AYZ16 v Minister for Immigration & Anor
[2017] FCCA 1444
•29 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AYZ16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1444 |
| Catchwords: MIGRATION – Judicial review – Administrative Appeals Tribunal decision – citizen of India – claiming protection from in-laws – whether Tribunal overlooked the applicant’s circumstances – whether the applicant had the right to enter and reside in a third country – where matters raised at hearing which were not raised with Tribunal – where certain documents not provided to the Administrative Appeals Tribunal – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 91X, 418(3), 425, 474, 476 |
| Cases cited: AJY16 v Minister for Immigration & Anor [2017] FCCA 565 Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314 Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 SZMWQ v Minister for Immigration & Citizenship [2010] FCAFC 97; (2010) 187 FCR 109; (2010) 272 ALR 59; (2010) 117 ALD 1 WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 |
| Applicant: | AYZ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 182 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 22 June 2017 |
| Date of Last Submission: | 22 June 2017 |
| Delivered at: | Perth |
| Delivered on: | 29 June 2017 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr PR Macliver |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 182 of 2016
| AYZ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant applies under s.476(1) of the Migration Act 1958 (Cth) (“Migration Act”) for judicial review (“Judicial Review Application”) of a decision of the Administrative Appeals Tribunal (“AAT Decision” and “AAT” respectively) made on 29 March 2016, in which the AAT affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse the applicant a Protection (Class XA) visa (“Protection Visa”).
A copy of the AAT Decision is at Court Book (“CB”) 206-215.
Background to the AAT Decision
By way of background to the AAT Decision it is relevant to note that:
a)the applicant is a citizen of India born on 5 April 1988, who first arrived in Australia on a subclass 573 student visa on 24 May 2008 (“573 Student Visa”): CB 12-13 and 176;
b)on 30 September 2010 the applicant was granted a subclass 572 student visa (“572 Student Visa”). The 572 Student Visa was cancelled on 6 October 2011 and the applicant was granted a Bridging E visa valid until 19 October 2011. The applicant was then granted a series of Bridging E visas, the most recent of which was granted on 3 May 2016 and is still in effect: CB 155 and 173-175;
c)on 16 January 2014 the applicant lodged an application for a protection visa with the Department of Immigration and Border Protection ("Department"). By letter dated 19 February 2014 the Department advised the applicant that that protection visa application was not a valid application: CB 1-53 and 72-75;
d)on 29 April 2014 the applicant lodged the Protection Visa application, which the Department assessed as valid, and which is the Protection Visa application the subject of this Judicial Review Application: CB 79-119 and 122;
e)by letter dated 9 February 2015 the Department invited the applicant to attend an interview on 6 March 2015 to discuss the Protection Visa application and his claims that he was a person with respect to whom Australia has protection obligations. The applicant attended the interview conducted by the Department at Perth on 6 March 2015: CB 137-139 and 154;
f)on 27 March 2015 the Delegate’s Decision, which was to refuse to grant the applicant the Protection Visa, was sent to the applicant: CB 145-148 and CB 154-164; and
g)on 29 March 2016 the AAT Decision was to affirm the Delegate’s Decision not to grant the Protection Visa. The applicant was advised of the AAT Decision by letter dated 30 March 2016: CB 201 and 196-200.
AAT Decision
In the AAT Decision, the AAT:
a)set out the protection claims made by the applicant in his Protection Visa application;
b)noted the Delegate’s Decision, including the Delegate’s reservations as to the applicant’s credibility, but more particularly, the Delegate’s finding that because the applicant had access to effective state protection in Nepal, and a present right to enter and reside in Nepal, s.36(3) of the Migration Act meant that Australia did not have protection obligations to the applicant because the applicant had not taken all possible steps to avail himself of the right to enter and reside in Nepal: CB 202 at [7];
c)set out the evidence provided to it by the applicant at the AAT hearing, including evidence given in response to his right to enter and reside in Nepal, and evidence given by his current partner about the applicant’s current family circumstances in Australia: CB 203-207 at [9]-[39];
d)in relation to the evidence concerning Nepal the AAT Decision at CB 206 at [38] states that:
When asked to comment on the apparent right he has to enter and reside in Nepal, the applicant said that he has been in Australia for a long time; he has never been to Nepal; he has no one to live with in Nepal; and that a very different language is spoken there, which he would find difficult. He also said that, if it were just him, he could easily leave Australia and go to Nepal, but he had to consider his partner and their child, and it would be hard for them. He also told the Tribunal that Brahmin people are everywhere, and that because he should not get married to a woman from a different culture or religion, his partner and their child would be in danger. When asked if he had made any inquiries about going to Nepal, the applicant told the Tribunal that he had “googled” it on the internet to learn more about it.
e)in relation to the applicant’s current family circumstances in Australia the AAT Decision sets out the evidence at CB 207 at [39] as follows:
39. The Tribunal was told by the applicant's current partner, 25 year old … [Ms M], that she was a New Zealand citizen, who had been living in Australia with her family for the last six years. … [Ms M] explained to the Tribunal that alternative visa options had been explored to enable the applicant to stay in Australia with her and avoid returning to India. She indicated that it might be open for her to sponsor the applicant as her partner, but that both her and the applicant would have to return to New Zealand for this application. Given that most of her family is in Australia, including a child from a previous relationship, she did not want to do that. … [Ms M] told the Tribunal that knowing the applicant could be sent back to India was stressful. She indicated that she would follow him to India if he had to return there, but she did not want to be in that situation. She was aware of the telephone threats to the applicant and had seen the photographs of the applicant's injured father, and she was extremely worried for her partner.
f)set out the relevant law in relation to the criteria for a Protection Visa both as to the refugee and complementary protection criterion: CB 207-209 at [40]-[53]; and
g)dealt with credibility issues, indicating that it was aware of the importance of adopting a reasonable approach in relation to credibility findings in refugee matters: CB 209 at [57], and set out the relevant provisions from the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status in relation to credibility: CB 209 at [58], and set out the law in relation to the making of credibility findings as it appears in some Federal Court judgments: CB 210 at [60]-[61], and went on to find as follows:
62. The Tribunal does have concerns about the applicant's credibility. However, while the evidence in relation to his arranged marriage is vague and unsubstantiated, the Tribunal is prepared to accept that the applicant did return to India in April 2009 in order to enter in to an arranged marriage with … [Ms S]. Further, the Tribunal formed the view that the applicant holds some fear of disapproval by members of … [Ms S’s] family, as well as his own family, for separating from his wife and leaving their arranged marriage. The Tribunal accepts as plausible the fact that the applicant's intention to not remain married to … [Ms S] may be viewed with disfavour by members of both his wife's family as well as his own family. However, based on all of the evidence, the Tribunal has significant doubt that … [Ms S’s] family, or anyone else, holds a serious intention to seriously harm the applicant should he return to India. In this respect, the Tribunal found the applicant's evidence as to the harm he fears vague, general and overall not convincing. The Tribunal found the evidence of the significant delay in the applicant applying for protection after he claimed to have informed his wife that he did not want to remain married to her; the evidence that he returned to India in 2011: the evidence that he had not had any contact with … [Ms S] or any of her family for several years; and the evidence of the time that had lapsed since the last claimed telephone threat, undermines his claim that he fears serious harm from his wife's family, or from anyone else if he returns to India. The Tribunal also found the applicant's evidence as to the claimed attack on his father, as well as the claimed threats directed to him, to be vague and general and overall not convincing.
63. The Tribunal also accepts that the applicant is concerned about how he, his partner and their child will be treated if they return to India because of their relationship and their different ethnic and religious backgrounds, by the Brahmin community generally. The Tribunal accepts as plausible the fact that the applicant is in a relationship with … [Ms M] may be viewed with disfavour by the community generally. The Tribunal accepts that there may be a social pressure on the applicant to marry within the Brahmin caste. However, any reactions of the community in India to his current relationship were not sufficiently worrying to motivate the applicant to raise this as a claim until at the hearing for the first time. The Tribunal also considers the evidence of the applicant that while his parents were not accepting of his relationship with … [Ms M], he does not fear harm from them, significant in this regard. Accordingly, the Tribunal finds that the circumstances of the applicant were such that he was not motivated to apply for a protection visa because of harm from the Brahmin community because of his partnership with … [Ms M].
(Names have been deleted from the above quotes to maintain anonymity: see Migration Act, s.91X).
The AAT went on to deal with the issue as to whether or not the applicant had a right to enter and reside in Nepal for the purposes of s.36(3) of the Migration Act. The AAT:
a)noted that it had had regard to the relevant Departmental policy guidance: CB 210 at [64] and cited the relevant legislative provision, setting out s.36(3) of the Migration Act;
b)noted that the Tribunal had to consider the relevant international bilateral agreement between India and Nepal which granted reciprocal residence privileges, amongst other things, to citizens of both nations: CB 211 at [66];
c)set out the relevant passages from the judgment of the Full Court of the Federal Court in Minister for Immigration & Citizenship v SZRHU [2013] FCAFC 91; (2013) 215 FCR 35; (2013) 136 ALD 508 (“SZRHU”) holding that s.36(3) of the Migration Act is not confined to a legally enforceable right under domestic law, but refers to a liberty, permission or privilege lawfully given: SZRHU at [56] and [89] per Buchanan J (with whom Tracey J at [70], Flick J at [93], Robertson J at [130] and Griffiths J at [131] agreed);
d)having regard to country information the Tribunal found no information indicating that there were any practical barriers for Indian citizens being able to travel to and enter Nepal: CB 211 at [69];
e)set out the basic forms of photographic and other identification required to allow Indian citizens to enter Nepal, a privilege which the Tribunal found was in practice, rarely denied, and enjoyed by many Indians and Nepalese on a daily basis: CB 211-212 at [70]-[71];
f)considered the terms of the bilateral agreement and the administrative arrangements having regard to what was found by the Full Court of the Federal Court in SZRHU, and noted that subsequent judgments of this Court have upheld decisions whereby the AAT (and its predecessor) had found that administrative arrangements for entry, when read in light of the terms of the relevant treaty or agreement, amounted to an entitlement to enter and reside consistent with that described in SZRHU: citing SZTQO v Minister for Immigration & Anor [2014] FCCA 2636; SZTPK v Minister for Immigration & Anor [2014] FCCA 2259 at [24] per Judge Driver; SZRUT v Minister for Immigration & Anor [2015] FCCA 263 at [30] per Judge Street;
g)found, having regard to all of the information and evidence before it, that the applicant had a right to enter and reside, whether temporarily or permanently, in Nepal, being a right that presently exists as an Indian citizen (which he was able to demonstrate by way of his current Indian passport), and that the relevant bilateral agreement and the arrangements entered into administratively between India and Nepal established a liberty, permission or privilege in favour of Nepali and Indian citizens consistent with that articulated, and satisfying the test endorsed, in SZRHU, which meant the AAT found that the applicant had a right to enter and reside in Nepal for the purposes of s.36(3) of the Migration Act, but that on the evidence the applicant “has not taken any step to avail himself of that right”: CB 212-213 at [75]-[77] (the quote is from [77]);
h)considered the applicant’s evidence that he had never been to Nepal, knew no one there, that there were problems there also, and that he did not want to go there, but notwithstanding that found that he had not taken all possible steps to avail himself of the right that he currently had to enter and reside in Nepal for the purposes of s.36(3) of the Migration Act: CB 213 at [78];
i)considered whether the applicant had a well-founded fear of persecution or real risk of significant harm in Nepal for the purposes of s.36(4) of the Migration Act, and in that regard noted:
i)that there was no statistical information on employment prospects or level of unemployment of Indian nationals moving to live in Nepal: CB 213 at [80]; and
ii)that the applicant was expecting a baby arising from a relationship with a New Zealand national residing in Australia, together with the fact that the applicant had no wish to go to Nepal, knew no one there and has never been to Nepal, and accepting that general country information indicated that Nepal was a poor country with challenging economic circumstances which may have deteriorated since earthquakes in April and May 2015: CB 213 at [81];
j)citing relevant Federal Court authority, namely NBLC & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 272; (20015) 149 FCR 151 at [64] per Graham J and SZMWQ v Minister for Immigration & Citizenship [2010] FCAFC 97; (2010) 187 FCR 109; (2010) 272 ALR 59; (2010) 117 ALD 1 at [32] per Rares J, found that the applicant’s personal relationships and the general economic position in Nepal did not affect the requirement that the applicant take all possible steps (and not, for example, all reasonable or reasonably practicable steps) to reside and enter Nepal: CB 213 at [82]-[83];
k)considered whether the applicant may be exposed to the same harm were he to go to Nepal, and found that the applicant did not have a well-founded fear of being persecuted for a Convention reason in Nepal, noting in particular his evidence that if he did not have to consider his relationship with his new partner and their new child he could easily go to Nepal: CB 213-214 at [84]-[85];
l)found that there was no country information before it to suggest that the government of Nepal returns Indian nationals to India, and that the applicant did not therefore have a well-founded fear that Nepal would return him to India, and therefore s.36(5) and (5A) of the Migration Act were not enlivened; and
m)having regard for its reasons affirmed the Delegate’s Decision not to grant the applicant the Protection Visa.
Grounds of the Judicial Review Application – grounds
The Judicial Review Application contains the following six grounds (which are numbered 4 to 9, and quoted below as they appear in the Judicial Review Application):
4. I was born on 05/04/1988.
5. I am currently on a Bridging visa E because of my student visa cancellation.
6. I am currently on a Bridging visa E because of my student visa cancellation.
7. I … [applicant’s name deleted: Migration Act, s.91X] had applied for Protection Visa in Australia which is refused by Refuge Review Tribunal.
8. I had applied for protection visa in Australia because I have potential life threat back in Punjab in my home town from my previous In-laws. I was very young and did not wanted to get married because I never met that girl and never saw her in my whole life until the day I was forced to marry her against my will in April 2009 at the age of 21. At that time I was studying in Australia and was on holiday but forced to get marry with that girl.
9. In my opinion DIBP and AAT made the judicial error in refusing my application as both the authorities overlooked my circumstances of being refugee.
On 25 May 2016 a Registrar of the Court made orders by consent (“Registrar’s Orders”) programming the matter for a final hearing on 22 June 2017. The orders included that the applicant should file and serve on or before 17 August 2016 an amended Judicial Review Application giving particulars of the grounds, and any further affidavits upon which he intended to rely at the hearing of the matter. The applicant has not filed any amended application and has not filed any further affidavits. The Registrar’s Orders also provided for the applicant to file and serve an outline of submissions not less than 42 days before the final hearing. The applicant filed no such submissions.
Consideration
Jurisdictional error required
The AAT Decision is only liable to be set aside on judicial review by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ. The AAT only makes a jurisdictional error if it:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the AAT’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ (“Yusuf”).
Grounds 4-8
Grounds 4-8 of the Judicial Review Application do not assert any error in the AAT Decision, let alone any jurisdictional error. Rather, they set out factual matters concerning the applicant and his Protection Visa application which were either accepted by the AAT, or not disputed by the AAT. As such, grounds 4-8 cannot and do not establish any jurisdictional error in the AAT Decision.
Ground 9
To the extent that ground 9 of the Judicial Review Application complains about the Delegate’s Decision this Court has no jurisdiction to review the Delegate’s Decision, which is a primary decision: Migration Act, s.476(2)(a) and (4). In any event, it is well-established that if the AAT Decision is not flawed, it cures any defect or irregularity in the Delegate’s Decision: Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314; Martinez v Minister for Immigration & Citizenship & Anor [2009] FCA 528; (2009) 177 FCR 337; (2009) 256 ALR 32; (2009) 109 ALD 260 at [20] per Rares J.
Ground 9 of the Judicial Review Application is otherwise an unparticularised assertion that the AAT (and also the Delegate: as to which see [10] above) made an error by having "overlooked [the applicant's] circumstances of being a refugee". Such an unparticularised assertion cannot give rise to a finding by this Court of jurisdictional error in the AAT Decision: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J (and cases there cited); AQN15 v Minister for Immigration & Anor [2016] FCCA 58 at [33]-[35] per Judge Howard; AJY16 v Minister for Immigration & Anor [2017] FCCA 565 at [15]-[16] per Judge Lucev.
In any event, the AAT did not proceed to determine whether or not the applicant was a refugee, or whether the applicant met the criteria for protection under s.36(2)(a) or (aa) of the Migration Act, in relation to his country of nationality, India, because it was not required to do so by reason of s.36(3) and (4) of the Migration Act.
Section 36(3) and (4) of the Migration Act relevantly provides that:
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
The AAT concluded that the applicant, as an Indian citizen, had, for the purposes of s.36(3) of the Migration Act, the right to enter and reside in Nepal, and further found that he had not taken any steps to avail himself of that right: CB 213 at [77]-[78]. Also, having regard to all of the evidence, the AAT found that the applicant does not have a well-founded fear of being persecuted for a Convention reason in Nepal, nor are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of the right to enter and reside in Nepal, there would be a real risk of the applicant suffering significant harm in Nepal: CB 214 at [85].
The applicant has not alleged any jurisdictional error in the AAT Decision relation to the AAT’s findings and conclusions in relation to ss.36(3) and (4) of the Migration Act concerning the applicant’s right to enter and reside in Nepal. Further, no jurisdictional error is disclosed in the AAT Decision in its finding and conclusions on this issue, which are set out in some detail above: see [4]-[5] above. This is a case in which in all of the circumstances it is evident that the AAT:
a)correctly identified the relevant issues;
b)asked itself the correct questions; and
c)had regard to all of the relevant material in dealing with the issues and questions before it, and did not have regard to any irrelevant material,
and in so doing arrived at factual conclusions which were open to it. The AAT therefore engaged in a legitimate and proper exercise in administrative decision-making revealing no jurisdictional error.
Applicant’s submissions at hearing
At hearing the applicant said that it was not possible for him to return to Nepal as he had a small child born in Australia and a five year old step-son in relation to whom there were Family Court orders preventing the step-son from leaving Australia. Although the applicant told the Court that these were not matters which were raised with the AAT, it is evident from the AAT Decision that the issue of the applicant’s present familial relationships in Australia were raised with him by the AAT, and discussed and considered at some length by the AAT, with the applicant saying to the AAT that were it not for his present familial relationships he could easily return to Nepal: see [4(d)] above and CB 213-214 at [84]. The AAT considered the applicant’s family circumstances in the context of the requirements of s.36(3) and (4) of the Migration Act, and there is no error, let alone jurisdictional error, in the AAT’s consideration of these issues as set out above: see [5(i)(ii)] above. There was therefore no error of the kind referred to in Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321, and Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 because the AAT specifically considered this claim as made by the applicant. In any event, the applicant’s familial relationships did not absolve him of the requirement to take all possible steps to enter and reside in Nepal.
Documents not provided to the AAT
Consistent with his model litigant obligations the Minister raised an issue as to the Secretary of the Department giving to the Registrar of the AAT documents in the possession or control of the Secretary and considered by the Secretary to be relevant to the AAT’s review of the Delegate’s Decision, that being an obligation arising under s.418(3) of the Migration Act.
Section 418(3) of the Migration Act provides that:
(3) The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision.
In BBS15 v Minister for Immigration & Border Protection [2017] FCAFC 61 (“BBS15”) the Full Court of the Federal Court concluded that the failure of the Secretary to provide a Pastor's letter to the AAT under s.418(3) of the Migration Act, when it had been sent to and received by the Department, resulted in a jurisdictional error by the AAT in a case concerning claims of conversion to Christianity. The jurisdictional error arose from the AAT’s inadvertent failure to comply with the requirements of s.425(1) of the Migration Act which provides for the AAT to give the applicant an opportunity to appear before it to give evidence and present arguments “relating to the issues arising in relation to the decision under review”, because the AAT had unintentionally misled the applicant to believe that the Pastor's letter was before the AAT, when it was not, in circumstances where the letter was clearly relevant: BBS15 at [64], [66]-[91] and [106]-[107] per Griffiths, Kerr and Farrell JJ.
In BBS15 the Full Court of the Federal Court also, however, concluded that the mere failure by the Secretary of the Department to comply with the duty under s.418(3) of the Migration Act is not, of itself, sufficient to constitute jurisdictional error by the AAT: BBS15 at [105] per Griffiths, Kerr and Farrell JJ.
The AAT Decision:
a)refers to photographs produced by the applicant to the AAT purporting to be of his father in an injured state at a hospital: CB 205 at [26];
b)notes that the applicant also claimed that he provided the Department with original untranslated copies of a police report, as well as newspaper articles, about his father's attack, but that these documents were not registered by the Department: CB 205 at [26] (“Unprovided Documents”); and
c)further notes that the AAT was unable to locate the Unprovided Documents on the Department file (which had been provided to the AAT), and states that the applicant told the AAT that he did not have, and could not obtain, any further copies of the Unprovided Documents: CB 205 at [26].
The Unprovided Documents, having now been provided by the Minister, appear at CB 216-225.
Based on all of the evidence the AAT found that it had significant doubt that the applicant's wife's family, or anyone else, held a serious intention to seriously harm the applicant should he return to India, and set out several reasons why it had this doubt. The AAT concluded by also finding the applicant's evidence as to the claimed attack on his father, as well as the claimed of threats directed to him, to be vague, general and overall, not convincing: CB 210 at [62]. It was unnecessary, however, for the AAT to reach any firm conclusions on the applicant’s alleged fears if he was to be returned to India, and it did not do so because of its subsequent findings regarding the applicant's right to enter and reside in Nepal, and its conclusions that:
a)he did not have a well-founded fear of persecution for a Convention reason in relation to Nepal; and
b)there were not substantial grounds for believing that there would a real risk of the applicant suffering significant harm in Nepal: CB 214 at [85].
It follows that the failure of the Department to provide the Unprovided Documents to the AAT could not have resulted in the AAT Decision being affected by jurisdictional error because the issue of the attack upon the applicant’s father and whether the applicant has taken all possible steps to enter and reside in Nepal are discrete issues, and the applicant’s right to enter into and reside in Nepal is, on the facts as found by the AAT, not affected by the alleged events concerning his father.
The circumstances here are clearly distinguishable from those in BBS15 because:
a)the applicant was not misled into believing that the Unprovided Documents were before the AAT when they had not in fact been sent to the AAT, but rather, the applicant was made aware by the AAT that the AAT did not have the Unprovided Documents; and
b)the AAT concluded that Australia did not have protection obligations to the applicant by reason of his right to enter and reside in Nepal. Thus, even if the failure by the Secretary of the Department to provide the Unprovided Documents to the AAT did result in error on the part of the AAT, any such error did not result in the AAT Decision being affected by jurisdictional error. That is because, even if the Unprovided Documents had been provided to the AAT, they could not have affected the AAT Decision which was based on the applicant’s right to enter and reside in Nepal: Yusuf at [82] and [84] per McHugh, Gummow and Hayne JJ.
Conclusion and orders
For the reasons set out above, the Court has concluded that the AAT Decision is not affected by jurisdictional error. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 29 June 2017
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