Ard17 v Minister for Immigration
[2019] FCCA 2922
•18 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARD17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2922 |
| Catchwords: MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to a decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision not to grant a protection visa – whether Tribunal considered or properly considered claim based on applicant’s being a Christian or an evangelising Christian – whether the Tribunal made an error by failing to consider whether the applicant would receive state protection – whether the Tribunal considered all of the applicant’s evidence – whether the Tribunal’s not being satisfied the applicant would face a real risk of significant harm in Nepal because of his Christianity was unreasonable or irrational given the matters the Tribunal accepted about the applicant’s being a Christian and the activities based on his being a Christian the applicant carried out in Australia and would continue to carry out if returned to Nepal – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), Sch.1, Pt.3 Migration Act 1958 (Cth), ss.417(1), 438, 476 |
| Cases cited: Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3 Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 SZQGU v Minister for Immigration and Citizenship [2012] FCA 340 SZQKC v Minister for Immigration and Citizenship [2012] FCA 29 |
| Applicant: | ARD17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 474 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 8 October 2019 |
| Date of Last Submission: | 8 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 18 October 2019 |
REPRESENTATION
| Applicant in person, assisted by an interpreter. |
| Solicitors for the First Respondent: | Ms S Zarucki of Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 474 OF 2017
| ARD17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a national of Nepal, applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a protection (Class XA) visa (Protection visa).
Background
The applicant arrived in Australia on 22 October 2007 on a student TU-573 visa. The applicant was granted two further student visas, but the second was cancelled on 18 May 2010 because the applicant did not attend classes. On 19 April 2011 the Migration Review Tribunal (MRT) affirmed the decision to cancel the applicant’s student visa. In the meantime, on 31 March 2011, the applicant applied for a Child (Residence) visa, but a delegate of the Minister refused that application. The applicant applied to the MRT for review of that decision, but the MRT affirmed the delegate’s decision on 11 January 2013.
The applicant applied for a Protection visa on 4 June 2013. A delegate of the Minister refused that application on 15 November 2013. The applicant applied to the Refugee Review Tribunal (RRT) for review of the delegate’s decision and, on 27 February 2014, the RRT affirmed the delegate’s decision. On 4 April 2016 the RRT’s decision was set aside by this Court and remitted to the Tribunal for reconsideration.
Claims for protection
In his application for a Protection visa the applicant said he came to Australia for further education but, due to his personal circumstances, he could not complete his education. He claimed he feared returning to Nepal because Maoist and YCL cadres will abduct and kill him, just as they had killed his grandfather. The applicant also claimed the Maoists and the YCL had been forcefully demanding donations from his father, but because his father will be unable to meet their demands, the Maoists and the YCL will abduct the applicant or murder him.
The applicant set out his claims in greater detail in a statement dated 3 June 2013.[1] The claims the applicant made in that statement are as follows:
a)The applicant’s father is a strong believer of the monarchy. He owns land and buildings, and worked as a senior assistant in a corporation. For that reason the applicant’s father is considered a well-to-do person.
b)Because of the applicant’s father’s wealth, the Maoist and their youth organisation, YCL, always demanded donations from him and from the applicant’s grandfather “since the past several years”. The applicant’s father paid the money the Maoists and YCL demanded.
c)The Maoist cadres also demanded the applicant join them, but, because he did not have any interest in politics, and the applicant in any event hated the “unpopular and unfair work the Maoists did”, the applicant “never listened to them”. When the Maoists and YCL discovered the applicant left Nepal in 2007, they threatened the applicant’s father that they would burn down his house, and abduct his whole family and kill them, if they did not obey the Maoists and the YCL.
d)The applicant’s father continued to pay donations to the Maoists and the YCL, but they demanded amounts which the applicant’s father could not afford to pay. As a result the YCL abducted the applicant’s grandfather and murdered him.
e)Being ignorant of Australian migration law, and having been misled by a migration agent, the applicant applied for a Child (Residence) visa, rather than a protection visa. The applicant complained to the “MARA” (that is, the Migration Agents Registration Authority), and unsuccessfully sought Ministerial intervention.
f)While in Australia he met Ms S whom he married a few months after they met. Ms S is a Christian, and she influenced the applicant to follow Christianity. The applicant was baptised on 20 October 2012. It is well known there “are many typical Hindus in Nepal who hate and persecute Christians”.
[1] CB1
The applicant supported his application with a number of documents. One is a letter dated 2 August 2010 purportedly from the “Office of the Village Development Committee” (Village Committee Letter) of a particular province.[2] It states:
[The applicant’s grandfather] has been kidnapped by terrorist group four months ago and the said group has threatened to burn down the house and to kill him and asked for donation and due to this short thing they gave mental torture; whereas, to release their grandfather they became unable to give ransom amount as per the demand, that’s why the said terrorist group killed his grandfather two months ago, therefore, an application was received seeking recommendation stating that the same subject matter, therefore, the subject matter if found satisfactory, and this recommendation is hereby made known accordingly.
[2] CB39
Another document is what purports to be a statement dated 15 June 2013 from the applicant’s father.[3] The letter repeats the substance of the claims the applicant made about paying demands, and the applicant’s grandfather having been abducted and murdered. The letter urges the applicant “not to come back to Nepal at the moment”.
[3] CB48
Before the Tribunal
By letter dated 21 November 2016 the Tribunal informed the applicant that it intended to rely on information contained in the RRT’s decision dated 27 February 2014, subject to comments from the applicant.[4] The Tribunal said that the only information from the RRT’s decision on which it would rely would be the claims the applicant made, and the evidence the applicant presented, to the RRT. The Tribunal requested that the applicant inform the Tribunal whether he agreed “with the characterisation of [his] evidence in the [RRT] decision dated 27 February 2014”. And by letter dated 28 November 2017 the Tribunal invited the applicant to appear before it on 13 January 2017 to give evidence and present arguments.
[4] CB114
The applicant provided to the Tribunal a letter dated 8 December 2016 in which he made a number of submissions.[5] First, the applicant said he delayed lodging his application for a Protection visa because he wanted to complete his study, and settle in Australia permanently. He had no idea about protection visas until he received a letter from the Minister refusing Ministerial intervention. Second, the applicant said he is a sincere Christian claiming that his “proselytising activities are as much of my religious practices as are prayer, worship and bible study”. Third, the applicant claimed he is determined to follow Jesus Christ as his faith and that he will “face the dilemma of suffering [a] crackdown in Nepal for my beliefs”.
[5] CB117-118
The applicant also provided to the Tribunal a letter from a pastor of a Nepalese Fellowship Church.[6] The letter stated the applicant is a member of that church; the applicant “has shown a deep level interest to devote his life to follow the teachings of the Bible and serve the church of Lord Jesus Christ”; the applicant “is serving the church sincerely and whole-heartedly”; the applicant is looking after the church media for the main weekly services; and the applicant is an “active member of our church’s prayer team and goes from home to home to encourage people and to pray for them”.
[6] CB121
Tribunal’s reasons
The Tribunal had “credibility concerns” with each aspect of the applicant’s claims based on his claimed activities of the Maoists and YCL, including the claim that they killed the applicant’s grandfather.[7] The Tribunal’s concerns were based on the following matters:
a)First, the Tribunal found there was “a disconnect in evidence of the applicant between claims or threats of harm to the applicant made to the applicant’s family up until 2013 and the applicant’s evidence in the remitted Tribunal hearing as to lack of difficulties faced by the family from 2014 onwards”.[8] That is a reference to the contrast between the evidence the applicant gave of the difficulties the applicant claimed his family faced up to the time the applicant lodged his application for a Protection visa, and the evidence the applicant gave about his family’s circumstances after he lodged his application. The applicant said he had not had any contact with his family since the beginning of 2016 because he had converted to Christianity, but that about two years before early 2016 his family had not indicated there were any difficulties. The Tribunal found it implausible that, had the family experienced the matters the applicant claimed they had experienced before the time the applicant lodged his application for a Protection visa, they would not seek to keep the applicant informed of what had been occurring to them after that date, or that the applicant would not himself have made enquiries, particularly given the purported statement from the applicant’s father is dated 15 June 2013.[9]
b)Second, the applicant’s evidence about the murder of his grandfather was vague and inconsistent. Before the RRT the applicant was uncertain about the group to which the kidnappers belonged, or precisely when the applicant’s grandfather was kidnapped. The applicant did not know whether his father went to the police. The applicant was inconsistent about where his grandfather’s body was found, stating to the RRT that the grandfather’s body was found in his village, but to the Tribunal that the body was found “elsewhere”, but then saying he “did not know where it was found”.[10]
c)Third, apart from the Village Committee Letter, the applicant produced no other documents that might have been expected in relation to the applicant’s grandfather’s death. The applicant produced no death certificate, no autopsy report, police report, or media report.[11]
d)Fourth, in his written claims the applicant claimed the Maoists sought to have the applicant join them, suggesting they directly approached the applicant, whereas before the Tribunal the applicant said that the Maoists had approached the applicant’s father to have the applicant join the Maoists, but the applicant’s father did not, at the time, convey this to the applicant.[12]
e)Fifth, there was a significant delay between the time the applicant claimed his grandfather had been killed (2010), and the day on which he lodged an application for a protection visa (2013).[13]
[7] CB190, [41]
[8] CB191, [43]
[9] CB191, [44]-[47]
[10] CB191-192, [48], [49]
[11] CB192, [51]
[12] CB192, [53]
[13] CB182, [54]-[56]
The Tribunal also considered the Village Committee Letter, and the purported statement from the applicant’s father. After noting there was a lack of other supporting documents relating to the death of the applicant’s grandfather, and that it had indicated to the applicant that the letter from the applicant’s father could easily have been concocted, or made by his father but contained claims that are not true, the Tribunal found the documents did not overcome the cumulative impact of the credibility concerns the Tribunal had already identified.
On the basis of these credibility concerns, the Tribunal disbelieved the applicant’s claim concerning threats towards him and potential harm from the Maoists for the reasons he claimed, and his being asked to join the Maoists while in Nepal, and that the applicant’s grandfather was murdered.[14] Although the Tribunal was prepared to accept that the applicant’s father may have been forced to pay donations requested by the Maoists, because that was not uncommon in Nepal, the Tribunal was not satisfied there have been continuing donations requests from 2014, given the applicant’s evidence “indicating no difficulties from 2014 until early 2016”.[15]
[14] CB193, [58]
[15] CB193, [61]
The Tribunal next referred to the applicant’s “general claims” that he “faces harm due to the unsettled political situation”. Relying on country information, the Tribunal was not satisfied that the security situation in Nepal is so unsettled that there is a real risk of serious or significant harm to every Nepalese citizen;[16] and the Tribunal, therefore, was not satisfied the applicant faces a real chance of serious or significant harm based on the political or general security situation in Nepal.[17]
[16] CB193-194, [62]
[17] CB194, [63]
The Tribunal then considered the applicant’s claim based on his being a Christian. The Tribunal was prepared to give the applicant the benefit of the doubt in relation to his claims that he has genuinely converted to Christianity, particularly in the light of the pastor’s letter stating that the applicant is a genuine Christian, and is involved in the church.[18] The Tribunal, therefore, found that the applicant has become a Christian, and would wish to continue his Christian activities on his return to Nepal. The Tribunal, however, was not satisfied the applicant “is an evangeliser such that he would feel compelled to evangelise in Nepal in a manner that would put him at risk of prosecution under Nepalese law”.[19] Although the Tribunal accepted that the applicant goes from door-to-door in Australia with fellow church colleagues to encourage people to pray for them, as stated in the pastor’s letter, the Tribunal was not persuaded or satisfied the applicant, as he claimed, went to public places six or seven times a month to stop people in the street to evangelise. [20]
[18] CB194, [68]
[19] CB194, [69]
[20] CB194-195, [69]
The Tribunal considered that the applicant’s going door-to-door to encourage and pray for people was “pastoral care which is not proselytising”, although it was prepared to accept that “there was some promotion of Christianity to householders in these visits”. It accepted the applicant would wish to continue to undertake “pastoral care as part of his church activities in Nepal and that may involve promoting Christianity to some extent in private household settings”. The Tribunal accepted that the applicant may “talk about Christianity and seek to promote it in one-on-one discussions with people he encounters in everyday life”; but the Tribunal was not satisfied the applicant has a commitment to evangelism such that, when in Nepal, he would feel compelled to do so in a public setting and approach strangers, or that “he would be restraining what he would otherwise feel compelled to do as a result of the law”.[21]
[21] CB195, [71]
Having made these findings, the Tribunal considered country information that confirmed that proselytising is illegal in Nepal. Except for one report that an American was arrested in 2016 for preaching, however, there was no evidence of Nepalese authorities enforcing the law; and there was no country information that individuals have been convicted under the law. Further, country information published in February 2016 stated that, although conversion to Christianity is illegal in Nepal, the rules have “lightened up” because Nepal has turned away from its official Hindu status, and that churches were mushrooming throughout the Kathmandu Valley.[22]
[22] CB195, [71]
The Tribunal also considered the applicant’s claim that his family would be displeased with his having converted to Christianity, and that his family may even have ostracised him. The Tribunal noted the applicant has not claimed his family would physically harm him or otherwise inflict significant harm; and it was not satisfied the applicant’s conversion to and practice of Christianity would result to extreme humiliation either at the hands of his family or from others such as to cause the applicant to face degrading treatment or punishment.[23]
[23] CB196, [76]
The Tribunal concluded this part of its reasons as follows:[24]
The Tribunal is not satisfied, considering the totality of the independent evidence before it, that, in Nepal, Hindu converts to Christianity or Christians generally are subject to a real chance of serious or significant harm based on the practice of their religion. The Tribunal has taken into account the applicant’s own situation and is not satisfied that he faces a real chance of serious or significant harm based on the practice of his religion and being a convert, including based on a negative reaction by his family.
[24] CB195, [72]
Finally, the Tribunal referred to a certificate having been issued purportedly under s.438[25] of the Act (438 Certificate). The Tribunal was satisfied that the claim for public interest immunity made in the 438 Certificate was not valid, but found the documents covered by the 438 Certificate were irrelevant.[26]
[25] The 438 Certificate is at CB113
[26] CB196, [78]
Given these findings, the Tribunal was not satisfied the applicant had a well-founded fear of persecution for a Convention reason, or for any of the reasons the applicant claimed, or for any other reason.[27] The Tribunal also was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed from Australia to Nepal, there is a real risk he will suffer significant harm for any reason.[28]
[27] CB196, [79]
[28] CB196, [80]
Grounds of application
The applicant, who is not legally represented, relies on the grounds stated in the application, which are as follows:
1.I disagree with the Tribunal Member’s purported decision because my claim to be persecuted upon my return to Nepal was partially or completely overlooked by the Member’s arbitrary view given the fact that I am a refugee genuinely in fear of persecution because I am an evangelical Christian. I believe the Tribunal member’s decision in relation to my case was taken in breach of the rules of natural justice and procedural fairness.
2.The Tribunal Member did not consider it necessary to come to a concluded view as to whether I would be protected by the government authorities and whether a person in my position as an evangelist would be able to obtain adequate protection or punished by the Nepalese authorities. The Tribunal member failed to look at my entire evidence in a new light. The substantial conclusion reached by the Tribunal was poorly justified. The Tribunal Member committed a jurisdictional error by failing or ignoring to consider and make findings in respect of my claims on the issue of state protection.
3.It is contended that the evidence that the Tribunal relied upon was so unreasonable or so inadequate that the only inference was that the Tribunal applied the wrong test or was not in reality satisfied in respect of the correct test as to [sic] The Tribunal did not believe that I would face a real chance of serious or significant harm upon return to Nepal given the fact that the Tribunal Member accepted that I genuinely converted to Christianity and I would continue my Christian activities on return to Nepal. The Tribunal does not accept that there is a real chance I will face serious harm for a Convention reason were I to return to Nepal but I argue that a real chance of serious or significant harm upon my return to Nepal is not remote either.
The applicant made submissions at the hearing before me, but these were not specifically directed to the grounds, although some of the submissions the applicant made could be said to relate to the grounds. In these reasons for judgment, I propose, first, to consider the grounds stated in the application, and then identify and address the submissions the applicant made at the hearing. Finally, I will consider issues that arise out of the 438 Certificate.
Ground 1
Ground 1 makes two claims. The first is that the Tribunal wholly or in part overlooked the applicant’s claims based on his being an evangelical Christian. The second claim is that the Tribunal made its decision in breach of the rules of natural justice and procedural fairness.
I do not accept the first of the two claims. As my summary of the Tribunal’s reasons should demonstrate, the Tribunal considered, and considered in detail, the applicant’s claims of his having converted to Christianity and that he would evangelise. The Tribunal accepted most of the applicant’s claims, other than the applicant’s claim that if he were to return to Nepal he would be compelled to evangelise in a public setting and approach strangers; and the Tribunal considered country information relating to Christianity in Nepal.
I also do not accept the second claim. The ground does not identify the acts or omissions of the Tribunal which the applicant submits indicate the Tribunal denied the applicant procedural fairness.
Ground 1, therefore, fails.
Ground 2
Ground 2 claims the Tribunal did not consider whether the applicant would be protected or punished by the government authorities. It is true the Tribunal did not in terms consider that question; but that is because the Tribunal concluded that the applicant did not face a real risk of persecution because the applicant is a Christian, or because the applicant, if he were to return to Nepal, would engage in the of the Christian activities the Tribunal found the applicant had engaged in Australia, and would continue to engage in Nepal. As the Minister correctly submitted, once the Tribunal found the applicant’s claimed fear based on his religion and his practice of that religion were not well-founded, the Tribunal was not required to consider whether the Nepalese government would be able or willing to offer particular protection from an unfounded fear.[29] In any event, as I have already noted, the Tribunal referred to country information that showed that despite Christianity being illegal, and one American having been arrested in 2016 for preaching, the rules have “lightened up”, there was no evidence to suggest the authorities in Nepal enforce the law.
[29] First respondent’s Outline of Submissions, [31], referring to SZQKC v Minister for Immigration and Citizenship [2012] FCA 29, at [20]-[21]; SZQGU v Minister for Immigration and Citizenship [2012] FCA 340
Ground 2 also claims that the Tribunal failed to look at the entirety of the applicant’s evidence; and that the Tribunal’s reasons were poorly justified. Neither of these claims can succeed. This part of the ground does not identify the evidence the applicant claims the Tribunal did not consider; and it does not identity the conclusion or conclusions it claims the Tribunal poorly justified, and the matters on which the ground relies for claiming the Tribunal’s justification or justifications are poor.
Ground 2, therefore, also fails.
Ground 3
This ground may be taken to claim that the Tribunal’s conclusion that the applicant would not face a real chance of persecution was unreasonable or irrational, given the findings the Tribunal made. These are that the applicant converted to Christianity; the applicant undertook “pastoral activities”, which is the expression the Tribunal applied to the activities described in the pastor’s letter; and that the applicant would continue these activities in Nepal. The Tribunal’s conclusion that, notwithstanding these findings, the applicant did not face a real risk of persecution or otherwise face a real risk of significant harm, had an evidential and intelligible justification. That justification consisted of the country information the Tribunal set out and considered in its reasons.
In his written submissions the Minister submits the Tribunal’s conclusion the applicant did not face a real chance of serious or significant harm in Nepal due to his Christian belief and practices was based on a distinction it drew between pastoral and evangelising activities. It is true the Tribunal used the expressions “pastoral” and “evangelising”. But the Tribunal described the conduct it found the applicant would engage in if he were to return to Nepal, and it assessed the risk the applicant would face by reference to that conduct. The conduct in which the Tribunal found the applicant would engage in Nepal is “pastoral care activities as part of his church activities in Nepal and that may involve promoting Christianity to some extent in private household settings”, where “pastoral care” is the expression the Tribunal used to describe the activities the pastor’s letter stated the applicant engaged in, namely, going from door-to-door in Australia with fellow church colleagues to encourage people to pray for them.
Ground 3, therefore, also fails.
Submissions made at judicial review hearing
The applicant, who I have already noted, is not legally represented, made a number of submissions at the hearing before me. The first was directed to paragraph 67 of the Tribunal’s reasons where the Tribunal refers to its having put to the applicant during the hearing before it that it had concerns the applicant had been opportunistic in relation to his Protection visa claims relating to harm from Maoists and the death of his grandfather. The applicant submitted that if he did not have a genuine fear of returning to Nepal, he would have returned to attend his grandfather’s funeral, and he would have supported his grieving family. This submission does not disclose any jurisdictional error by the Tribunal. Further, although the Tribunal put to the applicant it had concerns that his claims based on fear from the Maoists, and the death of his grandfather, were opportunistic, the Tribunal did not make any such finding.
Second, the applicant submitted that the activities the pastor in his letter described the applicant engaged in constitutes evangelising. The applicant particularly relied on the pastor’s statement that the applicant “is serving the church sincerely and whole-heartedly”. This, too, does not disclose any jurisdictional error. As I have already noted, although the Tribunal used the word “evangelising”, it did not assess the risk of harm by reference to its notion of “evangelising”; the Tribunal identified the activities it found the applicant would engage in in Nepal, namely, “pastoral care activities as part of his church activities in Nepal and that may involve promoting Christianity to some extent in private household settings”, where “pastoral care” is the expression the Tribunal used to describe the activities the pastor’s letter stated the applicant engaged in, namely, going from door-to-door in Australia with fellow church colleagues to encourage people to pray for them.
Third, the applicant submitted the Tribunal did not look at his case properly; and that it decided his case according to its will. I do not accept that submission. The Tribunal identified and considered the applicant’s claims, and gave reasons for not accepting the applicant’s claims.
Fourth, the applicant referred to the Tribunal’s having informed the applicant at the hearing that forged documents are readily available in Nepal. I take the applicant to have intended to submit that it was not open to the Tribunal to have dealt with the documents in the manner it did, namely, by finding that the documents did not overcome the cumulative effect of the credibility concerns the Tribunal had already identified.
The Tribunal made no jurisdictional error by assessing the weight it should give to the documents the applicant provided. The Tribunal’s approach was similar to the RRT’s approach in Minister for Immigration and Citizenship v SZNSP, where the Full Federal Court said:[30]
[I]t was open to the RRT to assess the credit of the first respondent and then, in the light of that assessment, consider what weight should be given to the witness statement. This was the process followed by the RRT which it described in the sentence “Given the adverse credibility finding, the Tribunal does not give weight to the document”. Although expressed in the most cryptic terms, this statement shows that the RRT made an assessment of the value of the witness statement and then considered its effect in the light of the view it had formed to that point about the credibility of the first respondent.
[30] [2010] FCAFC 50 at [33] (North and Lander JJ; Katzmann J agreeing at [42])
The final submission the applicant made related to the Tribunal’s relying on the applicant’s not having produced any documentary evidence to support the claim the applicant’s grandfather had been murdered. The applicant submitted it was not necessary that there be any evidence. That may be accepted. It was reasonably open to the Tribunal, however, to have proceeded on the basis that it did, namely, that documents, such as a death certificate, would exist had the applicant’s grandfather been murdered, and that the unexplained failure to provide such documents was evidence on which the Tribunal could reasonably have relied for not accepting the applicant’s claim that his grandfather had been murdered.
438 Certificate
At the hearing the Minister read an affidavit which annexed the 438 Certificate and the documents covered by that certificate. The applicant said he could not recall whether the Tribunal disclosed to him the 438 Certificate. The Tribunal does not suggest it disclosed to the applicant the 438 Certificate, and there is no evidence to suggest it did. I informed the applicant that I would assume the 438 Certificate was not disclosed to him.
I then explained to the applicant as best I could the issues that arose out of the 438 Certificate’s not having been disclosed to him. I said that the Tribunal’s failure to do so potentially made the Tribunal’s decision invalid; and that whether or not that would be the result depended on whether the documents covered by the 438 Certificate were relevant to the applicant’s claims. I read out the 438 Certificate and each of the documents covered by that certificate, which were interpreted to the applicant. I invited the applicant to make submissions regarding whether he believed the documents were relevant in any way to his application for review. The applicant did not submit the documents were relevant.
The documents covered by the 438 Certificate were incapable of having any relevance to the application for review that was before the Tribunal. Folio 123 is a file note stating that on 27 February 2014 the RRT affirmed the delegate’s decision not to grant the applicant a Protection visa; that the applicant’s case has been reconsidered under the Ministerial guidelines for a stay in Australia under the Public Interest Guidelines assessment; and that the applicant’s case does not satisfy the requirements for consideration of the exercise of the Minister’s discretion under s.417(1) of the Act. Folio 101 is a checklist in relation to the existence of certain classes of documents that has been completed to show the classes of documents to which the checklist relates do not exist. Finally, there is folios 12-13 which record the number of a visa.
Thus, although the applicant was denied procedural fairness by the Tribunal’s not having disclosed to him the 438 Certificate, it was not material to the Tribunal’s decision. That is, I am not satisfied that the Tribunal’s disclosing to the applicant the 438 Certificate could realistically have resulted in a different decision; and I am satisfied that had, the Tribunal disclosed to the applicant the 438 Certificate, it could not have made any difference to the outcome of the application for review.[31]
[31] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3
Disposition and costs
The applicant has not succeeded on any of the grounds or submissions on which he relies. I propose, therefore, to order that the application be dismissed.
I raised with the parties the question of costs. I explained to the applicant that the ordinary rule is that a winning party is entitled to an order for costs. Ms Zarucki, who appeared for the Minister, said that if the Minister were to succeed he would seek an order for costs, and an order that those costs be set in the amount of $7,206, being the costs provided for under Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) at the time the applicant filed his application in this Court. The applicant submitted that he would not be able to pay costs that may be ordered against him.
The applicant’s inability to pay costs is not a reason that would lead me not to order costs against the applicant; and, there is no apparent reason why the ordinary rule as to costs should not apply in the circumstances of this case. I therefore propose to order that the applicant pay the Minister’s costs. I am satisfied those costs should be set in the amount of $7,206.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 18 October 2019
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