ATE17 v Minister for Immigration and Border Protection

[2025] FedCFamC2G 701

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

ATE17 v Minister for Immigration and Border Protection [2025] FedCFamC2G 701

File number(s):

SYG 519 of 2017

Judgment of:

JUDGE CAMERON

Date of judgment:

16 May 2025

Catchwords:

MIGRATION – Persecution – Review of Administrative Appeals Tribunal (“Tribunal”) decision – visa – protection visa – refusal. 

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to consider every claim and made incorrect findings of fact.   

Legislation:

Migration Act 1958 (Cth) ss.36, 474

Tribunals Amalgamation Act 2015 (Cth) Schedule 9 items 15AG

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Division:

General

Number of paragraphs:

42

Date of hearing:

26 February 2024

Place:

Sydney

Applicants:

Litigants in person

Solicitor for the First Respondent:

Ms P Nirmaleswaran of Mills Oakley

Solicitor for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

SYG 519 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ATE17

First Applicant

ATG17

Second Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE CAMERON
DATE OF ORDER:	16 MAY 2025

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 CAMERON

INTRODUCTION

1. The first applicant is a citizen of Nepal who arrived in Australia on 22 April 2009.  The second applicant is her husband, who is also a citizen of Nepal and arrived in Australia on 22 July 2008.  On 29 July 2014 the applicants lodged an application for protection visas with what is now the Department of Home Affairs (Department), alleging that they feared persecution in Nepal because of their Christian faith.  On 26 March 2015 the applicants’ application was refused by a delegate (Delegate) of the first respondent (Minister).  The applicants then applied to the Refugee Review Tribunal, a predecessor of the second respondent (Tribunal), for a review of that departmental decision. The review was undertaken by the Tribunal: item 15AB of sch.9 to the Tribunals Amalgamation Act 2015.  The applicants were unsuccessful before the Tribunal and have applied to this Court for judicial review of its decision.

2. In this judicial review proceeding the Court cannot rehear the applicants’ application for visas. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Cth)(Act); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

   BACKGROUND FACTS

4. The applicants’ claims for protection were made initially in the visa application and in their written statements.  The applicants made further claims at an interview with the Delegate and at Tribunal hearings conducted on 9 September 2016 and 22 September 2016. 

5. In its decision the Tribunal summarised the background facts originally alleged by the applicants in support of their claims for protection.  As summarised by the Tribunal, the applicants had relevantly made the following claims:  

   (a)the applicants were distant relatives and, while they had not been legally married in Nepal, they had been in a relationship there and had considered themselves to be husband and wife.  Some members of their families had disapproved of their relationship;

   (b)the second applicant had entered into a sham marriage with another woman for the purpose of obtaining an Australian student visa as her dependent spouse.  Sometime after he arrived in Australia, the second applicant divorced the woman in question;  

   (c)the first applicant arrived in Australia using another person’s passport;  

   (d)the applicants continued their relationship in Australia and were legally married in New South Wales on 29 December 2013;  

   (e)at some stage after the applicants had left Nepal, their families came to accept their relationship; and  

   (f)after her arrival in Australia, the first applicant was diagnosed with cancer and was successfully treated.  Her experiences and recovery from that illness led the applicants to convert to Christianity. 

6. The applicants claimed to fear that if they returned to Nepal:

   (a)they would be rejected by their families because of their conversion to Christianity;  

   (b)they would face widespread persecution from Hindus and be at risk of imprisonment by the Nepalese authorities for reasons related to their Christian religious practice;  

   (c)they would be at risk of violence, threats, abduction and death from the Maoist political group and its youth wing counterpart, the YCL; 

   (d)the first applicant would be arrested and gaoled for having used a doctored Nepalese passport to enter Australia and would not be able to access the medical care she required; 

   (e)the second applicant would be at risk of retributive violence from drug dealers and drug addicts;  

   (f)the second applicant would be harmed by the black market business partners of his late father; and  

   (g)the police would not protect them from those risks and would instead persecute them because of their Christian faith. 

   THE TRIBUNAL’S DECISION AND REASONS

7. After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants are persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (Convention), or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons.

   Credibility

8. The Tribunal noted that there were significant inconsistencies between the applicants’ written and oral evidence and also that the applicants had over time made a number of additional claims without giving sound reasons for them had not having been made earlier.  The Tribunal was of the view that the applicants were often not truthful at the hearing and found that, overall, they were not credible witnesses. 

9. Although the precise nature of her condition was not apparent from 2011 and 2012 medical evidence, the Tribunal accepted that the first applicant had required some medical treatment at a hospital in 2011.  In the absence of more recent medical evidence, however, the Tribunal did not accept that, at the time of the hearing in 2015, the first applicant was affected by short term memory loss or pain as she had claimed, or by any other medical condition which impaired her ability to give evidence. 

   False passports

10. The first applicant presented to the Tribunal a Nepali passport issued to a different person which she claimed she had used to enter Australia.  The Tribunal found it to be a genuine passport which had been altered by a substituted photograph showing the first applicant. 

11. The Tribunal found that under the relevant Nepalese passport law, the first applicant might face penalties or punishments of a kind applicable to all Nepali people, and she would therefore not be subject to any harm by reason of her race, religion, or nationality.  The Tribunal also found that any of the punishments prescribed under Nepali passport law, including a fine or imprisonment of up to one year, were lawful sanctions not inconsistent with the International Convention on Civil and Political Rights (ICCPR).  The Tribunal found that the first applicant would not suffer significant or serious harm as consequence of breaching Nepal’s passport laws. 

    Christianity

12. The Tribunal accepted that the applicants had once been Buddhists. 

13. The Tribunal found that the applicants’ claim of Christianity was supported by evidence including their baptismal certificates dated 20 October 2012.  The Tribunal found the applicants’ evidence regarding their Christian belief and practices since joining the Sydney Nepalese Fellowship Church to be coherent, consistent and forthright.  The Tribunal accepted that the applicants had been baptised, had for several years regularly attended church services and were actively involved in the church’s activities, including by evangelising to others. 

14. However, the Tribunal rejected the first applicant’s claim at the Tribunal hearing to have been a Christian while in Nepal.  The Tribunal found that this claim was inconsistent with the applicants’ earlier written statements and found that her answers at the hearing concerning this issue had been evasive and confusing. 

    General risk of religious persecution in Nepal

15. The applicants claimed variously that they would face harm from their families, other Hindus and the Nepalese authorities as a result of their practise of Christianity.  The Tribunal accepted the applicants’ evidence that if they returned to Nepal they would continue to practise their Christian beliefs, which included evangelising.  However, the Tribunal did not accept that there was a real chance that the applicants would be persecuted or subjected to significant harm from their families or from others in Nepal for this reason. 

16. The applicants claimed that Christian proselytising was not permitted under the Nepalese Constitution and that if they did proselytise, they would be persecuted and intimidated. The Tribunal found that Nepal is a secular state with a constitution that guarantees freedom of religion and that Christians are generally able to practise their religion there. The Tribunal noted that the Constitution did not permit conduct which could lead to a person converting from one religion to another. The Tribunal considered that, at that time, there was only one reported arrest in relation to alleged evangelising and concluded from that it did not appear that the relevant provision was widely enforced.

17. The applicants’ evidence was that information from their friends and from online news sources showed that Christians in Nepal were variously tortured, persecuted, set on fire, abused, assaulted and killed.  The Tribunal determined that information from the Department of Foreign Affairs and Trade (DFAT) indicated that while such incidents might have occurred, they were neither frequent nor widespread, and therefore considered the applicants’ claims concerning the negative treatment of Christians in Nepal to be exaggerated.  The Tribunal found that the provision in question had not been implemented to an extent that would suggest that there is a real chance that Christians engaging in evangelism would be subjected to serious or significant harm by the authorities or others. 

18. The Tribunal found there to be a remote but not real risk of the applicants being persecuted or subjected to serious or significant harm in Nepal due to their conversion to Christianity and their religious practices including evangelism. 

    Risk of religious-based harm from family

19. The Tribunal accepted the applicants’ claims that they might possibly face rejection from their families on account of their religious beliefs and so might not inherit any family property. 

20. The Tribunal found that familial rejection and disapproval of the kind that the applicants had originally identified, and which the Tribunal had accepted, did not rise to the level of serious or significant harm and so found that they were not at real risk of such harm from their families because of their religious conversion, practices or beliefs if they returned to Nepal. 

    Risk of harm from Maoists and YCL

21. Both applicants indicated that they feared being harmed by Maoists and their youth group counterpart, YCL, because of their past experiences with them. 

    First applicant’s claims

22. The Tribunal accepted the first applicant’s claim made in her written statement that her father was a monarchist and that in the past he and his family had been subjected to harm by Maoists, police, army and security services.  However, the Tribunal did not accept the first applicant’s claims made orally during her departmental interview and at the Tribunal hearing that:

    (a)she had been harassed, threatened and assaulted in the past by her former sister-in-law, who was a Maoist, because she wanted the first applicant to join the Maoists, and after the first applicant had departed Nepal, her ex sister-in-law had continued to ask about her; and 

    (b)the YCL had once attempted to abduct her and her family and she feared being killed by them. 

23. Those claims had not been set out in first applicant’s protection visa application or written statements and the Tribunal did not accept her explanation for not having raised the claims earlier. 

    Second applicant’s claims

24. In his written statement, the second applicant claimed that he had been a drug addict in Nepal, and that during that period of his life, the Maoists had asked him to join them as a commando.  He made no mention of the YCL.  At the hearing he claimed that the YCL asked him to be a commando after he had cleared his area of drug dealers and addicts.  Although there were unsatisfactory elements to his evidence, the Tribunal ultimately accepted that at some stage either the Maoists or the YCL had wanted the second applicant to join them and that when he refused, they threatened him and tried to abduct him. 

25. The Tribunal was not satisfied that there was a real risk that either applicant would be harmed for any reason by the Maoists or YCL.  It referred in that connection to the civil war ending in 2006, the Maoists’ participation in the subsequently established democratic system and to the reduction in violent behaviour on the part of the Maoists and YCL. 

    Risk of harm from drug dealers

26. The second applicant claimed that he feared he would be harmed and detained by drug dealers because eight years earlier he had cleared his local area of drug dealers and addicts but, as they had re-established themselves during his absence, if he returned he would again attempt to remove them.  The Tribunal accepted the second applicant’s evidence that, as a Christian, he would not repeat his previous modus operandi of violence and threats, but would instead provide the drug dealers and addicts with counsel, consolation and prayer.  The Tribunal was satisfied, given his eight-year absence and intention to refrain from violence and threats, that the second applicant was not at real risk of serious or significant harm due to his past or future conduct towards drug dealers or addicts. 

    Risk of harm from police and security concerns

27. The first applicant claimed in her statement that she feared persecution from the police in connection with her Christian faith.  At the hearing she claimed that she feared harm from the police as that they would fail to protect her from the harm which she feared from others.  The Tribunal found that as it had determined that the first applicant was not at real risk of harm from the Maoists, family members and others for the reason of her religious beliefs, there was no real chance that the police would fail to protect her from such harm. 

28. The Tribunal accepted the second applicant’s detailed and consistent evidence of harm he had suffered from the police in the past.  However, it was not satisfied that he faced a real risk of serious or significant harm from the police in the future given his evidence that he had ceased unlawful activities many years earlier and would not engage in them in the future. 

    Risk of harm from business partners

29. The second applicant claimed that he had been harmed in the past by his late father’s black market business partners.  However, as he was now distant from that business, the Tribunal was satisfied that the second applicant would not be harmed by his father’s former business partners in the future. 

    Medical treatment for the first applicant

30. The first applicant claimed that she would not be able to obtain necessary medical treatment in Nepal.  Given DFAT information which indicated that there was a variety of public and private health services available in Nepal, as well as free essential health care services for the poor and vulnerable, the Tribunal found that the first applicant would be able to access in Nepal the routine medical treatment she required. 

    THE PROCEEDING IN THIS COURT

31. In the application commencing this proceeding the applicants alleged:

    1.Medical Condition of me (Applicant 1).  The Member at Administrative Appeals Tribunal was inconsiderate despite I told her that I was suffering from constant pain.  She accused me of being untruthful.  I am a person who had lost hope of life due to cancer in my last stage.  I also told her that I was suffering from memory loss and was depressed but she gave no consideration to my medical situation and was harsh.  How can someone else determine whether I am in pain or not by just looking at me? The Member did not even give me the benefit of the doubt or natural justice.  The member only looked at both me and my husband with doubt and did not listen to us properly.  The Nepalese interpreter provided by the Tribunal on our first hearing was incompetent and did not deliver what I said properly therefore we had to ask for a different interpreter on our second hearing.  It was detrimental to our case that the first interpreter was incompetent and unprofessional as it created a sense of doubt in the mind of the Member as something else or incomplete answers were delivered by the interpreter which the Member perceived and understood.  The Member hence, accused us of being inconsistent.  Although the Tribunal provided a different interpreter during our second hearing the impression the Member had of us from our first hearing impacted a lot.  The Member at AAT took several months to make her decision therefore we suggest that she referred to her notes and recordings of our hearing to make her decision.  Since our first hearing was unfair because of the incompetency of the interpreter, the Member could only listen and understand incomplete or totally invasive answers from us which was delivered wrongly by the interpreter.  This I believe is injustice; therefore our case must be heard again properly to determine whether we have really been inconsistent. 

    2.As stated on Paragraph 50 and 51 of the Administrative Appeals Tribunal's Decision Record on Page 10 and 11, the decision maker Member of the AAT has clearly mentioned about Nepal's passport law. She has also agreed that if the authorities become aware that I (Applicant 1) have used an altered passport, I would be face penalties and be jailed. I have clearly made this my claim however the AAT Member has overlooked my claims and has accused me of not telling the truth. She has accused me that I have neither claimed nor there is evidence before her to indicate that I (Applicant 1) would be subject to penalty or any other harm for altering and using that passport for reasons of race, religion, nationality, membership of a particular social group or political opinion. These are the essence of a refugee. I know that if I am discriminated or jailed for using an altered passport I do not satisfy to become a refugee under section 36(2)(a), however I claim that I satisfy section 36(2)(aa) Complimentary Protection of the MigrationAct. I claim that the Member has not assessed my claim under Section 36(2)(aa) on this particular situation. I claim if I am jailed for using an altered passport, I will be discriminated and deprived of my freedom. I will also be mistreated as the people especially women in prison in Nepal have been known to have been mistreated, beaten and even raped by the police and guards. I therefore ask request the court to have my case reassessed by the Tribunal.

    3.On paragraph 58 on page 12 of the Decision Record, the AAT Member has made a wrong assessment saying that my family has come to accept my relationship and marriage thus she does not give weight to Pastor Andy's written submissions, This is wrong, I have always claimed that my family as well as my in-laws have always been against my marriage.  That is the reason why I had to run away and elope with my husband.  Saying "I have given no weight to Pastor Andy's submissions" the Member has failed to assess my claims and my case properly.  I request the court to order my case to be re-assessed by another Member of the Tribunal who does not just suspect that applicants are always untruthful.

    4.On Paragraph 64 of the Administrative Appeals Tribunal's Decision Record on Page 13.  The AAT Member has accepted that Applicant 2 would be subject harm by the Maoist and YCL but again the Member has decided not to accept the same thing on paragraph 65.  This is not being consistent on the decision making side.  The Member has even accepted that Applicant 2 had been consistent in his claim and evidence.  Seems like the Tribunal only wanted to show that they did their job.  I claim the Tribunal did not do a proper assessment and only relied on vague information on the country that they could access.  The Tribunal only blamed us for not being truthful.  We have devoted our lives for our lord Jesus Christ and we both are true Christians, we do not tell lies and we will never tell lies.  The Tribunal has made its decision with full injustice.  We request the reputed Federal Circuit Court to order our case to be sent back to AAT for a more thorough and justifiable assessment.  In total it was a decision from AAT that became negative for us due to the all the facts mentioned above.  We plead for justice and a fair hearing to determine the outcome of our case.  Thank you. 

    Ground 1

1. The first matter raised by the first ground of the application was an allegation that the Tribunal had not taken the first applicant’s medical condition into account.  The evidence indicates that that is not so.  The fact simply was that, based on the evidence supplied, the Tribunal did not accept the first applicant’s claims to be suffering in 2015 medical conditions that impaired her ability to give evidence.  The allegation discloses no relevant error on the part of the Tribunal.

2. The Tribunal hearing took place over two non-adjacent days in 2016 and the interpreter assisting on the second day was not the interpreter who had assisted on the first day.  The second matter raised by the first ground of the application was an allegation that the first interpreter had been incompetent and that this had led to the Tribunal concluding that the applicants had given inconsistent evidence.  No evidence supportive of the allegation concerning the interpreter was adduced and no contemporaneous complaint supportive of the present allegation was made notwithstanding that the applicant’s representative had been present at the first Tribunal listing and had subsequently made written submissions prior to the second listing.  In the circumstances, the allegation is not made out.

   Ground 2

3. The first matter raised by the second ground of the application was an allegation that the Tribunal overlooked the first applicant’s claim to fear persecution in Nepal because she had entered Australia on a doctored Nepalese passport. That contention was joined by a related allegation that the Tribunal erroneously found there to have been no evidence indicating that such conduct exposed the first applicant to significant harm in Nepal. The first point is not made out on the evidence because the Tribunal expressly referred to the issue of the first applicant having used another person’s altered passport to enter Australia. The more important issue for present purposes was whether that conduct exposed the first applicant to a real risk of significant harm in Sri Lanka and whether the Tribunal’s finding that it did not was affected by a material legal error. The “significant harm” criterion for the engagement of Australia’s complementary protection obligations is defined in s.36(2A) the Act in the following terms:

   A non-citizen will suffer significant harm if:

   (a)       the non-citizen will be arbitrarily deprived of his or her life; or

   (b)       the death penalty will be carried out on the non-citizen; or

   (c)       the non-citizen will be subjected to torture; or

   (d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)the non-citizen will be subjected to degrading treatment or punishment.

4. The Tribunal found in that connection:

   51.The punishments prescribed by Nepal's passport law do not involve the deprivation of life or the carrying out of the death penalty. Further, if the first named applicant was subject to punishment prescribed by the law, I find that would be a lawful sanction that is not inconsistent with the Articles of the ICCPR and thus does not fall within the meaning of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. The first named applicant has not claimed nor does the evidence before me satisfy me that there is a real risk that the first named applicant will suffer torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment in the course of punishments being carried out. I thus find that the first named applicant would not suffer significant harm as defined in the Act for breaching Nepal's passport law.

5. That passage demonstrates that the Tribunal considered the matter in issue and reached a conclusion, by reference to the relevant test, that was open on the evidence.  Consequently the second ground of the application identifies no jurisdictional error on the part of the Tribunal. 

   Ground 3

6. In the third ground of the application the first applicant alleged that the Tribunal had incorrectly stated that her family had come to accept her marriage and that this reflected a failure to assess her claims and case “properly”.  In para.56 of the Tribunal’s reasons it set out the confused and somewhat contradictory evidence given by the applicants concerning their families’ attitude to their relationship.  Ultimately it accepted their evidence to the effect that some members of their families did not approve of their relationship.  It went on to record in para.57 of its reasons:

   … In any event, the applicants testified at the hearing that at some stage after they left Nepal their families came to accept their relationship and they do not fear serious harm or significant harm from their families in the future because of their relationship. …

7. The Court Book records that the applicants were provided with a sound recording of the Tribunal hearing but they have not adduced any evidence based on that recording to contradict the Tribunal’s own record of what they told it.  There is no basis in the evidence to doubt the correctness of the Tribunal’s account of the evidence before it and I do not do so.  For that reason, the third ground of the application is not made out.

   Ground 4

8. The allegation in the fourth ground of the application is that the Tribunal’s findings concerning the threat to the second applicant from Maoist forces were contradictory.  That is not correct.  The Tribunal accepted that a certain state of affairs had obtained in the period prior to the applicants’ departure from Nepal but found that circumstances had changed significantly in the intervening period such that the threats to the second applicant’s safety that might have existed in the earlier period no longer did.  Those findings were open on the evidence and the Tribunal’s reasoning is not flawed in the manner alleged.

9. The fourth ground of the application does not disclose error on the Tribunal’s part.

   CONCLUSION

10. Jurisdictional error on the Tribunal’s part has not been demonstrated.

11. Consequently, the application will be dismissed.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.

Associate:

Dated:       16 May 2025