BRX16 v Minister for Immigration

[2018] FCCA 165

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRX16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 165

Catchwords:
MIGRATION – Application for judicial review – procedural fairness – directions by member to applicant – unfair hearing – application allowed.

Legislation:

Migration Act 1958 (Cth), s.425

Cases cited:

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553

Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188
Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304
Antipova v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 480

First Applicant: BRX16

Second Applicant: BRY16

Third Applicant: BRZ16

Fourth Applicant: BSA16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1439 of 2016

Judgment of: Judge Riethmuller

Hearing date: 9 October 2017

Date of Last Submission: 9 October 2017

Delivered at: Melbourne

Delivered on: 30 January 2018

REPRESENTATION

Counsel for the Applicant: Mr Guo

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Counsel for the First Respondent: Ms Lucas

Solicitors for the First Respondent: DLA Piper

ORDERS

1. A writ of certiorari issue, quashing the decision of the Second Respondent dated 21 June 2016.

2. A writ of mandamus issue directed to the Second Respondent requiring it to re-determine the application according to law.

3. The First Respondent pay the Applicant’s costs fixed in the sum of $8,257.73.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1439 of 2016

BRX16

First Applicant

BRY16

Second Applicant

BRZ16

Third Applicant

BSA16

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made in June 2016 which affirmed a decision of a delegate of the first respondent to refuse to grant the applicants Protection visa applications.

2. The applicants in this matter are a family unit: the first and second applicant, the parents, and the third and fourth applicants, their children. 

3. The claims that the applicants made are set out in summary form in the Tribunal’s decision:

   4. While only the first applicant advanced claims for Australia’s protection before the Department, both the first and second applicant have advanced their own claims for Australia’s protection before the Tribunal.

   5. In summary, the first applicant claims to fear serious and/or significant harm in Nepal from Maoists in connection with her late father’s profile with the Nepali Congress Party (NCP) and as an opponent of the Maoists.  She claims also to have her own profile as a supporter of the NCP and as an active opponent of the Maoists.  She claims to have been physically harmed and subjected to death threats from Maoists in the past and to fear similar, or worst, mistreatment by Maoists should she return to Nepal.

   6. The second applicant, in summary, also claims to fear serious harm and/or significant harm from Maoists in Nepal in connection with: his past involvement with a student union linked to the NCP; his activities in support of the NCP; his role with the Bhanu Dipojoti Youth Club (BDYC); and his prior role as a teacher who discouraged students from supporting Maoists.  He claims to have been harmed by Maoists in the past and to fear similar or worst mistreatment in the future should he return to Nepal.  

4. The Tribunal member set out early in the decision that there were significant concerns with respect to the truth of the evidence given by the applicants, saying:

   11.  Having had the opportunity to: discuss: the applicants’ claims and evidence with them during their Tribunal appearance, and reflect on that evidence in the context of all the evidence before it, the Tribunal has significant concerns regarding the truth of central aspects of the claims and evidence advanced.  While those concerns are not singularly determinative of the credibility of the claims made overall, cumulatively, they cast a level of doubt on the reliability of the applicants as truthful witnesses that the Tribunal cannot be and is not satisfied: that central aspects of the applicants’ circumstances in Nepal are as they have claimed.  Those factors, together with the Tribunal’s assessment of reliable independent reports regarding the political and security situation in Nepal currently, result in the Tribunal being unable to be satisfied, as reasoned below, that the applicants face 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. 

5. Whilst the Tribunal held concerns regarding the evidence of the applicants, a number of facts and circumstances were accepted, as set out in para.11 of the decision.  These circumstances largely reflected the Department’s record of entry and exit of the applicants into and from Australia, however, they also provide an important background to the application by way of chronology, including:

   a)The second applicant arrived on a student visa in June 2008.

   b)The first applicant arrived on a student visa in October 2008 as the dependant of the second applicant.

   c)Their children were born in Australia in 2009 and 2010 respectively.

   d)In February 2010, the applicant and the elder child left Australia for Nepal, followed by the second applicant in April of that year.  They all returned in mid-May 2010.

   e)The second applicant then applied for a further student visa in August 2010, which was granted until March 2011. 

   f)In February 2011, the second applicant applied for an extension of the student visa, which was granted until May 2013. 

   g)In February 2012, the couple and their child returned to Nepal again, returning without their child in March 2012. 

   h)The first applicant again returned to Nepal in November 2012, returning to Australia in December 2012 with her child.

   i)In May 2013, the first applicant applied for a protection visa, including the second and third applicants as members of her family unit; the fourth applicant was born in Australia after the application for the protection visa.

6. As set out in para.14 of the decision, the applicant said that her father was assassinated by Maoists in March 1999 and that she was kidnapped and beaten by Maoists in 2001 on her way home from school (then being in class 9).  She said that her brother had bought a house in Kathmandu and asked her to live with him but that the Maoists mistreated her at her home in Kathmandu as well and she was advised by relatives to come to Australia as a dependant of her husband in 2008.  The first trip that she made back to Nepal was said to be because the grandparents of her first child wanted to see the child and that the child needed better care.  She said she was unsatisfied with medical treatment in Australia and returned to Nepal for treatment in 2012 for the child, leaving the child in Nepal at that time.  She said that when she returned in November 2012 and went to a temple to pray for her child, she was asked to donate money to the local YCL and received another death threat.

7. The Tribunal noted that in 2016, she, for the first time, made a claim that her sister disappeared in 2004, which she suspects to be as a result of action by the Maoists. 

8. The Tribunal member ultimately accepted that the applicant’s father was a member of the NCP and was killed by the Maoists during the 10 year civil war between 1996 and 2006 in Nepal, which civil war claimed at least 13,000 lives: see para.16. 

9. The Tribunal member explored with the applicants why they had taken so long to apply for a protection visa, concluding:

   17. As noted above, the first and second applicants each told the Tribunal that the 2013 Statement and the contents of their Protection visa application form were prepared without the assistance of a Registered Migration Agent (RMA) although their 2016 Declarations were prepared with assistance of the Footscray Asylum Seeker Centre.  They said that: before lodging the Protection visa application form in May 2013 they had received advice from a number of agents who they think are RMAs, including Tonu Gotani and Mr Shamser; the second applicant also told the Tribunal that he was aware of the protection visa from when he lived in Nepal prior to 2008; they approached Mr Gotani in 2008 after arriving in Australia and he also assisted with the applicants’ multiple Student visa applications; while each applicant said they told Mr Gotani of their individual difficulties in Nepal, Mr Gotani did not believe them at first and sent them to Mr Shamser in Sydney for assistance regarding their protection claims; each applicant also told Mr Shamser about their individual claims for Australia’s protection; while, according to the first applicant, Mr Shamser gave them “ideas and advice”, he applicants decided to complete the application without assistance because they were worried that Mr Shamser might “do modifications” and include “fake information” (according to the first applicant).  Regarding Mr Gotani not believing the applicants’ claims in 2008, the first applicant said that, when she decided to apply for a Protection visa in 2013 and returned to Mr Gotani with her evidence in 2013 he did believe her.  When asked why she waited until 2013 to decide to apply for a Protection visa and to show Mr Gotani her evidence she did not provide any reason.  Neither the first or second applicant identified cost being a factor in why they delayed their application for around five years after entering Australia, contrary to the reasons for delaying the application set out n the 2016 Declaration.  The Tribunal considers this particularly significant given their evidence that they ultimately lodged the application without assistance from a RMA.  While not determinative of any specific factor regarding the applicants’ claimed fears of harm in Nepal, the Tribunal considers the applicants’ delay in lodging their Protection visa application to be relevant in the context of the following: both the first and second applicant have given oral evidence to the Tribunal that their main reason for leaving Nepal and coming to Australia in 2008 was their fear of harm in Nepal; the second applicant told the Tribunal that he commenced work immediately on his arrival in Australia, while the first applicant said she commenced work one month after arriving, demonstrating the applicants to be resourceful; the applicants lodged several Student visa applications before lodging the Protection visa application; the applicants were already aware, in 2008, of the Protection visa and had received advice regarding their protection claims soon after they first arrived in Australia.

10. Ultimately, the Tribunal member concluded:

    43.  On the totality of the evidence before it, while noting that the first applicant’s father had a high local profile as a member of the NCP and opponent of the Maoists at the time he was killed in 1999, and that his death has given him a lasting local profile as a martyr of the Nepali civil war, that war ended in 2006 and the political climate in Nepal has shifted markedly against the Maoists since that time.  The Tribunal considers the first applicant to be an ordinary supporter of the NCP and accepts that she opposes and resents the Maoists.  The Tribunal is not satisfied however that she or any member of her family other than hr late father, were or are actual or perceived “activists” of any political viewpoint or that they have faced serious or significant harm in Nepal.  The first applicant’s evidence does not indicate that she has done anything in around eight years in Australia to suggest that she has any desire or intention to take an active or vocal role in supporting the NCP or voicing opposition to the Maoists.  The Tribunal finds that, while the first applicant will continue to be a supporter or the NCP and an opponent of the Maoists, the Tribunal finds that she will not be vocal or active in expressing these views simply because he has no interest or desire to do so, and not because she fears harm.  The Tribunal is not satisfied, on the evidence before it that the first applicant had or has any adverse profile amongst Maoists or anyone else in Nepal which gives rise to a real chance of serious or significant harm in Nepal in the relevant law, or that she faces 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.

11. The Tribunal member then went on to explore the bases of the second applicant’s claims, although he had not formally sought a protection visa, identifying his claims at para.44.  He was also asked about his return trips to Nepal, with respect to which the Tribunal found:

    47. Regarding his voluntary returns to Nepal on two occasions following his initial entry to Australia, the Tribunal explained that, while it has read the explanations detailed in the 2016 Declarations, it is difficult to reconcile those visits, as well as his wife’s three return visits, to Nepal with their claims of having adverse profiles and continuing fears of serious/significant harm in Nepal.  The second applicant responded that, initially he did not want to return to Nepal but his son was the first great grandson in the family and his family in Nepal really wanted to see him.  He said that for his first return visit his wife went first but he missed them so he joined them for around for 15 days.  As explained to the first and second applicant’s, their demonstrated willingness to return to Nepal on multiple occasions, including with their young son, and the first applicant’s demonstrated willingness to remain in Nepal for protracted periods, does not appear consistent with the claimed profiles or fears of harm both he and his wife have advanced.

12. The Tribunal did not reject the entirety of his evidence, concluding:

    54.  Despite the cumulative credibility concerns, the Tribunal accepts that the second applicant was a supporter of the NCP and a member of its student union, that he was the secretary of the BDYC which, on his own description “was designed to help the development activities in the village”, and that he was not a supporter of the Maoists.  The Tribunal also accepts that the second applicant’s mother is a supporter of the NCP and that she continues to live in her local area in Tanahun without being harmed in any way.  However, based on the totality of the evidence advanced and the cumulative concerns detailed above, the Tribunal does not accept that the second applicant is or was at any time in Nepal an actual or imputed active member of the NCP, or that he had an individual profile as a prominent NCP activist or opponent of the Maoists.  The Tribunal does not accept that the second applicant was ever personally summoned to a Maoist office where he was forced to lick their saliva or sign any document.  The Tribunal does not accept that he had to live in a “secret way” to remain safe in Tanahun.  While the Tribunal accepts that the second applicant assisted the NCP during the 2008 election campaign in Tanahan and that, as part of a group rather than as an individual, he was insulted, verbally abused and physically attacked on one occasion by Maoists, the Tribunal does not accept that he or his home were personally targeted for harm by Maoists or anyone else at any time before or after that.  The Tribunal finds that the second applicant has not, in around eight years in Australia, engaged in any activity linked to the NCP or any other social or political cause in Nepal.  The Tribunal finds that he has no interest or desire to be actively involved with he NCP or any linked movement, or to be an active vocal opponent of the Maoists should he return to Nepal.

    55.  While noting the above, as detailed in paragraphs 37 to 42 above, the Tribunal discussed with the second applicant that reliable independent sources report a significant shift in the political and security situation in Nepal since the applicants applied for Australia’s protection in May 2015 and since they left Nepal in 2008, with the Maoists experiencing a significant diminution of power and influence at the political, economic, social and paramilitary level.  That information, considered in the context of all the evidence advanced and the cumulative concerns detailed above, together with what the Tribunal accepts of th second applicant’s circumstances and political profile and involvement in Nepal cumulatively, leaves the Tribunal unable to be satisfied that he faces 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.

Ground 1

1. The first ground of the applicants’ amended application for judicial review is as follows:

   1. The Tribunal breached section 425 of the Migration Act 1958 (Cth) (the Act), or alternatively denied the Applicants procedural fairness, by preventing them from completing their evidence.

   Particulars

   a) Towards the end of the hearing, the Tribunal put propositions to the Applicants, but the Applicants were prevented from meaningfully responding, by the Tribunal saying, including by interrupting the Applicants:

   i. it had ‘gone over time’;

   ii. it was ‘not going to allow additional time’;

   iii. ‘we will have to finish it there’;

   iv. ‘The hearing is now closed and you’re welcome to leave’;

   v. ‘We will have to leave it there’;

   vi. ‘All right.  We have to finish there’;

   vii. ‘We have to finish’;

   viii. ‘We’re ending it there now’.

2. As the applicants’ counsel identified, a real and meaningful hearing must be provided to the applicants under the Migration Act 1958 (“the Act”), as discussed in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [37] and Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 at [31]. As was identified by the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304, it is important that an applicant be given a reasonable opportunity to fairly put their case rather than running a hearing with an eye “principally on the clock”, as Kenny and Lander JJ (with whom Spender J agreed) said at [47]:

   47. The haste in which the Tribunal proceeded may be reflected in the use in the course of the hearing of inappropriate language, as for example, the reference to the applicant’s material as “stuff”. Be that as it may, the Tribunal Member stated that she fixed the two-hour limit because she had a commitment of her own after 4 o’clock, although she herself acknowledged on more than one occasion that the subject-matter of the review was complex because there was a great deal of material to comprehend. It was, on its face, the very kind of case that called for, at the least, a measured approach to the evidence and arguments that the review applicant presented. As it happened, the two-hour period fixed by the Tribunal led the Tribunal to hurry through the taking of evidence from Mr Maltsin and Ms Bogodist and to speed through such other witnesses as could be “fitted in”. The Tribunal conducted the hearing with an eye principally on the clock, and the transcript shows that the Tribunal limited the taking of oral evidence as it did solely because the Member ran out of time. The Tribunal did not in fact limit the taking of oral evidence by reference to such relevant considerations as the importance of the proposed evidence for the review, or the time the applicant might reasonably require fairly to put his case. It follows that the Tribunal did not genuinely give regard to the notice that Mr Maltsin gave under s 361(2) of the Act. It therefore acted in breach of its obligation under s 361(3) of the Act.

1. Similarly, in Antipova v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 480 at [23], the Court found that the Tribunal had in that case interrupted the applicant and asked short questions, which discouraged her from giving the detail that she obviously wished to give, saying things such as, “We’re running out of time,” and, “Let’s keep it simple,” ultimately cutting off further statements made by the applicant in that case and her husband, the member in that case saying, “We do have to finish now.” Gray J concluded that the Tribunal had imposed an arbitrary time limit and the interruptions were such as to prevent the applicant from giving her evidence as she wished to, ultimately resulting in a denial of procedural fairness.

2. Whilst it is clear that a Tribunal member must give an applicant a reasonable opportunity to be heard, such a principle does not require a Tribunal member to provide unlimited time for hearing an applicant.  Reasonable time limits can be imposed, just as they are imposed from time to time when running trials in the Courts.  Importantly, such time limits should be indicated reasonably in advance, and reconsidered if application is made or circumstances show that further time is reasonably required for a proper hearing.

3. In this case, the applicants were advised early in the interview (see transcript of Tribunal hearing T6.18) that the interview would be around two and a half hours.  It is argued that this was an arbitrary time limit and that the applicants had expectations that the hearing would be run to suit the circumstances of the case as set out in a hearing invitation information sheet. 

4. Extensive written material had already been provided to the member (for example, 67 paragraphs of written material which appears at court book 296 – 404). 

5. It does not appear unreasonable for the Tribunal member to provide an initial estimated hearing time that is available, provided that it can, if required, be reviewed at the end of the period.  It is important to note in this case that the Tribunal member had already looked at the original statement and documents provided by the applicants and listened to their Departmental interviews (T6).  It is clear that the Tribunal member did not strictly impose the two and a half hour estimate, as the hearing lasted for over three hours and 15 minutes.

6. It is also apparent that in the 66 pages of transcript leading up to the point at which the member asked if there was anything “briefly that you want to say about” reports that the activities of Maoists was now really within the party and different factions within the parties, “because we have gone over time” was at the end of a lengthy interview process covering many issues.  The answer by the second applicant was to the effect that they could give evidence of how others had obtained refugee status in the US and Portugal, to which the Tribunal member responded that they were not going to allow additional time, but further information could be provided.  Information of this type could easily be provided in writing (and one would have expected it to have been provided in writing prior to the interview, in any event).

7. After some discussion about the provision of information in writing the Member again asked if there was anything else that the applicants wished to say (T67.27).  A cryptic comment was made by the interpreter (T67.30):

   Interpreter: Maybe we do the mistake that applying the protection visa, I don’t think that we did a mistake.  We just wanted the justification from your side.  That’s all we want.

8. Following this comment, the Tribunal member reassured the parties that the member would carefully consider the evidence and had not yet made up their mind, before identifying that the parties may wish to say something further: see T68.17. 

9. The second applicant, repeated the general thrust of the claim (T68.20), and went on to acknowledge that the Maoists party were now a number of factions (T68.27), which the Tribunal member acknowledged: this is not surprising given that the Tribunal member had earlier put that substantive point to the applicants from country information.  The Tribunal member, again, attempted to politely finalise the hearing, following which the applicants returned to the proposition that they had documents that show that others have obtained asylum in the US or Portugal, to which the member reiterated that they are able to provide the material as documents, although warned the parties that it is difficult to compare different people’s cases: see T69.17 to T69.21.

10. At p.70 of the transcript of the Tribunal hearing, the parties returned to whether or not the Maoists had killed the applicant’s father, which the Tribunal member responded to by saying that the member had already told them that this was an accepted fact: see T70.18.  This proposition was accepted in the ultimate decision. 

11. I see no error on the part of the Tribunal member in attempting to end the hearing on each of these occasions, given that the applicants’ submissions appear to be reiterations of propositions that had been appropriately dealt with earlier.

12. The Tribunal member was, however, clearly mindful that at this point the applicants appeared to wish to say more, asking (at the bottom of p.70 of the transcript of the Tribunal hearing) whether there was something else that the second applicant wanted to say, to which the applicants responded by thanking the member.  The interpreter then began to explain that on this occasion they had not brought their child with them, as it had made a previous interview (presumably with the delegate) difficult.  Not surprisingly, the Tribunal member indicated that the hearing would end at that point, as this was clearly not a submission germane to the decision the Tribunal member had to make (T71.7).

13. Thereafter, the second applicant began repeating the claim saying that “whatever I submitted, we did say everything true, 100 per cent true”, and similar phrases.  The repeated claims that earlier evidence was true are of no real assistance to a Tribunal member.  In these circumstances, it is unsurprising that the Tribunal member sought to end the interview.  Again, the second applicant sought to reiterate the truth of what had been said earlier, when the Tribunal member ended the hearing.

14. It is specifically argued that in a passage on p.61 of the transcript of the Tribunal hearing, where the second applicant commenced to tell the Tribunal member about denying Maoists the opportunity to be involved when he was teaching older people after school, the Tribunal member said:

    Member: Ok, you’re going into detail that you’ve already put to me, I don’t need you to repeat that detail.

15. However, this was in the context of the Tribunal member on the previous page seeking information about how many years before he had come to Australia that the second applicant had started experiencing problems in Nepal, and thereafter, the Tribunal member sought to refocus the second applicant on this question, successfully it seems, as the second applicant provided a meaningful response:

    Interpreter: It become extreme from 2007 July or August, it started extremely from year 2007 August or July.

16. At the bottom of page 61, the applicant began to tell the Tribunal member of an incident which was set out in detail in the statutory declaration.  The Tribunal member said:

    Member: I’ve read that and what you’ve told me now is almost word for word what you’ve written in your statutory declaration.

17. Following that statement, the Tribunal member confirmed the date that these alleged events occurred, before moving on to asking him to explain how the Maoists captured him to inflict mistreatment upon him.  Clearly, the Tribunal member was focussed on the surrounding details that were not contained within the written statement.  This does not appear to be disinterest by the Tribunal member, rather testing the veracity of the version of events by looking to explore surrounding facts and circumstances.

18. The applicants also point to the events that appear at p.50 of the transcript of the Tribunal hearing and following, where the Tribunal member adjourned the hearing for a five minute break at the request of the applicant: see T50.17.  Arrangements were then made so that the first and second applicants were not alone together during the break, following which the hearing resumed with the member questioning the second applicant: see T52.

19. The Tribunal member did not formally return to the first applicant for further questions by the Tribunal member, although it does not appear that there were further matters about which the Tribunal member wished to ask the first applicant.  The first applicant was given opportunities towards the end of the hearing to say more, however, the matters raised (as set out above) do not appear to have been germane to the issues weighing upon the Tribunal member’s mind in this matter.

20. Considering the material provided by the applicants, and the transcript as a whole, I am not persuaded that it indicates that the Tribunal member was more focussed upon time than a fair hearing of the applicants.  Rather, the Tribunal member spent considerable time exploring the applicant’s claims.  The fact that the Tribunal member did contain the hearing to matters germane to the core issues in the Tribunal decision, particularly at the end of the hearing, does not, in the context of this case, persuade me that the Tribunal member did not provide the applicants with a reasonable opportunity to be heard.  In these circumstances, I am not persuaded that the applicants have made out this ground.

Ground 2

1. The second ground is framed as follows:

   2.  The Tribunal’s conclusion that BRX16 was not credible was unreasonable.

   Particulars

   a) The unreasonableness of the credibility conclusions arise from the Tribunal:

   i. Directing the First Applicant to confine her answers to questions, and yet finding adversely that her answers did not contain elaboration;

   ii. Materially mis-stating the evidence of the Applicants, and then disbelieving the mis-stated evidence;

   iii. Asking questions that were vague, and yet relying on the answers to those questions in support of its adverse credibility findings;

   iv. Rushing the hearing, as to which the Applicants repeat the particulars subjoined to ground 1.

2. The applicant argues that the Tribunal member acted unreasonably in rejecting the applicant’s credibility because of the factors set out in the particulars to this ground for judicial review. 

3. Counsel argues that on a number of occasions, the Tribunal member asked the applicant to answer questions directly: see T12.22 and T34.9.  As counsel acknowledged, asking a witness to focus upon directly answering a question is unremarkable of itself, but argued that after asking the applicant to provide direct answers, that the Tribunal was critical of the evidence given on the basis that there was no “detail as to how she did this or what it involved”, when referring to her political activities, quoting the following exchange from T42.9 to 23:

   Member: Just tell me what social service and following in your father’s path, did you undertake?

   Interpreter: My dad passed away, since my dad passed away I continued his project like, like he wanted to establish one help hospital in Tanahun that project to continue it.  He also organized Tanahun education program.  I also continued that project.  Like these kinds of project I used to come, I used to involve in these kinds of project to complete it.

   Member: How did you do that if you were hiding from the Maoists?

   Interpreter: I used to live with Mr. Joshi’s place and Mr [unintelligible 00:33:19] and secretly we, I suggested them like we have to do these kinds of things in our village and that kinds of things in our place.  That’s how we… we did these kinds of things.

4. The relevant passage from the Tribunal’s decision is at para.19, where the Tribunal says:

   19.  Firstly, the first applicant told the Tribunal that she came to Australia in October 2008 because there were threats of rape and death in Nepal and she could not stay in a country where her father’s killers walked openly in the streets.  The Tribunal explored with the applicant how she spent her last few years in Nepal before coming to Australia in 2008.  Her evidence was that: she worked full-time for two years at Drinking Water Corporation in Kathmandu, ceasing work there only to come to Australia; her role was in accounts and ledgers and to attend the counter to collect money; she has not had any other work experience in Nepal.  When asked how else she spent her time in Nepal she offered only that she looked after her brothers, hid herself and visited her husband’s home in Tanahun.  She mentioned nothing further.  However, when the Tribunal expressly asked her to explain the content of her Protection visa application form which indicates that her occupation prior to coming to Australia was “social service, following dad path politics” and asked her about her involvement with the NCP more generally, she offered that she told people not to join the Maoists and she established health posts in her village as well as an education program.  When asked how she did this while hiding herself she said that she did this secretly while living with Josie and Poudel from the NCP.  She did not provide any detail as to how she did this or what it involved.  The Tribunal considers the applicant’s failure to mention this work prior to the Tribunal expressly altered her to the content of her Protection visa application form to be of concern.  The Tribunal also has concerns that her Protection visa application form, rather than identifying her employment at the Drinking Water Corporation for some two years prior to her departure from Nepal as her most recent employment in Nepal, referred to her work as “social service, following dad path politics”, a description she struggled to support in her oral evidence to the Tribunal, raising concerns that she has sought to distort her work history in her written claims in order to bolster her claims of having a political profile at the time she left Nepal in 2008. [emphasis added]

5. What is apparent from reading the passage from the transcript relied upon by the applicant is the absence of any particulars or specifics of just what she was doing, which appears to have been the core concern by the Tribunal member in the findings in para.19, as set out above.  This is also a reflection of the written submissions made by the applicants.   However, the substance of the applicant’s complaint is that she had previously been directed to answer questions directly, which direction she appeared to be following, but this necessarily led to less detail of the mundane or day-to-day tasks in her work.  In retrospect, having read the Tribunal’s reasons, it seems likely that the member was seeking more detail and the applicant was trying to answer briefly and directly.  It would have been helpful for the member to have asked her to explain exactly what she did day-to-day in her work to make clear that at this point in the process the member was interested in minutiae.  The result, unfortunately, appears to be an adverse inference being drawn in circumstances where the evidence was not clearly requested.

6. The applicant also referred to an exchange at T27.4 to T27.21 where the following was said:

   Member: And you’ve given evidence that your father was a high profile who died in his service for that party.

   Member: I’m just surprised that you wouldn’t have some contacts within the party that might be able to help make inquiries about your sister.

   Interpreter: Yes.  We’re still fighting for the justice.  I already mentioned to you that we already mentioned these things to the government and that we’re still fighting for the punishment, the justice and that we want government punish them, the people who killed my dad and other things.

   Member:  I can see that you’re getting upset.  It’s just very difficult for the interpreter to interpret so much content.  So, it is very important that you don’t say too much without having a break so the interpreter can accurately communicate what you’re saying.

   Member: We started this conversation by exploring who in your family was still living there when you came to Australia in 2008?

7. The Tribunal also considered this issue in some detail at para.25 of their reasons saying:

   25. Regarding why she did not mention her sister’s disappearance prior to her 2016 Declaration she offered that “we did not know if she is alive or dead” and thought they could not provide information they are uncertain about.  Regarding why she has not, in any of the documents provided to date, mentioned having a sister while mentioning her father who passed away in 1999 and siblings residing in a range of locations, she said that she did not have evidence about her sister.  When asked if she has any documentation confirming her family composition and that she had a sister she responded that her brother-in-law has remarried and does not have her sister’s documents, adding that she does not have her sister’s citizenship number so she cannot identify her formally.  The Tribunal asked the first applicant what steps her family has taken to find out what happened to her sister.  She responded that they approached the Nepali police and government who said that they will let them know if they find out something.  Her family also asked the Maoists to help.  Regarding how her family asked the Maoists to help given her evidence that she lived in hiding from the Maoists while in Nepal, she said they asked the people who killed her father if they knew where her sister is as her sister had argued with them.  When asked who, specifically, her family asked about this she responded that they asked the Prachanda group.  When asked how her family approached the Prachanda group to request their assistance she said that when they went to the police and government and they couldn’t help her family “encountered” the Maoists.  When asked what this means she responded that distant relatives made the enquiry in around 2004.  When asked if any further enquiries have been made regarding her sister’s whereabouts more recently she responded that her family has no relationship with Maoists anymore so how could they face the Maoists?  The Tribunal put to the first applicant that: she has provided extensive evidence regarding her father’s high profile and reputation within the NCP, which has been in power since the November 2013 elections; in that context it is wondering what steps her family has taken to seek assistance from the current Nepali government and authorities to find out what happened to her sister.  Her response was to the effect that they are still fighting for justice, however she did not detail any steps being taken in that fight.  At best, the first applicant’s evidence regarding her claimed sister’s disappearance was vague and did not demonstrate that the first applicant has any information as to the detail surrounding her sister’s disappearance.  On its totality, the first applicant’s evidence regarding her sister and her sister’s disappearance and the steps taken by the family to ascertain what happened to her impress the Tribunal as so lacking in detail that the Tribunal cannot be and is not satisfied that the first applicant ever had a sister or that her sister disappeared at the hands of Maoists or anyone else as she has claimed.  [emphasis added]

8. The applicant argues that the lack of detail in her answer in the hearing was founded in the request that she provide specific answers.  As with the previous point, the member did not frame the question directly, such as asking whether the applicant still had contacts within the party, and if not what had happened to her old contacts.  In retrospect, having read the reasons, it is apparent that the member’s observation of surprise was intended to direct the applicant’s mind to the need for detailed evidence on this point, despite the earlier request to answer questions directly.  Again, this left the applicant in the position of suffering adverse inferences due to brevity of evidence in circumstances where the member did not make clear that detail was required in the context of a hearing where the applicant was asked to answer directly.

1. It is also complained that the Tribunal member referred to the applicant being “forced to go back to Nepal”, with criticism of the Tribunal member not seeking greater elaboration from the applicant in the hearing.  The context of the exchange is important in understanding the Tribunal’s response.  The transcript shows that the exchange was as follows:

   Member: Then why did you return to Nepal in 2010 and take your baby with you?

   Interpreter: Actually my husband’s grandfather wanted to see his great grandson because my son is the first grandson.  He wanted to see him and he force us and push us.  That’s the reason why we took my baby over there just to saw him at his great grandson’s face.

   Member: I wonder, though, would a grandfather insist that you take a five-month-old baby to Nepal if it was unsafe for you there?

   Interpreter: Actually, I have my mother-in-law and father-in-law alive, and on that time they are all together like they advise me that, please, they advise me to take my baby over there.  They wanted to see him, and they advise me that they’re going to look after the baby if I leave my baby over there.  That’s the reason why I took my baby there.

2. Thereafter, the Tribunal member continues to quiz the applicant about why she would return to Nepal if she was at serious risk of safety. 

3. I am not persuaded that the Tribunal’s response to this part of the evidence was legally unreasonable.  It is quite incredible that a person who believes that there is a real risk of serious harm to them in Nepal would return, as the applicant has done so in this case. It is not surprising that the Tribunal did not accept the nature of the explanations that she gave.

4. When the applicant sought to explain returning her child to Nepal for the purpose of “herbal treatments”, it was argued that she was not given an adequate opportunity to explain such treatments.  The Tribunal said:

   32. Compounding the above, the Tribunal also discussed with the first and second applicant it’s concerns that the first applicant returned to Nepal for a second time with her son when he was aged around two years and five months on 28 February 2012, remaining in Nepal until 19 March 2012 and leaving her son in Nepal on that occasion for around ten months before bringing him back in December 2012.  She repeated the comments in her 2016 Declaration to the effect that her son had piles which were not being healed by Australian medical care, so her in-laws told her to take him to Nepal for herbal treatments.  She did not explain what those treatments were or what steps she had taken to access them from Australia, nor did she explain why she needed to leave her son in Nepal for ten months.  The applicants’ informed the Tribunal that her son returned with her on that occasion.  The Tribunal asked both the first and second applicant why they all needed to travel to Nepal on that occasion, given the fears and risks of harm they each claim to have had.  Their responses were to the effect that the first applicant was not confident to go alone.  However, this impresses the Tribunal as unconvincing given that the first applicant had travelled to Nepal alone in 2010 when her son was aged less than five months.  While the Tribunal is willing to accept that the applicants’ son had piles, the Tribunal does not accept that the first and second applicant would both return to Nepal in 2012, taking their young son there for herbal remedies and leaving him with relatives for around ten months if they had the adverse profiles or fears of harm claimed.  [emphasis added]

5. These findings were, in part, supported by the exchange in the transcript at T47.13 to T47.19, as follows:

   Member: What medical treatment did he get there that he couldn’t get in Australia?

   Interpreter: In Australia, also I’ve tried a lot, like you don’t know any doctors, they advise that it’s normal.  I have to feed him plenty of water and fruits.  But in Nepal, we have a facility of the herb medications, plenty of herbs there.  That’s the reason why I took my baby over there for the treatment. 

6. The adverse inferences were, again, the result of the member expecting much more detail from exchanges that did not make clear to the applicant that more detail was required.

7. The applicant also alleges that the Tribunal member misstated the applicant’s evidence and relied upon these misstatements to found adverse credibility findings.  The applicant’s submissions set out:

   38. One of the material misstatements was in relation to the Tribunal’s conclusion at [17] that the Applicants did not provide ‘any reason’ for the delay in applying for protection visas, and in particular, not having identified cost as a factor (CB 419 [17]).  The viva voce evidence was the opposite.  Contrary to the Tribunal’s conclusion, BRX16 explained that she did intend to apply in 2008 (shortly after her arrival in Australia) (T16.15; T20.14).  BRY16 gave similar evidence (T57.16-18), and also added that they had student visas and therefore were able to stay in Australia, away from where they were fearing persecution (T52.13-14, T58.5).  As to cost, BRY16 directly raised this with the member (T57.19-22, .30)

   39. The Tribunal also concluded that the Applicants ‘had received advice regarding their protection claims soon after they first arrived in Australia’.  However, BRX16’s evidence was that the purported agent they first dealt with did not give them any advice at all.  Rather, that agent:

   didn’t even look at my paper.  Not even give the beams at my paper, upon this.

   At the moment, when I saw her paper, everything, and he saw him all the papers, he realize everything that is really genuine request, and that he said sorry to me many times.  Like, he said like, ‘sorry sister, I didn’t look at the papers’.  I would have done this earlier, everything.  He said sorry many times to me. (T20.25-31)

   40.  The following lines from BRX16 show that no advice was given until 2013 (T21.7), contrary to the Tribunal’s summary of the evidence.  BRY16 gave evidence to a similar effect (T57.16-33).

   41.  At [21], the Tribunal stated that BRX16 ‘gave no evidence that she was harmed or even personally approached by any Maoist since around 2001’.  Again, that was a misstatement of the evidence.  BRX16 told the Tribunal that she had been threatened by Maoists at least twice.  The first was in relation to a search for her missing sister:

   we encountered with the Maoist people and then we asked them where is my sister or if they know anything about them, but on that time as a reply like this, “Just shut up and don’t mention these things.”  Even though like the incident happened I also have fear to walk in the street openly on that time (T26.5-8).

   42.  The second piece of viva voce evidence was in relation to an extortion attempt:

   On that time my village and family said that it’s a matter of moment there won’t be harm, I wouldn’t be harm.  That’s the reason why I went there. But I encountered the Maoists in the temple.  On their time when they saw me and they said like, “Oh, you just got a chance to come back in our country.”  They said like this.  Exactly like this.

   They asked for the money, saying that you earn lots of money in the Australia, you got back from the Australia on the time. (T48.19-25)

   43. At [22], the Tribunal stated that BRX16 did not ‘so much as apply for a passport… before 2008’ to cast doubt on the genuineness of her fear.  Yet BRX16 gave evidence that she obtained a passport in 2006 (T10.18).

   44. At [25], the Tribunal said that BRX16 had sought information from ‘the Prachanda group’ in relation to the whereabouts of her missing sister.  In fact, BRX16 told the Tribunal that she approached the ‘Baburam group’ (T25.33).  The Prachanda and Baburam groups are rival Maoist factions (‘Nepal’s Maoist leadership divisions’, BBC News, 6 May 2005 Affidavit of Sinea Dodds dated 2 October 2017, Annexure SD-3); the fact that the Tribunal misstated the evidence in such a fundamental way suggests that it was simply not interested in BRX16’s evidence.

   45. At [50], the Tribunal said that BRY16 gave evidence that he was subjected to inhumane treatment (the spit incident referred to at paragraph 29 above) immediately after which he forced by the Maoists to sign a document the substance of which was to declare a renunciation of his political activity.  The Tribunal then said that this was inconsistent with BRY16’s claim in his statutory declaration that he never had a chance to read the document.  However, the actual oral evidence given by BRY16 was consistent: he made no mention of signing any document immediately following the spit incident.  There was no inconsistency for the Tribunal to seize upon.

8. Counsel for the Minister accepts that there were misstatements, saying:

   32. The Minister accepts that on two of the occasions identified by the applicants in their written submissions at [38] and [43] the Tribunal did indeed misstate their evidence.  However, in light of the Tribunal’s credibility concerns which were based on a broad range of cumulative factors, the Minister submits that the errors identified are not sufficient to undermine the ultimate credibility findings arrived at by the Tribunal such that they are affected by error.

   33. Many of the relevant legal principles which guide the review or a judicial review of findings concerning credibility were discussed by the Full Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [34]-[44] per McKerracher, Griffiths and Rangiah JJ. In particular, the Minister accepts that the fact that a finding on credibility is the function of the Tribunal par excellence, does not mean that such findings are not susceptible to review for jurisdictional error on several potential grounds. Further, the issue of whether or not a credibility finding is tainted by jurisdictional error is a “case specific inquiry” and it is not one which should be analysed by reference to fixed categories or formulas. In each case, what the decision maker has decided must be analysed in detail in order to determine whether or not jurisdiction error has occurred: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [77].

   34. For the following reasons, the Minister submits that any relevant misstatements of the applicant’s evidence can be isolated and confined, such that it should be concluded that the error was not so serious or significant to the Tribunal’s rejection of the applicants’ claims to amount to jurisdictional error. In particular, the Minister points to the extensive and multi-faceted credibility findings made by the Tribunal as set out [7] to [16] above.

   Misstatement of evidence

   35. The Minister responds to each of the identified misstatements of evidence as follows:

   36. As to [38] of the applicant’s written submissions, the Minister accepts that the Tribunal’s statement at CB 419 [17] that “neither the first or second applicant identified cost being a factor in why they delayed their application for around five years after entering Australia” is factually incorrect in light of the reference at T57:11 in relation to the second respondent. The Minister notes that the Tribunal stated in respect of this aspect:

   While not determinative of any specific factor regarding the applicants’ claimed fears of harm in Nepal, the Tribunal considers the applicants’ delay in lodging their protection visa application to be relevant in the context of the following: both the first and second applicant have given oral evidence to the Tribunal that their main reason for leaving Nepal and coming to Australia in 2008 was their fear of harm in Nepal…

   37. It is relevant to note, that while the Tribunal considered this difference to be relevant it was not “determinative of any specific factor”. It is submitted that this factual error can therefore be properly confined and does not materially affect the overall credibility findings arrived at by the Tribunal in a way which gives rise to jurisdictional error.

   38. As to [39] of the applicant’s written submissions, which alleges that the Tribunal erred in concluding that the applicant’s “had received advice regarding their protection claims soon after they arrived in Australia”, this is an accurate representation based on the applicant” evidence. The first applicant told the Tribunal at the hearing that a migration agent, Tonu Gotami, helped her regarding her protection visa application “immediately after I came here” and further that, at that time, Tonu advised her not to apply.15 The fact that the first applicant gave evidence that the agent later said that he had not looked at her papers, doesn’t render the Tribunal’s finding that he initially advised them not to apply for a protection visa unsupportable. The Tribunal accurately recounts this portion of the evidence at CB 418-419 [17].

   39. As to [41]-[42] of the applicants’ written submissions, the Tribunal’s statement that the first applicant “gave no evidence that she was harmed or even personally approached by any Maoist since around 2001” at CB 420 [21] is accurate. The applicants rely on two incidents whereby the first applicant approached the Maoists or “encountered” them, not incidents in which the applicant had been approached by them.

   40. As to [43] of the applicants’ written submissions, the Tribunal noted that the first applicant “told the Tribunal that she did not apply for a passport nor make any attempt to leave Nepal before 2008” (CB 420- 421 [22]). The Minister accepts that the applicant does not appear to have given evidence about this subject. Instead, the second applicant gave evidence that he had applied for a passport in 2006.16 However, for the reasons expressed in [32] above, this does not affect the Tribunal’s adverse credibility findings such that it gives rise to jurisdictional error.

   41. As to [44] of the applicants’ written submissions, the Minister accepts that the Tribunal referred to the Prachanda group instead of the Baburam group in relation to the whereabouts of the first applicant’s missing sister (CB 421 [25]). However, this does not have any bearing on the Tribunal’s ultimate findings that the first applicant’s evidence on her sister’s disappearance was “vague” and did not demonstrate that the first applicant had any information as to the detail surrounding her sister’s disappearance and that it could not be satisfied that the applicant ever had a sister or that she disappeared at the hands of Maoists or anyone else as she had claimed (CB 422 [25]).

   42. As to [45] of the applicant’s written submissions, on a fair reading of the applicant’s evidence at T64:28-33, he had read the contents of the paper. His evidence was that:

   They asked me to sign one paper where they mention that from that point of meeting onward, they don’t want me to influence the other people, not to attend their program and not to participate in their movement et cetera….

   It was therefore open to the Tribunal to find at CB 429 [50] that the evidence he gave at the hearing did not accord with his 2016 Declaration in which he stated that he did not read the document that he was forced to sign on that occasion.

9. These submissions must be read in the context of paras.17, 21-22 and 25 of the Tribunal’s decision, which provided:

   17. As noted above, the first and second applicants each told the Tribunal that the 2013 Statement and the contents of their Protection visa application form were prepared without the assistance of a Registered Migration Agent (RMA) although their 2016 Declarations were prepared with assistance of the Footscray Asylum Seeker Centre.  They said that: before lodging the Protection visa application form in May 2013 they had received advice from a number of agents who they think are RMAs, including Tonu Gotani and Mr Shamser; the second applicant also told the Tribunal that he was aware of the protection visa from when he lived in Nepal prior to 2008; they approached Mr Gotani in 2008 after arriving in Australia and he also assisted with the applicants’ multiple Student visa applications; while each applicant said they told Mr Gotani of their individual difficulties in Nepal, Mr Gotani did not believe them at first and sent them to Mr Shamser in Sydney for assistance regarding their protection claims; each applicant also told Mr Shamser about their individual claims for Australia’s protection; while, according to the first applicant, Mr Shamser gave them “ideas and advice”, he applicants decided to complete the application without assistance because they were worried that Mr Shamser might “do modifications” and include “fake information” (according to the first applicant).  Regarding Mr Gotani not believing the applicants’ claims in 2008, the first applicant said that, when she decided to apply for a Protection visa in 2013 and returned to Mr Gotani with her evidence in 2013 he did believe her.  When asked why she waited until 2013 to decide to apply for a Protection visa and to show Mr Gotani her evidence she did not provide any reason.  Neither the first or second applicant identified cost being a factor in why they delayed their application for around five years after entering Australia, contrary to the reasons for delaying the application set out n the 2016 Declaration.  The Tribunal considers this particularly significant given their evidence that they ultimately lodged the application without assistance from a RMA.  While not determinative of any specific factor regarding the applicants’ claimed fears of harm in Nepal, the Tribunal considers the applicants’ delay in lodging their Protection visa application to be relevant in the context of the following: both the first and second applicant have given oral evidence to the Tribunal that their main reason for leaving Nepal and coming to Australia in 2008 was their fear of harm in Nepal; the second applicant told the Tribunal that he commenced work immediately on his arrival in Australia, while the first applicant said she commenced work one month after arriving, demonstrating the applicants to be resourceful; the applicants lodged several Student visa applications before lodging the Protection visa application; the applicants were already aware, in 2008, of the Protection visa and had received advice regarding their protection claims soon after they first arrived in Australia.

   …

   21. The above concerns are compounded by the following.  The first applicant told the Tribunal that she moved from her father’s home town of Tanahun to Kathmandu in around 2002, and that in the three years prior to that and her father’s death, she spent her time both in Kathmandu and her late father’s home in Tanahun so that she could complete her year 9 exams.  Those claims are explored further below.  Regarding her time in Kathmandu the Tribunal explored in she experienced any adverse approaches from Maoists.  She responded that: they tried to approach her home (which was owned by her brother) but she wasn’t there; her sister-in-law’s brother told the Maoists that she is not home and they had a fight with him; as far as she knows this was the one and only time the Maoists approached her home in Kathmandu.  The Tribunal put to the applicant that her oral evidence indicates that the Maoists knew where she lived in Kathmandu yet they never harmed her or they only approached her home on one occasion, which does not suggest that they had or have any real interest in finding or harming her since around 2002. In the context of the above oral evidence the Tribunal also asked the first applicant what she meant in her 2013 Statement by “the ycl terrorist mistreated me at home in Kathmandu as well”.  She responded that “maybe” she was referring to the above incident when they approached her home to ask about her, adding that they told her sister-in-law’s brother they would rape her.  The Tribunal notes that, despite the first applicant telling the Tribunal that she worked around 6 days a week in Kathmandu, travelling back and forth between her home in Kathmandu and her workplace for around two years before coming to Australia, she gave no evidence that she was harmed or even personally approached by any Maoist since around 2001.  Her oral evidence to the Tribunal does not suggest that she was mistreated, harmed or adversely pursued by Maoists at any time in Kathmandu, despite her living and working there between 2002 and 2008.  The Tribunal does not accept that the first applicant was mistreated in her home in Kathmandu as she claims and does not accept that her home was visited on any occasion by any Maoists with any intent to harm, including rape, her.

   22. Further, while telling the Tribunal that she lived in hiding and in fear of rape, other mistreatment and death by Maoists in Nepal since around 1999, and that Maoists have taken a specific adverse interest in her and her family due to her father’s and her own political profile, she gave no persuasive evidence that she was ever actively involved with the NCP or that she was ever a vocal opponent of the Maoist insurgency.  She also remained in Nepal for around nine years after her father’s death, despite many of her family members leaving Nepal years prior.  She told the Tribunal that she did not so much as apply for a passport nor make any attempt to leave Nepal before 2008.  This does not support her claims that she faced and feared, in the nine years leading to her departure from Nepal in 2008, a real threat of rape, death or any other form of harm.

   …

   25. Regarding why she did not mention her sister’s disappearance prior to her 2016 Declaration she offered that “we did not know if she is alive or dead” and thought they could not provide information they are uncertain about.  Regarding why she has not, in any of the documents provided to date, mentioned having a sister while mentioning her father who passed away in 1999 and siblings residing in a range of locations, she said that she did not have evidence about her sister.  When asked if she has any documentation confirming her family composition and that she had a sister she responded that her brother-in-law has remarried and does not have her sister’s documents, adding that she does not have her sister’s citizenship number so she cannot identify her formally.  The Tribunal asked the first applicant what steps her family has taken to find out what happened to her sister.  She responded that they approached the Nepali police and government who said that they will let them know if they find out something.  Her family also asked the Maoists to help.  Regarding how her family asked the Maoists to help given her evidence that she lived in hiding from the Maoists while in Nepal, she said they asked the people who killed her father if they knew where her sister is as her sister had argued with them.  When asked who, specifically, her family asked about this she responded that they asked the Prachanda group.  When asked how her family approached the Prachanda group to request their assistance she said that when they went to the police and government and they couldn’t help her family “encountered” the Maoists.  When asked what this means she responded that distant relatives made the enquiry in around 2004.  When asked if any further enquiries have been made regarding her sister’s whereabouts more recently she responded that her family has no relationship with Maoists anymore so how could they face the Maoists?  The Tribunal put to the first applicant that: she has provided extensive evidence regarding her father’s high profile and reputation within the NCP, which has been in power since the November 2013 elections; in that context it is wondering what steps her family has taken to seek assistance from the current Nepali government and authorities to find out what happened to her sister.  Her response was to the effect that they are still fighting for justice, however she did not detail any steps being taken in that fight.  At best, the first applicant’s evidence regarding her claimed sister’s disappearance was vague and did not demonstrate that the first applicant has any information as to the detail surrounding her sister’s disappearance.  On its totality, the first applicant’s evidence regarding her sister and her sister’s disappearance and the steps taken by the family to ascertain what happened to her impress the Tribunal as so lacking in detail that the Tribunal cannot be and is not satisfied that the first applicant ever had a sister or that her sister disappeared at the hands of Maoists or anyone else as she has claimed.

1. Whilst counsel for the Minister argued strongly that in the overall context of the decision, these errors by the Tribunal member should not lead to a determination that the Tribunal decision is judicially reviewable, it is difficult to avoid such a conclusion.  The fact that the Tribunal member stated that these matters were not determinative of any specific factor does not mean that they were not relevant matters relating to the applicant’s credibility. 

2. In this case, the errors of the Tribunal member are not errors alleged to result from the Tribunal member accepting or finding factual matters differently to that alleged by the applicant, but rather demonstrate that the Tribunal Member did not accurately record or have regard to the specific evidence that was given.  Specifically, the Minister accepts the factual inaccuracy in para.17 with respect to whether or not costs were a factor.  I do not accept counsel for the Minister’s submission with respect to whether or not the applicant was harmed or personally approached by Maoists since 2001, where the Minister argues that Maoists were “encountered”, rather than having specifically approached the applicant.  This is a level of technical reading of the language used that does not appear to me to reasonably reflect the substantive content of the information provided.  At best, if the Maoists were encountered during the applicant’s search for her sister, they must be taken to have nonetheless approached her to make the threat.

3. I accept the applicant’s complaints with respect to whether or not she had applied for a passport or attempted to leave prior to 2008.  The only evidence was that of the second applicant that he had applied for a passport in 2006.

4. I am not persuaded that the misstatement of the name of the particular rival Maoist faction, as Prachanda rather than Baburam, is of itself a significant error, given that both are Maoist factions and it is the Maoists that the applicant is fearful of – the particular faction does not appear significant in this case.

5. I do accept the Minister’s submissions that it was open to the Tribunal member to conclude that the applicant had read the paper referred to in the incident with the Maoists.

6. Whilst I accept that much of the applicant’s version of events, and in particular the return trips to Nepal, weigh very heavily against her version being accepted, it is not ultimately a question for me to determine on the merits of the matter.

7. Ultimately, these matters lead to the conclusion that it was not reasonably open to the Tribunal to make all of the findings it made. Alternatively, this may be categorised as a failure to give the applicant a real opportunity to be heard under s.425 of the Act.

8. I therefore find that the application should succeed and order the issue of prerogative writs accordingly.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  30 January 2018