AUX15 v Minister for Immigration

[2015] FCCA 2436

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUX15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2436

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – whether bias made out – whether the Tribunal failed to consider an integer of the applicant’s claims – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 424A, 476

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

Applicant: AUX15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1400 of 2015

Judgment of: Judge Street

Hearing date: 4 September 2015

Date of Last Submission: 4 September 2015

Delivered at: Sydney

Delivered on: 4 September 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the first respondent: Mr A Keevers
Sparke Helmore

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1400 of 2015

AUX15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) for a Constitutional writ in respect of a decision of the Tribunal, affirming the decision of the delegate not to grant the applicant a protection visa. That decision was made on 17 April 2015.

2. The applicant was found to be a citizen of Nepal and her claims were assessed against that country.  The applicant entered Australia on 24 April 2009 on a Nepalese issued passport, bearing a vocational education sector TU dependent multiple entry visa, which was granted on 7 March 2009 in the name of the applicant’s claimed spouse.  That was a lie by the applicant, which the applicant has admitted.

3. The applicant did not apply for a protection visa until 14 January 2011. The Tribunal served on the applicant a letter consistent with the obligations under s.424A, dated 3 March 2015, identifying clear particulars relating to the applicant’s untruthful statement that she was married at the time of applying for the student visa and how that may impact on her credibility, as well as identifying clear particulars of an inconsistent statement the applicant had made about alleging that the police and the Maoists came to her house weekly and threatened her, which had not been raised in the previous application by the applicant.

4. The applicant responded to that letter dated 3 March 2015 by letter dated 25 March 2015, acknowledging the false marriage, but seeking to maintain that the Maoists and police came to her house and threatened, although not suggesting that it was weekly, which is what the applicant had told the delegate in respect of this application.

5. The applicant had earlier applied for protection, which had been refused on 4 June 2014.  This application was made consistent with the principles identified in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 in respect of the grant of complementary protection.

6. The Tribunal formed the view that the applicant was not a person of credibility.  Detailed reasons were given by the Tribunal as to why the applicant was not a person of credibility.  Those reasons cannot be said to lack an evident and intelligible justification.  Those adverse findings were clearly on the material before the Tribunal.  The Tribunal found the applicant was willing to fabricate claims in order to obtain a visa and the Tribunal formed the view the applicant was an unreliable witness.

7. The Tribunal made the following relevant findings:

   32. The Tribunal also does not accept that the applicant had been harassed by the Maoists or the police as a result of her partner’s involvement with the Maoists. As noted above, this is a late claim that the applicant did not raise in her previous dealings with the Department until the most recent interview with the delegate. It appears that, having had her first protection visa application refused, the applicant decided she needed something else to strengthen her second application and that is the reason she made reference to the Maoists. The Tribunal does not consider such claims to have been truthful.

   …

   35. … In the Tribunal’s view, the incident was a single incident perpetrated by a particular individual, it is not indicative that the applicant may experience such behaviour in the future if she were to return to Nepal. The Tribunal does not consider there is a real risk of that occurring again.

   36. The applicant informed the Tribunal that she cannot return to Nepal because she will have nowhere to live and cannot support herself. The Tribunal does not accept that the applicant will not be able to find employment to support herself. The applicant did find gainful employment in the past as she claims she helped with housework and with farming. In addition to whatever skills the applicant had when she lived in Nepal, she has now spent six years in Australia and has been working in Australia, gaining additional skills that would assist her in finding employment. In the Tribunal’s view, if the applicant was able to find employment in the past, she is at least as likely to find employment in the future when she has greater skills. The Tribunal also notes that the applicant had the support of her sister, who lives in Kathmandu. The applicant informed the Tribunal that her sister lives in a two storey house, her husband works and the family is not impecunious. The applicant’s sister had been supporting her for two years in the past and had found money to send the applicant to Australia. Despite the applicant’s protestations that she cannot depend on her sister forever, the Tribunal is of the view that the applicant will be able to obtain support from her sister and remain in Kathmandu through such support and her own employment.

   37. Overall, the Tribunal finds that the applicant is not a person of credibility. The Tribunal has formed the view that the applicant has not been truthful in the claims she put forward in her protection visa application. In the Tribunal’s view, the applicant’s apparent lack of interest in her first protection visa application, the delay in making that application, the reference to significant new claims for the first in her second application, the fact that the applicant did not take adequate steps to remove herself from harm, the fact that she claims to have been unable to marry her boyfriend but providing the marriage certificate, and the deficiencies in her evidence, all point to the applicant’s lack of credit. For the reasons stated above, the Tribunal finds that the applicant has not been truthful in her claims and rejects these claims. The Tribunal does not accept that the applicant gave birth out of wedlock. The Tribunal does not accept that the applicant experienced any form of harassment or harm from family, neighbours or the society in general. The Tribunal does not accept that the applicant had been accused of the death of her partner. The Tribunal does not accept that the applicant had experienced any harassment as a result of her partner’s death. The Tribunal does not accept that the applicant had experienced any form of harm or harassment she described in her protection visa application. The Tribunal does accept that the applicant had been raped, however, in the Tribunal’s view, there is no real risk of that occurring in the future. The applicant’s own evidence is that she did not experience any form of harm in the two years of her residence in Kathmandu before she left the country. The Tribunal does not accept that the applicant will not be able to support herself in Nepal or that she will have nowhere to live. 

   38. The Tribunal finds that there is no real risk that the applicant will suffer significant harm if returned to Nepal as a result of any, all or a combination of her claims. The Tribunal is not satisfied that there is a substantial ground for believing that, as a necessary and foreseeable consequence of the applicant being removed to Nepal, there is a real risk that she will suffer significant harm.

8. It was in those circumstances the Tribunal found that the applicant was not a person in respect to whom Australia had a complementary protection obligation under s.36(2)(aa) and that the applicant did not meet the criteria under s.36(2).

9. The grounds of the application are as follows:

   1. I am not satisfied with the Refugee Review Tribunal Member's decision as the Tribunal Member failed to give me justice in my case.

   2. I am a victim of the Tribunal Member's arbitrary view.

   3. I argue that the Tribunal Member ignored my problems resulted from being a widow.

   4. It is not well-balanced decision and I believe the Tribunal Member made a legal error in concluding that there is no real risk of being raped and ham1ed upon my return to Nepal when there was no evidence before it to that effect.

   5. It is argued that the Tribunal Member failed to deal with my circumstances carefully and lawfully.

10. On 2 July 2015, the Court made an order providing the applicant with an opportunity to file an amended application, put on further evidence or submissions and no such document was filed.  From the bar table, the applicant maintained that she has been a victim and that she could not go back to Nepal.  Nothing said by the applicant from the bar table identified any basis upon which the Court could find a jurisdictional error.

11. In relation to ground 1 of the application, the dissatisfaction of the applicant does not identify any jurisdictional error.  Ground 1 fails to make out any jurisdictional error.

12. In relation to ground 2, the Tribunal gave reasons for its adverse findings to the extent that it is suggested that by reason of those adverse findings, the Tribunal was, in some way, biased.  No particulars have been provided and bias must be clearly alleged and properly proved.  I am satisfied that the adverse reasons of the Tribunal, in this case, were open on the material, particularly given the admitted lie by the applicant about her marriage in order to obtain a student dependent visa and her delay in applying for a protection, as well as the other matters referred to by the Tribunal.  Bias is not made out.  Further, a fair minded observer might not reasonably believe that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits by reason of the adverse findings.  Ground 2 is not made out.

13. In relation to ground 3, it is clear that the Tribunal took into account the applicant’s concerns expressed in relation to being a widow and ground 3 fails to identify any jurisdictional error.

14. In relation to ground 4, to the extent that this is an assertion of bias, it is not made out.  To the extent that the applicant seeks to cavil with the adverse findings by the Tribunal, these were matters that were open to the Tribunal on the evidence before the Tribunal and cannot be said to lack an evident and intelligible justification.  Ground 4 is not made out.

15. Ground 5 is an unparticularised, general allegation and on that basis alone could not succeed.  Further, it is apparent that the Tribunal properly identified the applicant’s claims and evidence in relation to the issue of complementary protection.  For the reasons given by the Tribunal, the adverse findings were open to the Tribunal and ground 5 fails to make out any jurisdictional error.

16. The application is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  8 September 2015