Axi16 v Minister for Immigration

[2018] FCCA 1442

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXI16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1442

Catchwords:

MIGRATION – Judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant Protection visa – whether in assessing the credibility of the first applicant the Tribunal acted unreasonably in relying on the failure by the first applicant in a proceeding before the Migration Review Tribunal to state as a reason for her not wishing to return to Nepal that she feared harm if she were to return – no jurisdictional error.

PRACTICE & PROCEDURE – Application at hearing for leave to amend application – whether sufficient merit in proposed ground that Administrative Appeals Tribunal failed to consider claim – no merit in proposed ground – application for leave to amend dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 48A, 417

Cases cited:

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

SZIIF v Minister for Immigration and Citizenship [2008] FCA 913

First Applicant: AXI16

Second Applicant: AXJ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 929 of 2016

Judgment of: Judge Manousaridis

Hearing date: 26 May 2017

Date of Last Submission: 26 May 2017

Delivered at: Sydney

Delivered on: 15 June 2018

REPRESENTATION

Counsel for the Applicants: Mr J Young

Solicitors for the Applicants: Shamser Thapa & Associates

Counsel for the First Respondent: Mr N Swan

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application for leave to file an amended application in the form of the draft handed up at the hearing on 26 May 2017 is dismissed.

2. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 929 of 2016

AXI16

First Applicant

AXJ16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants claim the second respondent (Tribunal) made two jurisdictional errors when deciding to affirm a decision of a delegate of the first respondent (Minister) not to grant to the applicants a Protection (subclass 866) visa (Protection visa). The first jurisdictional error is said to have been made in connection with the Tribunal’s conclusion that it was not satisfied the first applicant was a credible witness. The second jurisdictional error is said to consist of the Tribunal’s failing to consider a claim the applicants submit was before the Tribunal.

2. The first claim of jurisdictional error is included as a ground in the application. The second claim, however, is not; and the applicants seek leave to amend the application to include that claim as a ground. The Minister opposes the proposed amendment on the ground that the proposed amendment would be futile because it has no merit. When considering the second claim of jurisdictional error, therefore, the first question I must consider is whether there is any merit in the claim.

3. To be in a position to understand and, therefore, consider the applicants’ claims, it will be useful to set out the applicants’ migration history in Australia, the claims the applicants made in their application for a Protection visa, and the course of the proceeding before the Tribunal.

Migration history

1. The first applicant (applicant) and the second applicant (daughter) are citizens of Nepal. They arrived in Australia in April 2006, holding sponsored family visitor visas.

2. In May 2006 the applicants applied for Protection visas, but that application was rejected by a delegate of the Minister and was affirmed, on review, by the Refugee Review Tribunal. The applicant claimed fear of harm based on her being a Christian. The applicant claimed,[1] among other things, that Maoists targeted Christians; Maoists came to the applicant’s home asking for money; on one occasion the Maoists abducted the applicant’s husband; “cruel armies of Nepal” attacked the applicant in her own home;[2] the applicant had been “harassed and assaulted by the army to a point of near death simply because I was a Christian woman”;[3] and the applicant is a committed evangelist Christian, having become involved in such activities in Australia which she will continue if she were to return to Nepal, and for that reason feared harm from the authorities, the Maoists, and Hindu fundamentalists.

   [1] CB15-19

   [2] CB18

   [3] CB18

3. The applicants applied to the Minister for the exercise of the power conferred by s.417 of the Migration Act 1958 (Cth) (Act), but this was refused. The applicants then made a number of other unsuccessful applications. These included a further application for a Protection visa, an onshore tourist visa application, a remaining relative visa application, a Partner visa and a further application for the exercise of the power under s.417 of the Act.

4. Relevant to the first claim of jurisdictional error made in the proceeding before me is an application the applicant made on 26 May 2010 for a Partner visa. A delegate refused that application and, on 11 October 2013, the Migration Review Tribunal (MRT) affirmed the delegate’s decision.

Claims for protection in second application

1. On 21 March 2014 the applicants again applied for a Protection visa. They were not barred by s.48A of the Act from doing so because by that time s.36(2)(aa) of the Act was introduced as an additional criterion for the grant of a Protection visa; and, in SZGIZ v Minister for Immigration and Citizenship,[4] the Full Federal Court held that the operation of s.48A of the Act, as it then stood, was confined to the making of a further application for a Protection visa which duplicated an earlier unsuccessful application for a Protection visa, and an application for Protection visa based on s.36(2)(aa) of the Act did not duplicate an earlier application for a Protection visa based on s.36(2)(a) of the Act.

   [4] [2013] FCAFC 71

2. The applicant alone made a claim for protection; the daughter applied as a member of the applicant’s family. The applicant stated her claims by providing answers to a number of questions asked in the form of application by which the applicant applied for a Protection visa.

3. In response to the question whether the applicant experienced harm in her country, the applicant said that “Shiva Sena, Hindu extremist and Youth Communist League (YCL) demanded” ransom moneys and threatened to kill the applicant, and her husband was abducted. In a separate paragraph in response to the same question the applicant stated that the applicant’s husband’s relatives, “Limbu Society, local community, world Hindu Organisation Hindu Extremist, Shiva Sena, newly formed Youth Communist League (YCL), Hindu extremist abused and threaten[ed]… to kill” the applicant; that “Nepalese authority police warned me to put in Jail for long time”; and that “[a]ll of these organisations” are after the applicant to punish her and eliminate her life “to stop growing Christian religion in Nepal”.[5]

   [5] CB114

4. In answer to the question of what the applicant feared may happen to her if she returns to Nepal, the applicant said:[6]

   a)Shiva Sena and the YCL will beat and torture the applicant because she is a “Christian religion converter”.

   b)“[N]ew circumstances changed since” the applicant left Nepal. A new organisation, “HINDU JAGARAN formed by Mp Kamal Thapa and others made news program raised against Christian Religion converter”; “HINDU JAGARANA” has been recruited to go out and “prosecute Christian religion converters”; “[t]hey are receiving money from all over the world”; and “[t]hey” are demanding the Nepalese government to stop the spread of the Christian religion converters, and to jail those people.

   c)A particular pastor had been brutally murdered but no one was arrested “because he was Christian religion converter (proselytiser)”.

   d)Last year the government and chief district officer (CDO) of Bhairahawa prosecuted a pastor, and ordered the closure of his church and other organisations.

   e)The pastor’s son has been imprisoned for 15 years “accusing him Christian religion converter”; and in December 2013 a church building had burned down.

   f)The applicant fears “world Hindu organisation, Shiva Sena who prosecutes Christians” and who wrote a letter to the Nepalese authorities on 15 August 2002 which had been published in “all daily magazine” seeking to make religious conversion a crime. “This put the lives of Christian evangelist in very serious risk”.

   [6] CB115

5. In answer to the question (question 46) of who the applicant thought may harm or mistreat the applicant if she returned to Nepal, the applicant said (errors in original) (emphasis added):[7]

   My relatives, Limbu Society, Hindu society, local community, world Hindu Organisation, Hindu Extremist, Shiva Sena, newly formed Youth Communist League (YCL) and newly formed HINDU JAGARANA will harm and brutally miss treat and kill me.

   Local government, local community, Nepalese authorities Police, world Hindu Organisation, Hindu extremist, Shiva Sena Youth Communist League (YCL) HINDU JAGARANA harm and miss treat me to put in jail for long time or kill me. They will discriminate me against my belief of Christian religion proselytiser.

   Hindu extremists (World Hindu organization, Shiva Sena) will harm and persecute me as they wrote a letter to the Nepalese Authorities in Nepal on 15 August 2002. This article have been published in all daily magazine that his majesty’s Government has made an instruction order to make a complain for religion conversion crime from honourable supreme court in order to take action individual and organizations involvement so that to change other religion still illegal in Nepal. This put the lives of Christian religion converter (evangelist proselytiser) in very serious risk.

   [7] CB115

6. The applicant’s answer to the question (question 47) of why she thought what she believed would happen on her return to Nepal includes the following (emphasis added):[8]

   I am Christian evangeliser gospel of bible and Christian religion converter (proselytiser). Nepal country is still dominated by Hindu religion. I am not only practising my Christian religion but I convert person to Christian religion for salvation. Nepal law and constitution forbids convert another person from one religion to another. . . . They will discriminate me against my belief of Christian religion and proselytiser.

   [8] CB115

7. The applicant repeated the substance of her claims before the delegate on 15 September 2014.[9] The applicant also appeared before the Tribunal on 3 March 2016.[10]

   [9] CB173

   [10] CB217

Tribunal’s decision and reasons

1. The Tribunal affirmed the delegate’s decision largely because it found the applicant was not a witness of truth, and that the applicant had “fabricated accounts of events in Nepal, as well as future fears and circumstances”.[11] The Tribunal relied on a number of matters and findings.

   [11] Decision Record (DR), [72]

2. First, the Tribunal found the applicant did not appear to be interested in providing details about her past claims at the hearing before the Tribunal. In “this regard” the Tribunal noted that at the hearing the Tribunal read out “to the applicants” extracts of the applicant’s evidence in her Partner visa application interview with the MRT on 10 October 2013 in response to the MRT’s question why the applicant applied for a Partner visa. The applicant responded to the MRT’s question by stating that she could not go back to Nepal for so many reasons it was hard to explain; and, in response to the MRT’s asking whether the applicant wished to say anything else in support of her case, the applicant said the daughter was about to start high school and had grown up in Australia; the daughter had a close relationship with the sponsor; and that the applicant wanted to remain in Australia more for her daughter than herself.[12] After reading this part of the applicant’s evidence to the MRT the Tribunal put to "the applicants” that the applicant’s failure to mention to the MRT “all her past claims of past harm (from Maoists, the authorities and because she was a Christian converter/proselytiser), and her fears arising from her past harm, and instead just referring to her daughter, indicates that her previous claims of past harm and fears arising are not genuine”.[13] The applicant responded (as recorded in the decision record) “that it was all a long time ago, it is the truth, she is concerned about her daughter and how she will adjust from living here”.[14]

   [12] DR, [37]

   [13] DR, [38]

   [14] DR, [38]

3. The Tribunal found the applicant’s response did not overcome the “Tribunal’s concerns that the applicant did not explain to the MRT any of the claimed reasons she could not go back (arising from her claimed past harm and activities)”.[15] The Tribunal considered that “if the applicant’s claims of past harm and fears arising from her past were true, she would have told the MRT about those claims as reasons why she could not return”, and that the applicant’s “response undermines her credibility concerning her claims of past harm and future fears in Nepal (other than in relation to her concerns for her daughter)”.[16]

   [15] DR, [39]

   [16] DR, [39]

4. The second matter on which the Tribunal relied for not accepting the applicant as a witness of truth is that, although the applicant claimed she had been threatened in Nepal, the applicant was vague on the details, she changed her evidence, and “she was dismissive of this claim when asked about it by the Tribunal”.[17] The Tribunal referred to the following:

   a)The applicant told the Tribunal she had been threatened by Maoists before she came to Australia because they were after her money, but when the Tribunal asked the applicant why she considered that was a reason for her to come to Australia the applicant did not answer the question, but instead spoke about a family member having treated the applicant badly for her Christianity in Nepal.

   b)When the Tribunal repeated the question why her fear of the Maoists made her come to Australia, the applicant said the Maoists constantly shut down businesses and they constantly threatened her. When asked how often she was threatened in 2005 the applicant initially said “lots of times”, but then said she received two to three cards and letters in 2005 and that in that year the Maoists demanded the applicant pay money or they would kill her.[18] The Tribunal recorded that the explanation the applicant gave for changing this part of her evidence about how often she received threats was that the applicant “could not recall them all”, the applicant “did not want to recall all these things” and it happened a long time ago.[19]

   c)The applicant suggested she came to Australia because most of her family members were here. When the Tribunal asked the applicant whether that was the reason the applicant left Nepal, the applicant said “yes”, and then she said she also did not feel safe in Nepal.[20]

   d)The applicant avoided the Tribunal’s question about how many times she received telephone threats, but then said she had been threatened by the Maoists six to seven times in 2005, but not at other times.[21]

   e)The Tribunal put to the applicant that, given that on her evidence the Maoists had not threatened her after 2005, and the applicant left Nepal in 2006, the Tribunal did not understand why she still claimed to fear the Maoists. After the Tribunal repeated the question the applicant said she did not want to talk about the Maoists; she wanted to talk about her daughter who she brought to Australia when she was young. In response to the Tribunal’s question whether the applicant was saying that she had no fear of the Maoists, the applicant responded she did not really know about the Maoists, and “she is not really thinking about this one”.[22] The Tribunal considered that the applicant’s response indicated she had no fear of the Maoists, and she did not have any reason to think she would be harmed by the Maoists. The Tribunal further considered that the applicant’s response undermined her claims that she and her former husband had suffered past harm at the hands of the Maoists.[23]

   [17] DR, [40]

   [18] DR, [41]

   [19] DR, [42]

   [20] DR, [43]

   [21] DR, [44]

   [22] DR, [46]

   [23] DR, [47]

5. The third matter on which the Tribunal relied for not accepting the applicant as a witness of truth is that she failed to mention Christianity and proselytising to the Tribunal despite being given numerous opportunities to do so.[24] Later in her evidence the applicant did refer to Christianity;[25] but she did so after, in response to the Tribunal’s question of what she feared if she were to return to Nepal, the applicant said she feared her daughter could not adjust in Nepal because she had grown up in Australia, and that she and her daughter could not survive financially in Nepal.[26] Further, the applicant could not recall the names of the groups she feared as a Christian and as a proselytiser.[27]

   [24] DR, [48]

   [25] DR, [52]

   [26] DR, [51]

   [27] DR, [53]-[55]

6. The fourth matter on which the Tribunal relied for not accepting the applicant as a witness of truth is that the applicant’s own evidence about her involvement with Christianity in Nepal undermined her claims that she was a practising and active Christian, and a known Christian evangeliser in Nepal.[28] The Tribunal set out a number of examples. These included the applicant claiming she attended church in Nepal every Saturday from 2000 to 2006 and in Sydney every Sunday from 2006; that baptism is important and that people were baptised in Nepal, yet she was not baptised until 2009 when she was in Sydney;[29] and she was unable to give any real detail about the matters she claimed occurred in her church in Australia that she attended every Sunday, or about Christianity generally.[30]

   [28] DR, [56]

   [29] DR, [59]

   [30] DR, [59]-[61]

7. Given the Tribunal found the applicant not to be a credible witness, it made the following findings in relation to the applicant:

   a)The Tribunal did not accept the applicant or her husband were targeted or harmed by the Maoists, or that Maoists targeted or harmed businesses which the applicant and her husband successfully operated.[31]

   b)The Tribunal was not satisfied that the applicant has ever been targeted by the authorities, or taken to an army camp, or that there is any reason to consider that the applicant faces a real risk or real chance of being targeted by the authorities in the reasonably foreseeable future or at all.[32]

   c)Although the Tribunal was prepared to accept the applicant may identify as a Christian, and that her former husband (the daughter’s father) was also a Christian, the Tribunal did not accept the applicant had any real interest in Christianity, or the Bible, or Christian activities.[33] And although the Tribunal was also prepared to accept the applicant may have very occasionally attended church in Nepal, it was not prepared to accept she was an active Christian, or that she undertook Christian activities such as organising a Christian fellowship or handing out pamphlets or that she ever proselytised in Nepal.[34] The Tribunal, therefore, also was unable to accept the applicant was ever targeted or harmed for being a Christian or even imputed as a Christian in Nepal.[35]

   d)The Tribunal found that the applicant’s claim she had been a Christian converter or evangelist, or that she proselytised in Nepal or in Australia to be untrue.[36]

   [31] DR, [73]

   [32] DR, [74]

   [33] DR, [76]

   [34] DR, [76]

   [35] DR, [76]

   [36] DR, [78]

8. The Tribunal also referred to what it described as a claim the applicant made “in her earlier proceedings (as referred to in the delegate’s decision in the current proceedings) but not made to the Tribunal, that she was a Christian convert in Nepal”.[37] The Tribunal said it “is not satisfied on the evidence before it that there is a real risk or chance that [the applicant] will be imputed as or considered to be a Christian convert”.[38]

   [37] DR, [76]

   [38] DR, [76]

1. The Tribunal also made a number of findings in relation to the daughter. The Tribunal was prepared to accept the daughter identified as Christian and may have accompanied the applicant to church occasionally in Australia;[39] that the daughter arrived in Australia when she was five years of age and has remained in Australia for nine years; and that the daughter’s returning to Nepal will be a change for her and that she will have to adjust to a new school.[40] The Tribunal found, however, that the applicant will be returning to Nepal with her mother who clearly cares for her; and on the basis of the evidence before it the Tribunal was not satisfied the daughter faces a real risk of significant harm if she were to return to Nepal.[41]

   [39] DR, [82]

   [40] DR, [87]

   [41] DR, [87]

2. The Tribunal then considered country information in relation to the practice of Christianity in Nepal and the risks associated with evangelism and proselytising. The Tribunal accepted Nepalese law prohibits proselytising, but the Tribunal did not accept the applicants would engage in proselytising or have any genuine desire to engage in such activities.[42] The Tribunal otherwise was not satisfied the applicant and the daughter faced a real risk or a real chance of being harmed or harassed or targeted or prosecuted for identifying as Christians and occasionally going to church in Nepal.[43]

   [42] DR, [94]

   [43] DR, [95]

3. The Tribunal also made the following findings:

   a)The Tribunal was not satisfied the applicant or the daughter face a real risk of significant harm because of their gender.[44]

   b)The Tribunal was not satisfied the applicant would be without support, assistance or accommodation when she returns to Nepal;[45] and the Tribunal considered that the applicant’s family members will continue to support the applicant and the daughter.[46]

   [44] DR, [97]

   [45] DR, [98]

   [46] DR, [99]

4. The Tribunal completed this part of its reasons as follows:[47]

   The Tribunal has considered the applicants’ circumstances individually and cumulatively. The Tribunal is not satisfied that the applicants face a real risk of significant harm from the applicant’s husband’s family, relatives, Hindu extremists, society generally, or the authorities (for any reason); nor does it accept that they will have difficulties amounting to significant harm in supporting themselves or re-adjusting to life in Nepal or because they identify as Christians and may occasionally attend church.

   The Tribunal is not satisfied that there are substantial grounds for believing, that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Nepal, there is a real risk that they will suffer significant harm. Therefore the applicants do not satisfy the criterion set out in s.36(2)(aa)

   [47] DR, [106], [107]

5. The Tribunal also assessed the applicant’s claims under the criterion provided for by s.36(2)(a) of the Act, but, based on the findings the Tribunal had already made, it was not satisfied the applicant satisfied that criterion.

Existing grounds of application

1. The application as currently filed raises three grounds of application. The applicants do not press ground 1 and have applied for leave to rely on an amended ground 3. The only ground of the existing application that I need consider is ground 2, which is as follows:

   The Second Respondent made jurisdictional error in that it made a decision which was unfair or unreasonable, by treating failure to mention all past claims of persecution to the Migration Review Tribunal as indicating that those claims were false and that failure to mention the past claims undermined the Applicants’ claims of past harm and future fears in Nepal.

2. In their written submissions the applicants submit the Tribunal did not consider that at the time of the MRT hearing the applicant had lived in Australia for seven years and that, on the applicant’s own evidence, she was mainly concerned about the daughter.[48] The applicants refer to paragraph 38 of the Tribunal’s reasons which they characterise as a finding by the Tribunal that the applicant was lying about her past claims and fears, and they submit that this is “a brutal inflexible and . . . quite unreasonable and capricious basis upon which to base a finding that she was not truthful”.[49]

   [48] Applicant’s Written Submissions, [10]

   [49] Applicant’s Written Submissions, [11]

3. The applicants further submit the Tribunal failed to take into account when assessing the applicant’s failure to include in her answer to the MRT’s question her fear of harm the time that had passed between the events in Nepal and the hearing before the MRT. The applicants refer to the judgment of Weinberg J in SZIIF v Minister for Immigration and Citizenship.[50] The applicants submit that “[t]o treat evidence given in 2016 about matters which had occurred over 10 years previously without reference to that delay is so unfair and unreasonable that it fails to be a review as required by s 414 of the Act Part 8”.[51]

   [50] [2008] FCA 913

   [51] Applicant’s Written Submissions, [13]

4. Mr Young, who appeared for the applicants, repeated in his oral submissions the substance of those made in the applicants’ written submissions. Mr Young submitted that it was unreasonable for the Tribunal to have expected the applicant in the MRT proceeding to have mentioned her fear of returning to Nepal because it was not relevant to the issues that were relevant in the application for a Partner visa. Mr Young submitted it was “unreasonable where there is no expectation in the first place that [the applicant] would mention anything to do with persecution, which is not relevant to the visa”.[52]

   [52] T6.45

5. Mr Young also submitted that “at no point” did the Tribunal “consider the amount of time that has elapsed in relation to the matter”,[53] and he relied on SZIIF. Mr Young particularly relied on the following statement of principle from paragraphs 83 and 84 of the judgment of Weinberg J (emphasis in original):[54]

   Speaking generally, therefore, NAIS stands as support for the proposition that lengthy delay, unacknowledged by the Tribunal in its reasons for decision, can give rise to jurisdictional error. This may be because the Tribunal has failed to take into account a matter that it was obliged to consider:  Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24. Alternatively, it may be that the Tribunal has denied the applicant a fair hearing, and thereby denied him procedural fairness.

   The Minister submitted that NAIS could be distinguished from the present case.  NAIS concerned delay and its effect upon the capacity of the Tribunal to assess demeanour. The present case also involved delay but not in the way that this issue arose in NAIS.

   [53] T9.15

   [54] T10.20

6. The Minister submits there was nothing irrational or unreasonable in the Tribunal relying on the applicant’s not mentioning before the MRT the matters on which she relied for claiming protection as a matter undermining the applicant’s credibility; and the Minister further submits that the Tribunal did take into account the passage of time.

7. Ground 2, therefore raises two issues. The first is whether the Tribunal acted unreasonably in relying on the applicant’s not mentioning before the MRT the matters on which she relied for claiming protection as a matter undermining the applicant’s credibility. The second is whether the Tribunal did not take into account the passage of time.

Unreasonableness/irrationality

1. When considering this issue it is important to be clear about the context in which, at the MRT hearing, the applicant gave evidence about the reasons for her not wishing to return to Nepal, and the manner in which the Tribunal relied on the applicant’s omitting in that context to inform the MRT of her fear of being harmed as a reason for the applicant’s not wishing to return to Nepal.

2. The only evidence of what occurred at the hearing before the MRT is what the Tribunal states in its decision record.[55] According to the decision record, it was not the MRT, but the applicant who raised the question of why the applicant did not want to return to Nepal. The applicant raised it in answer to the MRT’s question of why she applied for a Partner visa – a question that was not directed to whether the applicant wanted to return to Nepal; and the applicant said she could not go back to Nepal “for so many reasons it was hard to explain”. From this it is reasonable to infer that the applicant directed her mind to why she could not go back to Nepal. When the MRT asked the applicant whether she had anything further to say, the applicant stated a number of matters, all of which related to the daughter.

   [55] At DR, [37]

3. In these circumstances it was reasonably open to the Tribunal to find, as it did, that, had the applicant in truth feared harm if she returned to Nepal for the reasons she had stated in her application for a Protection visa, the applicant, without any prompt from the MRT, would have directed her mind to why she believed she could not return to Nepal and would have said something to the MRT about those fears had she in fact held them; and that the applicant’s failure to mention any of those fears, and the applicant’s only mentioning her concerns about the daughter, was a matter on the basis of which the Tribunal could reasonably have concluded that the reason the applicant did not mention to the MRT any fear of harm on her return to Nepal was that she in fact did not hold any such fear.

4. As I have already noted, the applicants, in their written submissions, submitted that the Tribunal relied on the applicant’s failure to state to the MRT her fear of harm if she were to return to Nepal to find that the applicant was lying about her past claims and fears.[56] This, however, does not accurately reflect what the Tribunal did.

   [56] Applicant’s Written Submissions, [11]

5. The Tribunal did put to the applicant that her failure to mention to the MRT she feared harm if she were to return to Nepal indicated that her previous claims of past harm and fears are not genuine; and the Tribunal set out the applicant’s responses. The Tribunal then considered the applicant’s responses, finding they did not overcome the Tribunal’s concerns arising out of the applicant’s failure to state to the MRT that she feared harm if she were to return to Nepal; and the Tribunal concluded this part of its reasons, not by finding that the applicant had lied, but by noting that the applicant’s responses to the Tribunal’s concerns arising from the MRT hearing undermined the applicant’s credibility concerning her claims of past harm and future fears in Nepal, other than in relation to her concerns for the daughter. The Tribunal did ultimately find the applicant was not a witness of truth; but it did so after it considered this and other matters that I have identified earlier in these reasons for judgment.

6. In my opinion, therefore, it was reasonably open to the Tribunal to rely as a factor undermining the credibility of the applicant’s claims of past harm in Nepal and fear of future harm that, when she stated to the MRT that she could not return to Nepal she omitted as a reason why she could not return those past harms and fears of future harm. This part of ground 2, therefore, fails.

Failure to take into account passage of time

1. The difficulty with this part of ground 2 is that, according to the Tribunal’s decision record, the applicant sought to explain her not having stated to the MRT that she feared returning to Nepal because of the harm she had previously claimed she suffered and which she claimed she feared she would suffer if she were to return, by stating “it was all a long time ago”. In other words, the applicant sought to explain her omission by reference to the passage of time. The Tribunal was aware that this is how the applicant sought to explain her omission because the Tribunal recorded in its decision record the applicant’s having stated “it was all a long time ago” in response to the Tribunal’s raising the concerns it had with the applicant’s failure to state to the MRT her claims of past harm and fears of future harm. The Tribunal, however, did not accept that explanation.

2. It was reasonably open to the Tribunal not to accept the applicant’s explanation. That is, it was reasonably open to the Tribunal to find, as it did, that even though a significant period of time passed between the dates on which the events the applicant claimed occurred and the date of the MRT hearing, it was reasonable to expect that when considering at the time of the MRT hearing the reasons the applicant said she could not return to Nepal, the applicant would have included as a reason her claims of future harm based on her claims of past harm; and that her failure to do so was a matter capable of undermining the applicant’s credibility.

3. Ground 2 of the application, therefore, fails.

Ground 3 of proposed amended application

1. At the hearing before me Mr Young handed up in Court an amended application. It included a substituted ground 3 and a proposed ground 4. Mr Young said he does not press the proposed ground 4. I therefore need only consider the proposed ground 3, which is as follows:

   The Second Respondent constructively failed to exercise jurisdiction or alternatively misinformed itself as to the Applicant’s claims by treating the Applicant as not having made a claim to fear persecution on the grounds that she and her daughter would be treated as religious convertors from Hinduism to Christianity.

2. In their written submissions the applicants submit the applicant claimed she was not only a Christian, but also a Christian “convert”, which entailed that the applicant had rejected Hinduism, and had adopted Christianity. The applicants submit that the Tribunal failed to consider that claim. Given that the Tribunal expressly found that the applicant “did not claim to the Tribunal, nor in her current application form, that she had converted to Christianity in Nepal”; and that the applicant “did not claim she feared harm for that reason in Nepal”, but had instead claimed “she had been targeted and would be targeted, because she is a Christian, and she has in both Nepal and Australia, proselytised the Christian religion”, the applicants submit the Tribunal misunderstood the claims that were before it.

3. In his oral submissions Mr Young particularly relied on the answer the applicant gave to question 46 of her form of application for a Protection visa (which I have reproduced in paragraph 12 of these reasons) which refers to “change other religion still illegal in Nepal”, and to the answer the applicant gave to question 47 which includes the statement that “Nepal law and constitution forbids convert another person from one religion to another” (which I have reproduced in paragraph 13 of these reasons). Mr Young also relied on the fact that in the application for a Protection visa the applicant made in 2006 she claimed that she had converted from Hinduism to Christianity in Nepal,[57] and she had not abandoned that claim in her second application for a Protection visa.

   [57] As recorded by the Tribunal at DR, [6]

4. The Minister, on the other hand, submits that the applicant made no claim based on her having converted to Christianity when in Nepal and the Tribunal made no jurisdictional error in concluding the applicant made no such claim. The Minister also submits that even if the Tribunal incorrectly considered the applicant to have made no such claim, it assumed the applicant had made such a claim but rejected it.

5. There is no merit in ground 3 of the proposed amended application. Although it is true that in her answers to questions 46 and 47 of the application for a Protection visa the applicant included the words  “change other religion still illegal in Nepal”, and “Nepal law and constitution forbids convert another person from one religion to another”, these words must be considered in the context in which they appear, and, in that context, it is not arguable the words could reasonably have suggested to the Tribunal that the applicant was making a claim based on her having herself converted to Christianity in Nepal, as opposed to her being a proselytiser or a Christian. Further, even though it correctly proceeded on the basis that the applicant made no such claim, the Tribunal nevertheless considered and rejected the claim for reasons which, except for ground 2, the applicants do not challenge.

6. There are other matters that render ground 3 of the proposed amended application meritless. For example, the Tribunal considered country information “concerning Christianity and proselytising/evangelism”.[58] It there referred to the United States Department of State 2014 report on religious freedom in Nepal and noted, among other things, that under Nepalese law every person has a right to profess or practice his or her own religion. The Tribunal also noted that “[i]ndividuals are free to change their religion and there was no registration requirements for religious groups”.[59] Thus, to the extent the applicants submit the claim based on conversion to Christianity in Nepal was raised by the applicant stating in her application for a Protection visa that it was illegal under the laws of Nepal to convert from Hinduism to Christianity, the Tribunal itself made findings that are inconsistent with those statements and which, by itself, are dispositive of any claim based on the asserted illegality under Nepalese law of a person converting from Hinduism to Christianity.

   [58] DR, [90]-[95]

   [59] DR, [91]

Disposition

1. I propose to order that the application to file an amended application be dismissed, and to dismiss the application.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  15 June 2018