BQT16 v Minister for Immigration

[2017] FCCA 1925

FEDERAL CIRCUIT COURT OF AUSTRALIA

BQT16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1925

Catchwords:
MIGRATION – Application for Constitutional writ – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 438, 476.

Cases:
MZAFZ v Minister for Immigration and BorderProtection (2016) 243 FCR 1

Applicant: BQT16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1707 of 2016

Judgment of: Judge Street

Hearing date: 14 August 2017

Date of Last Submission: 14 August 2017

Delivered at: Sydney

Delivered on: 14 August 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondent: Mr J Pinder
MinterEllison

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,200.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1707 of 2016

BQT16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for a Constitutional writ in 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 15 June 2016 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.

2. The applicant applied for a Business Visitor Stream (FA-600) visa offshore on 3 June 2013. That visa was granted on 24 June 2013. The applicant arrived in Australia on 10 November 2013. On 5 December 2013, the applicant applied for a protection visa. On 7 November 2014, a delegate found the applicant failed to meet the criteria under the Act and refused the grant of a protection visa.

Review by Tribunal

1. The applicant applied for review on 28 November 2014. The applicant was invited to and attended a hearing on 23 March 2016 to give evidence and present arguments.

2. The Tribunal identified the applicant’s background in relation to the visa application. The Tribunal correctly identified the relevant law that was set out in an appendix incorporating the reasons of the Tribunal.

3. In summary, the applicant claimed to fear harm in Nepal from Maoists for reason of his and his father’s imputed role in facilitating the capture and death of a former Maoist leader. The applicant claimed that his adverse profile was heightened by his father’s support for the Nepali Congress Party (NCP) and his late uncle’s work for the Nepali Police Force (NPF), who the applicant claims was killed by Maoists in 2003.

4. The Tribunal identified that it had significant concerns regarding the truth of central aspects of the applicant’s claims and evidence. The Tribunal was concerned as to the truth of central aspects of the applicant’s claimed circumstances in Nepal, which resulted in the Tribunal being unable to be satisfied that the applicant faces a real chance of serious or significant harm in the reasonably foreseeable future for any reasons claimed or arising on the evidence.

5. The Tribunal identified the applicant’s claims for protection and the applicant’s study and employment background. The Tribunal summarised the applicant’s claims and referred to the claims being elaborated upon in the applicant’s statement, and the Tribunal included further claims identified in that statement.

6. The Tribunal made express reference to the applicant providing supporting documentation and identified three documents in that regard, one dated 20 August 2003, one dated 22 October 2013, and an undated receipt. The Tribunal, in its reasons, identified explaining to the applicant the high prevalence of fraudulent documentation from Nepal and that the Tribunal had to assess what weight to give to the documentation.

7. The Tribunal found the applicant’s claims and evidence, which were explored with the applicant at the hearing, were problematic and unconvincing in respect of key aspects. The Tribunal identified in support of its credibility concerns the applicant’s claim that a particular person threatened to kill the applicant’s entire family and that the particular person’s family sought revenge against the applicant’s family for the death of the particular person. The Tribunal noted that the applicant told the Tribunal that his sister, brother, mother and father, as well as his wife and three daughters, continue to live in Nepal and that the applicant gave no evidence to suggest that they had been harmed or threatened by anyone.

8. The Tribunal made reference to the applicant’s claims that he was relentlessly pursued by Maoists intent on killing him for 13 years, yet the Tribunal noted the applicant had spent the last year in Nepal, living and working in a particular area. The Tribunal noted the applicant claimed he lived in three different houses to avoid detection, but that his evidence was that he went to and from his particular workplace at a town centre four to six days a week by public bus and sometimes by company car. The Tribunal also made reference to the applicant’s claims that he would speak about gender equality and distributed resources to communities, such as books and clothing, as the national coordinator of Women for Women (W4W). The Tribunal raised with the applicant his willingness to engage in such a public role not being consistent with his claimed fear of detection by Maoists.

9. The Tribunal expressly records raising with the applicant the press clipping of 22 October 2013 with the applicant in exploring the applicant’s claims. The Tribunal noted, contrary to the content of the article, the applicant had given no evidence of himself having been abducted when he went to see his wife in September 2013. The Tribunal explored the article with the applicant in detail. The Tribunal also explored with the applicant his claimed kidnapping by Maoists on 3 December 2000 and his claim that his uncle was a member of the NPF.

10. The Tribunal’s reasons identify inconsistencies in the applicant’s evidence and discrepancies in the information provided. The Tribunal did not accept the applicant’s father was or is an active member of the NCP or that the applicant had or has any political profile linked to the NCP. The Tribunal did accept that the applicant’s uncle was in the NPF and that he was shot by unidentified Maoists in August 2003. The Tribunal did not accept that that was linked to the particular person’s arrest or death or that the applicant’s late uncle’s role in the NPF or his death gave the applicant any profile giving rise to real chance of serious or significant harm in Nepal in the reasonably foreseeable future.

11. The Tribunal was prepared to accept that the applicant, his former business and his family home were approached by Maoists seeking donations and support during the Ten Year People’s War commencing in 1996. The Tribunal did not accept the applicant or his household was singled out for specific attention by the Maoists for any reason. The Tribunal did not accept that the particular person made a targeted visit to the applicant’s home in 2000 or any other time or that the applicant or any member of his family was suspected of complicity with the Nepali Army (RNA) regarding the particular person’s arrest and subsequent death.

12. The Tribunal did not accept that the applicant’s father fled the family home and remained in hiding. The Tribunal did not accept the applicant was kidnapped by Maoists or that he was adversely pursued by Maoists or anyone else at any time in Nepal. The Tribunal was not satisfied that any member of the applicant’s family in Nepal is or has been adversely targeted for harm, including in connection with the applicant and/or his father. The Tribunal was not satisfied that the applicant has or had any profile in Nepal which was, or is, or will be in the reasonably foreseeable future generate adverse interest to Maoists or anyone else in Nepal. The Tribunal was not satisfied that the applicant faced a real chance of serious or significant harm in Nepal in the reasonably foreseeable future for any of the reasons claimed or arising on the evidence.

13. Having considered the totality of the evidence, the Tribunal was not satisfied that the applicant faces a well-founded fear of persecution in Nepal in the reasonably foreseeable future. The Tribunal found the applicant did not meet the criteria under s 36(2)(a) of the Act.

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

Hearing in this Court

1. At the commencement of the hearing, the Court explained to the applicant that this is a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied that the Tribunal’s decision was unlawful or unfair, the Court would set aside the decision and send it back for further hearing. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the Court would dismiss the application.

2. The Court explained that it would have identified the evidence and then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent, and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

Submissions from the bar table

1. From the bar table, the applicant maintained that what he had told the Tribunal was true and that he had given genuine documents to the Tribunal. The applicant said to the Court that he would accept what the Court might say. The Court explained to the applicant that it had no power to make fresh findings of fact and could not revisit the merits. The Court explained that it could not consider the application on compassionate grounds. The applicant maintained from the bar table that everything he had provided was genuine and that he was truthful in what he told the Tribunal.

2. The Tribunal’s reasons reflect a rational and logical basis for the adverse credibility findings, and those adverse credibility findings cannot be said to lack an evident and intelligible justification. The Tribunal identified reasons for giving limited weight to the documentation provided by the applicant. Those adverse reasons were also open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.

3. It was a matter for the Tribunal to determine the applicant’s credit. The applicant’s submissions from the bar table, in essence, invited this Court to engage in impermissible merits review. This Court does not have power to revisit the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

4. On 25 October 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. The applicant’s affidavit filed at the same time as the application expanded on the alleged grounds of error and, on 19 October 2016, the applicant filed a further affidavit seeking to expand on the grounds of alleged error.

Grounds in the application

1. The grounds in the application are as follows.

   I. The Respondent made a jurisdiction error by not taking into consideration relevant evidence submitted before the Tribunal, therefore refusing to give weight to evidence provided by me and thereby made erroneous findings and mistaken conclusions.

   2. The decision of the Second Respondent was effected by actual or ostensible bias tantamount to jurisdictional error.

   3. The First and Second Respondent failed to consider the relevant fact of my circumstances which was critical in reaching their decision.

Ground 1

1. There is no relevant evidence in relation to Ground 1 that was identified that the Tribunal failed to take into account. It was a matter for the Tribunal to determine what weight to give the evidence, and for the reasons already given, the Tribunal’s adverse findings were open. Ground 1, in substance, seeks to invite this Court to engage in impermissible merits review. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to Ground 2, the adverse finding by the Tribunal is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. Bias, whether actual or ostensible, must be clearly alleged and properly proved. No case of bias is made out, either actual or ostensible. Ground 2 fails to make out any jurisdictional error.

Ground 3

1. On the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal on 23 March 2016. On the face of the material before the Court, the Tribunal complied with its obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness.

2. In relation to Ground 3, the Tribunal identified the applicant’s claims and made findings dispositive of those claims. There is no claim identified that the Tribunal also had to consider. Ground 3 fails to make out any jurisdictional error.

Applicant’s first affidavit

1. Paragraphs 10 to 15 of the applicant’s first affidavit is as follows:

   10. The Administrative Appeals Tribunal gave little weight to the documentary evidence and emphasised on oral evidence that was difficult to recall.

   11. The Administrative Appeals Tribunal failed to consider the relevant fact of my circumstances which was critical in reaching their decision.

   12. The Administrative Appeals Tribunal focused on wrong questions to determined my credibility and wrongly formed its opinion based on irrelevant information that was not core of my case.

   13. The decision of the Administrative Appeals Tribunal was thus effected by actual or ostensible bias tantamount to jurisdiction error.

   14. I ask the Court to review the decision made the Administrative Tribunal and the decision made by a delegate of the Department of Immigration and Border Protection.

   15. I ask the Court to set aside the Tribunal's decision and substitute with a decision that is reasonable and according to the law.

Paragrapgh10

1. In relation to paragraph 10, it was a matter for the Tribunal to determine what weight to give to the applicant’s oral evidence and to the documentary evidence. No jurisdictional error is made out by paragraph 10.

Paragraph 11

1. In relation to paragraph 11, there was no relevant consideration identified that the Tribunal failed to take into account. Paragraph 11 does not make out any jurisdictional error.

Paragraph 12

1. In relation to paragraph 12, the Tribunal correctly identified the relevant law, and there is no wrong question identified in the Tribunal’s reasons that gives rise to any jurisdictional error. Determining the applicant’s credibility was a matter for the Tribunal to take into account. Paragraph 12 fails to make out any jurisdictional error.

   
   
   

Paragraph 13

1. In relation to paragraph 13, this is a repetition of the allegation of bias in paragraph 3. For the reasons given, paragraph 13 fails to make out any jurisdictional error.

Paragraph 14

1. In relation to paragraph 14, this is in substance an invitation to this Court to engage in impermissible merits review. This Court does not have power to review the decision of the delegate. No jurisdictional error by the Tribunal is made out by paragraph 14.

Paragraph 15

1. Paragraph 15 is, again, an invitation to this Court to engage in impermissible merits review. No jurisdictional error is made out by paragraph 15.

Applicant’s second affidavit

1. The applicant’s second affidavit identifies the following paragraphs:

   1. The Second Respondent made a jurisdictional error by not taking into consideration relevant evidence of the applicant and/or refusing to give weight to evidence provided by the applicant and thereby made erroneous finding and mistaken conclusion in circumstances whereby there had not been an adverse finding to the applicant's credibility, and/or the well of credibility had not been poisoned beyond redemption.

   Particulars

   i) The Second Respondent gave evidence of consideration relevant to the question to be determined by the Second Respondent including applicant's work history, family residential status, local newspaper article relevant to applicant's claim, letter from government authority, financial status of family members. Such evidence was given no weight on the basis that no corroborative documentary evidence was provided by the applicant.

   ii) The Second Respondent did not make adverse finding as the applicant's credibility tantamount to the well of credibility having been poisoned beyond redemption and the applicant was entitled to have claim considered accordingly.

   iii) The Second Respondent took into account unsubstantiated belief and personal opinion as the expected acts and omissions of the applicant and accordingly made findings and reached conclusions adverse to the applicant.

   2. The Second Respondent made jurisdictional error by making a determination which was irrational, illogical, not based on findings or inferences of fact supported by logical grounds, and/or which was manifestly unreasonable.

   Particulars

   i) The Second Respondent made contradictory findings in relation to the applicant's conduct.

   ii) The Second Respondent failed to consider the evidence submitted by me in relation to the applicant's claim that the applicant would be harmed by Maoist If the applicant was located by them in Nepal.

   3. The Administrative Appeals Tribunal gave little weight to the documentary evidence and emphasised on oral evidence that was difficult to recall.

   Particulars

   i) The Second Respondent failed to consider the relevant fact of my circumstances which was critical in reaching their decision. The Second respondent did not give any weight to the documentary evidence such as letter form government authority, newspaper article, incident report and relied on others sources to discredit the applicant.

   ii) Thus, for above reasons, the decision of the Administrative Appeals Tribunal was thus effected by actual or ostensible bias tantamount to jurisdiction error.

2. Annexed to the affidavit as Annexure B was material that was before the Tribunal and expressly referred to in the Tribunal’s reasons.

Paragraph 1

1. In relation to paragraph 1, there is no relevant consideration identified that the Tribunal failed to take into account, and on the face of the Tribunal’s reasons, the Tribunal correctly identified the applicant’s claims and evidence. It was a matter for the Tribunal to determine what weight to give that evidence and also to determine the applicant’s credibility.

2. The Tribunal did accept the applicant’s evidence on some issues and engaged in a nuanced approach to the applicant’s claims and evidence. Such nuanced approach does not give rise to any inconsistency in findings or any jurisdictional error by the Tribunal. It was relevant to the Tribunal to take into account the applicant’s family in assessing the applicant’s credibility. The weight to be given to that evidence was a matter for the Tribunal to assess, as was the alleged corroborative documentary evidence which the Tribunal identified in its reasons.

1. As indicated, this is not a case where the Tribunal approached the matter on the basis of a rejection of the whole of the applicant’s evidence, and the adverse findings by the Tribunal cannot be said to be unreasonable or illogical or irrational. There is no basis for the assertion that the Tribunal took into account personal opinion or belief, and the omissions by the applicant in relation to the applicant’s claims were relevant to the Tribunal’s assessment of the applicant’s credit. No jurisdictional error is made out by paragraph 1 of the second affidavit.

Paragraph 2

1. In relation to paragraph 2, no contradictory findings have been identified by the applicant. Accepting part of the applicant’s evidence on some matters and rejecting it on others does not give rise to inconsistent findings, and the Tribunal provided logical and rational reasons in support of its findings. On the face of the Tribunal’s reasons, the Tribunal identified the material provided by the applicant in support of the applicant’s claims and expressly addressed the applicant’s claim that he had been harmed by Maoists. No jurisdictional error is made out by paragraph 2 of the second affidavit.

Paragraph 3

1. In relation to paragraph 3, the weight to give the evidence by the applicant and the material provided by the applicant was a matter for the Tribunal, and no relevant fact that the Tribunal failed to consider has been identified. To the extent that paragraph 3 repeats the complaint about weight and bias, for the reasons already given, such allegations do not make out any relevant legal error. Paragraph 3 of the second affidavit fails to make out any jurisdictional error. The documents that were attached in support of the affidavit, other than the Tribunal’s decision, were documents expressly referred to in the Tribunal’s reasons.

Certificate issue

1. The first respondent, as a model litigant, has drawn the Court’s attention to the existence of a certificate under s 438 of the Act and has tendered into evidence the documents the subject of that certificate. Those documents were not identified in the Tribunal’s reasons, and on the basis of the documents the subject of the certificate having been tendered into evidence, the Court is satisfied that the material was irrelevant to the determination of the review by the Tribunal.

2. The Tribunal did not act or proceed on the certificate in the manner it appears was taken into account in MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1. Whilst the Court accepts that the certificate would, for the reasons given in MZAFZ, be an invalid certificate, taking into account the irrelevance of the material the subject of the certificate, it is a case where the Court is satisfied the applicant has not been denied an opportunity to advance his case in the conduct of the review, and the applicant has suffered no practical injustice in the conduct of the review by the failure to disclose the certificate or the documents the subject of the certificate. Accordingly, no jurisdictional error is made out by the failure to disclose the certificate or the documents the subject of the certificate.

3. Further, the Court is satisfied that the non-disclosure of the certificate and the documents the subject of the certificate could not possibly have affected the outcome of the review, and in these circumstances, even if there was found to be error, relief should be refused on discretionary grounds.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 27 October 2017