BSL15 v Minister for Immigration
[2017] FCCA 1071
•19 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BSL15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1071 |
| Catchwords: MIGRATION – Merits review – typographical error in letter to the applicant – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 424A |
| Cases cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | BSL15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1952 of 2015 |
| Judgment of: | Judge McNab |
| Hearing date: | 19 April 2017 |
| Date of Last Submission: | 19 April 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 19 April 2017 |
REPRESENTATION
| The Applicant in person |
| Counsel for the First Respondent: | Ms Lucas |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 25 August 2015 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1952 of 2015
| BSL15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By an application dated 25 August 2015, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal made on 28 July 2015. That decision affirmed a decision of a delegate of the Minister to refuse to grant the applicant a Protection (Class XA) visa. The applicant appeared before me today and made submissions, in addition to relying on a written outline of submissions that were filed in accordance with orders of the Court.
The matters raised in the hearing today were that the Tribunal had failed to consider or give sufficient weight to certain documents, in particular, a photograph of the applicant taken in Nepal and a letter from the Nepali Congress Party.
The applicant is a national of Nepal who arrived in Australia as a holder of a Student visa on 25 November 2008. He applied for a Protection visa on 21 August 2013.
The delegate refused to grant the applicant the Protection visa on 5 June 2014 and on 14 July 2014 the applicant applied to the Tribunal for a review of the delegate’s decision. The applicant appeared before the Tribunal on 25 June 2015 to give evidence and present arguments in support of his application. He was represented at that review by his migration agent.
Background
The applicant claims that he has a political background in Nepal and used to work as a district level leader of the Teachers Association of Nepal. It is said that as a result of that work, he was targeted by Maoists for a number of reasons, including that he was a well-known democratic leader who taught at a private school. He asserted that the Maoists objected to the school and asked for half of the teacher’s pay. The applicant refused to comply. Central to the applicant’s claims was that on 23 October 2003 Maoists stopped him on the way to school and threatened to close down the school, but the applicant and its shareholders decided that the school should remain open.
On 5 November 2003 the applicant was abducted while at school and was taken to a camp and severely beaten by the Maoists and suffered injuries to his leg. He then gave an account as to what happened to him after the beating and said that the applicant produced a photograph that he said was taken by one of the villagers after the beating had occurred. The applicant says that he applied for a Student visa to come to Australia and then later applied for a Protection visa.
The Tribunal gave comprehensive and detailed reasons for its decision. Central to the decision is the concerns that the Tribunal had in relation to the evidence given by the applicant and, in particular, the evidence that he was abducted by Maoists in November 2003 and suffered injuries as a result. The Tribunal recounted the evidence given by the applicant to the Tribunal and to the delegate and then analysed that evidence for the purposes of its decision.
The Tribunal found that the applicant had provided inconsistent evidence in relation to the events in November 2003 and noted them in detail.[1] The Tribunal found that because of the inconsistencies there was real doubt in relation to the applicant’s evidence concerning the nature and severity of his injuries and whether the abduction took place.
[1] See Tribunal decision dated 28 July 2015 [33]-[42].
The Tribunal considered the photograph that was produced to the Tribunal and made particular findings in relation to that. As it says:
The Tribunal gives no weight to the photograph the applicant has provided of him which he says was taken when he was delivered back by Maoists to the school. All the photograph shows is a picture of him in a rural setting which could have been taken at anytime and anywhere.[2]
[2] Tribunal decision dated 28 July 2015 [48].
In relation to the Nepali Congress Party, which was said to support the applicant’s claims of his political involvement, the Tribunal made reference to that document and particular findings in relation to it.[3] The Tribunal stated that it gave little weight to the letter provided by the Nepali Congress dated May 2014, which made reference to the applicant being abducted by Maoists in 2003, given that the information was provided nine years after the events supposedly occurred.[4]
[3] Ibid [47].
[4] Ibid.
Otherwise, the Tribunal made particular findings on each of the matters raised by the applicant in relation to his treatment by the Maoists.
As the Tribunal had found that the applicant was not kidnapped by Maoists in 2003 or threatened or extorted by them, it was not satisfied that the applicant’s claimed psychological conditions had been caused by harm or threats of harm by Maoists and on that basis, it was not satisfied that the applicant faced a real chance of serious harm as a result of psychological issues for a Convention reason.[5]
[5] Ibid [56].
The Tribunal also drew a significant adverse inference from the applicant waiting five years from arrival in Australia to claim protection.[6]
[6] Ibid [58].
The Tribunal held that it was prepared to accept that the applicant had been politically active with organisations associated with the Nepali Congress but was not satisfied, based on independent evidence, being country information, that the applicant’s profile as a political operative meant that he would face a real chance of serious harm as a result of any ongoing activity should he return to Nepal.[7]
[7] Tribunal decision dated 28 July 2015 [60].
The applicant, both in written submissions and oral submissions at the hearing, made submissions in relation to the status of his brother who he alleged was holding a Protection visa in the United States of America. The Tribunal made specific reference to the information provided by the brother, being a letter.[8] It did not accept the evidence contained in that letter and pointed out discrepancies and inconsistencies between the material in that letter and the matters put before the Tribunal by the applicant. In particular, the Tribunal put to the applicant at the hearing that his brother’s statement that he was hospitalised in Kathmandu was inconsistent with his evidence to the Tribunal. The Tribunal noted the applicant’s response that his brother visited him whilst he attended a pharmacy and that was what his brother probably meant by being hospitalised. The Tribunal did not accept that explanation and found it unlikely that the applicant would be visited in a pharmacy, equivalent to a doctor’s surgery as part of one or a two-hour visit.
[8] Ibid [38].
Otherwise, the Tribunal noted that there was no suggestion that the applicant satisfies s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (‘Migration Act’) by reason of his brother holding a Protection visa in another country and found that the applicant does not satisfy the criteria in s.36(2).
Grounds of review
The applicant by his submissions has set out the grounds of review that he relies upon and which the Court has taken as his grounds of review. They have been helpfully summarised in the submissions of the respondent and may be summarised as follows:
a)the applicant is not satisfied with the Tribunal’s decision;
b)the applicant was denied procedural fairness by the Tribunal;
c)the applicant left Nepal because he was attacked by Maoists;
d)the applicant provided a number of documents in support of his application but the Tribunal misconstrued the information provided by the applicant to the Tribunal relating to inconsistencies between the number of men who abducted him;
e)the Tribunal failed to comply with its obligations under s.424A of the Migration Act;
f)the Tribunal ignored relevant material, in particular, a letter from the Nepali Congress Party, a photograph of the applicant and medical evidence;
g)the Tribunal failed to take into account that his brother holds a Protection visa in the United States in assessing whether the applicant is a member of the same family unit who holds a Protection visa under s.36(2)(b) or (c) of the Migration Act;
h)the applicant’s migration agent did not inform him about the inconsistencies in his evidence;
i)the Tribunal failed to take the applicant’s personal circumstances into account when making its decision, including the fact that the applicant has resided in Australia for 10 years and had been separated from his family for 14 years.
In my view, a significant number of the grounds that are advanced by the applicant are simply an attack on the findings of fact made by the Tribunal and this is asking the Court to engage in an impermissible exercise of merits review.[9]
[9] See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.
In relation to the claim that the Tribunal had failed to comply with its obligations under s.424A of the Migration Act, the Tribunal made reference in its decision to forwarding a letter to the applicant and at the hearing asking or putting to the applicant inconsistencies in the evidence he had given to the delegate and to the Tribunal. The decision itself refers to information provided by the delegate to the Minister that two people abducted the applicant in November 2013, and the letter to the applicant from the Tribunal dated 2 July 2015 also makes reference to the abduction in November 2013.
That reference is a clear typographical error and was understood to be such by the applicant when he appeared here before the Court. There is a typographical error both in the letter forwarded to the applicant and in the reference to the correspondence in the Tribunal decision.[10]
[10] See Tribunal decision dated 28 July 2015 [32].
The typographical error was apparent and did not undermine the applicant’s ability to have a fair hearing before the Tribunal or for him and his migration agent to deal with the substance of matters raised. Further, the failure on the part of the migration agent to pass the correspondence on is not a matter that gives rise to jurisdictional error.
In my view, the applicant has not provided any basis for a finding that there has been a failure to accord procedural fairness as required by the provisions of the Migration Act. Otherwise, as stated above, the balance of matters referred to by the applicant are essentially an attempt to engage in merits review. I also note that the matters in relation to the applicant’s brother were specifically referred to and considered by the Tribunal and a finding was made in relation to the status of the brother in the United States.[11]
[11] Ibid [73].
Whilst I have sympathy for the applicant’s situation, in particular that he has been separated from his family for some time and he says that he has been unwell, in my view, there is no reviewable error apparent from the decision. In those circumstances, I dismiss the application.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 23 May 2017
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