BKT17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1083
•23 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BKT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1083
File number(s): PEG 189 of 2017 Judgment of: JUDGE VASTA Date of judgment: 23 November 2023 Catchwords: MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed Legislation: Migration Act 1985 (Cth) Division: Division 2 General Federal Law Number of paragraphs: 110 Date of last submission/s: 17 November 2023 Date of hearing: 17 November 2023 Place: Brisbane Counsel for the Applicants: Ms Thompson of Senior Counsel Solicitor for the First Respondent: Sparke Helmore Lawyers ORDERS
PEG 189 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BKT17
First Applicant
BKU17
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
23 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application filed on 4 April 2017 as amended on 21 September 2023 be dismissed.
2.The Applicants pay the First Respondent’s cost of and incidental to the application fixed in the sum of $8,371.30.
3.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE VASTA
INTRODUCTION
On 21 March 2017, the Administrative Appeals Tribunal (AAT) affirmed a decision not to grant the applicants, BKT17 and BKU17, protection visas. On 4 April 2017, the applicants asked this Court to review that decision.
The matter came before a registrar on 7 June 2017. The registrar made orders for the filing of material and set the matter down for final hearing on 25 March 2020. The matter came before a Judge of this Court on 5 November 2019 in Chambers. That Judge ordered that the hearing take place on 25 May 2020.
The matter was heard by video link and the decision was reserved. On 9 June 2020, the Judge delivered a written decision dismissing the application. The applicants appealed that decision and it came before the Federal Court on 10 June 2022. It would seem that the appeal was adjourned so that the applicants could be represented by pro bono counsel. The appeal resumed on 27 March 2023 and the decision was reserved.
On 28 April 2023, the Federal Court ordered that the matter be remitted to this Court for rehearing. This Court attempted to have the matter heard in August 2023, however pro bono counsel was not available. The matter was adjourned to 17 November 2023 and heard by me.
The applicants are citizens of Nepal. BKT17 is a male who is married to BKU17. They married on 14 April 2018. BKT17 was born on 2 May 1982 and BKU17 was born on 28 January 1989. BKU17 applied for a student visa on 24 November 2008 and BKT17 was her dependent spouse. The student visas were granted on 3 April 2009 and both applicants arrived in Australia on 16 April 2009.
They complied with the conditions of their Visa and made an application for the Visa to be extended. The application for extension was refused on 9 September 2011. The applicants sought a review from the then Migration Review Tribunal. The Tribunal affirmed the decision on 10 January 2014.
On 31 January 2014, the applicants lodged their protection Visa applications. The delegate of the Minister refused to grant the visas on 5 March 2015. It would seem that the delegate was of the view that the applicants were entitled to live in India. The applicants then asked the AAT to look at their application. The hearing before the AAT was conducted on 25 November 2016 and, as earlier noted, the AAT affirmed the decision on 21 March 2017.
Background
To understand the claims of the applicants, there needs to be an understanding of the geography of Nepal. The area of Nepal known as Terai lies along the southern border of Nepal and contains about 50% of the population. Rupandehi district is within this area and is about an 8 ½ hour drive from the capital, Kathmandu. Butwal is near the Rupendehi district and is less than an hour’s drive by car from Rudrapur; both towns being in the Terai. Baglung is north-west of Kathmandu and it takes about eight hours to travel between the two. Baglung district is north of Rupendehi district and travel between the two takes around nine hours by car.
An organisation known as Janatantrik Terai Mukti Morcha (JTMM) is a terrorist organisation that was formed in 2004. JTMM had split from the Communist Party of Nepal. The aims of JTMM are that the Terai secede from Nepal and form an independent state.
Written claims of BKT17
BKT17 was born in Baglung and BKU17 was born in Kathmandu. BKT17 claimed that his father and uncle bought a house in Rudrapur for the uncle’s family to live in. The father and the uncle would work in Kerala in India. While they were away, BKT17 would visit his aunt and cousin because he had been given responsibility for the two families.
BKT17 said that he participated in various programs run by the Nepal Students Union (NSU) when he was in primary school. He said when he started college he became a member of NSU.
He said that when he visited his aunt and cousins in Radrapur, he took the chance to recruit members for NSU. While he was there, he said that a member of JTMM asked him not to share his political views with people in Terai and to stop doing what he was doing. BKT17 said that he tried several times to avoid confrontation with JTMM.
BKT17 said that, on 15 January 2008, when he was visiting his aunt, about 10 people entered the house of his aunt and identified themselves as members of JTMM. They started talking about joining their movement. When BTK17 refused their offer, there was a heated exchange and these men ended up beating BKT17. He said that he was abducted and his aunt was warned not to report the matter to police or they would end up finding BKT17’s dead body.
BKT17 said that he was blindfolded for 36 hours and tortured by JTMM. He said that he was threatened with death and beaten which caused unbearable pain. He said he lapsed into unconsciousness and when he awoke he was in his house but his whole body ached. He said that he had been told that someone in the village found him in the grass, half an hour’s walk away, and that members of the community were able to bring him back to the house on a stretcher.
BKT17 said that he wanted to report this incident to the police but his family would not let him as they were scared of JTMM. He said that he tried to go the police station to report the incident on many occasions but his aunt and cousins reported that they felt as though they were being watched by unfamiliar faces. He said that he could sense that someone was checking his activities.
BKT17 told his then girlfriend (BKU17) and she suggested that he report the matter to police and to go to either Baglung or to Kathmandu where she was. BKT17 said that everyone wanted him not to report to police but he decided to go there on 7 February 2008. However, on his way to the police station, he saw one of the men who had kidnapped him and that man began to follow him. He decided to go back to his house and realised that it was not safe for him to be there.
He then made a plan for the families to leave the area. BKT17 said that, while his family wanted him to go to India, he knew that JTMM members could find him easily if he went there because they would find out from the villagers where his father and his uncle would be.
The family went to the bus park in Butwal and then on to Kathmandu. BKT17 said that they arrived in Kathmandu on the evening of 23 February 2008. He said that, on the following day, he reported this incident to NSU and asked if they could provide security for him. They said that it was impossible and that he needed to keep a low profile while JTMM were active. He said that he stayed with his friend K (name redacted).
BKT17 said that BKU17 was the only one who supported him in his situation. He said that BKU17 thought that the only option, to get rid of the problem that BKT17 was facing, was to get married and to ask her parents for help to go to Australia.
BKT17 said that he was from the M (name redacted) ethnic group and was not from the city. Once her family found this out, they disagreed with the marriage. He said that BKU17 was from the C (name redacted) ethnic group and are Hindus whereas the M are Buddhists. Notwithstanding the views of their families, the applicants decided to get married at the temple on 14 April 2008 with help of their friends.
BKT17 said that the philosophy of NSU was to change the narrow concepts in society regarding caste, religion and wealth. He said that his wife has similar beliefs to him. He said that JTMM do not have these beliefs. BKT17 said that he thought that, by accompanying his wife to study in Australia, he could get away from the problems he had with JTMM. But their marriage gave them another problem and that was their families not accepting the marriage.
BKT17 said that they had inter-caste marriage because he was T(name redacted) M(name redacted) and she was T(name redacted) C(name redacted). He said that his parents tried to force him to leave his wife. He said that his family tried to get him to marry his maternal uncle’s daughter in accordance with their culture. He said that his family would not accept him unless he divorces his wife. At the same time, he said, his wife’s family forced him to leave her because he was not acceptable to them. He said that he has been verbally abused by her family.
BKT17 said that some community members tried to physically attack him because he refused to leave his wife and that he was subject of name-calling. For these reasons, he said that he was trying to keep a low profile: because of JTMM, as well as because of their marriage.
BKT17 said that, whilst they couldn’t get any help from his family, his wife convinced her family, despite their opposition, to help them leave Nepal to go to Australia. He said that they flew to Australia on 16 April 2009 after the student visa was granted. He said that his parents are still trying to make him divorce his wife and do not speak a single word about her.
BKT17 said that he contacted his father after his visa was refused in January 2014. He said that his father told him that, even in India, the father was facing problems because of BKT17. He said that members of JTMM had approached the father a couple of times and were asking where BKT17 was. BKT17 said that his father also told him that BKT17 will not be accepted by the community, and not even by his family, because of his marriage to his wife.
He said that in communications with his wife’s father, the applicants had been told that if they go back to Nepal, they might be killed by JTMM because of the problems they had with them in the past. BKT17 said that JTMM have asked his wife’s father for money a couple of times and questioned him about BKT17’s whereabouts. He said that the community of his wife is still not ready to accept BKT17 and his wife as a couple. He said that his wife’s community can give information to JTMM about BKT17 as they would do anything to get rid of him and his wife.
BKT17 said that he and his wife have not been able to go back to Nepal because of these problems. He described that his wife’s grandfather passed away on 3 July 2013 but that the applicants could not go back to attend the funeral because JTMM members would be waiting for them.
BKT17 said that he did not want to live his life escaping from people, being discriminated against because of who he is, what he believes, his political views, the caste he belongs to and his skin colour. He said that he cannot return to Nepal because of fear for his life from his own community and JTMM members.
Witten claims of BKU17
BKU17 made claims that she is Hindu and, as a member of the C caste, she is supposed to marry someone of the same caste. She said that her community is conservative and narrowminded and were continuing to follow old beliefs. She said that, in her community, if you fall in love with someone from another caste you are compelled to “kill thoughts of marriage”.
BKU17 said that she met BKT17 through a friend of hers who used to study with her in the same school. She said her husband used to participate in different programs of NSU and that she met him during the school program. She said that BKT17 had problems with JTMM and was being tortured. She said that she was scared and had to think about leaving for overseas as it was the only option. She said that, even when BKT17 came to Kathmandu, he was still followed by JTMM members. She said that she didn’t want to lose him because she could not imagine life without him, and she thought it was her responsibility to bring him out of this problem.
She said that when she approached her family, they tried to persuade her not to marry him because he was from a lower caste, but she thought that her family would accept their marriage over time. She said that unfortunately it didn’t happen, and they faced harassment from her family, especially from her uncles and relatives.
She said that her husband’s family did not accept her because of her caste. She said that she was able to convince her father to help them. She said her father did so on the proviso that the applicants would not return to Nepal but would settle in Australia. She said that her father was scared of the discrimination he would face from the community too. She said that neither her family nor her husband’s family is ready to accept their marriage.
She said that she believes that if they returned to Nepal her husband would be killed by JTMM and suffer from her family and from the community.
Documents given to the AAT
The AAT had regard to a number of documents that the applicants provided. This included a certificate from Tribhuvan University stating that BKT17 had been a student of the campus from 2000 to 2002. It also included a copy of the academic record of BKT17 for 2001 and 2002.
There was a copy of a document, on NSU letterhead, dated 26 February 2009 and purportedly signed by the president of NSU, which stated that BKT17 had been an active member of NSU since 2006. There were copies of the NSU membership card of BKT17 dated 10 April 2006 for the Sarswati campus.
There was a copy of a letter on the letterhead of Energy and Construction Company Pvt Ltd Kalanki Kathmandu which was dated 20 July 2008 and stating that BKT17 had been working with the company from 1 June 2006 to 1 June 2008 as a marketing supervisor.
There was a copy of BKU17’s certificate issued by the Nepal education board on 2063/05/06 (which is 22 August 2006 in the Gregorian calendar) stating that BKU17 had been a student at Gramin campus and had passed her high school examinations that year. Also given to the AAT was the academic record of BKU17 for grades 11 and 12.
A death certificate dated 4 September 2013 for Mr JBTC (name redacted) (who would seem to be the grandfather of BKU17) and a death certificate dated 29 May 2015 for Mrs NBT (name redacted) of Baglung who was the grandmother of BKT17 were also given to the AAT.
Evidence of BKT17 before the AAT
The AAT found that the evidence of BKT17 was not credible. The AAT explained the many inconsistencies and contradictions within the evidence of BKT17.
BKT17 said that he went to Kathmandu to go to college in 2002 and finish college in 2005 but the documentation did not support this as it detailed that BKT17 finished his studies in 2002.
BKT17 said that he started working as a marketing supervisor in mid-2003 after he finished college. He said he travelled to different places in the country. He said it was a tiring job and it was not well paid. He said he travelled up to 18 hours in a bus selling solar panels. He said that he left that job in the middle of 2008 because the pay was not good and he had to travel a lot and he needed to find a new job.
BKT17 told the AAT that he was interested in the NSU from school and he formally became a member in 2006. He said that he used to go to different places into schools to talk about student rights. Later in the hearing, BKT17 said that he was an active member of NSU from primary school. In his written material, BKT17 had said that he participated in programs run by the NSU when he was at primary school but became a member when he started college.
The AAT asked BKT17 about his work and the tasks he was doing with NSU considering that his studies finished in 2002 and he began working in 2003. BKT17 then said, for the first time, that he was studying part time which is why he became a member of the NSU. However, if he were studying part-time, this was inconsistent with him providing an address at Baglung from 2003 to 2008. BKT17 said that he used to travel to different places and came to Kathmandu just a couple of times for two or three weeks to study only.
The AAT asked BKT17 about his activities with the NSU. BKT17 said that he spent two or three hours talking with teachers and ordinary students. The AAT asked BKT17 to spend five minutes telling the AAT what it was that he used to say. The AAT noted that the responses of BKT7 were “unconvincing generalities” and not consistent with that of a person who was capable of talking for two to three hours.
The AAT noted the following inconsistencies. The documentation shows that BKT17 finished his education in 2002. That is inconsistent with him becoming an active member of the NSU in 2006. The evidence as to part-time study was not accepted as it was given for the first time to attempt to overcome a difficulty in his evidence. The AAT said that it was implausible that BKT17 could have undertaken the part-time study he described as well as working (which involved travelling to remote places) and undertaking the NSU activities.
The AAT asked BKT17 about how he met BKU17. BKT17 said that he met her when he was a member of NSU. He said his duty was to make students conscious of their rights and he went to her school for that program. He said she was 17 or 18. He said he went to that school many times and she was someone who was interested in the program. He said they used to walk together and had time to understand each other.
Later in his evidence, he said that he and BKU17 could not have a personal conversation during the program. He said that they just introduced themselves. They talked about how they “match” each other. He said on different occasions they used to meet in different places. He said that he used to ring her and tell her that he would have a program somewhere and they would meet. He said he would ring her on a landline using his friend, K, as a go-between. K was of the same caste and so did not have a problem with the parents of BKU17.
The AAT questioned BKT17 about how K could phone BKU17 if he didn’t know her and BKT17 replied that he would tell K to say that they are from the same college and they have to talk about homework. He said that he could not call himself because the parents would know that he was speaking to her.
Later still, BKT17 said that he met BKU17 in 2005 or 2006 because she was still in high school and he was 23 years old. He said that he knew her for three or four years before they were married. The documentation indicates that BKU17 finished her high school education by 22 August 2006 when she was 17 years of age. BKU17 had said that she finished high school in March/April 2006.
If BKT17 became a member of NSU in April 2006, this is not consistent with his evidence of meeting and getting to know BKU17 as a consequence of his NSU activities at the school. His evidence that he went to that school many times was not consistent with his evidence that, during that period, he was working and travelling to remote locations, was studying part-time and only returned to Kathmandu a couple of times for two or three weeks to study only.
The AAT said that they did not accept that the relationship could have developed to the point where the applicants spoke to each other on the telephone and were able to meet in places other than during NSU programs in her school in the short period of time in which there could possibly have been an overlap.
The AAT said that BKT17’s evidence about his treatment at the hands of JTMM on 15 January 2008 is inconsistent with his evidence that he remained there until 23 February 2008. BKT17 claimed that he only took steps to leave after BKU17 suggested that he should leave for Baglung or Kathmandu. The AAT said that, if BKT17 had suffered the harm he claimed, it would have expected him to have left Rudrapur immediately.
The AAT noted that BKT17 remained in Rudrapur for (at least) a further four weeks, but this was inconsistent with the evidence of the employer that, at that time, BKT17 was working. It was also inconsistent with BKT17’s own evidence that his work involved travelling to remote areas in Nepal. BKT17 did not claim to be in Rudrapur because of his work, but rather he said he was there to visit his aunt and cousins.
The AAT noted that BKT17 was able to hide from JTMM for more than a year while he was in Nepal from January 2008 until he departed in April 2009. This included the times when he was working up till June 2008. The AAT said that this was inconsistent with the threat that he claims the organisation posed to him.
BKT17 said that his grandmother, who lived in Baglung, had an issue with her neighbour who wanted to take the land. BKT17 said that he became aware of it when he was in year nine while his father and uncle were away. He said that before his grandmother passed away, she told him that the neighbour was connected with JTMM. BKT17 later said that the neighbour was also a relative through his paternal grandfather. He said that the neighbour wants to kill him.
The AAT enquired as to the last name of both BKT17 and BKU17 which is T(name redacted). BKT17 said that they are different castes because he is TM (name redacted) and she is TC (name redacted). BKT17 had not provided a copy of his birth certificate. The AAT noted that there was no document showing that the name of any member of the family of the BKT17 included “M” (name redacted).
BKT17 had said that he could not go to India because the area in which his father and uncle had been, Kerala, reported the highest crime rate among states of India. The AAT noted that this was inconsistent with the evidence of BKT17 that his father and uncle have lived and worked there for over 30 years respectively and that he had sent his mother to live with his father in 2008 for her safety.
AAT conclusions about BKT17
The AAT did not accept that the family of the uncle of BKT17 lived in Radrapur. There was no documentary evidence to support the claim.
The AAT did not accept that BKT17 was a member of the NSU or that he undertook activities for the NSU.
The AAT did not accept that BKT17 came to the attention of JTMM and does not accept his claims that JTTM pose any danger to him.
The AAT said that there was no documentation that supported any evidence about conflict between the grandmother and her neighbour/relative or that this person had any connection with JTMM. The AAT did not accept that this person is connected with JTMM or that he poses any risk to BKT17 for any reason.
The AAT gave no weight to the membership card of BKT17 or the purported letter from the president. The AAT did not accept that BKT17 was attending the Sarswati campus in 2006. The AAT took into account country information about the availability of fraudulent documents in Nepal. The AAT observed that the photograph of BKT17 appeared to have been placed onto the NSU membership card.
Whilst the AAT accepted that M are one of the indigenous nationalities of Nepal and that there is discrimination in Nepal because of inter-caste or interethnic marriages, the AAT did not accept that the present matter was such a case. The AAT did not accept that the fact that the applicants were able to live in Nepal, from the time of their marriage until their departure from Australia a year later, without suffering serious or significant harm was consistent with the claimed threat of harm from the extended families and communities of both applicants.
The AAT did not accept the claim of BKT17 that his caste or ethnic group was M and it did not accept that the documents he provided were a reliable independent account that overcame his lack of credibility. Because of this, the AAT did not accept that BKT17 is of a different caste or ethnic group from BKU17. Therefore, the AAT did not accept the claim of BKT17 that he feared serious or significant harm because of his marriage if he returned to Nepal.
The AAT did not accept the claim of BKT17 that he could not move to India if he needed to do so, however, because the AAT did not accept his claims for protection in Nepal, the AAT did not have to consider whether the applicants could relocate to India.
For all of those reasons, the AAT was not satisfied that there was a real chance that BKT17 would suffer serious harm in the reasonably foreseeable future for a Convention reason if he returned to Nepal. The AAT was not satisfied that BKT17 had a well-founded fear of persecution for a Convention reason. Therefore, the AAT found that BKT17 did not meet the refugee criterion.
For similar reasons, the AAT found that BKT17 did not meet the complementary protection criterion either.
Claims and evidence of BKU17
BKU17 told the AAT that she did not wish to return to Nepal because BKT17 had been attacked in the past and a few people asked her father about him. She said that their inter-caste marriage was not accepted by family members.
In her written statement, BKU17 said that she met BKT17 through a friend of hers who studied with her at the same school. However, she also claimed that she met BKT17 when he participated in a NSU program at her school.
In her evidence before the AAT, BKU17 said that she met BKT17 when he participated in an NSU program at her school when she was 17 or 18. She said they first met in 2004 or 2005. She said that so many different parties came to her school trying to convince students to join. She said that the talks would last a couple of hours and that they gave donations to the schools.
She said that after school, BKT17 used to contact her on a home phone number to his friend, K. She said it was related to her studies and so her family did not have a problem and would leave her alone to speak to that person. She said that she was doing year 11 or year 12 science and needed help.
She said that she used to meet BKT17 in two areas in Kathmandu and that they would finish classes early and go. She said she had finished year 12 (which was in March/April 2006) when BKT17 got into trouble with JTMM.
When asked about names, BKU17 agreed that names reflect the persons caste, but said that in this case, BKT17’s name was TM but M was left off because the name was too long. She denied that she and BKT17 were of the same caste.
AAT conclusions about BKU17
The AAT found that the evidence of BKU17 was not credible.
It noted the inconsistency of how she and BKT17 met. The fact that BKU17 finished school in March/April 2006 is inconsistent with BKT’s NSU membership card dated 10 April 2006. The AAT noted that they could not have met through his activities in her school if she had finished before, or just after, the date he joined and began undertaking those activities.
The AAT noted that, if she had met BKT17 in 2004 or 2005, this was inconsistent with meeting him while he was engaged in a NSU program at her school based on his NSU membership card.
The AAT found that BKU17 did not satisfy the refugee criteria nor did she satisfy the complimentary protection criteria.
Having come to the conclusions that it did, the AAT affirmed the decision not to give either of the applicants a protection Visa.
The present application
There is only one ground of application and it is contained in an amended originating application filed on 22 September 2023. The ground is:
1.The applicants were denied procedural fairness in their hearing before the Administrative Appeals Tribunal.
Particulars
(1) At [110] of its Statement of Decision and Reasons, the Tribunal made a finding that the applicants had an opportunity to collude during the hearing, regarding their evidence on how they met.
(2) The proposition of collusion was not put to either of the applicants.
(3) The fact that there was, in the Tribunal’s view, an opportunity for collusion was a factor considered by the Tribunal as being adverse to the credibility of BKU17 and thereby BKT17, who had given essentially the same evidence as BKU17 regarding how they met.
(4) The failure of the Tribunal to ask the applicants about the possibility of collusion, combined with the finding at [110] of the Reasons, and its use as a negative factor in assessing the credibility of BKU17, deprived the applicants of a realistic possibility of a different outcome in the hearing before the Tribunal.
To appreciate this ground, one has to understand paragraph 110 of the reasons of the AAT. This paragraph appears in the section in which the AAT was assessing the evidence of BKU17 and making conclusions about it. That paragraph reads as follows:-
When the Tribunal queried how (BKT17) met her when he was working, according to the employer's reference, (BKU17) said that he had been studying part-time. The Tribunal notes that the break in the hearing had occurred before (BKU17) gave her evidence which provided an opportunity for the applicants to speak to each other. The explanation that (BKT17) was studying part-time in 2006, is inconsistent with the documents the applicants provided about (BKT17)’s education and his employer reference. There is no document supporting that claim. The Tribunal finds that the part-time study explanation was given to overcome an obvious difficulty in the evidence.
The “interpretation” that the applicant contends must be drawn from that paragraph is that:
·there was a break during the proceedings which occurred before BKU17 gave her evidence
·this break provided an opportunity for BKT17 and BKU17 to speak to each other
Therefore,
·BKT17 and BKU17 did speak to each other
·BKT17 and BKU17 spoke about the evidence that BKT17 had already given to the AAT and the evidence that BKU17 was going to give to the AAT
·BKT17 and BKU17 then “got their heads together” to ensure that BKU17 kept to the same script that BKT17 had followed through his evidence
·this “collusion” between BKT17 and BKU17 led to BKU17 telling the AAT that BKT17 had been studying at the time they met each other
·having found that there was such collusion, this informs the final sentence in that paragraph that “the part-time study explanation was given to overcome an obvious difficulty in the evidence”.
The applicants submit that a finding of collusion is such a serious allegation that it must be put to witnesses so that they can have the opportunity to respond to such an allegation. The applicants submit that a failure to put a serious allegation of this nature forms part of the obligation to afford procedural fairness. As such an allegation was not put to either applicant, the applicants submit procedural fairness was not afforded to them and thus the hearing itself is infected with jurisdictional error.
Analysis
The Court needs to closely analyse this submission.
It is clear from the transcript that the AAT did not ever “put”, “suggest” or even “infer” that the applicants had colluded. The question is whether the AAT, in the way in which paragraph 110 of the reasons are framed, concluded that the applicants had “gotten their heads together”.
The words used in paragraph 110 suggest that the AAT queried how BKT17 could have met BKU17 when he was working and BKU17 said that BKT17 had been studying part-time. The AAT then notes that the applicants had an opportunity to speak to each other. The AAT then concludes that any explanation that BKT17 was studying part-time in 2006 was inconsistent with the documents BKT17 presented concerning his employment and his education. The AAT stated that there was no document that supported a claim that BKT17 was studying in 2006. The AAT found that the “part-time study explanation” was given to overcome “an obvious difficulty in the evidence”.
The applicants submit that the fact that the AAT noted that there was an opportunity for BKT17 and BKU17 to speak to each other and that they gave an explanation so as to overcome an obvious difficulty in the evidence, permits of no other conclusion other than the AAT was saying that the applicants colluded with each other.
It is difficult to agree with this submission. The AAT was quite forthright in their description of their conclusions as to the credibility of BKT17 and BKU17. Having regard to the reasons as a whole, it is unlikely that the AAT would have come to the conclusion that the applicants had colluded yet refused to categorically state that conclusion whilst categorically stating every other conclusion that they had made.
In paragraph 109 and paragraph 110, the AAT were analysing the evidence concerning how BKT17 and BKU17 said they met each other. The tale that had been told was that BKT17 was at the school of BKU17 conducting work/activities for the NSU. The tale that had been told was that the courtship progressed slowly because of the difference in their castes and the need to use “go-betweens” and to be very discreet.
For this tale to make sense, it means that the courtship must have occurred over the course of some years.
But, if this were so, BKT17 must have been conducting his NSU activities in 2004 which would fit in with the date of April 2006 when BKU17 concluded her studies. Because BKT17 finished his own studies in 2002, he would not have been at that campus unless he were conducting his NSU activities. However, according to the documentation BKT17 had given the AAT, his NSU activities did not commence until April 2006. This meant that there was a serious inconsistency in the evidence.
At paragraph 110, the AAT noted that BKU17 had said that BKT17 had been studying part-time. This is exactly what BKT17 had earlier said to the AAT. The AAT were simply acknowledging that the applicants had the opportunity to speak to each other but did not conclude that they actually did speak to each other.
The conclusion reached by the AAT was not that they had colluded; rather that the “last minute” declaration that BKT17 had been studying part time was not a true statement but one that was made to cover a hole in the tale. The finding as to the credibility of BKT17 and BKU17 rested upon the inconsistency of their story especially in relation to the documentary evidence. Collusion was simply not a factor that the AAT considered when assessing the credibility of either of the applicants.
The applicants submit that it may very well be that BKT17 and BKU17 gave the explanation of “part-time study” because it was actually the truth and not part of any collusion. But this submission ignores that the AAT found that they did not accept the explanations regarding part-time study because it was “inconsistent with the documents the applicants provided about BKT17’s education and his employer reference”. The non-acceptance of this explanation had nothing to do with a finding of collusion, but instead with a finding of inconsistency with documentation.
The transcript
An examination of the transcript (which is contained in the affidavit of Madison Grace Tidy sworn 17 November 2023) is quite instructive.
At page 27, line 13, the following exchange between the AAT member and BKT17 occurs:
AAT: can you be precise as to what year you started this or what you were doing in terms of studying or working when you started this activity (NSU activity)?
BKT17: I used, I used, uh, to be an active member from my primary school but I, uh, I formally got my membership on 2006.
AAT: But why, I don't understand why you would get your formal membership in 2006 when you were no longer a student but rather, um, working hard, going to very remote places as you told me.
BKT17: I haven't mentioned in the form but at that time, at that time I used to do part-time study because of my, uh, family economic situation, I have to work but it doesn't mean that I didn't study. Uh, you know, working time I also used to do part-time study, that's, that's why I got the membership.
At page 38, line 25, the transcript notes that there is an adjournment where the recording ceases. The transcript then notes that the hearing resumes at 2:33pm. Unfortunately, the time was not noted when the recording stopped so there is no record of how long this break was.
At page 42, line 3, there is a discussion between BKT17 and the AAT regarding the neighbour of the grandmother.
AAT: Ok, so you're saying this, the neighbour is actually your uncle?
BKT: Yes
AAT: … or a relative?
BKT17: A relative, yeah, that's right.
AAT: But why didn't you say that before?
BKT17: No, no. 'Relatives' means, um, my grandfather,
AAT: I understand all that. But what I'm saying is before you just talked about the neighbour, you didn't say, come up with this, um, relationship to your family. It just seems to be a new, um, claim that you're making because you can see you've got a problem, or I've got a problem accepting what you're telling me.
BKT17: No, no it's the same thing. He's my neighbour but I call him uncle.
AAT: I understand that, but what I'm saying is suddenly all the time you've been talking about your neighbour and then suddenly, I think, there may be a problem that you can see in your case and so now you're suddenly saying "Oh yes, well he's actually, my neighbour. My neighbour's also my uncle." You're changing your case to, your evidence it may seem, to overcome problems in the case that you are putting to me, perhaps. (My italics)
At page 43, line 42, the AAT said to BKT17 that “I do need to speak to your wife would you mind going and getting her and I’ll get you in again later at the end, please”. The tape is not stopped and continues on. It would seem that the pause, between when BKT17 leaves and BKU17 is spoken to by the AAT, is less than 30 seconds.
The conversation between the AAT and BKU17 proceeds without the intervention of an interpreter. At page 47, line 28, the AAT questioned BKU17 about the contact that she had with BKT17 during their courtship. The AAT traversed many aspects and often told BKU17 that they were having “some difficulty understanding how…”
The AAT continued with the questioning and then said, at page 51, line 16, that “now, I should. I'll get him back in but I just should indicate to you that I do have concerns that the documents he's, um, provided about the Nepal Students Union are not genuine.”
BKU17 left the room to bring BKT17 back into the room. The conversation (recorded at page 52, line 1, continues:
AAT: Right, I just wanted to raise with both of you, as I've already raised, um, briefly, that I do have concerns that the claims, particularly in relation to BKT’s concern about the JTMM
BKU17: Yep
AAT: whether that's genuine or not and in particular, the timing of his employment, um, which was, according to his application, he got the job as the ma-, supervisor in the energy company in 2003. Sorry, Mr Interpreter, if you'd like to interpret.
Interpreter: interpreted
AAT: So, in terms of his…
BKU17: (speaks in Nepalese which is not interpreted)
BKT17: (speaks in Nepalese which is not interpreted)
BKT17: 2006, yeah.
BKU17: You were studying
AAT: No, the, I understand that the student union documents say that he joined that organisation in 2006.
The AAT explained to both applicants that he was having trouble accepting the oral evidence because of the inconsistency with the documentary evidence. At page 53, line 18, the AAT said (presumably directed to BKU17 but being interpreted to BKT17 at the same time) “… and although when I talk to him about that, he claimed that “I was actually studying something part-time” that seems to be a new claim dealing with a problem in the case”.
Having made both BKT17 and BKU17 aware of the issues that the AAT had with the state of the evidence, including that the new claim of “part-time study” was given to cover a hole in the evidence, the AAT said to the applicants at page 54, line 3, “but it is time to indicate to you that I do have concerns about whether these claims are genuine, so BKT17, would you like to say, obviously, say something?” BKT17 then made his response. At page 55, line 18, the AAT gave BKU17 a chance to speak.
What can be ascertained from the transcript?
One thing that is clear from the transcript is that the wording of paragraph 110 of the reasons of the AAT may not be entirely accurate. The first sentence in that paragraph indicates that the AAT asked BKT17 a question and BKU17 answered it. That is true but the applicants had an exchange in Nepalese which was not interpreted before BKU17 gave her answer. Her answer was “you were studying” but there was no mention by BKU17 that BKT17 was studying “part-time”.
The “break” referred to in paragraph 110 is unclear. It would seem to me that the AAT was referring to the break that occurred at page 38 of the transcript. The applicants claim that a proper interpretation would be that the “break” is the pause of less than 30 seconds when BKT17 left the room to get BKU17 to come into the room. I do not accept that claim because there was not truly a “break” but rather a “pause”.
But more importantly, the AAT was very clear to both BKT17 and BKU17 that it was of the view that the part-time study explanation was given to overcome the difficulty in the evidence. The AAT gave both applicants an opportunity to comment or to say anything that they wished to say. The AAT had earlier made it clear that they were of the view that the evidence that BKT17 had given, about his grandmother’s neighbour also being his uncle, was made to cover a hole in the evidence also.
Conclusion
I reject any interpretation that the wording of paragraph 110 denotes that the AAT made a finding that the applicants colluded with each other. I do not accept that the AAT made any finding that the applicants “got their heads together”. If the AAT did not make such a finding, there can be no lack of procedural fairness if such a matter had not been put to the applicants.
The finding, made by the AAT, was that the “part-time study” explanation was not true and was given to overcome a difficulty in the evidence. That much is very clear by what the AAT said in paragraph 110. I do not accept that there is any obligation upon the AAT to have put this to either applicant, however, the transcript is clear that the AAT made it known to both applicants that the timing of the new claim of “part-time study” was an issue for it. And, most importantly, it did give both applicants an opportunity to be heard on that aspect.
The only ground of the application, therefore, fails.
Order
I dismiss the application with costs fixed in the sum of $8371.30.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 23 November 2023
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