AJG15 v Minister for Immigration
[2015] FCCA 1892
•10 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AJG15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1892 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration and Refugee Division) – whether the Tribunal failed to consider an integer of the applicant’s claims – impermissible merits review – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.476 |
| Applicant: | AJG15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL (MIGRATION AND REFUGEE DIVISION) |
| File Number: | SYG 925 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 10 July 2015 |
| Date of Last Submission: | 10 July 2015 |
| Delivered at: | Sydney |
| Delivered on: | 10 July 2015 |
REPRESENTATION
| The applicant appeared in person |
| Solicitors for the Respondents: | Mr E. Elliott DLA Piper |
ORDERS
The name of the second respondent been amended to the Administrative Appeals Tribunal (Migration and Refugee Division).
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $4100.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 925 of 2015
| AJG15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL (MIGRATION AND REFUGEES DIVISION) |
Second Respondent
REASONS FOR JUDGMENT
This is an application, within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth), for a Constitutional writ in respect of the decision made by the Tribunal on 9 March 2015 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.
The applicant was found to be a citizen of Nepal and is undertaking a Bachelor of Nursing degree which she has not yet completed. The application identifies the following grounds:
1. The Second Respondent made jurisdictional error by failing to consider a relevant consideration.
Particulars
a) The Second Respondent misunderstood the applicant's claims by finding that she did not have a subjective fear of harm upon her return to Nepal.
b) The Second Respondent failed to consider that the only reason the applicant was less reluctant to return to Nepal after completing her degree was because it would aid her in relocating to a different area in Nepal to flee her community and the Maoists, not because she did not have a subjective fear after completing her degree.
2. The Second Respondent made jurisdictional error by failing to understand and consider the crux of the Applicant's claim.
Particulars
a) The Applicant stated that she would be able to return to Nepal only after completion of her degree because after obtaining the Bachelor. Degree in Nursing would enable her to be self-sustainable and she would not need to rely on her family and community members for her livelihood.
b) The applicant is a genuine student completing her Bachelor Degree in Nursing which will end in December 2015 and had provided all claims and statements truthfully.
The applicant submitted that she was doing her Bachelor of Nursing, and she wanted to be able to finish that degree. In response to the invitation as to whether there was anything further she wished to put in answer to the respondent’s submissions or in support of her application, the applicant conveyed there was nothing further she wished to put.
The first respondent submitted that reference in paragraph 1(b) of the application to a fear by the applicant of returning to her community was not a fear that was raised by the applicant before the delegate or Tribunal and was not a claim to persecution that arose on the face of the material before the Tribunal.
The second respondent submitted that the claims identified by the applicant in the statutory declaration in support of the application for a protection visa were in essence twofold: first, being ostracised upon return to Nepal without completion of her studies; and, secondly, a fear from armed revolutionary forces if the applicant refused to pay a donation. These armed revolutionary forces were identified by the applicant before the delegate as being a fear in respect of Maoists.
The first respondent took the Court to the statutory declaration made in support of those claims, which in essence the delegate summarised at page 50 in the reasons of the delegate. The clarification of the identity of the armed revolutionary forces was found on page 56. The first respondent also took the Court to the findings of the Tribunal consistent with the identification of the claims by the applicant before the delegate being confined to the fear of being ostracised upon returning without completing her degree and the fear relating to the Maoists.
The first respondent took the Court to the submissions by the lawyers and migration agents on behalf of the applicant made on 9 February 2015, prior to the hearing before the Tribunal that took place on 20 February 2015. In those submissions, the two claims identified were as follows (CB 86):
5. The Applicant fears that upon return to Nepal, she will be targeted by the Maoists and forced to pay donations, abused, kidnapped or killed due to her perceived wealth from living in Australia.
6. The applicant also fears that she will face societal discrimination and criticism due to her status as a 28 year old unmarried single woman.
The respondent submitted that the Tribunal directly identified the applicant’s claims in para.13 as follows:
13. …If the applicant is to return to Nepal, without completing her studies, her family will be socially ostracised. They will be boycotted at social functions. The applicant needs to stay in Australia to complete her studies as a result.
The Tribunal identified that there was a submission advanced in this regard that the applicant was a member of a particular social group who feared being socially ostracised. The Tribunal also identified the claim in respect of the armed revolutionary forces seeking donations from the applicant and her fear in that regard, as well as the applicant identifying that the armed revolutionary forces being referred to were the Maoists.
The Tribunal also identified the claim of the applicant fearing to return to Nepal as a single woman and returning from overseas. The first respondent pointed out that the applicant conveyed that her fear in respect of the claims advanced was one where the applicant asserted she held no such fear if her studies were completed. In this regard, the first respondent referred to para.19 of the Tribunal decision as follows:
19. The Tribunal in the hearing referred the applicant to evidence she gave in the interview with the delegate of the Minister in which she said that it was her intention to return to Nepal following the completion of her nursing studies. The applicant confirmed that this was her intention. The Tribunal asked the applicant what it was she feared about returning to Nepal before completing studies. The applicant indicated that it will be difficult for her mentally, and that it would be difficult for her family who have spent a lot of money on her education. People will ask about her studies and it will reflect badly that she has not completed them.
The first respondent also identified the Tribunal’s discussion of the applicant’s fear of Maoists in para.21 in relation to her returning after completion of her degree, relevantly as follows:
21. The Tribunal asked the applicant about her fear of Maoists. The applicant said that she will be perceived as having money, having lived overseas and may be targeted for money. The applicant indicated that she has never been asked for money before. She indicated that her father had been asked, as was everyone in Nepal, but did not have details. The Tribunal sought to confirm with the applicant that, notwithstanding concerns about Maoists, it would still be her intention to return to Nepal after completing her studies. The applicant said that this was correct.
In relation to the applicant’s fear of being a single woman, the first respondent drew attention to the last sentence of para.22:
22. …The applicant said that she did not have a difficulty with returning as a single woman, as such, but her real concern was returning without having completed her studies.
The first respondent also drew attention to the acknowledgement by the Tribunal of the applicant’s candour and her willingness to return to Nepal, relevantly as follows:
27. The applicant in the hearing was candid to the extent of explaining her willingness to return to Nepal when finishing her studies. …In particular, in terms of the applicant’s claims that her family have been extorted by Maoists, the applicant was unable to provide any details of this. The Tribunal has credibility concerns with this aspect of the applicant’s evidence which is detailed further below.
The first respondent submitted that the claims identified by the applicant, in terms of fear of returning before completion of her studies, fear of harm from Maoists and fear of being harmed by reason of being a particular social group of Nepalese who having been living overseas and being a single woman, were properly identified by the Tribunal in para.30.
The first respondent drew attention to the findings by the Tribunal, which were relevantly as follows:
33. The Tribunal has not found any independent evidence that supports the position that Nepalese students, studying overseas, including Nepalese women studying overseas, face a real chance of serious harm as a result of returning to Nepal without completing their studies. The Tribunal does not consider that the harm the applicant fears in returning to Nepal without completing her studies could be said to rise to the level of persecution (serious harm) for the purpose of the Refugees Convention or the Act.
34. The Tribunal, therefore, is not satisfied that the applicant holds a well-founded fear of persecution as a result of not completing her studies, in the reasonably foreseeable future, should return to Nepal, for any Convention reason, including as a member of a particular social group of those who fear being socially ostracised.
…
38. The applicant has referred to such enforced donations having been made by her family in the past, but she has been unable to provide detail as to this. The lack of detail causes the Tribunal to not be satisfied of the applicant’s claims in this respect. The Tribunal considers that if her family had been subject to actions by Maoists that resulted in harm, she would be aware of the details. The Tribunal is not satisfied that the applicant’s family, or the applicant, have been subject to any actions by Maoists that have constituted serious harm.
39. In any event, the applicant does not have a subjective fear of returning to Nepal on the basis of Maoists groups or otherwise. As the applicant indicated quite clearly in giving evidence to the Tribunal in the hearing, she intends to return to Nepal when she completes her studies. As the applicant does not hold a subjective fear of harm she fails to fulfil a key criterion of the requirements under the Refugees Convention.
40. The Tribunal, therefore, is not satisfied that the applicant has a well-founded fear of persecution in Nepal in the recently foreseeable future as a result of actions by Maoists, or as a result of being perceived as wealthy as having lived overseas, or for any other Convention reason.
…
42. The applicant indicated clearly in the Tribunal hearing that she does not hold a subjective fear of harm in returning to Nepal as a single woman, and her intention is to return to Nepal when she completes her studies. The applicant’s concern is returning as a woman who has not finished her studies, which has already been addressed.
43. In the absence of a subjective fear of harm of returning on the basis of being a single woman, a key criterion of the Refugees Convention is not satisfied. The Tribunal, therefore, is not satisfied that the applicant has a well-founded fear of persecution in Nepal in the recently foreseeable future, as a result of being a single woman.
The first respondent submitted that the applicant’s asserted claim of a fear of returning to Nepal and the need to flee her community was not a claim that was raised by the applicant on the material before the delegate or the Tribunal.
It was not a claim with which the Tribunal should have ascertained from the material as being a claim by the applicant to a fear of persecution. The first respondent submitted that the claims of the applicant have been properly identified so far as the fear of Maoists and that there was accordingly no jurisdictional error within ground 1 of the application.
In relation to ground 2, the first respondent drew attention to the fact that the steps being taken by the applicant to pursue her degree were identified by the Tribunal in paras.12 and 13 and were the subject of deliberation and consideration in paras.31-35 and that accordingly, ground 2 was an impermissible merits review challenge and failed to identify any jurisdictional error.
In relation to ground 1, I accept the first respondent’s submission that the claim that the applicant advanced in paragraph 1(d) of the need to flee her community was not a claim raised on the material before the delegate or the Tribunal.
I accept the first respondent’s submission that the alleged claim of a need to flee the applicant’s community was not a claim that fairly arose on the material before the Tribunal. I find it was not an essential integer of the applicant’s claims that the Tribunal should have either identified or addressed. I find that there was no jurisdictional error by reason of the Tribunal not addressing a claim that was not advanced by the applicant or apparent on the material before the Tribunal.
I find that the Tribunal did properly identify the applicant’s fear in relation to the Maoists and I accept the first respondent’s submission that the Tribunal properly considered that claim and made adverse findings that were open on the material before the Tribunal.
In this regard, I have taken into account that the applicant arrived in Australia on 1 June 2008 on a TU572 vocational education visa which was valid until 2 August 2010 and that the applicant applied on 31 July 2010 for a TU573 Higher Education Sector Further Stay Student visa. It was refused on 3 September 2010 and that refusal was affirmed by the Migration Review Tribunal on 28 March 2013.
The applicant unsuccessfully sought ministerial intervention which was determined on 13 November 2013 and a further application for ministerial intervention was made on 3 December 2013 which was not determined until 10 January 2014.
In this regard, the Tribunal noted that the applicant had waited five years after arriving in Australia before applying for protection. The Tribunal raised concerns as to the credibility of the applicant in relation to the Maoist fears and the candid acknowledgement of the applicant and the willingness to return after completion of the degree. That being the applicant’s intention together with that history was all material that meant the adverse findings by the Tribunal were open.
Accordingly, I find there is no error of the kind identified in ground 1 of the application.
In relation to ground 2, I accept the second respondent’s submission that the Tribunal did identify the Bachelor of Nursing degree that the applicant was undertaking and that that was the subject of careful consideration by the Tribunal in its findings at paras.31-35 and it cannot be said that the Tribunal has failed to take into account a relevant consideration.
I accept the first respondent’s submission that ground 2 is, in substance, an impermissible merits review challenge and that ground 2 fails to identify any jurisdictional error. The application is dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 15 July 2015
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