ANC18 v Minister for Home Affairs
[2018] FCCA 1529
•12 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANC18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 1529 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a protection (subclass 866) visa – whether the Tribunal failed to consider the applicant’s claims individually – whether the Tribunal misinterpreted the applicant’s claims – whether the Tribunals reasons were affected by a reasonable apprehension of bias – whether the Tribunal failed to comply with s 425 of the Act – whether the Tribunal failed to comply with s 424A and s 424AA of the Act – whether the Tribunal took into account irrelevant considerations – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss. 424A, 424AA, 425, 476. |
| Applicant: | ANC18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 274 of 2018 |
| Judgment of: | Judge Street |
| Hearing date: | 12 June 2018 |
| Date of Last Submission: | 12 June 2018 |
| Delivered at: | Sydney |
| Delivered on: | 12 June 2018 |
REPRESENTATION
The Applicant appeared in person.
Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The oral application for an adjournment is dismissed.
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 274 of 2018
| ANC18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
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 9 January 2018 affirming a decision of the delegate not to grant the applicant a protection (subclass 866) visa.
The applicant was found to be a citizen of Nepal and his claims were assessed against that country. The applicant claimed to fear harm from Maoists if he returns to Nepal.
On 15 January 2016, the delegate found the applicant failed to meet the criteria for the grant of a protection visa. The delegate referred to the applicant’s long migration history, as follows:
14 January 2006 – Applied for a Student (Temporary)- TU-571 visa
8 April 2006 – TU-571 visa granted
8 May 2006 – Arrived in Australia
16 June 2006 – Applied for a further TU-571 visa with permission to work
27 June 2006 – TU-571 visa granted
1 June 2007 – Applied for a Student (Vocational Sector)- TU-572 visa
1 June 2007 – Associated Bridging Visa A (WA-010) granted
18 September 2007 – TU-572 visa granted
21 May 2009 – Applied for a further TU-572 visa
21 May 2009 – Associated Bridging Visa C (WC-030) granted
28 July 2009 – TU-572 visa granted
6 October 2010 – Applied for a further TU-572 visa
6 October 2010 – Associated WA-010 visa granted
22 December 2010 – TU-572 visa granted
21 June 2011 – Applied for a further TU-572 visa
23 June 2011 – Associated WA-010 visa granted
27 September 2011 – TU-572 visa refused
18 October 2011 – Tribunal review of TU-572 visa refusal commenced
10 April 2013 – Tribunal review of TU-572 visa refusal affirmed
8 May 2013 – Judicial review of TU-572 visa refusal commenced
19 February 2014 – Client withdrew Judicial review
7 April 2015 – Permanent Protection (XA-866) visa application commenced
22 April 2015 – Associated WC-030 visa granted
On 7 April 2015, the applicant sought a protection visa. The delegate did not accept the applicant’s claims or that of his family feared harm from the Maoists in Nepal and referred to both the delay seeking an application for protection, as well as family member Facebook profiles.
The Tribunal
The applicant lodged an application for review on 11 February 2016. By letter dated 23 October 2017, the applicant was invited to attend a hearing on 10 November 2017. The applicant appeared on that date to give evidence and present arguments and was represented by his migration agent. Prior to the hearing the migration agent had provided submissions to the Tribunal dated 2 November 2017. The Tribunal gave the applicant a further period of time for putting on further submissions and information, indicating that it would not make a decision before 17 November 2017. No further information was provided to the Tribunal.
The Tribunal referred to the applicant’s migration history and did not accept the applicant’s failure to visit Nepal since his arrival in Australia supported his claim he feared harm in Nepal. The Tribunal referred to the numerous student visa applications and the visa history of the applicant. The Tribunal, in the absence of medical evidence, was not prepared to accept the applicant’s claim that he had a mental health condition, or that it had affected the applicant’s actions or inactions in Australia, or his ability to present his claims. The Tribunal considered the documents referred to by the applicant relating to a land issue, however the Tribunal did not place any weight on those documents in light of the adverse credibility concerns in respect of the applicant and the country information that false documents can be readily obtained. The Tribunal found the applicant was not a witness of truth and that the applicant had fabricated accounts of events and claimed fears upon which he based his protection claims.
On the basis of the adverse credibility findings, the Tribunal did not accept the applicant and his family faced threats or harm in Nepal, or since he had been in Australia. The Tribunal did not accept the applicant’s account of Maoists having any interest in the applicant or his family, given their property or finances. The Tribunal did not accept any of the applicant’s claims, including those relating to Court proceedings in relation to land owned by his family in Nepal. The Tribunal did not accept the applicant was sent to Australia due to fear or concern for his safety, or that his family were requested to pay donations to Maoists at any time.
The Tribunal found the applicant’s family had moved out of their family home but have now returned and they continue to reside at the family home in Kathmandu. The Tribunal did not accept that the applicant’s family moving out of the family home had anything to do with the Maoists. The Tribunal noted that the applicant claimed all of his fears were those due to Maoists. The Tribunal did not accept this claim and found that the applicant did not have any subjective fear or any real chance or real risk of harm for any reason.
The Tribunal noted that the applicant had resided in Australia since he was 18 years of age in 2006 and was not satisfied that he had a genuine concern of an inability to adapt and was not satisfied he came to Australia to escape any harm or adverse interest in Nepal. The Tribunal considered whether there were objective reasons for considering that the applicant faced a real chance of serious harm or real risk of significant harm. The Tribunal took into account the applicant’s submissions. The Tribunal was not satisfied the evidence advanced supported the alleged issue of the applicant facing a real chance of serious harm or real risk of significant harm as a result of returning to Nepal and living in that country.
The Tribunal noted on the applicant’s own evidence that his family owned numerous blocks of land, he had been educated in Nepal and Australia, and had work experience, and that while he may have difficulty in obtaining employment, the applicant was resourceful and the Tribunal found he would be able to obtain employment. On that basis the Tribunal, taking into account the adverse finding of credibility and country information, rejected all the various claims made by the applicant and found the applicant did not have a well-founded fear of persecution as a refugee for any of the reasons put forward by him, or on his behalf. The Tribunal found the applicant failed to meet the criteria for complementary protection and affirmed the decision under review.
Before this Court
These proceedings were commenced on 5 February 2018. On 23 February 2018, orders were made providing the applicant with an opportunity to put on an amended application, affidavit evidence and submissions. No such documents have been filed. The Court file records that on 10 May 2018, a notice of withdrawal of lawyer was filed in relation to the applicant. The Court rules provide for service of a notice of intention to withdraw prior to the filing of a notice of withdrawal of lawyer.
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 nature of the hearing as explained by the Court.
Applicant’s submissions from the bar table
After the completion of evidence and as the applicant commenced oral submissions, the applicant indicated that he wanted an adjournment. The applicant contended that he was awaiting funds from his father that he asked for some weeks ago and that his financial position was difficult and said that there were financial difficulties in relation to the obtaining of funds.
The applicant was aware of these proceedings, having brought the same in February 2018 and notwithstanding the withdrawal of his lawyer on 10 May 2018, was clearly aware of that intention to withdraw prior to that date. The applicant’s explanation as to being unable to obtain funds to date is not satisfactory and does not persuade the Court that there is a real utility in granting an adjournment. The Court is not satisfied that any further funds will be received to assist the applicant. More importantly, the Court also takes into account the lack of prospects of success in the grounds identified in the application that have been prepared by the applicant’s lawyer. The Court notes the first respondent opposed the adjournment. Nothing was said by the applicant in support of the adjournment to satisfy the Court that there would be any utility in granting an adjournment, either in relation to the applicant being in a position where he would be represented, or in relation to the merits of the application. In all the circumstances, the Court is not satisfied that an adjournment is warranted in the interests of the administration of justice.
From the bar table the applicant took issue with the Tribunal’s adverse finding in paragraph 62 that his family moved back into the family home. It is clear from the Tribunal’s reasons, including paragraph 46, that the Tribunal purported to comply with s 424AA of the Act in relation to the family’s intention to move back into the family home. The applicant is also recorded, in paragraph 37, as indicating that he understood what the Tribunal was saying in respect of the significance of the parents not being in hiding in that regard. No transcript has been tendered and on the face of the material before the Court, the Tribunal complied with the requirements of s 424AA of the Act insofar as the information about the family moving back into the family home is information enlivening the obligation under s 424A of the Act. The adverse finding by the Tribunal, based on the information identified in respect of the Facebook accounts was, on its face, open to the Tribunal and the applicant’s disagreement with that finding does not identify any legal unreasonableness or illogicality in the Tribunal’s findings.
This is a case where the Tribunal made adverse credibility findings for reasons that were summarised by the Tribunal in relation to inconsistencies in reports that appear in the applicant’s claims and evidence, which the Tribunal summarised in detail, including the social media and Facebook. The Tribunal took into the applicant’s lack of knowledge of the Court case that he alleged had been advanced and the Tribunal raising with the applicant a request for information about the Court case. The Tribunal also raised with the applicant inconsistent evidence about where he and his family lived and that he had told the Tribunal right up until he left for Australia that he had lived in the family home and that it was in 2008 his family moved to his sister’s house. The Tribunal referred to the Facebook post in respect of the family moving back in. The Tribunal also took into account the applicant’s delay in lodging his application for protection and in particular, when the applicant became unlawfully present in 2013 and his failure to apply for protection. The Tribunal’s adverse credibility findings cannot be said to be illogical, irrational or unreasonable. The applicant’s disagreement with the adverse finding in relation to his family moving back into their home does not give rise to any jurisdictional error by the Tribunal.
The grounds
The grounds of the application are as follows:
1. The Second Respondent made jurisdictional error by making a decision which was unreasonable.
Particulars
a) The Second Respondent at [32] failed to consider the applicant’s claim individually and assorted it with other two owners of the land if they have suffered any harm or threats.
b) The Second Respondent at [38] misinterpreted the applicant’s statement that everyone in Nepal uses social media and merely on assumptions expected that the Maoists would use social media to locate people they have been seeking to harm.
2. The Second Respondent made jurisdictional error in that the decision was affected by reasonable apprehension of bias.
3. The Second Respondent made jurisdictional error in that it failed to comply with section 425 of the Migration Act 1958.
Particulars
a) Particulars will be provided on receipt of the hearing transcript.
4. The Second Respondent made jurisdictional error in that it failed to comply with ss. 424A and 424AA of the Migration Act 1958.
Particulars
a) Particulars will be provided on receipt of the hearing transcript.
5. The Second Respondent made jurisdictional error by taking into account irrelevant considerations.
Particulars
a) The Second Respondent at [46] and [47] acknowledged an undated Facebook comment, concluding that the applicant’s family has an intention to move back home, which undermines the applicant’s claim.
b) At [55] the Second Respondent considered that at the age of 18 years the applicant should have made an effort to understand the judicial system in Nepal.
Ground 1
In relation to ground 1 paragraph (a), the Tribunal referred to the applicant’s changing claim about how much of the property he is due to inherit, a failure to take action against the two other owners, or other family members, or against the vacant property. The Tribunal raised with the applicant that if his father owns one-third of the property then the applicant would not be in line for all of it.
The Tribunal then noted the applicant changed his evidence and agreed that he would only be entitled to one-third. The Tribunal was concerned that the applicant was prepared to change his evidence to respond to the Tribunals concerns and found that to undermine his credibility. The Tribunal referred to the applicant having raised that he had not claimed that the other two owners of the land had suffered any harm or threats. The applicant, in response, said that is because his father is the main person who takes care of the property and the land disputes and that they do not live at the property and do not know who they are. The Tribunal put to the applicant that this seems inconsistent with the documents that he provided relating to the proceedings taken about the land which clearly provide the names of the three people seeking to register the property and who are involved in the Court case. The Tribunal identified that in those circumstances the Maoists would know their names.
The applicant then said the Maoists would know the names but do not know who they are. The Tribunal found that observation by the applicant not to be persuasive. The Tribunal put to the applicant that the Maoists ignoring the other two owners of this prime real estate for ten years seemed inconsistent with the assertion that they wanted to own this prime real estate and were prepared to threaten or kill for it. The Tribunal noted that the applicant did not respond except to say that they know who he is and that he is threatened. The Tribunal did not find the applicant’s response to be persuasive. It was in that context that the Tribunal put to the applicant that if the Maoists were prepared to assault his father in their desire for real estate, why wouldn’t they assault other members of the family too. The applicant said he did not know why. The Tribunal also noted that the Maoists have a reputation for kidnapping people. The Tribunal raised why they have not kidnapped the applicant’s family members and held them for ransom and the applicant responded he did not know why they had not kidnapped his family.
The Tribunal also raised with the applicant that if his family moved out of the property in 2008 then the land would have been vacant for nine years and why wouldn’t the Maoists have moved in. The applicant was unable to do more than say he did not know. The Tribunal did not find the applicant’s evidence in this regard to be persuasive and it considered that the circumstances described by the applicant to be unlikely. The observations of the Tribunal in the context of paragraph 32 identify raising with the applicant concerns in respect of the applicant’s claims. It was relevant and open to the Tribunal to do so and the Tribunal’s adverse finding in relation to the applicant’s explanations as being unpersuasive were open to the Tribunal and were logical and reasonable. No jurisdictional error is made out by ground 1(a).
In relation to ground 1(b), the applicant contended that his evidence to the Tribunal about everyone using social media has been misinterpreted and that the Tribunal has erred in making an assumption that Maoists would use social media. The Tribunal identified what it was the applicant had said and it was open to the Tribunal to raise what the applicant had said with him in relation to the use of social media and that Maoists would be able to use the same. The Tribunal’s reasoning in that regard cannot be said to be illogical or unreasonable. No jurisdictional error is made out by ground 1(b).
Ground 2
In relation to ground 2, no conduct is identified to support the serious allegation of bias. Bias must be clearly alleged and properly proved. The generalised ground alone does not make out any jurisdictional error. On the face of the Tribunal’s reasons, the Tribunal conducted a review in accordance with the statutory regime and the adverse findings were open to the Tribunal for the reasons given by the Tribunal, as summarised above. The adverse findings are not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. No case of bias is made out. No jurisdictional error is made out by ground 2.
Ground 3
In relation to ground 3, on the face of the material before the Court, the applicant had a real and meaningful hearing. The Tribunal’s reasons reflect raising credibility concerns with the applicant and the applicant’s credit was clearly a live issue as a result of the decision of the delegate. No transcript has been put on to support the alleged breach of s 425 of the Act. No breach of s 425 of the Act is made out on the material before the Court. No jurisdictional error as alleged in ground 3 is made out.
Ground 4
In relation to ground 4, there is a generalised assertion un‑particularised of non‑compliance with s 424AA of the Act. The Tribunal’s reasons reflect complying with s 424AA of the Act in respect of the Facebook posts as well as where the applicant and his family lived. In the absence of a transcript no breach of s 424AA or s 424A of the Act is made out.
On the face of the material before the Court, insofar as the Facebook information could be said to be information enlivening an obligation under s 424A of the Act, the Tribunal’s reasons in paragraphs 46 and 47 support a finding that the Tribunal complied with the obligations of s 424AA of the Act. No jurisdictional error as alleged in ground 4 is made out.
Ground 5
In relation to ground 5, the Facebook posts were clearly relevant and were raised with the applicant by the Tribunal in relation to the family moving back into the family home given the nature of the applicant’s claims that he and his family feared harm from the Maoists. It was both relevant and logical for the Tribunal to take the same into account in finding that this conduct undermined the applicant’s claims. The information referred to by the Tribunal in that regard, in paragraphs 46 and 47, cannot be said to be irrelevant and it was reasonable for the Tribunal to take into account that information and to find that it undermined the applicant’s claim.
Further, insofar as the applicant alleged that there was a Court case that impacted on the applicant’s claims, it was appropriate for the Tribunal to take into account the applicant’s explanation and it was open, given the adverse credibility findings referred to, for the Tribunal to find it was not satisfied with the applicant’s explanation in relation to his evidence and understanding of the knowledge of the alleged proceedings. It was not irrelevant for the Tribunal to take into account the applicant’s explanation. The adverse credit finding on the land dispute was logical and reasonable. No jurisdictional error is made out by ground 5.
Conclusion
As the application fails to make out any jurisdictional error, the application is dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 26 July 2018
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