BTN16 v Minister for Immigration

[2017] FCCA 3381

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTN16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3381

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 438

Cases cited:

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194
BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198
Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197

Applicant: BTN16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1490 of 2016

Judgment of: Judge Riethmuller

Hearing date: 11 December 2017

Date of Last Submission: 11 December 2017

Delivered at: Melbourne

Delivered on: 11 December 2017

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondent: Mr. L Brown

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application filed 13 July 2016 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,900.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1490 of 2016

BTN16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This is an application seeking judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 16 June 2016. 

2. The applicant has not filed any written submissions despite being ordered to by a registrar.  The applicant made no meaningful submissions today other than expressing a desire for a different outcome in the case. 

3. The applicant is a citizen of Nepal.  The applicant came to Australia in February 2009 as a dependant of his wife.  His wife was on a training visa.  The applicant and his wife separated and his dependant’s visa was cancelled in July 2010.  The applicant remained in Australia without a visa for a little over three years until he applied for a protection visa in September 2013.

4. The applicant had an interview with a delegate of the Minister in June 2014.  The delegate did not believe that the applicant was a credible witness and refused to grant the visa.  The applicant then sought review by the Tribunal.  The Tribunal also found that the applicant was not a credible witness and refused his application. 

5. The Tribunal summarised the basis of his application at [4], saying:

   4.  According to these documents, his claims can be summarised as follows:

   ·   The applicant’s house is located in Biratnagar, in the Terai region [FN: Paragraph 2.7, DFAT Report: Nepal is divided into three natural east-west geographical zones.  Along its southern border is a strip of flat, fertile land known as the Terai, an extension of the vast north Indian plain, which accommodates approximately 50 per cent of the population.  The central strip comprises the Middle Hills, rising to 3,400 metres and interspersed with fertile valleys, of which the Kathmandu Valley is the largest.  Approximately 43 per cent of the population lives in this area.  The northern strip is formed by the Himalayas, an unbroken mountain range containing eight peaks higher than 8,000 metres, which accommodates approximately seven per cent of the population]  near the Indian border.  He operated a business there.

   ·   The applicant had been threatened to be killed and kidnapped many times by Mukti Morcha and the Maoist Youth Communist League (YCL) in Biratnagar.

   ·   On 10 February 2002, he was kidnapped by Jantantrik Terai Mukti Morcha (JTMM), he was held for nine days.  The kidnappers threatened to kill him because he supported the King and the Rastritya Prajatantra Party (RPP).  They accused him of spying on them and not donating money to their party.  They demanded his father pay Rs.2.5 million for his release, otherwise they would kill him.  His father was able to organise to pay R.s.1.5 million for his release, selling their land to pay the ransom.  He was released on 19 February 2002 and went back to their home and Biratnagar.

   ·   Five days after the applicant’s release, he and his family moved to Kathmandu.  In 2003 he opened a Colour Lab and started a small business in Kathmandu.

   ·   On 18 March 2015 the NCP Maoist and JTMM called him seeking a donation and threatening his life again.  They ordered him to close down his business.  The applicant closed the colour lab but they still troubled him all the time with phone calls and letters.  He went to the police station with the letters and the phone records and also told them about the previous kidnapping but the police said it was impossible to provide a police escort.  They said they would investigate but this was not enough and he lived in fear every day and night.

   ·   He married a Nepalese girl who then told him they could go to Australia to study, and they went to Melbourne.  He found it difficult to earn money in Melbourne, so he moved in search of work.  His wife wanted a divorce.

   ·   He could not return to Nepal because he does not have the ability to fight against the Maoists and the Madhesi Mukti Morcha in Nepal and his life is at risk.

6. The Tribunal noted many inconsistencies in the applicant’s evidence, even down to things like where he was born and when he moved to Kathmandu: see [41] to [47].

7. The Tribunal then went on to identify a number of other reasons for not accepting the applicant’s evidence. The findings against the applicant on issues of credibility are extensive in this case: see [14] to [56]. 

8. The applicant sets out four grounds for judicial review in his application.  In addition, the Minister’s counsel identifies a potential ground concerning a certificate purporting to make some information privileged.

Ground 1

1. The first ground sets out:

   1. My point is that despite having attended in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of section 424s as decided by the majority Judge of the High Court in SAAP.

2. The applicant was unable to identify anything that was within the meaning of this ground. There does not appear to be anything in this case that the Tribunal failed to properly disclose under s.424A of the Migration Act 1958.  The most damaging part of this case for the applicant was the inconsistencies in his evidence.  Inconsistencies in evidence do not require disclosure under the section: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26.

Ground 2

1. Ground 2 is framed as follows:

   2. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.

2. The applicant made no submissions about this ground and it is difficult to understand what the ground relates to.  The Tribunal rejected the applicant as a witness of truth and rejected his claims.

Ground 3

1. The third ground is in the following terms:

   3.  The applicants satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision.  The Tribunal has not considered this aspect and therefore committed factual and legal error.

2. It seems that this ground is a complaint that the Tribunal ought to have made a different decision based upon the evidence before it.  No particulars were given to explain what part of the decision or decision-making process this ground was meant to relate to.

Ground 4

1. The fourth ground is in the following terms:

   4.  The AAT has failed to investigate applicants claim, especially the grounds of persecution, in India.  Therefore, the Tribunal decision dated 16^th Jun 2016 was effected by actual bias constituting judicial error.

2. Again, it is difficult to understand what basis there is for this ground.  There is nothing in the material to indicate that the Tribunal member was biased against the applicant.  There is nothing in the material in this case that indicates some fact or circumstance arose which would give rise to an obligation on the part of the Tribunal to make its own inquiries.

Potential Additional Ground

1. In this case, an officer of the Minister’s department issued a certificate under s.438 of the Act. In accordance with the recent decisions of Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194, BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198 and Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197, the solicitor acting for the Minister annexed a copy of the documents covered by the certificate to an affidavit. The documents covered by the certificate appear to be the administrative records of the applicant’s student visa application. They contain a non-migration record case dump which appears to be a computer printout of basic data, and a number of other records being movement details, some brief health records, some summary financial information and an English language test score result. None of these documents appear to have any relevance to the decision that the Tribunal had to make. They neither supported the applicant nor were evidence against the applicant.

2. The one limited relevance that they may have had was in demonstrating that the applicant had a student visa for a period of time prior to coming to Australia and that there was a period of time between the student visa, and when he applied for a protection visa.  Neither of these matters were facts in dispute, only the discrepancies given by the applicant with respect to the underlying facts.  The Tribunal referred to the timing issues at [50] to [51], saying:

   50.  Further, the Tribunal was concerned that information on the offshore student visa application file was inconsistent with the applicant’s claims in these proceedings.  The applicant had claimed in his statement that he had received threats (in March 2005) that he must close down the Colour Lab, which he did.  As put to the applicant pursuant to s.424AA of the Act, however, the student visa application documents were submitted to the Department in 2008, and include documentation showing that he owned (part of) the Colour Lab.  The Tribunal noted this was inconsistent with his evidence to have closed down the Colour Lab after receiving threats that he would be killed in 2005.  In response, the applicant said that he already talked about the real incident; he has already told the Tribunal everything, and he doesn’t know how to fabricate things.  The Tribunal has considered his response; however it does not find it persuasive.  The Tribunal notes the applicant did not explain the inconsistency between his statement, and the documents in the student visa application file.  The Tribunal considers this undermines the applicant’s credibility and his claims.

   51.  Fifthly, the Tribunal was concerned about the applicant’s delay in coming to Australia once his visa had been granted.  He said that he and his wife had decided to come to Australia for security.  The Tribunal noted however that the applicants visa was granted on 20 December 2008 [FN: As set out in the visa stamp in is passport provided to the Department], but that he did not leave to come to Australia until 22 February 2009, a delay of two months.  In response, the applicant said that he had to choose a good date according to Nepali culture.  The Tribunal put to the applicant that he was suggesting that he was at risk of being killed and, in the circumstances, it was difficult to accept that he would not leave despite the grant of his visa allowing him to escape, because he was waiting for a good date.  On the evidence before it, the Tribunal considers this claim to be unlikely, and considers that the applicant’s delay undermines his claimed fear of harm.

3. In this case, I am not able to be persuaded that the documents give rise to even a possibility of any different outcome.  Indeed, on the decision as made, it does not appear that these documents were ultimately of any real relevance.

4. In these circumstances, I find that this is not a basis upon which the court could grant relief. 

5. I therefore dismiss the current application.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  7 March 2018