BQZ15 v Minister for Immigration

[2017] FCCA 2609

FEDERAL CIRCUIT COURT OF AUSTRALIA

BQZ15 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2609

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – citizen of Nepal – Tribunal finding claims lacked credibility – challenge to standard of interpretation – claim videolink disconnected – opportunity to provide transcript – hearing summary provided by applicant – hearing summary not bearing out applicant’s complaints – application dismissed.

Applicant: BQZ15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 1892 of 2015

Judgment of: Judge Riley

Hearing date: 10 July and 4 September 2017

Date of last submission: 4 September 2017

Delivered at: Melbourne

Delivered on: 4 September 2017

REPRESENTATION

Counsel for the applicant: In person

Solicitors for the applicant: None

Counsel for the first respondent: Inshani Ward

Solicitors for the first respondent: Sparke Helmore Lawyers

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Sparke Helmore Lawyers

ORDERS

1. The application filed on 17 August 2015 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1892 of 2015

BQZ15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application for review of a decision of the Administrative Appeals Tribunal.

2. The applicant arrived in Australia on 3 February 2009 as a dependant on a student visa.  That visa ended on 22 June 2011.  The applicant remained in Australia on a number of bridging visas. 

3. The applicant applied for a protection visa on 4 October 2013.  The applicant explained in his protection visa application that he was a Hindu from Nepal.  He claimed in his protection visa application that:

   a)he left Nepal for political reasons;

   b)he was constantly being threatened and received telephone calls asking for money;

   c)“they” threatened his family;

   d)he was beaten up twice and was scared to go to the doctor or the police;

   e)he was afraid that, if he returned to Nepal, he would be taken somewhere and killed;

   f)he feared being harmed by the opposition party, which had its own corrupt police;

   g)other people in his political party had disappeared; and

   h)the authorities could not protect him because there is a high degree of corruption in Nepal. 

4. A delegate of the Minister for Immigration and Border Protection refused the application on the basis that the applicant had a right of residence in India. 

5. The applicant then sought review by the Tribunal.  The Tribunal conducted an oral hearing on 13 July 2015 via videolink.  The applicant was in Melbourne.  The Tribunal and the interpreter were in Sydney.  The hearing invitation said that, if the applicant preferred to attend in person in Sydney, the applicant should contact the Tribunal as soon as possible.  The applicant did not do so, and the hearing proceeded by videolink. 

6. The Tribunal noted in its reasons for decision that the applicant’s claims at the hearing were quite different to those that he had made in writing in his protection visa application.  The applicant told the Tribunal that:

   a)in 2005, Maoists had come to his home, which was a hotel, and wanted to use the telephone to request donations from other people and to threaten people;

   b)the Nepalese army found out that the applicant’s telephone was being used by the Maoists;

   c)members of the army tortured him as a result; 

   d)the police arrested him and he told them that the Maoists had forced him to let them use the telephone;

   e)the police then released him;

   f)the Maoists detonated a bomb near his hotel, which damaged his business;

   g)he suffered difficulties from both the police and Maoists;

   h)the Maoists suspected him of informing on them to the police and the police continued to torture him;

   i)he went into hiding from 2005;

   j)a number of other bombs went off near his hotel; and

   k)he left Nepal because of these difficulties. 

7. The Tribunal noted that the applicant said in the hearing before the Tribunal that he voted for the Communist Party of Nepal (Unified Marxist-Leninist) but he was not a member of the party.  He told the Tribunal that he had some low-level political discussions and political involvement when he was at university between 1997 and 1998.  The Tribunal noted that this claim was different to his written claims, which were that he was targeted because he was involved in a political party.  The Tribunal noted that the applicant’s written claims included that he was scared to go to the police.  However, his oral claim to the Tribunal was that the police were integrally involved in his mistreatment and he had frequent dealings with them.  The Tribunal noted that the applicant did not say in his oral claims that the opposition party had corrupt police. 

8. The Tribunal asked the applicant during the hearing to explain why his written claims were different to his oral claims.  The applicant said somebody else had written down his claims.  He said he did not know what to write and he did not have access to resources. 

9. The Tribunal also asked the applicant why he had failed to attend his interview with the delegate to explain his claims.  The applicant said he was confused about dates. 

10. The Tribunal considered that there were major discrepancies between the applicant’s written claims and his oral claims.  The Tribunal expressly stated that it did not accept that the differences in the claims could be explained as the result of interpretation or translation issues.  The difference in the claims caused the Tribunal to have what it described as very significant credibility concerns.  The Tribunal noted that the applicant, late in the hearing, claimed that the Maoists pursued him for political reasons. 

11. The Tribunal noted that the applicant’s claim that he was in hiding from 2005 was inconsistent with his prior statement that he had been at his parents’ home until he left for Australia in 2009.  The Tribunal considered that the applicant’s explanation that he was partially in hiding was not plausible. 

12. The Tribunal also noted that the applicant had waited for four years after his arrival in Australia to lodge his protection visa application.  The Tribunal was not persuaded by the applicant’s explanations for the delay and drew significant adverse inferences from the four year delay in lodging the protection visa application. 

13. Ultimately, the Tribunal was not persuaded that the applicant was a truthful witness in relation to any of his substantive claims. 

14. The Tribunal considered whether the applicant was at risk because of the general security and political situation in Nepal.  However, the Tribunal did not consider that the applicant faced a real risk of serious harm for those reasons. 

15. The Tribunal also considered the complementary protection criteria.  However, the Tribunal was not satisfied that the applicant faced a real risk of significant harm on any of those bases.

16. The applicant lodged an application for review in this court.  The first ground of review is:

    did not consider relevant information.

17. The applicant has not identified any relevant information that the Tribunal failed to consider.  It seems to me that the Tribunal considered all of the integers of the applicant’s claim.  I am not persuaded that this ground is made out.

18. The second ground is:

    looked at irrelevant information.

19. The applicant has not identified any irrelevant information that the Tribunal looked at.  I have not been able to discern any such information.  The Tribunal appears to have only considered the information that the applicant himself gave.  There does not appear to have been any irrelevant information considered by the Tribunal.

20. The third ground is: 

    tribunal did not accept my evidence that I had to live sometime in my house and other times to hide.  The Tribunal found it inconsistent.  The Tribunal did not consider my situation properly. 

21. This ground is seeking merits review.  The court is not permitted to reconsider the facts of the case and come to a different conclusion.  It seems to me that it was open to the Tribunal to conclude that the applicant’s evidence about going into hiding was inconsistent.  It was open to the Tribunal to conclude that the applicant had not gone into hiding at all and that his claims in that regard were false.

22. The final ground is:

    The tribunal refused my application because I applied late.  The Tribunal should have asked a question saying whether I was a refugee now.  By [asking] and looking at not important fact, the Tribunal made error. 

23. It is well established that the Tribunal is entitled to place weight on the delay between a person’s arrival in Australia and their application for a protection visa.  The Tribunal is not obliged to ask an applicant any particular questions.  It is for an applicant to present her or his case.  It seems to me that the Tribunal did ask itself the correct questions and considered the facts that it deemed to be significant.  There does not appear to me to be any error in the Tribunal proceeding as it did. 

24. This matter came before the court on 10 July 2017.  On that occasion, the applicant told the court that there had been errors in interpretation.  He asked the court for an opportunity to obtain a transcript of the Tribunal hearing with the errors in interpretation made plain.  He also said that the transcript would show that the videolink disconnected and he was not able to say all that he wished to the Tribunal. 

25. The applicant was given time to file and serve an affidavit sworn by an expert in the Nepali language, indicating what errors were made in interpretation.  The matter was adjourned until today, 4 September 2017.  The applicant did not file and serve that affidavit within the timeframe permitted.  He attended court today with what appears to be a summary of the Tribunal hearing.  He said it had been prepared by a friend of a friend.  He said he does not know that person’s name.  The hearing summary was tendered and is exhibit 1.  There is nothing to indicate that the hearing summary was prepared by an expert.  The hearing summary does not indicate that there were any errors in interpretation.  The hearing summary does not indicate that the videolink disconnected at any point. 

26. The applicant then told the court, at the second hearing on 4 September 2017, that he had been unwell during the Tribunal hearing.  The Tribunal hearing was on 13 July 2015.  The court book shows that the hearing began at 9:39am and finished at 10:46am.  The applicant said that he went to hospital between 5pm and 7pm that day.  The applicant produced a discharge summary of a hospital admission that appears to relate to him.  It was tendered and is exhibit 2.  It says that the applicant was in hospital from 13 July 2015 until 18 July 2015.  It indicates that, on 14 July 2015, the applicant had an appendectomy and drainage of an appendiceal abscess.  The comments section of the discharge summary says that the applicant presented with a five day history of right iliac fossa pain. 

27. The applicant told the court that he told the Tribunal that he was feeling unwell.  However, the hearing summary provided by the applicant does not contain any reference whatsoever to the applicant feeling unwell.  The applicant also said to the court that he was in pain during the Tribunal hearing and was taking pain medication.  However, there is no indication in the hearing summary provided by the applicant or in the Tribunal’s reasons for decision that the applicant was in pain or suffering the effects of medication. 

28. There is no indication in the Tribunal’s reasons for decision or in the hearing summary that the applicant asked for an adjournment.  The Tribunal hearing appears to have simply proceeded in the usual way. 

29. The applicant said to the court that, if he had not been unwell and in pain, he could have explained his circumstances better.  However, there does not seem to be anything in the Tribunal’s reasons for decision, or in the hearing summary, which suggests that the applicant’s feelings of ill health or pain could have affected the outcome.  The applicant gave a different version of events in his oral evidence before the Tribunal to the version that he gave in his protection visa application.  It does not seem to me that the Tribunal made a jurisdictional error in proceeding with the hearing in circumstances where the applicant did not seek an adjournment or tell the Tribunal that he was not feeling well, and where any pain or ill health the applicant may have felt does not appear to have affected the outcome. 

30. In all the circumstances, I am not persuaded that there was a jurisdictional error in the Tribunal’s procedure or reasons for decision.  Consequently, the application filed on 17 August 2015 will be dismissed. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 26 October 2017