BKT17 v Minister for Immigration

[2020] FCCA 1337

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKT17 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1337

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) (Subclass 866) visa – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal afforded the applicants a real and meaningful hearing – no jurisdictional error made out – application dismissed.

Legislation:

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

First Applicant: BKT17

Second Applicant: BKU17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 189 of 2017

Judgment of: Judge Street

Hearing date: 25 May 2020

Date of Last Submission: 25 May 2020

Delivered at: Sydney

Delivered on: 9 June 2020

REPRESENTATION

The Applicants appeared in person via Microsoft Teams

Solicitors for the Respondents: Ms E Tattersall via Microsoft Teams
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicants pay the first respondent’s costs fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 189 of 2017

BKT17

First Applicant

BKU17

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

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 21 March 2017 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicants Protection (Class XA) (Subclass 866) visas (“Protection visas”).

2. The applicants are husband and wife. The applicants were found to be citizens of Nepal and their claims were assessed against that country.

3. On 24 November 2008, the applicants applied for a student visas. On 3 April 2009, the applicants were granted student visas. On 16 April 2009, the applicants arrived in Australia. On 9 September 2011, an extension of the applicants’ student visas was refused. On 10 January 201, the Migration Review Tribunal affirmed that decision.

4. It was not until 31 January 2014 that the applicants applied for the Protection visas. The applicants, in summary, claimed to fear harm from Janatantrik Terai Mukti Morcha (“JTMM”) members and by reason of their families not accepting their marriage. The first applicant also claimed to fear harm from his own community. The second applicant claimed that she came from a Hindu background. The second applicant also claimed to be of a particular caste and that they have to marry someone from their own caste. The second applicant also claimed to fear being killed by the JTMM and suffering harm from her family and community.

5. On 5 March 2015, the Delegate found that the applicants failed to meet the criteria for the grant of Protection visas.

6. On 30 March 2015, the applicants lodged an application to the Tribunal for review of the Delegate’s decision. By letter dated 25 November 2016, the Tribunal invited the applicants to attend a hearing before the Tribunal. The applicants appeared by video conference together on that date to give evidence and present arguments.

7. The Tribunal in its reasons summarised the relevant law. The Tribunal identified the applicants’ backgrounds. The Tribunal identified the claims advanced by the first applicant and the second applicant. The Tribunal identified the supporting material provided by the applicants.

8. The Tribunal did not find the first applicant to be credible. The Tribunal identified inconsistent claims by the first applicant in relation to his membership of a Student Union in Nepal (“NSU”). The Tribunal also identified the want of detailed and persuasive information in relation to the activities of the NSU. The Tribunal also referred to the documentation being inconsistent with the first applicant becoming an active member of the NSU.

9. The Tribunal found the first applicant’s assertions of his getting to know the second applicant as a consequence of NSU activities being inconsistent with becoming a member according to his membership card in April 2006. The Tribunal found the first applicant’s versions about his activities with the NSU to be inconsistent and not supported by documentary evidence and, accordingly, gave them no weight.

10. The Tribunal identified other implausibilities in relation to the first applicant’s claim in relation to meeting the second applicant. The Tribunal found the first applicant’s claims concerning his alleged treatment at the hand of the JTMM to be inconsistent with his evidence.

11. The Tribunal found the first applicant remaining in a particular location for more than three weeks from January to February 2008 to be inconsistent with his evidence of his employer at that time and his alleged work travelling to remote areas in Nepal. The Tribunal found the applicant’s evidence about a tradition in relation to moving to a particular location and his immediate family not doing so to be inconsistent.

12. Because of the inconsistencies in the first applicant’s evidence, the Tribunal did not accept the first applicant to be a credible witness.

13. The Tribunal did not accept that the first applicant’s uncle’s family lived in a particular village in the Terai, which is the lynchpin of the factual matrix that the first applicant put forward to support his claim to have encountered the JTMM there. The Tribunal identified the want of documentary evidence to support the claim and that, in these circumstances, the Tribunal did not accept that the applicant was a member of the NSU or undertook activities for the NSU as claimed. The Tribunal did not accept that the first applicant came to the attention of the JTMM in a particular location as claimed because of those activities and consequentially did not accept the first applicant’s claims advanced about the JTMM.

14. The Tribunal did not accept the alleged conflict with a neighbour/relative being connected with the JTMM or that the neighbour poses a risk to the first applicant for any reason, including because of the alleged claimed land dispute.

15. The Tribunal did not accept that the first applicant was a member of the NSU or carried out activities for the NSU or promoted student rights or human rights because of having found that his evidence was not, in that regard, credible.

16. The Tribunal gave no weight to the documentary evidence given in respect of those adverse credibility findings, taking into the account the prevalence of fraud in respective documentation in Nepal. The Tribunal raised the genuineness of the documents with the applicant.

17. The Tribunal gave no weight to the letters from the first applicant’s friend or the second applicant’s sister, finding that they were not from independent and reliable sources. The Tribunal did not accept that there is any chance of harm to the first applicant from the JTMM either in Nepal or India.

18. The Tribunal explored with the first applicant whether he and the second applicant were from the same class. The Tribunal referred to the absence of the first applicant’s birth certificate and took into account the death certificate of the second applicant’s grandfather in relation to the names concerning caste. The Tribunal found that there is no document supporting the name in the family of the first applicant being of a lower class with a particular name. The Tribunal referred to a certificate concerning the first applicant and accepted that the particular caste are one of the indigenous nationalities. The Tribunal also took into account country information in that regard.

19. The Tribunal did not accept that being able to live in Nepal from the time of the first and second applicants’ marriage until their departure for Australia a year later without suffering serious or significant harm is consistent with the claimed threat of harm from the applicants’ respective families and communities. The Tribunal also took into account that the funding of the second applicant by the second applicant’s father of the applicants coming to Australia and her studies for about two years to be inconsistent with the applicants’ claims. The Tribunal took those inconsistencies into account in concluding that the first applicant’s evidence is not credible.

20. The Tribunal gave the certificate of indigenous nationalities no weight because the Tribunal did not accept it was genuine. The Tribunal noted that the applicants were represented but documentary evidence supporting the claim of the inter-caste marriage was not provided until just before the hearing, being three years after the applicants Protection visa application.

21. The Tribunal did not accept the NSU membership card to be genuine and felt that the applicants appeared to provide documents to the Tribunal which were not genuine. The Tribunal took into account the prevalence of fraudulent documents in Nepal.

22. It was in those circumstances that the Tribunal did not accept the first applicant’s claim as to his caste or ethnic group because he was not a credible witness. The Tribunal did not accept that the documents provided any reliable, independent account that overcomes the first applicant’s credibility.

23. Because the Tribunal did not accept the first applicant is a different caste or ethnic group from the second applicant, the Tribunal did not accept his claim to fear serious or significant harm because of his inter-caste or inter-ethnic marriage if he returns to Nepal.

24. The Tribunal was not satisfied that there is a real chance that the first applicant would suffer harm in the reasonably foreseeable future for a 1951 Refugee Convention reason if he returns to Nepal. The Tribunal found that the first applicant does not have a well-founded fear of persecution. The Tribunal was not satisfied that the first applicant meets the criteria in s 36(2)(a) of the Act.

25. The Tribunal found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the first applicant being removed from Australia to Nepal, there is a real risk that he will suffer significant harm. The Tribunal found that the first applicant did not meet the criteria in s 36(2)(aa) of the Act.

26. The Tribunal did not accept the second applicant’s evidence as being credible. The Tribunal found that the second applicant’s finishing school in terms of the date to be inconsistent with the first applicant’s alleged membership card. The Tribunal took into account the inconsistent, unsupported versions of the first applicant’s activities. The Tribunal found the explanation in relation to their meeting to be inconsistent with the documents provided and the employer’s reference. The Tribunal found the part time study explanation advanced by the second applicant was to overcome this obvious difficulty in the evidence. The Tribunal did not accept that the NSU membership card is genuine because it is inconsistent with the education record for the first applicant and the employer’s reference.

27. The Tribunal raised with the second applicant the issue of whether the applicants were of the same caste and that none of the documents relating to the first applicant identify or mention the name of the particular caste other than a certificate. The Tribunal also referred to the prevalence of fraud and its finding that other documents provided were not genuine. The Tribunal found the second applicant’s evidence not to be credible. The Tribunal gave no weight to the letters from two organisations and the letters from first applicant’s friend and the second applicant’s sister.

28. The Tribunal did not accept the second applicant’s claims for protection based on the alleged threats by JTMM to the first applicant or claims concerning the inter-caste, ethnic marriage.

29. The Tribunal referred to the second applicant’s claims that she has had abortions and claims that she would not have a child if they could be sent to Nepal. The Tribunal did not accept those claims as to the reasons why the second applicant had abortions.

30. The Tribunal was not satisfied that there is a real chance that the second applicant would suffer serious harm in the reasonably foreseeable future for a 1951 Refugee Convention reason if she returns to Nepal.

31. The Tribunal found that the second applicant does not have a well-founded fear of persecution. The Tribunal found that the second applicant did not meet the criteria in s 36(2)(a) of the Act.

32. The Tribunal was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the second applicant being removed from Australia to Nepal, there is a real risk the second applicant will suffer significant harm. The Tribunal found that the second applicant did not meet the criteria in s 36(2)(aa) of the Act.

33. Accordingly, the Tribunal affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 4 April 2017.

2. On 7 June 2017, a Registrar of the Court made orders providing the applicants an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

3. The Court explained separately to the first applicant and then in the course of the hearing to the second applicant the nature of the hearing and both applicants confirmed that they understood the nature of the hearing as explained by the Court.

4. From the bar table, the first applicant maintained that he had provided documents in support of his claims and took issue with the adverse findings by the Tribunal. The adverse findings by the Tribunal, as summarised above, took into account the inconsistencies and implausibilities in the first applicant’s evidence and in relation to the second applicant’s evidence and were open to the Tribunal for the reasons given by the Tribunal.

5. The first applicant also identified having remained in Australia for almost 11 years, his wife now being pregnant, that they also had a child and that he was concerned about travel because of COVID-19. These matters, in substance, invite the Court to engage in merits review. This Court has no power to rehear the merits.

6. The first applicant otherwise maintained that it would be dangerous for him to return to Nepal and wanted a further year with work rights so that he could remain in Australia. The submissions of the first applicant were, in substance, an invitation to the Court to engage in merits review.

7. Nothing said by the first respondent identified any jurisdictional error.

8. From the bar table, the second applicant also maintained that they had given truthful explanations to the Tribunal and disagreed with the adverse findings. For the reasons already given, as summarised above, the adverse findings by the Tribunal cannot be said to lack an evident and intelligible justification and were open to the Tribunal.

9. The second applicant also identified concern in relation to the child and that she was further pregnant and suggested that she might terminate the pregnancy if unsuccessful in these proceedings. The Court explained to the second applicant that the Court could not decide the matter on compassionate or discretionary grounds and that these proceedings were not a basis upon which the second applicant should be making decisions in relation to her unborn child. The second applicant’s submissions were, in substance, an invitation to this Court to engage in impermissible merits review.

10. Nothing said by the first or second applicants from the bar table identified any arguable case of jurisdictional error.

Grounds in the Application

1. The grounds in the application are as follows:

   1. The decision maker failed to properly consider all of my claims.

   2. The decision maker didn’t give me a change to comment on one aspect of my claims.

Ground 1

1. The first ground, in the absence of particularisation, is incapable of making out any jurisdictional error. There was no integer of the applicants’ claims that was not the subject of consideration. On the face of the material before the Court, the applicants have had a real and meaningful hearing before the Tribunal. Further, on the face of the Tribunal’s reasons, the Tribunal had a real intellectual engagement with the applicants’ claims and evidence.

2. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, again, in the absence of particularisation, this ground is incapable of making out any jurisdictional error. On the face of the material before the Court, the Tribunal raised the issues of concern with the respective applicants in the course of the hearing. There was no aspect of the applicants’ claims that was identified that had not been the subject of a chance to comment. Further, the Tribunal’s reasons are inconsistent with the assertion that the applicants did not have a real and meaningful hearing.

2. No jurisdictional error is made out by ground 2.

3. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 9 June 2020