BFC15 v Minister for Immigration
[2015] FCCA 3379
•16 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BFC15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3379 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to have regard to relevant factors – whether the Tribunal’s findings were open on the material before it – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5(1), 36(2)(a), 36(2)(aa), 476 |
| SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCA 235 |
| Applicant: | BFC15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1814 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 16 December 2015 |
| Date of Last Submission: | 16 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 16 December 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr O Jones |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $6825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1814 of 2015
| BFC15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 2 June 2015 affirming a decision of the delegate not to grant the applicant a protection visa.
The applicant was found to be a citizen of Nepal and his claims were assessed against that country. The applicant arrived in Australia on 19 January 2009, pursuant to the grant of a TU 572 vocational education sector visa that was valid until 4 March 2011. On 29 March 2011 the applicant lodged his first application for protection. That application was refused by the delegate on 1 June 2011 and the applicant sought a review before a Tribunal that affirmed the decision of the delegate on 26 September 2011.
Consistent with the decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCA 235, the applicant lodged a further application for protection on 8 July 2013 on the grounds of complementary protection that had not been earlier addressed. The delegate refused to grant the applicant a protection visa on 27 May 2014 and the applicant then sought review before a differently constituted Tribunal.
The applicant was sent a letter dated 25 March 2015 inviting the applicant to appear at a hearing on 29 May 2015 to give evidence and present arguments. The applicant appeared on that day to give evidence and present arguments and was assisted by an interpreter. Prior to the hearing, the applicant also sent back to the Tribunal a response to hearing invitation in which, in relation to a request concerning whether there were witnesses the applicant wished to call, there was a box ticked that there was no oral evidence from another person that the applicant wished to call.
The applicant had provided to the delegate a letter from a pastor dated 22 July 2013 in relation to one of the applicant’s claims to the effect that he had converted to Christianity. The Tribunal expressly referred to that letter and, whilst having some doubts, accepted that the applicant had converted to Christianity. The applicant claimed to fear harm from the Maoists, particularly the youth group, the Young Communist League (YCL), and as a result of his membership of the Unified Marxist-Leninist Communist Party of Nepal (UML) and also by reason of being Christian.
The applicant identified an alleged kidnapping that occurred in October 2006 in which he was allegedly beaten and tortured for about two weeks. The applicant identified another incident when he was struck down by a motorbike and attacked with knives as a result of which his right hand is now held together with a metal plate. The applicant also contended that his younger brother had told him that there were people looking for him and threatening to kill him in Nepal. The applicant also alleged that his family home was destroyed in the recent earthquake and there is nowhere for him to live. The applicant also maintained that he could not relocate to India because Nepalese people suffer discrimination in India and that the Nepalese Maoist groups could cross the border to harm him.
The grounds of the application are as follows:
1. The member did not take into account what will happen to me as Christian if I return to Nepal.
2. The Tribunal accepted that my home had been destroyed + failed to accept how I can survive if I return to Nepal
3. I have fear that I will be suffering serious harm.
The Tribunal made an adverse finding of credit as to the applicant’s claims and found that the applicant had fabricated and exaggerated his claimed involvement in the political party and the claim of being sought by the YCL. The Tribunal did not accept the applicant had been involved in any political party and did not accept that it was true that he had been assaulted or harmed by the YCL at any time.
Having accepted that the applicant converted to Christianity, the Tribunal made reference to both the pastor’s letter as well as country information in coming to a finding that the Tribunal did not accept there were substantial grounds for believing there is a real risk that the applicant would suffer harm on account of his religious beliefs if returned to Nepal.
The Tribunal also took into account, and accepted as true, the destruction of houses in the applicant’s village, including his family home, but did not accept that the consequences of the earthquake relate to any aspect of a complementary protection claim and, although recognising it may be costly to rebuild, did not accept that this amounted to significant harm within the statutory provisions and found that the applicant was not a person to whom Australia had protection obligations under s.36(2)(aa).
In relation to ground 1 of the application, it is apparent that the Tribunal did take into account the applicant’s claim of conversion to Christianity and, indeed, accepted that claim and took into account the applicant’s fear in that regard and made an adverse finding in relation to the applicant’s fear. That adverse finding was open on the material before the Tribunal and ground 1 fails to make out any jurisdictional error.
In relation to ground 2, it is apparent that the Tribunal accepted that the applicant’s home had been destroyed as a result of an earthquake. It was a matter for the Tribunal to determine whether or not the consequences of that event gave rise to the applicant being a person who would suffer significant harm within the meaning of s.36(2)(a) and as further defined in s.5(1). Ground 2 is, in substance, an impermissible challenge to the adverse findings of fact by the Tribunal that were open. Ground 2 fails to make out any jurisdictional error.
Ground 3 is a generalised assertion that the applicant would suffer serious harm and does not articulate any ground upon which there could be found to be a jurisdictional error.
I note that a Registrar of the Court on 6 August 2015 made orders that permitted the applicant to file an amended application, affidavit evidence and submissions. An outline of submissions was provided to the Court today, albeit no other documents were filed. That outline of submissions was read by the applicant to the Court and, in substance, restated the claims identified in grounds 1 and 2. Reference was made to the pastor’s letter and the complaint that the Tribunal did not contact the pastor and ask him about the letter.
No request was made to the Tribunal to take oral evidence from the pastor and there is no duty on the Tribunal to take steps to contact the pastor in the circumstances of the present case. Indeed, the Tribunal accepted in the applicant’s favour that the applicant had converted to Christianity and nothing raised by the applicant in the submissions concerning the pastor gives rise to any jurisdictional error. The issues of the applicant’s conversion to Christianity and the destruction of the applicant’s home raised in the submissions have been dealt with in relation to the grounds raised in the application and nothing said in the submissions in this regard gives rise to any jurisdictional error.
The applicant has also sought to take issue with the Tribunal’s findings in relation to the applicant being exposed to significant harm in relation to country information. It was a matter for the Tribunal to determine what country information is accepted and the adverse finding in para.46 of the Tribunal was open on the material before the Tribunal.
The applicant also contended in the submissions that the Tribunal had misunderstood his claim. No specificity was giving in respect of which it was alleged that the Tribunal had failed to address or properly understand the applicant’s claims. The Tribunal’s reasons identify the applicant’s claims and make findings in relation to those claims which findings cannot be said to lack an evident and intelligible justification. I reject the proposition that the Tribunal misunderstood the applicant’s claims.
Nothing said by the applicant from the bar table identified any basis upon which a jurisdictional error by the Tribunal could be established. The applicant maintained from the bar table that he would be persecuted and have no place to live. It is apparent that the applicant’s claim is in relation to the destruction of his home was taken into account by the Tribunal.
This Court does not have jurisdiction to find a jurisdictional error on compassionate grounds. The Court is confined in its jurisdiction to the issue of whether the Tribunal has exceeded its statutory authority or denied the applicant procedural fairness. I am satisfied that the Tribunal has not exceeded its statutory powers or denied the applicant procedural fairness. Accordingly, the application is dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 18 December 2015