Ajd20 v Minister for Immigration

[2020] FCCA 2985

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJD20 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2985

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – whether the applicant had a real and meaningful hearing before the Tribunal – whether the Tribunal made erroneous credibility findings – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

Applicant: AJD20

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 181 of 2020

Judgment of: Judge Street

Hearing date: 3 November 2020

Date of Last Submission: 3 November 2020

Delivered at: Sydney

Delivered on: 3 November 2020

REPRESENTATION

The applicant appeared in person via Microsoft Teams.

Solicitors for the Respondents: Ms C Juarez, MinterEllison, Microsoft Teams

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

DATE OF ORDER:  3 November 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 181 of 2020

AJD20

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 15 January 2020 affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection visa. 

2. The applicant was found to be a citizen of Nepal and his claims were assessed against that country. 

3. The applicant arrived in Australia on a GE 420 temporary entertainment visa in January 2016. 

4. It was not until the day before the expiry of that visa on 8 January 2016 that the applicant applied for protection. 

5. The applicant claimed to fear harm from Maoist groups and/or related bodies.

6. On 3 August 2016, the Delegate found that the applicant failed to meet the criteria for the grant of a Protection visa. 

7. The applicant applied for review on 22 August 2016. By a letter dated 18 December 2019, the applicant was invited to attend a hearing on 9 January 2020. The applicant appeared on that date to present arguments and to give evidence. 

8. The Tribunal identified the background to the review application and set out the relevant law, including in an attachment incorporated by pagination in the Tribunal’s reasons.

9. The Tribunal summarised the applicant’s claims, including the incident in which he was allegedly kidnapped by Maoists and later released in exchange for a ransom.  The applicant also referred to a jeep being burnt in a 2004 ambush in which he alleged two people died and that he was taken somewhere for treatment.

10. The Tribunal raised with the applicant that he changed his evidence quite radically. 

11. The Tribunal found the applicant not to be a reliable witness. The Tribunal was prepared to accept that the two incidents in 2004 and 2006 did occur more or less as described. However, the Tribunal took into account the cessation of the civil war in 2006, and the applicant’s life returning to normal, and that his father continued to work for a particular entity for another decade after the end of the civil war.

12. The Tribunal took into account country information and found that the applicant does not face a real chance of being persecuted in his home region. 

13. The Tribunal found that the applicant does not have a well-founded fear of persecution and did not satisfy the criteria for a protection obligation under s 36(2)(a) of the Act.

14. The Tribunal found that there are not substantial grounds for believing that, as a necessary and foreseeable consequences of the applicant being removed to Nepal, there is a real risk that he will suffer significant harm. 

15. The Tribunal found that the applicant was not a person in respect to whom Australia has protection obligations under s 36(2)(aa) of the Act and affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 28 January 2020. 

2. On 20 February 2020, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. 

3. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the explanation given by the Court.

4. The applicant made reference to the Tribunal finding that he could relocate within Nepal. The Tribunal’s decision was not based on any relocation consideration.  Nothing said by the applicant identified any jurisdiction by the Tribunal. 

The grounds

1. The grounds in the originating application are as follows:

   1.The Tribunal Member accepted that I was involved in two incidents in 2004 and 2006 but failed to accept my fear of harm because the civil war in Nepal ended in 2006. The Member failed to accept that I will be subjected to harm from Maoists such as the BIPLAB group because the Member considers that it will be reasonable and practicable for me to relocate.

   2.The Member of the Tribunal failed to justify the relocation issue and the fact that I will suffer significant harm wherever I go in Nepal as I continue to have a subjective well found fear of harm.

   3.The Member attacked my credibility because he misunderstood what happened to me in Nepal and as a result of failure to provide further evidence. I continue to believe that my evidence is reliable and the Member failed to give sufficient weight to the problems I faced in Nepal. Therefore the Member failed to give me the benefit of the doubt as he accepted what happened to me and I was unable to substantiate all my claim. Therefore I disagree with his findings which is not based on probative evidence.

Grounds 1 and 2

1. Grounds 1 and 2 erroneously refer to a proposition that the Tribunal determined the matter by reference to the applicant’s ability to relocate. There is no such finding. 

2. On the face of the Tribunal’s decision, the Tribunal correctly identified the relevant law and the applicant had a real and meaningful hearing before the Tribunal.

3. On the face of the Tribunal’s reasons, the Tribunal had a genuine intellectual engagement with the applicant’s claims and evidence and made dispositive findings that were open for the reasons given by the Tribunal. 

4. The Tribunal did accept that the applicant was the subject of two incidents in 2004 and 2006, but given the end of the civil war and the applicant’s father’s ability to continue working as well as the applicant’s life returning to normal, made adverse findings that were open, logical and rational.

5. Grounds 1 and 2, in substance, invite impermissible merits review. 

6. No jurisdictional error is made out by grounds 1 and 2. 

Ground 3

1. In relation to ground 3, the applicant seeks to take issue with the adverse credibility findings made by the Tribunal. This reflects the disagreement with the adverse findings.  The Tribunal provided logical reasons for its adverse findings including the end of the civil war and the applicant’s life returning to normal. This is an evident and intelligible justification for the adverse findings.

2. It is apparent from the Tribunal’s reasons that the Tribunal did, in fact, accept that the applicant was the subject of two incidents in 2004 and 2006. The Tribunal gave logical and rational reasons as to why the applicant did not meet the refugee criteria or the criteria in respect of complementary protection. 

3. Ground 3 is, in substance, an invitation to impermissible merits review. 

4. No jurisdictional error is made our by ground 3. 

5. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 3 November 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 10 February 2021