BCM17 v Minister for Immigration

[2017] FCCA 2639

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCM17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2639

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Tribunal complied with its statutory obligations in the conduct of the review – Tribunal’s reasons expressly considered the applicant’s claims cumulatively – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

Applicant: BCM17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 770 of 2017

Judgment of: Judge Street

Hearing date: 30 October 2017

Date of Last Submission: 30 October 2017

Delivered at: Sydney

Delivered on: 30 October 2017

REPRESENTATION

Solicitors for the Applicant: Mr M Newman
Newman & Associates

Solicitors for the Respondents: Ms A Wong
Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 770 of 2017

BCM17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 23 February 2017 affirming a decision of the delegate not to grant the applicant a protection visa. 

2. The applicant was found to be a citizen of Nepal and her claims were assessed against that country. The applicant arrived in Australia in October 2008 on a dependent Student visa.  The applicant was granted the student visa in 2011 and applied for a further student visa in 2013 which was refused. The applicant then sought Ministerial Intervention and was notified on 29 August 2014 that her request would not be considered.

3. It was not until 19 September 2014 that the applicant lodged an application for protection. The applicant claimed to fear harm by reason of being a divorced woman, a disabled person because she claimed she was deaf in one ear, and by reason of being a person interested in Christianity. On 30 June 2015, the delegate refused the grant of a protection visa finding the applicant failed to meet the criteria under the Act.

The Tribunal’s decision

1. The applicant applied for review on 10 July 2017. By letter dated 8 November 2016, the applicant was invited to attend a hearing on 5 December 2016. The applicant appeared on that date to give evidence and present arguments. 

2. The Tribunal in its reasons dated 23 February 2017 identified the background to the application for review. The Tribunal summarised the applicant’s claims and evidence and set out the relevant law in “Attachment A” incorporated into the reasons of the Tribunal. The Tribunal accepted that the applicant was divorced in 2012, and was satisfied that one of her sisters passed away in 2012 and that she has another sister who has health issues, and that the applicant has profound hearing loss to her left ear and hears out of her right ear.  The Tribunal also accepted that the applicant has shown some interest in Christianity. 

Assessment of Refugee Convention criteria

1. Having identified the country information, the submissions and evidence, the Tribunal did not accept there was a real chance the applicant would suffer any physical harm of any kind or that given the changing attitudes in Nepal and the increasing numbers of divorced women, she would suffer psychological harm which would amount to serious harm, particularly as her family is now living in a more urban area. The Tribunal did not accept, given the change of the law, that the applicant would not be able to earn a livelihood or that she would be denied access to services. The Tribunal did accept that there may be some occasions when she is discriminated against in employment opportunities because she is a divorcee or a woman. 

2. The Tribunal noted that the applicant has a close relationship with her family who own property and have supported her in Australia over many years. The Tribunal noted that the applicant would have financial support which would ensure she would not suffer serious harm because of her financial situation. The Tribunal did not accept that there is a real chance of serious harm in the form of financial hardship of any kind.  The Tribunal found the harm the applicant may suffer by reason of being a divorcee or Brahmin divorcee does not amount to serious harm and that the applicant does not have a well-founded fear of persecution on the basis that she is a divorcee or a single woman returning to Nepal.

3. The Tribunal referred to the applicant’s hearing loss and the Tribunal was not satisfied the applicant has a well-founded fear of persecution for reasons of her disability were she to return to Nepal in the reasonably foreseeable future.  The Tribunal referred to the applicant’s interests in Christianity and was not satisfied the applicant has a well-founded fear of persecution for reasons of religion were she to return to Nepal in the reasonably foreseeable future. The Tribunal referred to the applicant’s concerns in respect of an inter-caste marriage and the Tribunal was not satisfied that the applicant has a well-founded fear of persecution for reasons of her inter-caste marriage were she to return to Nepal in the reasonably foreseeable future. 

4. The Tribunal referred to considering her factors cumulatively. The Tribunal was not satisfied there is a real chance of serious harm were the applicant to return to Nepal in the reasonably foreseeable future.  The Tribunal was not satisfied the applicant would suffer physical harm or ill-treatment, psychological harm which would amount to serious harm, be unable to subsist, be denied access to services, or any other kind of serious harm. The Tribunal was not satisfied the applicant has a well-founded fear of persecution.

Complementary protection assessment

1. The Tribunal turned to the issue of complementary protection. The Tribunal was not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal there is a real risk the applicant would suffer or be subjected to significant harm of any kind. The Tribunal found the applicant failed to meet the criteria under s 36(2)(a) and s 36(2)(aa) of the Act. 

Before this Court

1. The grounds in the application are set as follows:

   1. The Tribunal erred in law and in its jurisdiction when reviewing a case of a divorced female from Nepal who claimed that from a combination of social impediments she would suffer societal discrimination and ostracism to such an extent that it would be tantamount to her being outcast from society - even being deprived of a place to live w the Tribunal answering that discrimination was not persecution and there were laws in place in Nepal which forbade institutional discrimination. The applicant says that he Tribunal - by so finding - neglected to review the Department's decision by failing to compare like with like, namely, that while the applicant claimed social exclusion, the Tribunal looked at her circumstances through the prism of governmental policy.

2. Mr Newman, on behalf of the applicant, sought to identify the various hardships and difficulties that the applicant faced including in particular, her hearing impairment. Mr Newman submitted that these matters cumulatively, gave rise to a situation where the Tribunal fell into error. The Tribunal’s reasons reflect an orthodox approach to the assessment of the applicant’s claims and made adverse findings that were dispositive of the applicant’s claims that were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. 

3. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review and the applicant had a real and meaningful hearing. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. In relation to Mr Newman’s submission that the Tribunal failed to take the whole of these matters in terms of the applicant’s claims into consideration cumulatively, the Tribunal’s reasons reflect expressly considering the applicant’s claims cumulatively. No jurisdictional error is capable of being made out for that reason. 

4. Mr Newman’s written submissions seek to take issue with the problems the applicant may face in relation to her family. The findings by the Tribunal were open. The submission as to the applicant’s problems with the family in the written submissions are in substance an invitation to this Court to engage in an impermissible merits review and do not identify any jurisdictional error.

5. In relation to the applicant’s concern in respect of financial hardship, the Tribunal expressly considered that matter and there is no basis to say that the Tribunal misunderstood or misconceived the applicant’s claim and evidence in that regard. 

6. In relation to the applicant’s deafness, it is apparent that the Tribunal made findings and took into account the applicant’s claim in that regard. The proposition that the Tribunal failed to appreciate the consequences of taunting of the applicant, is in substance an invitation to this Court to engage in an impermissible merits review. The suggestion that the members of the family would not take the applicant in because she is untouchable does not accord with the fact put to the applicant by the Tribunal and taken into account by the Tribunal that she has been supported by her family for a number of years whilst in Australia. The adverse finding by the Tribunal that the applicant would have the benefit of support from her family was open on the material before the Tribunal and does not identify any jurisdictional error.

7. The assertion that the Tribunal failed to weigh the problems of the applicant and her family is again an invitation to this Court to engage in an impermissible merits review. Insofar as the submissions suggest that there was a material consideration that was not taken into account, no such material consideration has been identified. The written submissions fail to make out any jurisdictional error.  Insofar as ground 1 of the application is concerned, the criticism there advanced in substance is an invitation to this court to engage in impermissible merits review. On the face of the material, the Tribunal properly conducted a statutory review required of it under the Act. No jurisdictional error, as identified in ground 1, is made out. 

8. In these circumstances, the application is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 8 November 2017