Akg18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 215
•8 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AKG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 215
File number(s): SYG 217 of 2018 Judgment of: JUDGE LAING Date of judgment: 8 March 2024 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal failed to comply with s 425 of the Migration Act 1958 (Cth) – whether the Tribunal failed to address a claim – application dismissed Legislation: Migration Act 1958 (Cth) ss 36, 425 Cases cited: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503
BEG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 660; (2020) 170 ALD 266
Stowers v Minister for Immigration and Border Protection [2018] FCAFC 174; (2018) 265 FCR 177
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 256 FCR 593
Division: Division 2 General Federal Law Number of paragraphs: 32 Date of hearing: 21 February 2024 Place: Sydney Counsel for the Applicant: Mr D Godwin Solicitor for the Applicant: Brett Slater Solicitors Counsel for the First Respondent: Ms K Hooper Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 217 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AKG18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
8 MARCH 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
BACKGROUND
The applicant, who is a citizen of Nepal, applied for a protection visa on 27 May 2015.
On 8 December 2015, the Delegate refused to grant the protection visa.
The applicant applied to the Tribunal for review of the Delegate’s decision on 15 December 2015. He attended a hearing before the Tribunal on 2 November 2017.
On 5 January 2018, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNAL’S DECISION
The Tribunal considered claims and evidence before it at [12]-[31] of its decision, before making the following findings at [32]-[39] (footnote omitted):
32.Having considered all the applicant's claims and all the evidence, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he embellished some of his claims and fabricated others for the purpose of obtaining a Protection visa.
33.The Tribunal accepts that the applicant was born on [redacted] in Nepal. The Tribunal accepts that, after completing his studies in Nepal, he worked in two family owned businesses. The Tribunal accepts that he first came to Australia on [redacted] as the holder of a subclass 573 Student visa. The Tribunal accepts that he has worked and studied in Australia.
34.The Tribunal accepts that there was an earthquake in Kathmandu on 25 April 2015 followed by a large number of aftershocks which killed or injured thousands of people.4 The Tribunal accepts that the applicant's parents had closed their shop and gone to attend a medical appointment when the earthquake struck on 25 April 2015. The Tribunal accepts that they have not been heard from since then and are presumed dead. The Tribunal accepts that their bodies have not been recovered. The Tribunal accepts that their home and three trucks were damaged as a result of the earthquake. The Tribunal accepts that 18 members of the applicant's extended family were lost in the earthquake.
35.The Tribunal accepts that the applicant returned to Kathmandu [in] 2015 in the hope of locating his parents. The Tribunal accepts that he offered money to some men to help him find his parents and that they hit him on his back and stole his wallet, money and the photographs he carried of his parents. The Tribunal accepts that he reported this theft to the Police and that they told him that they would follow it up. The Tribunal does not accept that the men who hit him and stole his wallet, money and photographs did so for any politically motivated reason. The Tribunal is of the view that they were opportunistic criminals and that he was the victim of a criminal act. The Tribunal is also of the view that, whilst the Police were willing to assist him, it is highly likely that they had more urgent and pressing matters to deal with in the aftermath of devastating earthquakes in Kathmandu that had killed or injured thousands of people and destroyed or damaged property.
36.The Tribunal accepts that, as a result of having lost his money and wallet, the applicant was left in a situation where he was unable to pay for food or accommodation and had to seek help where it was available. The Tribunal accepts that he sought assistance from UNHCR workers in Kathmandu and was advised to return to Australia as he had a visa that enabled him to do so. The Tribunal accepts that when he left Kathmandu and returned to Australia on [redacted] he accepted that his parents were dead and that it was unlikely that their bodies would be recovered.
37.The Tribunal accepts that the applicant has inherited his parents' estate. The Tribunal does not accept that Maoists or Union parties have taken adverse possession of his parents' house/land and threatened to kill him if he returns there. It follows that the Tribunal does not accept any of his claims that flow from that. The Tribunal does not accept that he has no family or friends left in Nepal. The Tribunal does not accept that he will not be able to relocate within Nepal if he wishes to do so. The Tribunal does not accept that the Nepali authorities will not be willing and able to protect him.
38.The Tribunal accepts that the applicant does not wish to return to Nepal and would prefer to live and work in Australia. The Tribunal [sympathises] with him for the loss of his parents and understands his reluctance to return to the place of their death. The Tribunal is of the view that the studies he has undertaken in Australia, his work experience here and the English language skills he has acquired here will stand him in good stead in obtaining employment in Nepal and in Kathmandu in particular. The Tribunal does not accept that he will not be able to find accommodation and employment in Nepal.
39.In view of the above findings, the Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm for any of the reasons claimed if he returns to Nepal now or in the reasonably foreseeable future.
Based upon the above, the Tribunal concluded that the applicant was unable to meet the criteria under ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (Act) for the grant of the visa. Accordingly, the Tribunal affirmed the Delegate’s decision (at [40]-[47]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings through an application filed on 29 January 2018. The applicant relied upon an amended application filed on 14 December 2023 containing the following grounds:
1.The Tribunal failed to comply with s 425 of the Migration Act because the Tribunal did not give the applicant the opportunity to give evidence and arguments on an issue in the review:
i.The applicant claimed before the delegate that the persons who assaulted him and took his money in Nepal were government parties and communist parties;
ii. The delegate did not doubt this claim;
iii.At the hearing the Tribunal did not advise the applicant that his claim was in doubt; and
iv.The Tribunal found that the assault on the applicant was committed by opportunistic criminals and not persons identifiable at Government or Communists.
2. The Tribunal failed to address a claim:
i.The applicant claimed that he was assaulted, and money taken because his parents had refused to join political parties;
ii.in context this was a claim that the applicant had been imputed with an opinion opposed to the government parties because of his parent’s actions; and
iii. The Tribunal made no finding on this claim.
Ground 1 – did the Tribunal fail to comply with s 425 of the Act?
Ground 1 contended that the Tribunal failed to comply with s 425 of the Act by not giving the applicant the opportunity to give evidence and arguments on an issue in the review. That issue was contended to be the veracity of the applicant’s claim that the persons who assaulted him and took his money in Nepal were “government parties and communist parties”. The applicant submitted that the Delegate had not doubted this claim but the Tribunal had, instead, found that the assault upon him was committed by opportunistic criminals and not persons identifiable as “Government or Communists”.
Section 425 of the Act provides:
Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
The applicant relied upon the following summary of principles provided in BEG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 660; (2020) 170 ALD 266 at [54]-[57] per Perry J:
54First, s 425(1) of Division 4 of Part 7 of the Act, relevantly provides that the Tribunal must invite the review applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Having regard to the terms of s 422B(3), s 425(1) must be applied in a way that is fair and just: BZAID v Minister for Immigration and Border Protection [2016] FCA 508; (2016) 242 FCR 310 at [49]. The evident purpose of s 425 is to “provide an applicant with the opportunity to present evidence and argument relating to the issues arising in connection with the decision under review”: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) at [60] (by analogy). As such, the invitation must be “meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case”: Li at [61]. In other words and as the Minister accepted, the invitation under s 425(1) to the review applicant is to a “real and meaningful” hearing: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 (SCAR) at [37]; Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 (Singh) at [61]-[63]; First Respondent’s Further Supplementary Outline of Submissions filed on 8 November 2019 (Minister’s FSOS) at [3].
55 Secondly, this obligation is an objective one. As the Court explained in SCAR:
37.…it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a ‘real and meaningful’ invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.
56Thirdly, as Logan J explained in BXK15 v Minister for Immigration [2018] FCAFC 76; (2018) 261 FCR 515 to which the Minister’s counsel drew the Court’s attention:
77.It was, rightly, common ground that the hearing to which an applicant was invited under s 425 of the Act had to be “real and meaningful” (Minister forImmigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [37]) and that this may entail an obligation on the part of the Tribunal to bring to the attention of an applicant any issue arising in the review that was not obvious in the circumstances (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [32]-[43]).
57Fourthly, as the Minister submitted, s 425 of the Act did not require the Tribunal to actively assist the appellants in putting their case, or undertake an inquiry in order to identify what that case might be: SCAR at [36] (the Court). Nor was the Tribunal required to conduct an inquiry to ascertain whether the appellant's case might be better put or supported by other evidence: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 at [36] (Keane CJ) and [49] (Emmett J).
At the hearing before the Court, the applicant relied upon the case of Stowers v Minister for Immigration and Border Protection [2018] FCAFC 174; (2018) 265 FCR 177 at [48]-[49], where it was considered that a “practical, direct” and “non-misleading” approach must be taken to disclosure. The Minister observed that this concerned common law procedural fairness and submitted that it should not detract from the statutory context and requirements of s 425 of the Act, which were the subject of the decision in SZBEL. In any event, it was not disputed that the disclosure of the issues in question needed to occur with sufficient clarity to meaningfully alert the applicant to the issues arising in relation to the decision under review.
The applicant contended that the Tribunal did not adequately put him on notice that the truth of his claim that his robbery was by “Government or Communist” affiliates was in issue. Although the applicant accepted that the Tribunal had squarely put to him that it was in issue whether he had been threatened with being killed, there was no direct challenge to his evidence that the persons who assaulted him and stole from him were identifiable as “Government or Communists”. The applicant submitted that this was not achieved by the Tribunal’s assertion that the applicant was a victim of a criminal act. He submitted that the Tribunal therefore did not adequately alert him that a dispositive issue was whether the assault on him was committed by opportunistic criminals and not persons identifiable as “Government or Communists”.
The Minister submitted that the Tribunal sufficiently put the applicant on notice that all aspects of his claim were in issue, including the identity and motivation of the perpetrators of the robbery. This was said to be demonstrated by the following parts of the transcript of the hearing before the Tribunal, when read together (the emphasis added to the below extracts, in bold, has been taken from the Minister’s written submissions):
(a)T2 Q4, 5: confirmation that the applicant had open and in front of him, and had read and understood, the definitions of a refugee and complementary protection.
(b)T15:
Q163 So tell me why you say you need protection in Australia.
A‘Cause um, when I ah, get back there after the incident happened and um, um, I was looking for my family and there was no one and um, I tried to seek for help and I couldn't find any help and some, some local parties, like government parties, wearing some flag in their forehead and they just robbed me and they always used to chase to my parents, sometimes my parents told me that this thing is happening here and yeah, I've been, I've been threatened too ah, in that place and they robbed my money and that…
(c)T16-17:
Q166So you said some local people wearing a flag robbed you. Tell me about that.
AI think um, yeah, they are like um, like political parties ah, the Maoists, and they have a youth ah, youth parties and always used to wear a flag, and then, yeah, they, there were like ten, fifteen, more than that people and I was, I was, I didn't know that they were them and um, I was telling them about my families and all that. I told like there's some stuff in my bag, like my moneys and my everything and they, they robbed me and they threatened me, like, if you ever come back in this place, and I had to go out from there and I was looking for help, I didn't had a - - -
Q167 How did they rob you?
A:They were just catching me and they're hitting me and I had money in my bag and they took it off and - - -
Q168: What did you, what did you do?
A: I was, I was just trying to escape
Q169: What threat did they make?
A:They told me like, if you ever come back in this place, if they will see me around in somewhere then they will kill me.
Q170 Why did they want to kill you?
A I'm, I'm not sure about that.
Q171 They've just met you, you've told them what happened.
A Yeah.
Q172 And they tell you they want to kill you? That doesn't make sense.
AYeah, right, 'cause um, my, my parents used to work in, like, used to do social services and all that and every time they had to ..... all those local union parties for donation and all that and they used to give it and, like, and they always, they sometime, they, they got like threatened, like, coming to and come to join the parties and all that but they always used to refuse it 'cause they don't want to go in a political system and um, there was a youth ..... next to our home area and um, yeah, they already knew that our, our condition.
Q173 But why would they want to kill you, what does that achieve?
A I'm not sure ma'am.
(d)T20:
Q196This is the application that you filled out. Question number 92. "Did you experience harm in that country?" "First I have lost my family. My parents in earthquake of 7.9 Richter Scale occurred in 25 April and I went back to see to rescue my family. I got hit by government parties and Communist parties and also saved from 7.4 Richter Scale that occurred on two weeks after the first shock." So which government party hit you?
AThe Maoist is ruling um, the countries as a, as a big party and they are running as a Prime Minister and the youth of that union party robbed me.
Q197 O.K. So you were robbed, you say you were hit.
A Yeah.
Q198There's no mention of you being threatened, there's no mention of them telling you not to go back there and they'll kill you if you do. Nothing.
A Yes, I didn't know that I had to write those, those things.
Q199 Well, we asked you did you experience harm.
AI, I thought like they beat me on the backside of my back with, with a big, the, the .... kind of woods and I've been hitten, so I thought just that harm so I have to mention that.
Q200Nothing about threats to kill you either when you spoke to the Department. What do you think would happen if you go back to Nepal?
AI'm not sure. Maybe I'll lose myself 'cause that's the only place that I, I can go and that's already been occupied by them so there is no place to go in there and if I, if will go in that place then they will kill me definitely.
(e)T21:
Q203So you're talking about what happened after the earthquake. There was chaos in Nepal after the earthquake. Everybody was in the same situation then, dealing with missing people, people who had died, property damage, chaos. We're now several years on from that, so I'm now looking at the future. A lot of that stuff has been cleared out, it's been repaired, life is back to normal. Why are you not able to go back to Nepal?
ABecause I don't have any place to go in there 'cause whatever I had left, it's already been captured and I've got no one, no my family, no my relatives, there is no place for me to go.
(f)T24:
Q219…This is now your opportunity if there's anything else you would like to say to me in relation to your visa application.
AFirst of all thank you. Like um, I've got an opportunity to stay here and I was really looking for that and I got that.
…
Q225 Yeah. O.K. So was there anything else you wanted to say today?
A It will be very hard for me to start again in, like - - -
Q226I understand that what has happened is a tragedy. I understand that you feel that you have nothing to go back for and you will not have family to go back to or a home to go back to. I understand all of that. But as I explained to you at the beginning of the hearing I have to make the decision in accordance with the laws, so I have to look at whether you satisfy the requirements for this visa. This visa is issued for a very specific purpose, so I need to get information from you to enable me to make an assessment of whether you satisfy those requirements. So do you think you've told me everything you wanted to say today?
A No.
Q227 No.
A Yeah, I've told you everything.
(g)T25:
Q230So this is the information. The records of the Department of Education indicate that you have had nine COEs, Confirmation of Enrolments, cancelled. It indicates that you did not commence a course on the 4th of September, 2014. It indicates that on the 18th of November, 2014, you deferred your studies but then you did not re-enrol. It indicates that you were issued with a Notice of Non-Compliance by the Department of Immigration. So this may lead me to the conclusion that your student visa was going to be cancelled and you then applied for a protection visa so that you can remain in Australia and not because you were in need of protection. Would you like to make any comment on or response to that information now?
(h)T27:
Q237O.K. Now, the issue that I have raised with you is the issue, is the reason why you applied for protection. This information from the Department of Education concerns me because it could lead me to the conclusion that the only reason you applied for this visa is to delay your stay in Australia.
A It's, it's not that reason, Member….
(i)T33:
Q259:All right. O.K. But I'm talking about the future, I'm not talking about - the time you went back to Nepal the whole country was in chaos, in Kathmandu particularly, and that's not what I'm looking at now, I'm looking at the reasonably-foreseeable future. O.K. I understand you don't want to go back. I understand you have a better life here than you would in Nepal. I understand that you have no family there, but that doesn't make you a refugee. This visa is only for people who are refugees.
…
Q260This is not a visa - I don't think from what you've told me today that you satisfy the requirements for this visa. I have serious doubts that these people threatened to kill you. You've made no mention of it your visa application or during your interview with the Department.
AI think I have - sorry, Member - I think I've already mentioned that ah, I've been robbed and been ah, hit by wooden blocks and rods and they tried to kill me, I've already mentioned that.
Q261Yes, but you were the victim of a crime. They saw you had money and they stole your money. Same as what happened in India. That's a criminal offence. That's not persecution.
A So I, like if - - -
Q262You were there at a time when, you know, people had lost everything, so here's somebody walking around with cash on him, of course you become a target for someone wanting to steal your money.
AO.K. And like, if, if I, I will go back and ah, like ah, I'll go back in Nepal and I try to ah, relocate in some areas, what if, like, if that people find me or like, somehow I have to, I have to be in the places that I am ..... I have to go, what if that people find me and they will do the same thing that, that they already did again there?
Q263Why would they want to find you, why would they be interested in finding you?
ABecause they, they already occupied my, my property, my land, everything, and I will definitely seek help and I already did that and I try and it's somehow the people knows that is the things happening and I will not be alive at that time.
…
Q267I understand that. I understand a hundred per cent what you are saying, but that doesn't make you a refugee. This is given for very specific purposes such as somebody would face the death penalty if they go back or someone is going to be persecuted, arrested, tortured, put in gaol because of their religion or because of their race or because of their nationality. That doesn't apply to you. Or because of their political views. It doesn't apply to you. You've, you were the victim of a criminal act when you went back in 2015. You were there at a time just after an earthquake where it was chaos. There was chaos in Kathmandu. Kathmandu has been cleaned up since then. Life has returned to normal. So we're not talking about what it was like when you were there in May 2015, we're talking about now and the reasonably foreseeable future. I have serious doubts. I know it will be difficult, I know you don't want to do it, I know it won't be economically as, you won't be as well-off economically as you are here, but that doesn't make you a refugee…
I accept that the Tribunal in the above extracts did not, in terms, put to the applicant that it may consider that the assault was committed by opportunistic criminals rather than persons identifiable as “Government or Communists”.
However, the Tribunal did not directly find that the persons who assaulted the applicant had no government or political affiliation. Rather, the Tribunal at [35] rejected that they assaulted and stole from the applicant for any politically motivated reason, finding instead that they were “opportunistic criminals”. Given this and the Tribunal’s rejection that the applicant had been threatened, the Tribunal was not satisfied that the applicant was at risk of harm for the reasons claimed (at [35]-[39]). This was regardless of any affiliation of the attackers with the “Government or Communists”. I am therefore not persuaded that whether the attackers had some affiliation with the “Government or Communists” was relevantly placed in issue by the Tribunal, such that this had to be identified to the applicant.
Having regard to the above, I accept the Minister’s submission that the Tribunal’s exchanges with the applicant at hearing were sufficient to identify to the applicant the relevant dispositive issues in question (namely, whether the men who stole from him “did so for any politically motivated reason” and whether, by reference to this, the applicant may face a real chance of relevant harm in the foreseeable future). This was identified by the Tribunal effectively putting to the applicant that:
(a)his account of being threatened did not appear to “make sense”, and then expressly doubting his explanation that the threat was linked to politics by putting to the applicant “why would they want to kill you, what does that achieve?”;
(b)his claims regarding the incident appeared to have evolved since his protection visa application;
(c)the Tribunal had “serious doubts” about his account that he had been threatened;
(d)the applicant was the “victim of a crime”, rather than a victim of persecution, where it appeared that people “saw he had money” and stole it;
(e)there was information indicating that the applicant had applied for a protection visa so that he could remain in Australia and not because he was in need of protection; and
(f)the applicant did not appear to meet the definition of a “refugee” as he did not appear to face harm due to his race, nationality or political views but rather appeared to have simply been the “victim of a criminal act”.
At the hearing before the Court, the applicant submitted that the Tribunal’s approach lacked the requisite clarity in circumstances where the Tribunal had not directly stated to the applicant that the motivations of the perpetrators may be in issue and had instead challenged other aspects of his account such as whether he was threatened. Although the Tribunal had raised whether the applicant was a refugee, this was a technical concept and the applicant was unrepresented before the Tribunal. The applicant submitted that the Tribunal had also informed him at the beginning of its hearing that it would conduct the hearing in three parts, the third concerning “legal issues” (rather than issues with his account): T2, Q7.
However, I accept the Minister’s submission that it was sufficiently clear from the above extracts that the Tribunal may consider that the applicant had simply been the “victim of a criminal act” that was not motivated by political considerations. This was effectively put to the applicant by the Tribunal, in suggesting that the applicant was the “victim of a crime”, rather than a victim of persecution, where it appeared that people “saw he had money” and stole it. Although the applicant was unrepresented before the Tribunal, he had confirmed that he had understood the definition of a refugee. Further, the Tribunal expressly suggested to him that he may not meet the definition because he did not appear to face harm for reasons such as political views, because he had simply been the “victim of a criminal act”.
I do not consider that the clarity of the communication was belied by the Tribunal’s suggestion early in the hearing that it was going to conduct the hearing in three parts. The third part, where it was foreshadowed that legal issues would be discussed, was not inconsistent with what the Tribunal did in raising with the applicant whether his claims were capable of meeting the legal criteria for protection.
As was observed by the Minister, the Tribunal was not required to provide the applicant with a “running commentary” regarding its evaluation of the evidence that had been given: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [29]-[48] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). I accept the Minister’s submission that it was sufficiently apparent from the nature of the Tribunal’s questioning in this matter that the applicant’s account of what had happened during the assault, and in particular the motivations of the perpetrators, was potentially in issue. As was suggested by the Minister, the Tribunal’s questioning was further capable of indicating to the applicant that the entirety of his account in this regard was in issue, with the Tribunal suggesting to the applicant that (contrary to what he had claimed) he had applied for the protection visa not because he needed protection, but only because he wanted to remain in Australia.
For these reasons, I am not persuaded that ground 1 ought to succeed.
Ground 2
Ground 2 contended that the Tribunal failed to address a claim that the applicant was assaulted, with money taken, because his parents had refused to join political parties. This was said to have given rise to a claim that the applicant had been imputed with an opinion opposed to the government parties because of his parent’s actions.
I accept that the applicant claimed that his parents had refused to join political parties in connection with his claim to have been assaulted and robbed. I do not accept, however, that this gave rise to a claim that the applicant personally held any imputed political opinion or that such a claim relevantly arose on the materials: see AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at [18] (Collier, McKerracher and Banks-Smith JJ). Whilst the applicant may have claimed an association with his parents, I do not accept that this clearly gave rise to any claim that he personally held any particular political opinion.
Regardless, I accept the Minister’s submission that the Tribunal effectively rejected that the applicant would face a real chance of relevant harm by reference to any implied political opinion or association of relevance in the Tribunal’s findings of greater generality: see WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 256 FCR 593 at [47] (French, Sackville and Hely JJ). This is because the Tribunal rejected at [35] that there was any political motivation or reason for the attack (regardless of any political affiliation on the part of the attackers). The Tribunal found that the attack was instead simply motivated by criminal opportunism (by persons who saw the applicant had money and wanted money). On this basis, the Tribunal did not accept that the applicant was at risk of relevant harm in the foreseeable future for the reasons he had claimed (at [39]).
At the hearing before the Court, the applicant additionally submitted that the Tribunal had failed to take into account a clearly arising claim that he would be unable to make a livelihood in Nepal in the future by reason of his political association with his parents. This was by reference to the following evidence in the transcript of the hearing before the Tribunal (T36, Q273):
AI know I cannot do anything in um, in Nepal 'cause ah, if, if some, some parties, like they are taking someone's places then it will definitely take someone's other places as well 'cause um, the same party is ruling the whole country and there is, you know, doubt that I can start doing businesses or start up again in the, in the Nepal, 'cause they already occupied my, my property and they already take over everything whatever I have got, so if I had to start from then I have no addresses and from which bottom line I could re-start if I don't have any address, proper address.
The Minister observed that this went beyond the ground pleaded under ground 2. This may be accepted, but, in any event, I accept the Minister’s further submission that the above did not give rise to a claim of the nature suggested by the applicant.
As was found in AYY17 at [18], a finding that a claim clearly emerged such that it was required to be considered is “not to be made lightly”. The fact that a claim “might” be said to arise from materials is insufficient.
In the part of the transcript relied upon, the claim made was referable to the applicant’s claims that Maoists or Union parties had taken adverse position of his parents’ house or land and the applicant therefore had no proper address. Within this context, the applicant doubted that he would be able to “start up again”, as politically affiliated persons had taken over his property. The Tribunal rejected at [37] that his property had been taken and “any of his claims that flow from that”. At [38], it further rejected that the applicant would be unable to find accommodation or employment in Nepal. Relatedly, as considered above, the Tribunal rejected that the applicant had been attacked and robbed on account of his parents’ political views.
Having regard to the above, I am not persuaded that the Tribunal failed to determine any claim that was made or clearly emerged from the materials before it. I do not accept that some broader, freestanding claim was made or relevantly arose that the applicant faced future harm on account of his parents’ political views, beyond the claims that were considered and rejected by the Tribunal. I accept the Minister’s submission that to find otherwise would involve an impermissible amount of creative activity on the part of the Court.
CONCLUSION
For the above reasons, the application before the Court must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Deputy Associate:
Dated: 8 March 2024
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