ATE20 v Minister for Immigration
[2020] FCCA 1775
•1 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATE20 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1775 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Protection visa – Whether the Tribunal fell into jurisdictional error by failing to comply with s 424AA of the Migration Act 1958 (Cth) – Whether the Tribunal fell into jurisdictional error by misunderstanding and misinterpreting the crux of the applicant’s claims – Whether the Tribunal fell into jurisdictional error by failing to consider relevant considerations and complimentary protection – No jurisdictional error was made out – The application is dismissed. |
| Legislation: Migration Act 1958 (Cth), s.424AA, 424A |
| Cases cited: BGN16 v Minister for Home Affairs [2019] FCA78 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 |
| Applicant: | ATE20 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 358 of 2020 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 1 July 2020 |
| Date of Last Submission: | 1 July 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 1 July 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr Reilly |
| Solicitors for the Respondents: | HWL Ebsworth Lawyers |
ORDERS
The application is dismissed.
The applicant to pay the first respondent’s costs fixed in the amount of $5,600.00.
Orders 1 and 2 are stayed until the applicant has received written reasons of judgment.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 358 of 2020
| ATE20 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR EX TEMPORE JUDGMENT
(As revised from typescript)
Introduction
The applicant is a citizen of Nepal. The applicant first arrived in Australia on 23 January 2016 on a GE 420 Entertainment visa. That visa ceased on 9 February 2016. On the same day, the applicant lodged an application for a protection visa.
On 15 July 2016, a delegate of the Minister for Immigration and Border Protection (“the delegate”) refused the application for a protection visa. The applicant sought merits review in the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 23 January 2020, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
The applicant now seeks judicial review of the Tribunal decision.
Preliminary Issue
The applicant was initially represented by a lawyer. On 2 June 2020, the applicant’s lawyer filed a Notice of Ceasing to Act. At the commencement of the hearing, the applicant sought an adjournment to obtain alternative legal representation. The applicant advised that he did not have any current arrangements in place for alternative representation. The applicant had not contacted an alternative lawyer. The applicant was unable to advise, as to when he would be able to secure legal representation, if an adjournment was granted. The applicant indicated that he was currently unemployed and that he would need to get a job to get enough money together for a lawyer. The applicant stated that he had not been able to get funds together previously, hence his former lawyer withdrawing.
The applicant also relied upon a medical certificate produced to the Court. The medical certificate indicated that the applicant was unfit to attend work/school/university due to a medical condition. No description of the condition that the applicant suffers from, appeared in the medial certificate. The certificate covered only the day of the hearing. A prescription for a mild sedative ‘Temase’ was also produced. It was prescribed for night time or ‘Nocte’ usage.
Counsel for the first respondent opposed any adjournment. It is submitted that even if an adjournment was granted, that there was no certainty that the applicant would be in a different position next time. The protection visa was originally refused in 2016. There has been plenty of time for the applicant to obtain the services of a lawyer and save enough funds to pay for legal representation.
The Court acknowledged that the matter was initially fixed for final hearing on 7 April 2021. However, as a result of COVID 19 restrictions, in respect of face to face hearings, matters where both parties were represented and could be undertaken by telephone, were relisted to fill spaces in the Court list, to replace matters where the applicant was unrepresented and required an interpreter.
Matters where the applicant was unrepresented and required an interpreter, were considered unsuitable for hearing via telephone or using video, due to the complex issues of having an interpreter remote from the applicant and the difficulty with referring to documents.
On 1 May 2020, this matter was listed for hearing on 1 July 2020. The applicant has thus been aware of this listing for two months. The applicant has also had nearly a month to obtain alternative legal representation. This has not occurred. The Court is of the view, in these circumstances, that an adjournment should not be allowed.
The Court is not satisfied that if an adjournment is allowed that the applicant’s position will be any different in a few months’ time.
The Court notes that the hearing occurred face to face, as a result of the partial lifting of restrictions on the conduct of such hearings.
The Administrative Appeals Tribunal’s Decision
At paragraph 10 of its decision, the Tribunal noted that the issue in this case, was the credibility of the applicant and whether, on accepted claims, the criteria for protection were fulfilled.
The Tribunal noted at paragraph 13 of its decision, that the applicant claims he had lost everything in an earthquake in Nepal and that ethnic people threatened his life in Terai.
A submission provided by the applicant’s Migration Agent, dated 20 December 2019, indicates that the applicant is being specifically targeted due to his race and that a ‘Pahadi’ living in Terai was at risk of harm from the indigenous Madhesi. It was claimed that the applicant was originally a victim of the Maoists because the applicant and his family had moved from their home village in Purkot in 2011.
At paragraph 17 of the Tribunal’s decision it was submitted that the applicant would be unsafe in Nepal because of the violent activities of Terai-based political parties. It was also submitted that even Authorities fear entering the area where there are a stronghold of Terai parties.
At paragraph 20 of its decision, the Authority sets out significant information drawn from a Department of Foreign Affairs and Trade (“DFAT”) report on Nepal of 1 March 2019.
At paragraph 47of its decision, the Tribunal noted to the applicant that the DFAT information does confirm disturbances in the Terai involving the Madhesi. The Tribunal put to the applicant that it would not appear that he would live in the Terai if he returned to Nepal. The applicant indicated that if anywhere, he would return to Kathmandu. The applicant would therefore not be at risk of harm based on continuing disturbances in the Terai region.
At paragraphs 49 and 50 of its decision, the Tribunal found that it had credibility concerns with the applicant’s claims. The Tribunal found that the sole reason that the applicant relocated to Birgunj, was to pursue employment opportunities and not because of any difficulties faced by Maoists in his home area.
At paragraph 52 of its decision, the Tribunal noted that it was not satisfied on the independent country information before it, that the applicant would be at risk of a real chance of serious or significant harm, as a result of action by Maoist political splinter groups. The Tribunal noted at paragraph 54 of its decision, that the applicant would be returning to Kathmandu and that it was not satisfied that he would face a real chance of serious significant harm, which may be a result of any ongoing disturbances taking place in the Terai.
At paragraph 56-57 of its decision, the Tribunal noted medical information that was before it. This information provided no indication in relation to the applicant’s work capacity and prognosis. The Tribunal was not satisfied that the applicant is in such a condition that he would be unable to obtain employment in Nepal. The Tribunal accepted that there may be limitations or employment that requires heavy lifting and significant manual dexterity. These limitations on the applicant’s ability to work would not, in themselves, meet relevant protection criteria or, be the subject of complimentary protection requirements.
Accordingly, the Tribunal concluded that the applicant did not meet the criteria for either refugee protection or complimentary protection, pursuant to s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”).
Grounds of Appeal
The grounds relied upon are set out in an in an application filed with the Court on 18 February 2020. Those grounds are as follows:
Ground One
The Second Respondent made jurisdictional error by failing to comply with Section 424AA of the Migration Act 1958.
Particulars;
a. At [49], the Second Respondent failed to explain to the Applicant why the information it relied upon was relevant to the review and consequences of the information relied upon in affirming the decision, particularly in relation to its credibility concerns.
b. The Second Respondent failed to give the applicant an opportunity to respond to credibility concerns or seek additional time to comment on or respond to the information.
c. Alternatively, the Second Respondent has raised doubts on credibility without providing procedural fairness to the Applicant.
d. Further particulars to be provided after obtaining the hearing transcript.
Ground Two
The Second Respondent made jurisdictional error by misunderstanding and misinterpreting the crux of the Applicant’s claims.
Particulars;
a. At [58], [59] and [60], the Second Respondent found that economic difficulties and limitations on the Applicant’s ability to work due to physical injury would not, in themselves, meet relevant protection criteria.
b. The Second Respondent failed to identify the Applicant’s claim of being a member of a particular social group, in that, he is a physically disabled person.
Ground Three
The Second Respondent made jurisdictional error by failing to consider relevant considerations and complimentary protection.
Particulars
a. At [13], the Applicant has suffered a financial loss.
b. At [15], the Applicant has been specifically targeted for his race, being a ‘Pahadi’.
c. The Applicant does not have a right to safety and protection in India.
d. The Applicant underwent and will undergo another surgery. At [13], his physical condition is impaired post-surgery.
e. At [58], the second respondent found that the harm is simply the product of inherent characteristics of physical attributes, work ability and/or the economic situation rather than in an intention by any person or body to cause harm to the applicant.
f. Further particulars to be provided after obtaining the hearing transcript.
The Applicant’s Submissions.
The applicant was given the opportunity to make oral submissions at the hearing. The applicant declined to do so. Following the first respondents oral submissions, the applicant was again asked if he had anything to say. The applicant again indicated that he did not wish to say anything.
The First Respondent’s Submissions
Counsel for the first respondent submitted that the first ground, claims that the Tribunal failed to comply with s 424AA of the Act, referring to the credibility concerns the Tribunal noted at paragraph 49 of its decision. These concerns are evidence of the Tribunal’s thought processes and so not “information” and so could not engage s 424A(1) of the Act (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 (“SZBYR”) at [18]).
It is submitted by Counsel for the first respondent that the second ground, claims that the Tribunal misunderstood the applicant’s claims. The particulars appear to assert that the applicant claimed to be a member of the social group of physically disabled persons in Nepal. The applicant did not so claim and there was no evidence before the Tribunal that such a social group exists in Nepal and that its members face persecution, because of membership of that group. However, in any event, the issue is relevant, given that the Tribunal found that the applicant did not face serious harm in Nepal because of his injury, so whether social group existed as suggested by ground two, would be irrelevant (see SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 at [78]) per Greenwood J and (BGN16 v Minister for Home Affairs [2019] FCA78 at [28] – [31]) per Griffiths J.
It is submitted by Counsel for the first respondent that the third ground, claims the Tribunal did not consider relevant considerations and complimentary protection. The particulars are a mixture of bare statements and assertions and do not sufficiently explain any appealable error. Further, if at ground 3(e), the applicant seeks to take issue with what the Tribunal says at paragraph 58 of its decision, this contention cannot succeed. The Tribunal’s comments, in respect of the complimentary protection criteria, simply provide that the harm claimed by the applicant did not contain an element of an “intention” to inflict significant harm, for the categories of harm relevant to the application (see SZTAL v Minister for Immigration and Border Protection(2017) 262CLR 362 at [26] – [27]).
Consideration
At the commencement of the hearing, the Court ensured that the applicant was in possession of the Court books and the first respondent’s submissions. The applicant was asked if he had received an opportunity for the first respondent’s submissions to be interpreted to him. The applicant said that this had occurred, prior to the hearing. The applicant was also provided with a pen and paper, so that he could take notes during the course of the hearing, should he wish to.
Whilst referred to in the grounds of the application, the Court notes that no copy of a transcript of the hearing before the Tribunal has been provided to the Court.
Ground one asserts that the applicant was not given information, pursuant to s 424A of the Act, in terms of its concerns regarding his credibility together with an opportunity to respond. The first respondent contends that these concerns are evidence of the Tribunal’s thought processes, that are not “information” that could engage s 424A(1) of the Act.
The Tribunal is not required to give a running commentary of its concerns, as the case unfolds.
It is well-established that the Tribunal’s disbelief of an applicant’s evidence arising from inconsistencies therein, is not “information” for the purposes of s 424A of the Act. Neither does information that includes the Tribunal’s subjective appraisals, thought processes and determinations, defects gaps or lack of detail in the applicant’s evidence; (see SZBYR at [18]; and VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [14]). No jurisdictional error arises.
In relation to ground two, the Court agrees with the first respondent that no claim was put forward that the applicant was a member of a particular social group, in that he is a physically disabled person. Nor was there evidence that such a group exists. There was evidence before the Tribunal that the applicant had been injured at work in Australia and had been off work for two weeks. Material was provided to the Tribunal that indicated that the applicant continued to have some ongoing problems in relation to manual dexterity and his capacity to lift heavy objects. It is clear that the Tribunal considered this issue at paragraphs 56 - 60 of its decision. The Tribunal was of the view, that the applicant’s inability to work in heavy lifting, did not enliven relevant protection criteria either in relation to the refugee criteria for complimentary protection criteria. The Tribunal stated in particular, that “the Tribunal would not be satisfied the economic situation faced by the applicant and Nepal or the physical injury faced by the applicant would lead to a risk of the applicant facing any defined category of significant harm”.
In these circumstances, the Court is satisfied that the Tribunal did consider the claims made by the applicant but found that they did not enliven the relevant protection criteria requirements. No jurisdictional error is made out.
In relation to ground three, it is suggested that the Tribunal failed to consider relevant considerations and complimentary protection. The Court is satisfied firstly that the Tribunal did consider the applicants physical condition and any loss that he may have sustained as a result of the earthquake in Nepal. The Tribunal noted that the applicant would be returning to Kathmandu and that he would not be the target of any discrimination or indeed persecution for being a Pahadi, in Kathmandu.
The Court agrees with the first respondent that the Tribunal’s comments at paragraph 58 of its decision, in respect of the complimentary protection criteria, were relevant in that the Tribunal pointed out that the applicant would not be at risk of significant harm, as a result of the matters he relied upon, as compared to the matters that might attract protection under the legislation. No jurisdictional error arises
Conclusion
Accordingly, the application is dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Deputy Associate:
Date: 6 July 2020
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