicants satisfied the criterion for a protection visa in s.36(2)(a) or (aa), it followed that neither he nor the other applicants satisfied the criterion set out in s.36(2)(b) or (c) (CB 485 at [64]);
y)found that, as a result, the applicants did not satisfy the criteria for a protection visa and could not be granted the visas they seek (CB 485 at [64]); and
z)affirmed the delegate’s decision not to grant the applicants the protection visa they sought (CB 485 at [65]).
Judicial Review Application
Ground 1
The applicants’ first ground of review provides:
1. The Tribunal made a jurisdictional error by finding at [40] (CB 478-479) that the harm that the first applicant would face in Nepal without birth registration and documentary evidence of his citizenship would not amount to serious harm or significant harm.
Particulars
a) At [40] (CB 478), the Tribunal accepted that without citizenship documentation the first applicant will not be able to receive or access a number of government services, or have the same opportunities and rights in Nepal as citizens who have evidence of their citizenship.
b)The Tribunal then found that the above does not amount to serious harm or significant harm as defined in s 36(2A) of the Migration Act 1958 (the Act).
c) In making that finding, the Tribunal misapplied the test for what constitutes serious harm and significant harm under the Act.
d) Alternatively, the Tribunal misunderstood the nature of the claim advanced by the first applicant, and/or failed to consider it in the manner required by the Act and the authorities.
Relevantly, the applicants submitted as follows in support of this first ground of review:
36. The Tribunal misapplied the test for what constitutes ‘serious harm’ and ‘significant harm’ under the Act in finding at [40] that:
the restricted opportunities, limited rights and limited access to government services the first applicant will have is not harm rising to the level of serious harm; and
the first applicant does not face significant harm in Nepal because his birth will not be registered and he will not be able to obtain evidence of his citizenship.
37. Particular attention should have been paid to the vulnerability and developmental needs of the first applicant as a child, which affects the seriousness of a given denial of human rights.
(Citations omitted)
Unfortunately, despite extensive oral submissions, it is not entirely clear what this ground of review seeks to address.
On one level it is arguable that the applicants are asserting here that the Tribunal’s findings at [40] of its written decision are unreasonable, irrational or illogical.
In so far as the applicants assert that the conclusion reached by the Tribunal here was “unreasonable”, the decision in Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 (“Li”) guides this Court’s approach in relation to that issue.
Li has been the subject of detailed consideration in a number of recent decisions of the Full Court including Muggeridge v Minister for Immigration & Border Protection [2017] FCAFC 200 (“Muggeridge”); and Minister for Immigration & Border Protection v Eden (2016) 240 FCR 158; and Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1 (“Stretton”).
As the Full Court pointed out in Muggeridge at [35], each of these cases (as did Li) concerned the “process of reasoning adopted by the Minister in the exercise of a discretionary power.”
As Allsop CJ explained in Stretton at [11]:
… the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. …
The Full Court explained in Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 (another case which, like Li, concerned the exercise of a statutory discretionary power of a procedural nature), the process of review of legal unreasonableness “will inevitably be fact dependent” (at [48]). The Court continued (at [48]):
… That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as ‘intelligible justification’ must involve scrutiny of the factual circumstances in which the power comes to be exercised.
The relevant statutory provision in this case is s.65 of the Migration Act which requires the Minister either to grant or not grant a visa if satisfied (or not satisfied) that an applicant meets the relevant statutory criteria.
As McKerracher J pointed out in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 at [83], referring to Minister for Immigration & Multicultural Affairs;Ex Parte Applicant S20/2002 (2003) 77 ALJR 1165 (“Applicant S20”) at [52]:
… it has been made clear by the High Court that Wednesbury unreasonableness applies only to determining the validity of discretionary decisions rather than the fact finding leading to those decisions. The fact finding itself can only be impugned where the factual determination is “illogical, irrational or lacking a basis in finding or inferences supported on logical grounds”.
In Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”), Crennan and Bell JJ set out the test for irrationality or illogicality at [131] as follows:
the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
SZMDS sets a very high threshold for findings of irrationality or illogically (see also Gupta v Minister for Immigration & Border Protection (2017) 255 FCR 486 at [34]-[36]; DAO16 v Minister for Immigration & Border Protection (2018) 258 FCR 175 at [30]).
Crennan and Bell JJ added in SZMDS at [135] that:
A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
On another level, it is arguable that the applicants are contending that the Tribunal failed to address one of the first applicant’s claims.
In this regard, the applicants primarily rely on Cooper J’s reasoning in SBAS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 528 (“SBAS”) at [63] to argue that the Tribunal failed to understand the nature of the claim advanced or that the Tribunal failed to consider their claim in the manner required by the Migration Act. Here, the relevant “claim” is that the first applicant’s deprivation of “access to educational rights”, by reason of him not being able to have his birth registered in Nepal or obtain evidence of his citizenship, constitutes “serious harm” or “significant harm” as defined in the Migration Act.
In response, the Minster contended, in effect, ‘that the findings made by the Tribunal (at [40]) were reasonably open to the Tribunal and within the area of decisional freedom and it cannot be said they were illogical, irrational or unreasonable.’ Nor can it be said that any of the applicants’ claims were overlooked or incorrectly assessed.
Consideration
As an aside, it should be noted that the applicants and the Minister referred to the provisions of s.5J of the Migration Act when considering the non-exhaustive definition of serious harm. The correct provision is in fact s.91R of the Migration Act as, at the time of the applicants’ protection visa application, s.5J as it now stands, had not been enacted: Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act2014 (Cth), sch.5, Pt.2 and 4, its.7 and 28.
Relevantly, the Tribunal’s decision provides:
40. At the hearing I questioned whether the harm the first named applicant would face in Nepal without birth registration and documentary evidence of his citizenship amounted to serious harm or significant harm. It was claimed the first named applicant would be deprived of the basic rights such as the right to vote, obtain a drivers’ licence, access health services, access higher education, own property, file a court application, or travel overseas for employment. I accept on the basis of the independent evidence provided by the applicants and well as information from DFAT that without citizenship documentation the applicant will not be able to receive or access a number of government services, or have the same opportunities and rights in Nepal as citizens who have evidence of their citizenship. However, I find this does not amount to serious harm or significant harm as defined in s.36(2A). The first named applicant is a 5 year old child who is has been and is presently being cared for by his parents. I find below that they will continue to care for him and he will be financially supported by his father if the applicants return to Nepal. I find that the effects of not having his birth registered and not being able to access citizenship documentation will thus be significantly offset by having two parents to care for him and the financial support of his father. Thus, while he is unlikely to be able to exercise the same rights as citizens with evidence of their citizenship or have the same opportunities as other Nepalese citizens I am satisfied his parents will ensure his basic needs are met in the reasonably foreseeable future…
It is apparent that the Tribunal here has interchanged “real chance” and “real risk”. While unfortunate, in circumstances where the real risk test is the same as the real chance test, this does not amount to jurisdictional error: SZQRB at [246] per Lander, Besanko, Gordon, Flick and Jagot JJ.
The Tribunal refers here to “serious harm or significant harm as defined in s.36(2A).” A fair reading of [40] within the context of the Tribunal’s forensic analysis of s.36(2A) of the Migration Act (CB 473-475 at [10] to [26]) shows that the Tribunal was well aware of the requirements of both the Convention and complementary protection provisions in the Migration Act and was fully aware of the meaning of “serious” and “significant” harm as they relate to any Convention and complementary protection claims.
The applicants take issue with what they contend is the Tribunal not appropriately paying attention to the vulnerability of the first applicant as a child and, in particular, his educational needs.
It is important to note here that the first applicant does not make any specific claim in relation to his educational needs. Rather, he claims, relevantly, that he risks harm because he will be looked down upon as a member of the social group of illegitimate children in Nepal and because his family will face financial hardship opportunities and the transition for the first applicant, who was born in Australia and has never lived elsewhere, will affect his development and wellbeing.
A review of the Tribunal’s decision shows that the Tribunal does accept that, on the basis of the independent evidence provided by the applicants and information from DFAT, without citizenship documentation the first applicant will not be able to receive or access “a number of government services” or “have the same opportunities and rights” in Nepal as citizens who do have evidence of Nepalese citizenship (CB 478-479 at [40]).
The Tribunal then assesses whether this amounts to harm of the sort that the first applicant requires protection. It concludes (at [40]):
… I find that the restricted opportunities, limited rights and limited access to government services the first named applicant will have is not harm rising to the level of serious harm. Further, on the evidence before me I am not satisfied that there is a real chance that without having his birth registered and having evidence of his Nepalese citizenship the first named applicant will be arbitrarily deprived of his life, or that severe pain or suffering will be intentionally inflicted on him which could reasonably be regarded as cruel or inhuman, or that will be subjected to an act or omission intended to cause extreme humiliation. There is no question of the death penalty being carried out, or any pain or suffering being intentionally inflicted for one of the five purposes mentioned in the definition of torture. I therefore find that the first named applicant does not face significant harm in Nepal because his birth will not be registered and he will not be able to obtain evidence of his citizenship
Elsewhere, the Tribunal refers to “specific health and developmental needs” of the child and finds that, on the evidence before it, it is not satisfied that there is a real chance of harm on that basis (CB 483 at [56]).
The Tribunal also specifically considers the risk of “transition difficulties” and finds:
58… He also claimed that as the first named applicant was born and raised in Australia, his transition to a new place along with the risk of severe economic hardship is likely to affect his development and well-being. I do not accept that the first named applicant will be so affected…
59… I am satisfied that the first named applicant is very well placed to find good employment in Nepal and to re-establish himself, his partner and son in Nepal, and facilitate the third named applicant’s transition to life in Nepal and meet the basic and essential needs of the first named applicant even though his birth will not be registered and he will not be able to obtain evidence of his citizenship…
(CB 484. Footnote omitted)
It is clear that the Tribunal errs in [59] by referring to the “first named applicant” in the first sentence (as opposed to the “third named applicant”) and by similarly referring to the “third named applicant” (when that should read the “first named applicant”). An error of this sort does not equate to jurisdictional error. While unfortunate, it is nonetheless clear who the Tribunal is referring to when considering the paragraph in its entirety (CCC v Minister for Immigration & Multicultural Affairs [2001] FCA 682 at [29] per Merkel J).
In SBAS, Cooper J stated (at [63]) that:
[…] There was evidence that the policy [of the Iranian government] was implemented in a way that denigrated and scared young children and discouraged or hindered them in the obtaining of a school education in contradistinction to that which was made available to Muslim children. To suggest, as the RRT did, that distress caused to a child by a teacher on account of a child’s religious beliefs as an incident of governmental educational policy was a matter ‘to be dealt with by parents and does not indicate to the Tribunal that the situation at school for young Sabeans is so bad as to be considered persecutory’, is to fail totally to understand the nature of the claim advanced, or to consider it in the manner required by the Act and the authorities to which I have referred earlier in these reasons.
In the matter at hand, it is relevant that the first applicant’s submissions as to his access to education were directed to his inability to access schools in India (as a result of the delegate’s finding that the applicants could relocate there).
Here, there was no evidence before the Tribunal that the first applicant would be unable to access education services in Nepal. Nor, on the evidence, does that claim appear to have been raised as a concern.
In the absence of a claim that the first applicant would be deprived of “access to educational rights” and without evidence to suggest that this would in fact be the case, it cannot be said here that the Tribunal misunderstood the nature of any of the first applicant’s claims or that its findings are unreasonable or irrational or illogical.
This Court cannot undertake a merits review of the Tribunal’s decision. While this Court might have assessed the evidence before the Tribunal differently and come to a different conclusion, that is not the test relevant to a proceeding of this sort.
It cannot be said here that the Tribunal’s findings lack an intelligible justification or are irrational or illogical. The Tribunal’s findings were open to it on the evidence before it and within the context of the protection claims advanced.
What is clear from the above is that the Tribunal was conscious and aware of the difficulties the first applicant would face upon his return to Nepal but was satisfied the third applicant would be in a position to meet the first applicant’s needs (despite the child’s birth being unregistered).
In this context, the Tribunal adequately and extensively considered the claims before it. In reading the decision as a whole, it is apparent the Tribunal appreciated the first applicant’s vulnerabilities as a young, illegitimate child of a non-married couple in Nepal. It undertook a detailed consideration of the third applicant’s ability to provide for the first and the second applicants. It was satisfied that he could take care of his child despite the apparent hardships the family would face upon return to Nepal.
It cannot be said here that only one conclusion was open to the Tribunal. Nor can it be said that the Tribunal’s findings were not open to it. As Griffiths J said in Stretton at [74], “to describe reasoning as unreasonable or irrational may merely be an emphatic way of disagreeing with it”: referring to Applicant S20 at [5] per Gleeson CJ and Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164 at [34].
Here, the Tribunal’s decision was open to it. It was not arbitrary or irrational. Nor did it constitute an unreasonable exercise of a discretionary power.
For the reasons provided above, ground 1 fails.
Ground 2
The applicants’ second ground of review provides:
2. The Tribunal made a jurisdictional error in considering the first applicant’s claim for protection under s 36(2)(a) of the Act based on the second applicant’s claims that if she returns to Nepal:
(i) she will engage in political activities as she had before she left Nepal and as a result she will be persecuted by Maoists as she had been in the past, or she will be persecuted by Maoists even if she undertakes no further political activities due to her past political activity; and
(ii) her family specifically the first applicant will be targeted by Maoists due to her activities and/or because he will be with her when she is targeted
by failing to apply the correct test for ascertaining whether she, and by extension the first applicant, is a person in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee pursuant to s 36(2)(a) of the Act.
Particulars
(a) The Tribunal was required to consider these claims of persecution by Maoists, as set out in subparagraphs (i) and (ii) above and at paragraph 48 of the Tribunal’s statement of reasons for decision, against the requirement that the persecution must involve “serious harm” to the first and second applicants pursuant to s 5J(4)(b) of the Act.
(b) The Tribunal considered these claims only using the complementary protection test under s 36(2A) of the Act, which is whether the second applicant, and by extension the first applicant, would face “significant harm” in the future due to the second applicant’s past political activity.
(c) The Tribunal found at [52] that: “… there is not a real chance that the second named applicant will face significant harm due to her past political activity Nepal. … therefore … the first named applicant does not face a real risk of harm due to his mother’s past political activity.”
(d) The Tribunal did not consider the claims of the first applicant and the second applicant against the criterion that the feared persecution would involve “serious harm”, and thereby made a jurisdictional error.
(References omitted)
The applicants’ submissions in relation to ground 2 provide, relevantly, as follows:
a)section 48A of the Migration Act barred the second applicant’s convention-based claims (“Convention Claims”) from being considered in respect of her own visa application, but did not bar the Tribunal from considering the Convention Claims concerning the mother insofar as they related to the first applicant’s claim for protection under s.36(2)(a) of the Migration Act. This claim was that he would be with the second applicant at all times and, therefore, if she was persecuted for reason of political opinion, he would be as well by reason of his close proximity;
b)while it is technically true that the second applicant is barred under s.48A of the Migration Act from raising the Convention Claims in relation to political opinion, the provision does not prevent those same claims from being considered in respect of the first applicant;
c)the Tribunal correctly approached the protection claim of the second applicant by considering whether her claim involved complementary protection on the basis of “significant harm”. However, by reason of the inclusion of the first applicant in the protection visa application the Tribunal was, nevertheless, obliged to consider the second applicant’s claims for protection against the refugee criterion of “serious harm” in addition to the complementary protection criterion of “significant harm” because it was a core component of the first applicant’s claim for protection that he would suffer persecution in Nepal by reason of being a dependent young child of the second applicant who was a former political activist who intends to become re-involved in politics if returned to Nepal;
d)accordingly, the Tribunal was required to assess the first applicant’s claim for protection under the refugee criterion by having regard to the claim made on his behalf by the second applicant that she would suffer harm within the meaning of the refugee criterion and that this harm would be visited upon the first applicant, and the Tribunal did not do that;
e)if the second applicant had lodged a fresh protection visa application in her own right, without the first applicant being a party to that application, then on the authority of SZGIZ, the Tribunal would have been correct in assessing her claims only against the complementary protection test of “significant harm”. However, because the first applicant was an infant incapable of making protection claims of his own and had an application lodged for him by his parents raising claims on his behalf, it was incumbent on the Tribunal to consider those claims against both the refugee and complementary protection criteria;
f)the present state of the law is that an infant child can make an application for a protection visa based on the subjective fear held by their parents;
g)it was incumbent on the Tribunal to apply the refugee criterion test to the second applicant’s claim of persecution on the ground of political opinion as this was necessary in the determination of the first applicant’s claims under that criterion. It was necessary for the Tribunal to engage with the correct statutory language. ‘Serious harm’ and ‘significant harm’ are not synonyms; and
h)the Tribunal made a jurisdictional error by failing to consider the second applicant’s claims on the ground of political opinion against the refugee criterion for the purposes of determining the first applicant’s claim under that criterion.
The Minister, in turn, argued:
a)it was a core component of the first applicant’s claim for protection “that as a consequence of his constant physical proximity to the second applicant, [he] would suffer harm too if the second applicant is attacked for her political opinion”, while it was also submitted the first applicant belonged to a particular social group, being “dependent children of political activists/former political activists.”;
b)while it was claimed that the first applicant would suffer harm if his mother was attacked by the Maoists because of his constant physical proximity to her, no claim was made on the first applicant’s behalf that he feared persecution involving “serious harm for reasons of membership of that social group”. Rather, the fear held by the second and third applicants in relation to possible harm to the first applicant from the Maoists was a derivative fear of him being harmed by reason of him being very young, and therefore, being in constant physical proximity to the second applicant such that if she was attacked for her political opinion, the first applicant would suffer harm too by reason of proximity;
c)it could not be said that any harm which the first applicant might suffer if his mother was to suffer harm from the Maoists by reason of his close proximity to her would be for reason of his membership of a particular social group;
d)in assessing the first applicant’s protection visa application, the Tribunal was required to first assess the second applicant’s fears that she would be harmed by Maoists if she returned to Nepal, and it was only in the event that the Tribunal accepted one or more of the second applicant’s claims to fear harm from the Maoists that the first applicant could be successful by reason of his claim to fear harm as a result of his proximity;
e)it must, therefore, follow that the Tribunal’s failure to consider and make a determination as to whether the harm feared by the second applicant in relation to the Maoists constituted “serious harm” does not involve jurisdictional error as the Tribunal was not required to assess the second applicant, and by association the first applicant, against the criterion that the harm feared would involve “serious harm”; and
f)in any event, any omissions on the part of the Tribunal could not have affected the Tribunal’s decision in respect of the first applicant (citing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] and [84] per McHugh, Gummow and Hayne JJ). The test for “significant harm” and “serious harm” was the same: SZQRB.
Consideration
The Tribunal’s findings in relation to the second applicant’s fear of harm on the basis of her complementary protection claims provide as follows:
48.The second named applicant claims that if she returns to Nepal she will engage in political activities as she had before she left Nepal and as a result she will be persecuted by Maoists as she had been in the past. She also claims Maoists will extort so-called donations from her. She claims her future activities will include re-joining the National Congress Party (NCP), becoming involved in the Nepal Women’s Association and becoming a village development committee chief like her father, and that to require her not to engage in future political activity to avoid to harm would itself amount to persecution. On review it was also claimed that she would seek justice for the victims of crimes committed by Maoists during the war, such as herself, which would also cause her to be targeted by Maoists. Finally, it was claimed that her family specifically the first named applicant will be targeted by Maoists due to her activities and/or because he will be with her when she is targeted.
49.I do not accept that the second named applicant will engage in any political activity or seek justice in Nepal in the reasonably foreseeable future. As I put to her at the hearing, the evidence which has been presented indicates that she is too unwell, both physically and mentally, to engage in such activity in the future. She replied she would resume her activity when she was better but could not say when that would be. I do not accept that the second named applicant will be able to engage in political activity or seek justice for victims of the war in the reasonably foreseeable future. The medical evidence presented to the Department and particularly the Tribunal indicates that the second named applicant has been physically and mentally unwell for years and that her mental and physical health has not improved, if anything it has deteriorated.
50.The issue is thus whether the second named applicant would face significant harm in the future due to her past political activity. Even if I accept the second named applicant’s claims of past political activity and resulting harm by Maoists, as I put to her at the hearing, significant changes have occurred in Nepal since she last left. The information and sources I rely upon regarding the political changes Nepal has undergone since the 10 year civil war ended in 2006 are set out in the Attachment to this decision. I put to the second named applicant that the war with the Maoists has long ended, there have been two Constituent Assembly elections in Nepal since then which were considered free and fair and were generally peaceful. The Maoists and the NCP participated in the elections and the Maoists have shown a willingness to work peacefully within the new democratic system. Further, DFAT reports that there is now a lively political environment in Nepal which provides an opportunity for diverse political parties and views, an individual’s party membership and their ability to be politically active is generally respected, and the overall risk of political violence is low. I put to the second named applicant that it thus did not seem she faced a real risk of significant harm for her past political activity.
51.The second named applicant disputed that the situation has changed in Nepal so that she no longer faces persecution for reasons of political activity. The applicants have presented articles and reports regarding the political situation in Nepal such reports of instances of political violence involving Maoists, political ‘donations’ or extortion, and the consequences of the civil war which are yet to be addressed such as significant numbers of internally displaced persons, and unresolved land and property issues. I note that a number of the reports relate to scuffles and violence that occurred some time ago and in response to specific significant events such as the drafting of the new Constitution which is not indicative of the risk of harm the second named applicant would face in the future given her past political profile.
(CB 481-482. Footnotes omitted)
The Tribunal referenced this evidence and its findings in relation to the second applicant’s complementary protections claims in relation to the first applicant’s Convention Claims as follows:
52.As the second named applicant has not engaged in political activity for almost a decade, will not engage in political activity in the reasonably foreseeable future, and given the independent evidence before me regarding the changes that have occurred in the political environment in Nepal since the end of the civil war, I find there is not a real chance that the second named applicant will face significant harm due to her past political activity in Nepal. I therefore find that the first named applicant does not face a real risk of harm due to his mother’s past political activity.
53.Nor do I believe there is a real chance the second named applicant will be extorted by Maoists in the form of ‘donations’. Although extortion and forced donations were a main source of Maoist funds during the civil war, evidence presented by the applicants as well as information from DFAT indicates that to the extent forced donations occur, it is businesses that are the main target and other potentially financially lucrative sources. The second named applicant has not claimed to be wealthy, in fact it is claimed the applicants will face financial hardship in Nepal. When I raised this issue at the hearing, the second named applicant seemed to indicate that Maoists in her village were still asking for donations. Questioned further about who was asked for donations she did not provide details and instead stated that there was no peace in the villages and Maoists in her village had recently asked about her. Prior to the hearing the second named applicant had not claimed that in the almost 10 years since she left Nepal Maoists had asked people in her village for donations or had asked about her. I do not find it credible that after nearly a decade Maoists would ask after her or begin seeking donations, or if this had happened before the hearing that she would not have mentioned it before. I note that the second named applicant claims she has kept in contact with her family in Nepal and thus I expect they would have informed her if Maoists were asking after her or extorting donations from villagers. I have concluded that these claims were invented to bolster the second named applicant’s claim that she would be extorted and harmed by Maoists if she returned to Nepal. I thus do not accept those claims. Further, I find on the evidence before me that the second named applicant does not have the profile of people some Maoists target for donations and thus I find there is not a real chance she will be extorted or forced to make donations by Maoists in the reasonably foreseeable future. I thus find the first named applicant does not face any harm from Maoists because the second named applicant will be extorted or forced to make donations.
(CB 482-483. Emphasis added)
At the relevant time, s.48A of the Migration Act provided:
48A Non‑citizen refused a protection visa may not make further application for protection visa
(1) Subject to section 48B, a non‑citizen who, while in the migration zone, has made:
(a) an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or
…
may not make a further application for a protection visa while in the migration zone.
…
(2) In this section:
application for a protection visa includes:
(aa) an application for a visa, a criterion for which is mentioned in paragraph 36(2)(a), (aa), (b) or (c); and…
The fact that the second applicant here was denied a protection visa previously (and cannot, to some extent, advance the same claims again), does not mean that the first applicant must fail in his claim under s.36(2)(a) of the Migration Act. The first applicant was entitled to have his own rights determined and his case ought not to be subsumed into any findings made against the second applicant: Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293 at [77] per Kirby J (“Chen”). That is not in dispute here.
It is evident from the Tribunal’s findings (above) that the Tribunal first gave detailed consideration to whether the second applicant would face significant harm in the future if she returned to Nepal. The Tribunal found that she would not face harm as she was unlikely to engage in any future political activities (because of her ill health) and because the political environment in Nepal had changed.
Here, the Tribunal was entitled to rely upon the information and findings made in the second applicant’s previous unsuccessful protection visa application (Migration Act, s.416) and it referred to the second applicant’s previous claims in its decision.
The Tribunal then used these finding to reject the first applicant’s Convention Claims.
Although not entirely clear from the applicants written or oral submissions, the contention here appears to be that the Tribunal fell into error because it did not specifically address whether the first applicant would be “seriously harmed” because of his mother’s past political activities.
In SZOYH v Minister for Immigration & Citizenship [2012] FCA 713 (“SZOYH”), the Court considered an application of an infant who had claimed protection on the basis of the past persecution his parents had suffered as Christians.
While the Court in SZOYH remitted the matter to the Tribunal on a different ground, when considering how the Tribunal had addressed the claim to suffer persecution based on the parents’ persecution, the Court said:
42.... I consider the Federal Magistrate was correct in his conclusion that: “What [the Tribunal] was required to do was to consider [the appellant’s parents’] circumstances in the past as these could inform the chance of persecutory harm to the [appellant] in the future”: Reasons at [108] (see [22] above). Further, his Honour was also quite correct in concluding that the Tribunal did not need to consider the details of the appellant’s parents’ claims of past persecution, including each of these three incidents, because it had concluded that those claims should be rejected for other reasons: Reasons [114] (see [22] above)...
In this matter, the Tribunal made no finding that the second applicant had been persecuted in the past. However, it does appear to have proceeded on the basis that she had engaged in political activities in the past. Then, at [50], the Tribunal referred to changed political conditions in Nepal and noted that political expression and opinion were generally respected – such that the overall risk of political violence to someone like the second applicant was “low”.
Further, at [51] of its decision the Tribunal discussed having put this information to the second applicant. She responded that she did not believe that to be the case, and referred to the articles and information the applicants had provided (which appeared to be somewhat dated).
The Tribunal assessed this evidence and proceeded to make the findings it made at [52].
Having regard to the way in which the Tribunal has expressed its reasoning, the Court is satisfied the Tribunal has not fallen into error. The Tribunal’s assessment of whether the second applicant would be harmed in the future (an assessment that was focussed on the political opinions of the second applicant and any harm she might face in a changed political climate) removed any requirement that the Tribunal consider the first applicant’s claim that he would suffer serious harm as a dependent child of a political activist because the Tribunal had rejected the basis on which this claim was made: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 at [46] per French, Sackville and Hely JJ. It did not matter if the first applicant was with the second applicant in relation to any Convention claim because the child’s mother would not be engaging in political activities and any harm that might arise from her past political activities was now negated by a changed political environment in Nepal. The country information confirmed that finding.
The Tribunal here approached the task in the same manner as was the case in SZOYH. It cannot be said here that the Tribunal fell into error by failing to consider the first applicant’s real chance of serious harm on account of the previous persecution of the second applicant because of her political opinion. Once it was determined that any persecution on the basis of political opinion no longer existed because of a changed political environment or ill health, no assessment of harm to the first applicant was required.
Ground 2 is not made out and, accordingly, fails.
Ground 3
Ground 3 provides:
3. The Tribunal made a jurisdictional error in finding that there is not a real chance that the second applicant will face significant harm due to her past political activity in Nepal, and therefore that the first applicant does not face a real risk of harm due to his mother’s past political activity (CB 482, [52]).
Particulars
a) The third applicant claimed in his statutory declaration of 21 March 2017 at paragraphs 60-64 (CB 421) that Maoists were continuing their activities as during insurgency and in particular that:
i. “All Maoists have publicly announced that they will stand together and fight back if any attempts are made to prosecute Maoists for any crimes committed during insurgency.” ([61])
ii. “Victims always have real reason to fear because they have suffered in the past.” ([63])
b)The DFAT Report (CB 476, [31]) that the Tribunal was required to consider under s 499 of the Act states at 3.29 that: “Nepal’s lively political environment provides an opportunity for diverse political parties and views, and an individual’s membership of a political party, along with their ability to be identified as a member and to be politically active, is generally respected. DFAT assesses that while violence has occurred in the aftermath of the release of the new Constitution and Maoist/and disillusioned splinter groups continue to threaten a return to bandhs and or violence, the overall risk is low.” (Emphasis added)
c) The Tribunal quoted from paragraph 3.29 of the DFAT Report at paragraph 50 of its statement of decision and reasons (CB 482), but the Tribunal did not quote the DFAT statement at 3.29 of its Report that “violence has occurred in the aftermath of the release of the new Constitution and Maoist/and disillusioned splinter groups continue to threaten a return to bandhs and or violence”
d) The Tribunal made a jurisdictional error by:
(i) failing to consider the claim of the second applicant that being a past victim of the Maoists placed her at risk of future harm even if she did not engage in any further political activity upon returning to Nepal; and
(ii) not referring to and not considering to the DFAT Report information that it was required to consider under s 499 of the Act that violence has occurred in the aftermath of the release of the new Constitution and Maoist/and disillusioned splinter groups continue to threaten a return to bandhs and or violence.
In relation to this ground of review, the applicants submitted in written submissions as follows:
a)the Tribunal failed to consider the claim of the second applicant, that being a past victim of the Maoists placed her at risk of future harm even if she did not engage in any further political activity upon returning to Nepal;
b)the Tribunal did not consider whether the second applicant would face serious harm or significant harm in the future by reason of being a past victim of the Maoists and that was a vulnerability that she and her family held regardless of the level of any past political activity;
c)even if the overall risk of political violence was low, that does not mean that the applicants could not face a real chance of persecution; and
d)the Tribunal was obliged to consider all the relevant aspects of the DFAT Report on Nepal dated 21 April 2016 (“DFAT Report”) and apply them to the applicants’ claims and, in failing to consider the portion emphasised, ignored relevant material and made a jurisdictional error.
The Minister, in turn, contended:
a)the Tribunal’s reasons at [50]-[53] clearly demonstrate that the Tribunal considered the second applicant’s claims of past political activity and “resulting harm by Maoists”. What is said at [52] (ie, that there was not a real chance of significant harm due to past political activity) clearly encompasses the claim said to be overlooked;
b)the Tribunal referred at [31] to Ministerial Direction No. 56 made under the s.499 of the Migration Act and specifically referred to the DFAT Report in the substantive decision and in the footnotes. This indicates that it considered the report; and
c)although the Tribunal did not specifically quote the excerpt of the DFAT Report emphasised, it noted at [51] that “a number of the reports relate to scuffles and violence that occurred some time ago and in response to specific significant events such as the drafting of the new Constitution.,” That reference clearly includes the DFAT Report and the reference at [3.29] that violence occurred in the aftermath of the release of the new Constitution.
Consideration
This ground again takes issue with [52] of the Tribunal’s decision and the finding that the second applicant did not face significant harm because of her previous political activity.
It cannot be said, here on the evidence, that the Tribunal failed to consider if the second applicant’s status as a past victim of harm by Maoists placed her at risk of future harm even if she did not engage in any further political activity upon returning to Nepal.
Having found that the second applicant would be unable to engage in political activity upon return to Nepal at [49] of its decision, the Tribunal then states at [50]:
The issue is thus whether the second named applicant would face significant harm in the future due to her past political activity….
The balance of [50] then refers to the changed situation in Nepal since the end of the civil war and refers specifically to the DFAT Report:
Further, DFAT reports that there is now a lively political environment in Nepal which provides an opportunity for diverse political parties and views, an individual’s party membership and their ability to be politically active is generally respected, and the overall risk of political violence is low.
The Court does not have in evidence what is actually stated at [3.29] of the DFAT Report. Rather, it is provided by way of submission and pleadings. However, the Court accepts that the extract in the applicants’ submissions is correctly identified.
It is clear here that the Tribunal considered the DFAT Report in question. It is referenced as a footnote at various parts of the Tribunal’s decision – including in the attachment, where the Tribunal summarised the country information relevant to the political situation in Nepal (CB 486-487).
The applicants’ submissions assert that the Tribunal failed to refer to, and consider, the particular emphasised portion of [3.29] of the DFAT Report. They contend that this was relevant to the applicants’ claims and should not have been ignored. Reference was made in this regard to Minister for Immigration & Border Protectionv MZYTS (2013) 230 FCR 431 at [73] per Kenny, Griffiths and Mortimer JJ, wherein their Honours state:
Whatever might be the general principle that administrative decision-making should be based on the most up-to-date information (see Peko-Wallsend 162 CLR 24 at 45) in the context of decision-making about s 36(2)(a) of the Migration Act and Art 1 of the Convention, attention to current information is not merely preferable, it is a core aspect of lawful formation of a state of satisfaction. This is, as we have endeavoured to explain, because of the predictive and speculative nature of the task involved in determining whether a person’s fear of persecution for a Convention reason on return to her or his country of nationality is well founded.
This does not assist the applicant. The DFAT Report here was, as it appears, the most recent and up to date information and the Tribunal had regard to it.
In relation to the use of country information, in DVI17 v Minister for Immigration [2018] FCCA 241 (at [39]), this Court made the following observations on the use to which country information may be put in a proceeding in which jurisdictional error is raised. It noted that the weight the Tribunal gives to country information is a matter for the Tribunal and the Tribunal alone. So too the accuracy of that information: NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ. Further, the Tribunal is not obliged to give a line-by-line refutation of evidence generally, including evidence contrary to its findings.
It cannot be said here that that the Tribunal erred because it did not give specific reasons for why it preferred specific evidence within a particular source of country information over other evidence contained in the same source. How the Tribunal deals with and assesses the country information before it is a matter for the Tribunal within the context of the particular factual background before it. The choice and interpretation of country information is a factual matter for the Tribunal alone: Applicant NABD of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs (2005) 79 ALJR 1142; NBKT v Minister for Immigration &Multicultural Affairs (2006) 156 FCR 419.
Here, the Tribunal noted that the second applicant disputed the political situation had changed (CB 482 at [51]). The Tribunal did not accept this. The Tribunal considered that, having regard to the fact the second applicant had not engaged in political activity in almost a decade, she would be unable to engage in political activity upon return (CB 482 at [52]). Further, as changes had occurred in the political environment, there was no longer a real chance of significant harm. The Tribunal’s finding was not based solely on the country information of the DFAT Report. It was informed by other country information and other facts. In this context, the Tribunal’s finding was open to it.
No error is established in ground 3. Ground 3, accordingly, fails.
Ground 4
Ground 4 provides:
The Tribunal made a jurisdictional error in considering the second applicant’s claim that she will be persecuted by Maoists if she returns to Nepal.
Particulars
a) The Tribunal found there is not a real chance she will be extorted or forced to make donations by Maoists in the reasonably foreseeable future.
…
c)The second applicant had submitted to the Tribunal that:
i. “Maoists continue to prevent people from dealing with their land (as is the case with [the third applicant] parents) and they continue to commit extortion (refer to Article H);
ii. “However, my family members have, in fact, been targeted due to their involvement in the NCP. My family is still prevented from dealing with their land by the Maoists in their village. My parents inform me that if they sell the land they fear they will be attacked.”
d) In concluding that the second applicant would not be targeted by Maoists and that her claims regarding the Maoists were invented to bolster her claim that she would be extorted and harmed by Maoists if she returned to Nepal, the Tribunal:
i. failed to consider the evidence supplied by the second applicant that her family were still being targeted by the Maoists through being prevented from dealing with their land by the Maoists in their village; and
ii. failed to make a finding on the second applicant’s claim that Maoists were preventing her family from dealing with their land.
(References and identifiers omitted)
In support, the applicants contended that, having rejected the second applicant’s claim that there is not a real chance she will be extorted or forced to make donations by Maoists, the Tribunal stated that the second applicant’s family would have informed her if Maoists were, in fact, asking after her or extorting donations from villagers. The applicants stressed that there was evidence before the Tribunal that Maoists do continue to prevent people from dealing with their land and do continue to commit extortion – hence, the Tribunal ignored relevant material and failed to consider an integer of the applicants’ claims.
The Minister, in turn, noted:
a)these claims were considered at [53]. The Tribunal concluded that these claims were invented (thus, not credible) and that, on the evidence before the Tribunal (including country information), there was not a real chance that the second applicant would be extorted or forced to make donations by Maoists in the reasonably foreseeable future;
b)having regard to the incidental findings made by the Tribunal at [53], not making a specific finding on that claim was not an error as the Tribunal is not bound to refer to every item of material or every piece of evidence relied upon or given by an applicant; and
c)even if the Tribunal overlooks an item of evidence in considering an applicant’s claims, that is not jurisdictional error, so long as the error did not preclude the Tribunal from considering the applicant’s claims as a whole.
Consideration
Ground 4 takes issue with the Tribunal’s findings at [48]-[53] concerning the “Maoist claims” and, in particular, the second applicant’s claim that she will be extorted or forced to make donations to the Maoists.
The Tribunal addressed this particular aspect of the claim at [53], as follows:
Nor do I believe there is a real chance the second named applicant will be extorted by Maoists in the farm of ‘donations’. Although extortion and farced donations were a main source of Maoist funds during the civil war, evidence presented by the applicants as well as information from DFAT indicates that to the extent forced donations occur, it is businesses that are the main target and other potentially financially lucrative sources. The second named applicant has not claimed to be wealthy, in fact it is claimed the applicants will face financial hardship in Nepal. When I raised this issue at the hearing, the second named applicant seemed to indicate that Maoists in her village were still asking for donations. Questioned further about who was asked for donations she did not provide details and instead stated that there was no peace in the villages and Maoists in her village had recently asked about her. Prior to the hearing the second named applicant had not claimed that in the almost 10 years since she left Nepal Maoists had asked people in her village for donations or had asked about her. I do not find it credible that after nearly a decade Maoists would ask after her or begin seeking donations, or if this had happened before the hearing that she would not have mentioned it before. I note that the second named applicant claims she has kept in contact with her family in Nepal and thus I expect they would have informed her if Maoists were asking after her or extorting donations from villagers I have concluded that these claims were invented to bolster the second named applicant’s claim that she would be extorted and harmed by Maoists if she returned to Nepal. I thus do not accept those claims. Further, I find on the evidence before me that the second named applicant does not have the profile of people some Maoists target for donations and thus I find there is not a real chance she will be extorted or forced to make donations by Maoists in the reasonably foreseeable future. I thus find the first named applicant does not face any harm from Maoists because the second named applicant will be extorted or forced to make donations.
(CB 481-482. Footnotes omitted)
The Court does not accept that the Tribunal failed here to consider the evidence before it or that it ignored relevant material.
The Tribunal expressly stated that it had regard to the applicants’ evidence.
The “evidence” in its entirety was that:
d) Paragraphs 57 - 61 The Tribunal member stated that my family had not been specifically targeted. However, my family member have in fact been targeted due to their involvement in the NCP. My family is still prevented from dealing with their land by the Maoists in their village. My parents inform me that if they sell the land they fear they will be attacked.
(Emphasis added)
This was made in a statutory declaration and represents a claim to fear harm because of the second applicant’s family’s political opinion and political activity.
On the evidence submitted by the applicants, the Tribunal concluded that the second applicant did not have the profile of a person who would be targeted for extortion. The Tribunal made a credibility finding on the basis of the oral and documentary evidence before it, and reliable country information on hand. In this context, the credibility finding and conclusions drawn overall were open to the Tribunal.
The Tribunal also made findings at [50]-[52] of its decision that the political situation in Nepal had changed and that the risk of political violence was low. In particular, the Tribunal referred to “unresolved land and property [sic] issues” at [51] as not being indicative of a risk of harm to the second applicant. In addition, the delegate’s decision noted that the second applicant stated that her family does not own any land (CB 267). There was nothing to contradict that information and that information informed all other claims and evidence before the Tribunal.
What the applicants advance as evidence concerning the second applicant’s family being prevented from dealing with their land by Maoists, and hence an integer of the second applicant’s claim, was, in effect, nothing more than the second applicant disagreeing with one finding of the tribunal that determined the second applicant’s protection visa application in 2013.
Further, and in any event, there is no jurisdictional error in ignoring relevant material, be it “evidence”, or a claim that the second applicant’s family were targeted by Maoists or Article H or by failing to make a finding on that matter in circumstances where the Tribunal considered the second applicant’s claim to fear harm from Maoists comprehensively at [48]-[53].
Having regard to:
a)the Tribunal Decision as a whole;
b)the nature of the second applicant’s claims; and
c)the evidence in respect of the family’s land and the changed conditions in Nepal,
it can be sensibly understood that this “evidence” was not material: Minister for Immigration & Border Protection v SZSRS (2014) 309 ALR 67 at [34] per Katzmann, Griffiths and Wigney JJ (“SZSRS”).
Section s.65(1)(b) of the Migration Act does not require the Tribunal to make any positive finding, or any finding at all, in respect of evidence that an applicant leads. Instead, the Tribunal must be satisfied that the criterion required to grant a protection visa are met. Here, the Tribunal was not satisfied.
On the evidence, assessed as a whole by the Tribunal, it cannot be said that the Tribunal failed to consider the evidence before it. The Court is not satisfied that, even if the Tribunal “overlooked” the “evidence” (a claim that the Court rejects) that the second applicant’s family may fear harm “because of their involvement with the NCP”, that this amounts to the Tribunal overlooking a component integer of a claim for protection.
Further, even if the Tribunal were to have “overlooked” the “evidence” (a claim that the Court rejects), it did not preclude the Tribunal from considering the claim of harm because of political opinion or political activity: Htun v Minister for Immigration & Multicultural Affairs (2001) 233 FCR 136 at [42] per Allsop J; Minister for Immigration & Citizenship v SZNPG [2010] FCA 51 at [28] per Ryan J.
It cannot be said here that the Tribunal failed to analyse a component integer of any claim for protection. It addressed the applicants’ claims forensically on the basis of country information that showed an improved political climate. This was contrasted with the applicants’ own evidence, which the Tribunal found to be dated and/or not credible.
Here, all of the applicants’ concerns were addressed by the Tribunal.
Ground 4 establishes no jurisdictional error. Ground 4, accordingly, fails.
Ground 5
Ground 5 states:
The Tribunal made a jurisdictional error in finding that the second applicant will not face serious harm or significant harm through being influenced by her family or forced by her family to return to her former husband or his family.
Particulars
a) The second applicant claimed that her family may try to separate her and the third applicant and force her to return to her former husband’s family.
b) The Tribunal stated that it did not believe that the second applicant would be influenced nor would they seek to force her to return to her former husband or his family.
c) In reaching its conclusion, the Tribunal failed to take into consideration relevant evidence that the marriage between the second applicant and her former husband had been arranged by families and performed according to Hindu Culture, and the Tribunal failed to take into consideration the implications of that evidence for the second applicant.
(References and identifiers omitted)
The submissions advanced by the applicants in support of this ground of review were, in effect, that the Tribunal had before it evidence of the circumstances pertaining to the second applicant’s Hindu marriage in Nepal and failed to have regard to that evidence in reaching its conclusion.
In response, the Minister argued that it is implicit that the Tribunal considered the relevant evidence. In that context, the Minister referred to the Tribunal’s comments at [32] wherein it referred to the detailed claims and documentary evidence that had been presented and the comment at [46] where the Tribunal gave reasons why it found the second applicant would not be influenced. That the Tribunal did not specifically refer to the marriage having been arranged does not, it was submitted, found a conclusion of jurisdictional error.
Consideration
The evidence the applicants refer to as “relevant evidence that was overlooked” is contained in a statutory declaration sworn by the third applicant (CB 419).
The pertinent portions of that statutory declaration read:
She has been separated from her former husband for about 7 years and considers her relationship with him is over no matter what the law or families think of her relationship until she is in Australia. But her marriage was genuine and is still legally valid in Nepal.
…
Because their marriage was arranged and performed according to Hindu Culture, as far as I have learnt that both families are Hindu and are very religious no matter what has happened they will be forced to get together. The outcome can be unimaginable if our relationship or child out of our relationship is learnt to them. This is likely to bring both serious harm to [the Second Applicant] and [the First Applicant] and possibly to me if I come forward for her.
(CB 419. Identifiers omitted)
Where a Tribunal states it has had regard to materials, such a statement tends to stand as evidence that it did so: Bat Advocacy NSW Inc v Minister for the Environment Protection, Heritage & the Arts [2011] FCA 113.
The Court notes that in this matter the Tribunal expressly referred (at [41]-[47]) to the third applicant’s statutory declaration containing the second applicant’s claims relating to marital status.
In these circumstances, the Court infers that the Tribunal had regard to the whole of the statutory declaration, including the statements extracted immediately above.
Here, the Tribunal gave the following reasons for its conclusion that it did not consider that the second applicant’s family would force her to return to her husband or that she would be influenced to return to him by her family:
a)she expressly stated she does not wish to resume a relationship with her husband;
b)the Tribunal was satisfied that the second and third applicants would continue their de facto relationship in Nepal and, but for the fact that the second applicant was still married, the Tribunal was of the view the second and third applicants would have married themselves;
c)the second applicant had made inquiries with lawyers in Nepal about divorcing her husband and she would not have made these inquiries if she did not genuinely wish to seek a divorce;
d)her family would not try and force her back to her husband. Nor would her husband’s family accept her, given that she has had a child with another man; and
e)the second applicant is a mature adult who has lived independently of her family for almost a decade, has been in a relationship and borne a son, and would continue to be in a de facto relationship with the third applicant and care for and support the first applicant.
The Tribunal actively considered the second applicant’s claim that she would be forced to return to her husband. Overall, it reasoned that it did not believe that her family would do so. It concluded, on the evidence, that even if they did, her husband’s family would disapprove and not accept her and, in any event, even if that were not true, the second applicant herself would not agree to any such arrangement.
There was no evidence before the Tribunal concerning Hindu marriage that could be considered sufficiently probative that the matter had to be referred to in the Tribunal’s decision: SZSRS at [34] per Ryan J. The Tribunal addressed the claim that the second applicant’s family were religious and very conservative and, nonetheless, found that she would not succumb to their influences. That was a finding of fact for the Tribunal to make and one that was reasonably open to it on the evidence and the materials presented to it, including, the Court notes, an assessment of the authenticity of the relationship between the second and third applicants which the Tribunal alluded to at [43] of its decision.
No error is established in ground 5. Ground 5, accordingly, fails.
Ground 6
The sixth ground that the applicants rely upon provides:
The Tribunal’s finding that the applicants would not be subject to serious harm or significant harm by reason of the de facto relationship between the second and third applicants was unreasonable, illogical or irrational.
Particulars
a) The second and third applicants provided evidence to the Tribunal in the form of country information, a newspaper article from the Himalayan Times published August 22 2015, where it was stated: “If a woman knowingly concludes such marriage or becomes wife, that woman shall also be accordingly subject to punishment”.
b) The article stated that the punishment would be imprisonment for a term from one to three years and a fine of Rs 5,000-Rs 25,000.
c) The Tribunal accepted from sources it had consulted that de facto relationships are not legally recognised in Nepal and that such relationships are generally not socially acceptable.
d) However, the Tribunal did not give consideration to the information in the article that a woman who “becomes wife” would be “accordingly subject to punishment”.
e) The Tribunal’s finding that the applicants would not be subject to serious harm or significant harm by reason of the de facto relationship between the second and third applicants was therefore unreasonable, illogical or irrational.
(References omitted)
The applicants’ submissions in relation to this ground of review repeat the particulars provided above. It is highlighted that the marriage referred to in the referenced article was a polygamous marriage and that the expression “becomes wife” includes a woman entering into a de facto relationship with a man. This, it is asserted, should have been considered by the Tribunal.
In response, the Minister contended that the Tribunal’s observations at [45] were correct, that the reference to “becomes wife” clearly is not relevant to a de facto relationship and that there is nothing to suggest that the findings made by the Tribunal were in any sense unreasonable or illogical.
Consideration
The Court agrees with the Minister in this regard.
The Tribunal refers to the applicants having provided evidence that de facto relationships are illegal in Nepal, as follows:
45.The evidence presented to indicate that de facto relationships are illegal in Nepal in fact relates to polygamy. The independent evidence before does not indicate and thus I do not accept that de facto relationships are illegal in Nepal. However the sources I have consulted indicate that de facto relationships are not legally recognised in Nepal. The sources also indicate that such relationships are generally not socially acceptable. It is thus plausible and I accept that de facto relationships and children born outside of marriage are generally not approved of by Nepalese society and hence that the families of the second and third named applicants would not approve of their de facto relationship and their child, and the first named applicant would be looked down upon by some. However, I find that this kind of social and familial disapproval does rise to the level of serious harm nor does it amount to significant harm as defined in s.36(2A).
(CB 480-481)
The article referenced by the applicants in relation to ground 6 provides:
… a 32-year-old woman of Kathmandu, filed a polygamy charge against her husband… Subsequently, police arrested her husband and produced the accused before the Kathmandu District Court which sentenced him to one-and-a-half years in jail and imposed a fine of Rs 15,000.
Though polygamy is restricted and made punishable under the existing laws, it has long been hidden and prevalent in the country…
If any person concludes another marriage or keeps wife in contravention of the law he will be liable to imprisonment for a term from one to three years and a fine of Rs5,000-Rs 25,000. If a woman knowingly concludes such a marriage or becomes wife, that woman shall also be accordingly subject to punishment. However, the law does not invalidate the second marriage itself.
(CB 397. Emphasis in original)
Counsel for the applicants seemed to suggest that “becomes wife” includes “defacto relationships”. Hence, arguably, it is suggested, the Tribunal should have considered, based on this information, that the second applicant, having entered into a de facto relationship, would be “subject to punishment”.
In the same submission that attaches the above referenced article, another article is also summarised by the applicants (CB 396). That articles states:
Annapurna Rana Case
A woman living with a man and maintaining a physical relationship with him is not necessarily his wife, the Supreme Court of Nepal said in an elaborate ruling.
Making a detailed ruling on an aspect of right to privacy of a woman in a case involving a bitter property feud between a mother and a daughter of a prominent Keshar Sumshere family, the apex court ruled that living together and even bearing a child are not sufficient conditions in themselves to declare the two men (sic) and wife.
(Emphasis in original)
On the basis of the applicants’ own evidence to the Tribunal (CB 396 and 397), the applicants’ submission to the Court about what is and is not “a wife” in Nepal is contradicted by the information the applicants themselves provided to the Tribunal.
In any event, the Tribunal found that the article at CB 397 was explicit to polygamy and not to de facto relationships, referencing the independent information that suggested that, while de facto relationships are not considered socially acceptable and are not legally recognised and that the first applicant may be looked down upon, on all of the evidence, this did not amount to serious or significant harm (CB 480-481 at [45]).
The analysis provided shows that the Tribunal provided a logical and coherent analysis and reasoning process, relying on independent country information and the applicants’ own evidence, to arrive at the conclusion that, while de facto relationships are not considered socially acceptable and are not legally recognised, the societal and familial disapproval does not amount to serious or significant harm. It cannot be said here that relevant information was overlooked or that the conclusion reached could not have been reached. There is nothing in this conclusion or the process undertaken to arrive at it to suggest that the Tribunal’s approach was illogical or unreasonable in the sense described by the authorities: SZMDS at [130]-[131] per Crennan and Bell JJ.
Ground 6 discloses no error. Ground 6, accordingly, fails.
Conclusion
For the reasons provided above, there is no jurisdictional error evidenced in the applicants’ grounds of review.
The application must, accordingly, be dismissed.
I certify that the preceding one hundred and eighty (180) paragraphs are a true copy of the reasons for judgment of Judge Christopher Kendall
Associate:
Date: 13 March 2019
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