BQR17 v Minister for Immigration
[2019] FCCA 2076
•30 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BQR17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2076 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal’s findings were open to it – whether the Administrative Appeals Tribunal failed to afford the applicant natural justice – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 424AA, 425, 474, 476 |
| Cases cited: Treaties: Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967). |
| Applicant: | BQR17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1176 of 2017 |
| Judgment of: | Judge Emmett |
| Hearing date: | 30 July 3019 |
| Date of Last Submission: | 30 July 2019 |
| Delivered at: | Sydney |
| Delivered on: | 30 July 2019 |
REPRESENTATION
| Applicant: | Appeared in person with the assistance of an interpreter |
| Solicitor for the Respondents: | Mr Andrew Keevers (Sparke Helmore) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1176 of 2017
| BQR17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 14 March 2017 (“the Tribunal”), which affirmed a decision of a delegate of the first respondent (“the Delegate”) made on 21 August 2015 refusing the applicant a Protection (Class XA) visa.
The applicant is a citizen of Nepal and of Hindu faith and Chhetri ethnicity who fears harm from Maoists and Nepalese police in Nepal.
Background
On 21 July 2014, the applicant arrived in Australia.
On 6 October 2014, the applicant lodged an application for a protection visa with the Department of Immigration and Border Protection (“the Department”).
On 21 August 2015, the Delegate refused the applicant’s application for a protection visa.
On 7 September 2015, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 14 March 2017, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a protection visa.
On 18 April 2017, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative Framework
Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.
Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Sections 36(2A) and 5 of the Act defines “significant harm.”
Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.
The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:
“424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
425 Tribunal must invite Applicant to appear
(1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
Section 424AA of the Act permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.
Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
The applicant's claims for protection and the Tribunal's decision are accurately summarised in the written submissions of the first respondent, as follows:
“Applicant's claims for protection
4. The applicant's claims for protection were set out in his protection visa application, and may be summarised as follows:
4.1 He was a monarchist and business man. He was the chairman of the "Nepal Development Workers' Union" (NDWU) and politically involved with the "Rastriya Prajatantra Party-Nepal" (RPP-N).
4.2 He faced extortion and death threats from Maoists because of his business and political activities.
4.3 He fled Nepal fearing for his safety and to avoid being murdered by the Maoists.
4.4 In April 2014, he was accused of being a spy. He was arrested, kept in jail for four days and tortured by police.
4.5 The authorities in Nepal would not protect him as they are "incompetent and corrupt". If returned to Nepal, he would remain an actively involved and loyal member of the RPP-N and would refuse to make "donations" to criminals, including the Maoists.
5. At hearing, the applicant made additional claims for protection, which may be summarised as follows:
5.1 Around 2002, he travelled to India for one month to avoid problems with the Maoists during the "insurgency".
5.2 Prior to travelling to India, he was asked by the Maoists to join them. He initially claimed that he was tortured by the Maoists. He later claimed that he was not physically harmed as his father gave them money.
5.3 In Australia, he attended meetings once a month with other RPP-N supporters in various parks. He engaged in political discussions and provided money to the RPP-N in Nepal.
5.4 He was the "District President" of the Nepal Workers Free Trade Union (NWFTU) (a correction of NDWU from protection visa) but did not identify he had been harmed or threatened in connection with the union.
Tribunal decision
6. The Tribunal noted that multiple aspects of the applicant's evidence were problematic when assessed in the context of the totality of the evidence. The Tribunal had concerns regarding the truthfulness of central aspects of the applicant's claims and evidence, which cumulatively left the Tribunal unable to be satisfied of the truth of the applicant's claimed circumstances in Nepal.
7. The Tribunal accepted that the applicant was a low-level Monarchist and supporter of the RPP-N and did not support the Maoists. However, the Tribunal found that the applicant was not an active member of the RPP-N and did not have a profile which would cause him to be of adverse interest to Maoists. The Tribunal recorded that it put to the applicant that his oral evidence that he joined the same party as his father and grandfather was inconsistent with his evidence that they were members of the Rastriya Prajatantra Party (RPP), which was a distinct party to the RPP-N. On the basis of the applicant's inability to demonstrate an understanding of the differences between the RPP-N and the RPP, the Tribunal considered that he had at most a "superficial understanding" of the ideological bases of either party.
8. Based on the totality of the evidence before it, including the applicant's evidence regarding his claimed political activities in Australia, the Tribunal accepted the applicant would continue to be a low-level supporter of RPP-N in Nepal. However, given his limited knowledge and understanding of RPP-N's ideology and agenda, the Tribunal did not accept that he had ever been an active member or supporter of RPP-N nor that he would be active if returned to Nepal.
9. The Tribunal accepted that the applicant was affiliated with the NFWTU but did not accept that his position was "District President", which was not included in his written claims and was unsupported by further evidence. The Tribunal also noted that the applicant did not claim to have been harmed or threatened in connection with the NFWTU.
10. Whilst the Tribunal accepted that extortion and forced demands for political donations generally occurred in Nepal, it did not accept that the applicant had a profile as a businessman which would give rise to extortion.
11. In relation to the applicant's claim that he had been arrested after being accused of being a Maoist spy, the Tribunal noted that around that time, Maoists were widely reported to indiscriminately approach people's homes in the search of funding and support. However, the Tribunal recorded that there was no reliable information before it to suggest the occupants of those homes were suspected of being Maoist spies. The Tribunal found the applicant's claims regarding his four-day detention to be "unconvincing". In particular, the Tribunal noted that the applicant gave three different dates on which the arrest was said to have occurred. The Tribunal found the applicant's evidence to be "internally inconsistent, changing, vague and unreliable" and as such, did not accept that the applicant was ever arrested, detained or mistreated by the Nepali police.
12. In relation to the applicant's claim of travelling to India, the Tribunal found his evidence to be "confused, vague and difficult to understand or accept". At hearing, the applicant claimed that he went to India as a result of problems with the Maoists and because his family urged him to, yet later stated that India was not safe as Maoists obtained weapons from India. The Tribunal noted that the applicant's evidence that his family asked him to return to Nepal after one month raised concerns about the veracity of his earlier claim that his family urged him to go to India to escape harassment.
13. The Tribunal was not satisfied that the applicant would face a real chance of harm in the reasonably foreseeable future in connection to his political affiliation. Further, the Tribunal was not satisfied that the applicant met the complementary protection criterion. Accordingly, the Tribunal affirmed the decision under review.”
The Proceeding before this Court
The applicant was unrepresented before the Court this morning, although had the assistance of a Nepalese interpreter.
On 3 August 2017, the applicant attended a directions hearing before a Registrar of this Court. On that occasion, the applicant was given leave to file and serve an amended application, giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit and submissions in support of his application.
At the commencement of today’s hearing, the applicant confirmed that he has not filed any amended application, evidence or submissions in support of his application and that he has no further documents to present to the Court this morning in support of his application.
The applicant confirmed that he relied on the grounds contained in an Application, filed on 18 April 2017, as follows:
“1. I am not satisfied with the Tribunal Member's decision because I believe that the Tribunal Member made an error of law in assessing my claims and evidence and reaching a conclusion that I am not a refugee.
2. I am a victim of the Tribunal Member's purported decision and I require justice.
3. The Tribunal Member committed a legal error by ignoring to give me a natural justice and the benefit of doubt.
4. The Tribunal Member breached the rule of procedural fairness or natural justice by failing or ignoring to accept and value my claims and evidence based on the fact that I am a refugee of persecution and I cannot return to Nepal.”
Each of the grounds was interpreted for the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.
Ground 1 asserts that the applicant believed that the Tribunal made an error of law in assessing his claims and evidence.
I asked the applicant what was the error of law that the Tribunal made. The applicant responded that he was tortured by police; that Maoists were after him for donations; that his story was true; that he is a victim; and, that he is hoping for justice.
Ground 1 is wholly unparticularised. The applicant’s submissions in support do not identify an error capable of review by this Court.
Ground 2 as expressed does not identify any error capable of review by this Court.
Grounds 3 and 4 assert that the Tribunal failed to give the applicant natural justice and the benefit of the doubt; and, that the Tribunal breached the rules of procedural fairness by failing or ignoring to accept and evaluate the applicant’s claims.
I asked the applicant in what way the Tribunal failed to give him natural justice. The applicant responded that he left his country and came to Australia, which is popular for human rights, and that he is looking for assistance from Australia.
I asked the applicant which of his claims were ignored by the Tribunal. The applicant responded that the Tribunal ignored everything and failed to assess his claims from most angles.
I asked the applicant if there was anything further that he wished to say in support of his application and the applicant said that he was requesting for the Court to look at his case carefully. He was looking for assistance because he is a victim and he was in need of justice.
To the extent that the applicant asserts that the Tribunal failed to afford the applicant natural justice, the Tribunal's obligations in relation to natural justice are contained in Division 4 of Part 7 in s.422B of the Act, as follows:
“Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.”
The solicitor for the first respondent, Mr Andrew Keevers, tendered a bundle of relevant documents identified as Court Book and filed on 31 August 2017, which was marked Exhibit 1R. Exhibit 1R contained a letter dated 9 January 2017 inviting the applicant to attend a hearing before the Tribunal in accordance with the relevant statutory regime. The applicant attended the hearing. In the circumstances, the Tribunal complied with its obligations in relation to natural justice.
The Tribunal accurately summarised the applicant's protection claims and the applicant's general circumstances, the details of which the Tribunal discussed with the applicant at length during his appearance before the Tribunal. The Tribunal then records in some detail the various exchanges that it had with the applicant about his claims. The Tribunal expressed its concerns to the applicant about his evidence and noted the applicant's responses. The Tribunal also discussed in detail with the applicant the country information to which it had regard.
Ultimately, the Tribunal found that based on the evidence before it, and taking into account its cumulative considerations, concerns and reasoning, it did not accept that the applicant left Nepal for India in connection with any personal threats or approaches by Maoists or that the applicant was of specific adverse interest to Maoists at or around that time.
The Tribunal did not accept that the applicant then returned to Nepal a month later because his family continued to receive threats. The Tribunal also did not accept that the applicant was the owner of a registered construction company or that he was to have any actual or perceived wealth, which made him or his family targets for extortion by Maoists or criminals or anyone else in Nepal.
The Tribunal did accept that the applicant was affiliated with the Nepal Workers Free Trade Union (“NFWTU”) in Nepal, but did not accept that he was a district president of that union or that he was harmed or targeted for harm in any way in connection with the NFWTU.
The Tribunal did accept that the applicant was an ordinary member and that he continues to support the Rastriya Prajatantra Party Nepal (“RPP-N”) and that he would do so in the reasonably foreseeable future. However, the Tribunal found that the applicant had demonstrated very little understanding of the underlying ideology or agenda of the RPP-N.
The Tribunal rejected the applicant's claims to have been beaten by police on the basis that it found the applicant's evidence to be internally inconsistent, changing, vague and unreliable. The Tribunal did not accept that the applicant was ever arrested, detained or mistreated by police for any reason at any time in Nepal.
The Tribunal referred to large discrepancies in the dates of the events asserted and the lack of detail regarding the ongoing nature of threats made in connection with the events.
The Tribunal considered the applicant’s claim that he had experienced memory problems since coming to Australia. However, the Tribunal found that the applicant's evidence regarding those memory problems was changing over time. The applicant did not provide any independent or probative evidence of having memory difficulties and the Tribunal found that he had an ability to recall large volumes of detailed information before it. Accordingly, the Tribunal did not accept on the evidence before it that the applicant has memory problems that could overcome the cumulative concerns detailed by the Tribunal.
The Tribunal did accept that the applicant would continue to hold his political views should he return to Nepal, but did not find that he was an active member of the RPP-N or that he had any profile as an active or vocal supporter of the RPP-N or as an active or vocal opponent of the Maoists.
The Tribunal found that the applicant was not specifically targeted by Maoists for any of the reasons he claimed, including his involvement with the RPP-N and his claimed business ownership.
The Tribunal then identified with particularity, the country information to which it had regard. That country information disclosed that since the November 2013 elections in Nepal and the period immediately prior to and after, there was a significant diminution of power and influence of the Maoists generally, and the militant Baidya faction, the Young Communist League and criminal elements linked to the Maoists specifically.
The Tribunal noted that it discussed this country information with the applicant and put to the applicant that these reports were reliable. The Tribunal was not satisfied that the applicant or any member of his family are actual or perceived activists of any political viewpoint; or, that the applicant has a real chance of being involved in or harmed in the clashes between activists of political parties, which have been reported.
The Tribunal found the applicant to be an ordinary, low-level supporter of the monarchy and RPP-N, who does not support the Maoists. The Tribunal found that the applicant would not be vocal or active in expressing those views because he has no interest or desire to do so and not because he fears harm. The Tribunal also found that the applicant did not have a profile as a businessman which would give rise to any real chance of extortion and, ultimately, the Tribunal comprehensively rejected the applicant’s claims as identified above.
The Tribunal also considered whether the applicant’s claims met the complementary protection criterion and concluded that they did not.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
Further, s.65 of the Act makes clear that it is for the applicant to satisfy the Tribunal, being the relevant decision-maker, that he meets the criteria for being a refugee. If the Tribunal, as the relevant decision-maker is not so satisfied, pursuant to s.65(1) of the Act, the decision maker must refuse the applicant a protection visa.
The Tribunal’s findings were open to it on the evidence and material before it, and for the reasons it gave, including its adverse credibility findings. The Tribunal’s credibility findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issue of credibility. The Tribunal’s findings were not tainted by any failure to afford procedural fairness; reaching a finding without a logical or probative basis; or unreasonableness; and, were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).
In the circumstances, none of the grounds identified by the applicant demonstrate jurisdictional error on the part of the Tribunal.
The applicant's claims and complaints, such as they are, are more in the nature of a disagreement with the findings and conclusions of the Tribunal, thereby inviting merits review, which this Court cannot consider (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
The applicant has not identified any material that was ignored by the Tribunal; any error in the manner in which the Tribunal assessed the applicant's evidence or the findings that it made, and none is apparent on the face of the Tribunal's decision record.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant, explored those claims with the applicant at a hearing and had regard to all material provided in support.
The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant's responses. The Tribunal identified independent country information to which it had regard and which it discussed in detail with the applicant.
It is well established that it is a matter for the Tribunal, the country information to which it has regard and the weight it gives that information (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29). The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material for the reasons it gave.
A fair reading of the Tribunal's decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including in the conduct of its review.
The Tribunal's decision is not affected by jurisdictional error and is, therefore, a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no power to interfere.
The proceedings before this Court should be dismissed with costs.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 15 August 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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