Arb20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1149

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARB20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1149

File number(s):

SYG 314 of 2020

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

28 May 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – Protection visa – whether the Tribunal member has sufficient evidence about the execution of the applicant’s brother – whether the Tribunal failed to accept the applicant’s fear of harm if he was to return to Nepal – legal unreasonableness – whether the applicants claims were overlooked by the Tribunal – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth) s 36

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Number of paragraphs:

31

Date of last submission/s:

26 May 2021

Date of hearing:

26 May 2021

Place:

Parramatta

Solicitor for the Applicant:

The Applicant appeared in person.

Solicitor for the Respondents:

Ms Stone appeared on behalf of the First Respondent.

ORDERS

SYG 314 of 2020

BETWEEN:

ARB20

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	28 MAY 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The Applicant to pay the First Respondent’s costs fixed in the amount of $5000.00.

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

1. The applicant is a male citizen of Nepal. The applicant first entered Australia on 10 November 2015 as the holder of a tourist visa.

2. On 12 January 2016, the applicant lodged an application for a protection visa. On 12 August 2016, a delegate of the Minister for Immigration and Border protection (“the delegate”), refused to grant the applicant his visa.

3. The applicant sought merits review at the Administrative Appeals Tribunal (“”the Tribunal). In a decision dated 16 January 2020, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.

4. The applicant now seeks judicial review of the Tribunal Decision

   THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION

5. After setting out the background, at paragraphs 13 through to 36 of its decision, the Tribunal sets out the applicant’s claims.  These related to religion and political opinion, actual and/or imputed.  The applicant claims to be a devout Christian who is conscientiously anti-Maoist and who, because of his visibility in his church in Nepal, is perceived by Maoists as anti-Maoist.

6. At paragraph 15 of its decision, the Tribunal accepted that the applicant’s brother was executed by government authorities for being a deserter from the army.  The applicant described his execution as a staged “escape”.  The Tribunal noted the applicant’s evidence that in 2008, the elected government eventually gave his brother’s widow and children financial compensation.

7. At paragraphs 20 to 22 of its decision, the Tribunal noted that the applicant claims that in 2007 he became his church’s Youth Leader.  The applicant claims that he suffered verbal abuse from anti-Christians in his neighbourhood and that police were indifferent and unhelpful when reports were made to them.  The applicant eventually left his village for the safety of Australia.

8. At paragraph 23 of its decision, the Tribunal noted that the church that the applicant claimed to belong to, is still a viable institution in his village.  The church has a Facebook page and is a member of the National Churches Alliance of Nepal.

9. At paragraph 25 of its decision, the Tribunal noted that the applicant stated that his wife and daughters, still remain devout Christians and still live in the same house in the village where he lived.

10. At paragraph 26 of its decision, the Tribunal put to the applicant that on his evidence, his church gathers, prays and works without hindrance in his village.  The applicant replied ‘yes’.  At paragraph 29 of the Tribunal decision, the applicant was asked if his Pastor would ever condone him or anyone else attempting to convert other people to Christianity. The applicant said he would not, but he said his church still organises social events in the village, such as sporting events, with church members move through the crowd and distribute spiritual pamphlets.  At paragraph 30 of its decision, the Tribunal acknowledged independent evidence of bigoted action taken by some individuals against some Christians from time to time in Nepal, and particularly against foreign pastors.  Notwithstanding this, it was put to the applicant that all of his evidence indicated that his church and his family still worship and operate viably in Nepal.  The applicant stated that “not everybody gets into trouble”. The applicant said that it was people like him, who would be targeted.  It was put to the applicant that the church’s Pastor did not appear to have faced threats of harm in the 12 years he had been in that position.  The applicant replied that the Pastor sometimes lives in Kathmandu as it is safer than rural Nepal.

11. It was put to the applicant that if he preferred not to live in his village, it appeared reasonable for him to relocate to Kathmandu.  The applicant’s wife and at least one daughter had spent considerable time there and he had relatives there at the present.  In response, the applicant stated that he could relocate to Kathmandu but not for too long.  The applicant said that it was not safe: “they might find me there”.  Paragraph 37 of the Tribunal decision sets out the Department of Foreign Affairs and Trade (“DFAT”) country information in relation to Nepal dated 1 March 2019.  It is noted that DFAT considers that Hindu citizens who converted to Christianity are publicly and safely able to do so, although they may experience low level societal and familial discrimination which may vary, according to the personal circumstances.

12. Paragraphs 38 and onwards of the Tribunal decision, deal with an assessment of the applicant’s claims.  The Tribunal accepted that the applicant is a devout Christian and a former Pastor in Nepal.  On the evidence before it, the Tribunal found that the applicant’s church operates openly and viably, and that Christians do not have to modify their behaviour, such as by gathering, operating or praying in secret to avoid being persecuted.  The Tribunal accepted that there are occasional localised instances in which the activities of Christians had been mistakenly or deliberately misconstrued or misrepresented causing harm to Christians and those close to them.  However, the Tribunal was not satisfied, on the evidence before it,  that the applicant faced a real chance of being harmed or that he would be required to modify his behaviour to avoid a real chance of being persecuted.

13. At paragraph 44 of its decision, the Tribunal found that the applicant was a candid and truthful witness. The Tribunal however, gave much weight to the fact the applicant’s family and his Pastor continue to remain in and return to his village by choice. The Tribunal was satisfied that it was reasonable, safe and practical for the applicant to relocate to Kathmandu where he has relatives and Christian contacts if he prefers not to reside in his home district.  Accordingly, the Tribunal was not satisfied that the applicant met the criteria for protection under

    
    

    s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”).

14. Paragraphs 51 through to 63 deal with consideration of complimentary protection considerations. For the same reasons as set out above, the Tribunal concluded the applicant did not meet the complimentary protection requirements under s 36(2)(aa) of the Act. Accordingly, the Tribunal affirmed the delegate’s decision under review. 

    GROUNDS OF JUDICIAL REVIEW.

15. The grounds of judicial review relied upon, are contained in an Initiating Application filed with the Court on 13 February 2020. They are as follows verbatim:

    Ground One

    The Tribunal Member had sufficient evidence about the execution of my brother.

    Ground Two

    While I appreciate that the Member made a finding that I am truthful witness I continue to believe that the Member failed to accept my fear of harm and the possible cruel or inhuman treatment and punishment I will be subjected to if I return to Nepal.

    Ground Three

    I believe that the decision made by the Member of the Tribunal Luke Hardy is not reasonable because he did not provide a real explanation to justify his decision.

    Ground Four

    I do believe that I will personally face significant harm as defined by the law of the refugee and such was overlooked by the member of the Tribunal.

    THE APPLICANT’S SUBMISSIONS.

16. The applicant appeared before the Court unrepresented.  The applicant was assisted by Nepalese Interpreter.  Prior to the commencement of the hearing, the Court ensured that the applicant was in possession of a copy of the relevant Court Books and that a copy of the first respondent’s written submissions had been interpreted to him.  The applicant was also provided with a pen and paper so that he could take notes during the hearing should he wish to.

17. At the commencement of the hearing the Court explained that it was undertaking judicial review not merits review, and the difference between the two types of review.  The Court also explained the procedure by which the hearing would be undertaken.

18. Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case.  The applicant told the Court that he was concerned that the Tribunal decision record did not indicate that he had told the Tribunal that Maoist’s had followed him.

19. At the conclusion of the first respondent’s oral submissions, the applicant was asked if he wished to say anything further in reply.  The applicant replied that he wanted to tell the Court that, if he was required to return to Nepal, he would be persecuted by Hindus and Maoists.

    THE FIRST RESPONDENT’S SUBMISSIONS

20. Ground one is a contention that “the Tribunal member had sufficient evidence about the execution of my brother”.  It was submitted that this ground is not a proper ground of review rather a request for impermissible merits review. It does not disclose any arguable case for the relief claimed: (see; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272]).

21. Ground two does no more than attempt to engage the Court impermissible merits review based on the applicant’s dissatisfaction with Tribunal decision and fails to identify any error in the Tribunal decision.

22. Ground three contends that the Tribunal decision is not reasonable as it lacked “a real explanation to justify the decision”.  This ground is misconceived.  The Tribunal comprehensively recited the applicant’s evidence and made logical findings that were open to it on the material before it.  These findings are based on rational reasons that were arrived at on consideration that were logically probative: (see; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [60]-[61]).

23. The Tribunal had regard to instances of localised harm, but gave cogent reasons for its findings that the applicant did not face a real risk of harm, in particular, due to the ability of his church in Nepal to operate openly and viably, and its own history of religious practice.  It could not be said that no other rational or logical decision-maker could not have drawn same conclusion: (see; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135]). This complaint goes no higher than to express disagreement and dissatisfaction with the Tribunal decision and is again an attempt to engage the Court in impermissible merits review.

24. In ground four, the applicant contends that he “will personally face significant harm as defined by the law of refugee and such was overlooked by the member of the Tribunal”.  The Tribunal clearly considered whether the applicant would suffer significant harm as defined under

    
    

    s 36(2)(aa) of the Act, and made dispositive findings on the applicant’s claims.  The contention does little more than cavil with the findings and reasons of the Tribunal. The contention fails to identify any jurisdictional error in the Tribunal’s decision. 

25. The legal representative for the first respondent noted that the Tribunal had considered issues relating to the threats posed by the Maoist insurgency, at paragraphs 16 and 17 of the decision record.

    CONSIDERATION

26. It is well-established that the Tribunal is not required to accept uncritically any and all claims made by an applicant: (see; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]). As was explained to the applicant, this Court cannot undertake merits review. Many of the applicant’s complaints, such as they are, invite impermissible merits review which this Court cannot undertake: (see; Abebe v Commonwealth of Australia (1999) 197 CLR 510 (“Abebe”) at [53]-[54]). Further, it is for the applicant to satisfy the Tribunal, being the relevant decision-maker, that the applicant meets the criteria for being a refugee: (see; Abebe at [187]).

27. Grounds one and two, simply express dissatisfaction at the Tribunal’s factual findings.  They do not identify any jurisdictional error and simply invite the Court to undertake merits review.  These grounds have no merit.

28. Ground three contends that the Tribunal failed to give proper reasons to justify its decision.  The Court disagrees.  As set out above, the Tribunal gave comprehensive reasons for the conclusions that it reached.  There is nothing illogical, irrational or legally unreasonable in these findings.  Again, this ground goes no higher than to seek to engage the Court in impermissible merits review.  Ground three has no merit.

29. Ground four simply expresses disagreement with the conclusion that the Tribunal came to that the applicant did not satisfy the complimentary protection requirements under s 36(2)(aa) of the Act.  The applicant bears the onus of proof that they satisfy the requirements for protection.  The Court is satisfied that the reasons given by the Tribunal were sufficient to indicate that it understood the applicant’s claims, but that it was not satisfied that he met the criteria for either refugee protection or complimentary protection.  There is nothing illogical, irrational or legally unreasonable in the findings of the Tribunal.  Ground four has no merit.

30. As the applicant is unrepresented, the Court has perused the Tribunal decision record but is unable to detect any unarticulated jurisdictional error.

    CONCLUSION

31. Accordingly, the application is dismissed.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       28 May 2021