Alm20 v Minister for Immigration

[2020] FCCA 2582

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALM20 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2582

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Nepal – applicant substantially disbelieved and other fears found not to be well founded – no jurisdictional error asserted – no arguable case of jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.5J

Cases cited:

WZAVW and the Minister for Immigration [2016] FCA 760

Applicant: ALM20

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 227 of 2020

Judgment of: Judge Driver

Hearing date: 14 September 2020

Delivered at: Sydney

Delivered on: 14 September 2020

REPRESENTATION

The applicant appeared in person by telephone

Solicitors for the Respondents: Ms Hillary of Australian Government Solicitor

INTERLOCUTORY ORDERS

(1)Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

(2)The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,100.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 227 of 2020

ALM20

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1.The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 8 January 2020.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2.Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 3 September 2020, which I adopt.

3.The applicant is a citizen of Nepal. He first arrived in Australia on 2 January 2016 as the holder of a three-month Business Visitor visa, and applied for a protection visa on 14 March 2016.[1]

[1] Court Book (CB) 1

4.The applicant claims to fear harm at the hands of Maoist rebels who had killed his father due to his active involvement in the Nepali Congress Party (NCP). The applicant says he is known to the Maoist rebels as an active member of the NCP against Maoism, and was targeted after his father’s killing. He claims that Maoists were forcing donations out of him, ran him out of his hospitality business, and held his daughter for ransom.[2]

[2] CB 32-34 and 40-43

5.On 3 August 2016 the delegate refused to grant the visa.[3]

[3] CB 59

6.On 23 August 2016 the applicant applied to the Tribunal for review of the delegate’s decision.[4]

[4] CB 69

7.The applicant appeared before the Tribunal at a hearing on 7 January 2020 to give evidence and present arguments.[5] The Tribunal was assisted by an interpreter in the Nepalese and English languages.

[5] CB 114

8.As noted above, on 8 January 2020 the Tribunal affirmed the decision under review.[6]

[6] CB 132

Tribunal decision

9.The Tribunal did not find the applicant to be a helpful witness, finding much of his evidence to be vague, sometimes self-contradicting, and all of it unsupported.[7]

[7] [44]

10.The Tribunal accepted with some difficulty that the applicant’s father was kidnapped by Maoists and disappeared in 1998, however placed more weight on the fact that the civil war ended in 2006.[8] Whilst the Tribunal accepted the applicant’s affiliations with the NCP, it did not accept that this, or the fact that he was the son of a former village defence chief, caused him to be a target for Maoist mercenary demands, noting his brothers have never been harmed by Maoists.[9]

[8] [45]

[9] [46]-[48]

11.The Tribunal found that the evidence strongly indicated that the applicant’s marriage was what caused him to abandon his education and political involvement, and not his father’s death.[10] Further, the Tribunal was not satisfied that the applicant had any genuine interest in politics beyond having been affiliated with the NCP student body whilst in high school.[11]

[10] [48]

[11] [48]

12.Whilst the Tribunal accepted the applicant moved his family to Kathmandu in 2007 and operated a restaurant for 6 years, it did not accept that the Maoist revolution was occurring during that time or that Maoists targeted the applicant and demanded free food.[12]

[12] [49]

13.The Tribunal placed weight on the fact that the applicant’s family have lived in Kathmandu since 2007 unharmed and DFAT[13] country information which reported Nepalese citizens who are political opponents of Maoists do not face violence, unless they participate in violent political demonstrations, in which case they face no greater threat of violence than other participants.[14] Although the Tribunal accepted that the applicant’s daughter was kidnapped in 2015 for money, it was not satisfied that there was any nexus between the kidnapping and s.5J(1)(a) of the Migration Act 1958 (Cth) (Migration Act). In addition, the Tribunal noted and gave weight to the fact that the kidnapping occurred in a remote part of Myagdi, where the Maoists have had more influence, and not in or near Kathmandu.[15] The Tribunal also had regard to state protection and the safety measures taken by the authorities in Nepal.[16]

[13] Department of Foreign Affairs and Trade

[14] [51]

[15] [52]

[16] [53]-[54]

14.Ultimately the Tribunal found that the applicant’s family enjoys effective state protection in and around Kathmandu from violent groups and hence was not satisfied that the applicant faces a real chance of being persecuted in Nepal.[17] In the alternative, the Tribunal considered that the applicant has third country protection in India and has not taken all possible steps to avail himself of the protection India provides.[18]

[17] [55]

[18] [57]

15.For similar reasons, the Tribunal was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Nepal, there is a real risk that the applicant will suffer significant harm.[19]

[19] [58]-[70]

The current proceedings

16.These proceedings began with a show cause application filed on 3 February 2020.  There are nine numbered paragraphs under the heading grounds of application:

1. I have been a temporary resident of Australia since 02/01/2016 living in 27/11-15, Bond Street currently.

2. I sought protection from Australian government and applied for protection visa after I arrived.

3. That application was refused on 03/08/2016.

4. After that I applied to review the Application in Administrative Appeals Tribunal on 23/08/2016.

5. 07/01/2020 and explained all of my situation through an Interpreter. I attended a personal Interview in AAT on

6. Unfortunately, that application was also declined.

7. I am seeking legal decision from the court about my application which was refused from Tribunal.

8. I am making this application on 03/02/2020.

9. When I get asked to provide my previous documents, I will submit to the court in hard copies.

(errors in original)

17.All of the grounds suffer from the defect that no jurisdictional error is asserted.  The application was, on its face, also defective, in that, although the application sought a writ of certiorari, it did not seek any other relief. I confirmed with the applicant that he was seeking a writ of mandamus to return the case to the Tribunal, and checked the appropriate box on the application form. 

18.I have before me as evidence the affidavit filed with the application, and the book of relevant documents filed on 26 March 2020.  The Minister’s submissions refer to a transcript and unfiled affidavit having been served on the Minister on or about 3 April 2020.

19.The affidavit and transcript were never filed.  I have not seen them.  I raised the issue of the unfiled transcript with the applicant.  He was able to confirm that he arranged for a transcript to be prepared from the sound recording of the Tribunal hearing.  He was unable to tell me who sent it to the Minister’s solicitors, or why.

20.The applicant has had a generous opportunity to file and serve an amended application or to introduce evidence.  He has not taken up those opportunities since procedural orders were made by a registrar on 27 February 2020.  On the face of the grounds as raised, the Minister cannot properly reply.

21.I accept the Minister’s submission that no arguable case of jurisdictional error is raised by the application.  I also accept that the absence of any particulars of asserted error is a sufficient basis to dismiss an application for judicial review.[20] 

[20] CWZAVW and the Minister for Immigration [2016] FCA 760 at 35

22.I gave the applicant two opportunities at today’s show cause hearing to raise orally any issue of concern to him.  He was unable to put anything material.  Neither is any arguable case of jurisdictional error apparent to me from my own reading of the material.  I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal.

23.I will therefore order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

24.In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $3,100.  The applicant inquired about time for payment but did not oppose the making of the costs order.

25.I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,100.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 17 September 2020