BTS15 v Minister for Immigration and Border Protection
[2018] FCA 1264
•21 August 2018
FEDERAL COURT OF AUSTRALIA
BTS15 v Minister for Immigration and Border Protection [2018] FCA 1264
Appeal from: BTS15 v Minister for Immigration & Anor [2017] FCCA 3058 File number: VID 1318 of 2017 Judge: KENNY J Date of judgment: 21 August 2018 Legislation: Migration Act 1958 (Cth) Date of hearing: 21 August 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 39 The Appellant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr J Grant Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent submitted to any order, save as to costs.
ORDERS
VID 1318 of 2017 BETWEEN: BTS15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
KENNY J
DATE OF ORDER:
21 AUGUST 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
KENNY J:
This is an appeal from the judgment and orders of the Federal Circuit Court of Australia (Federal Circuit Court) delivered on 16 November 2017, which dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 6 August 2015. The Tribunal had affirmed a decision of a delegate of the respondent Minister (delegate) dated 13 June 2014 to refuse the appellant’s application for a Protection (Class XA) visa (protection visa). The Federal Circuit Court judgment has the citation BTS15 v Minister for Immigration & Anor [2017] FCCA 3058.
The respondent Minister has filed written submissions in the appeal proceeding. The appellant has not done so. The appellant appeared in person today. With the aid of an interpreter, he briefly responded to the Court.
BACKGROUND
The appellant is a citizen of Nepal. He arrived in Australia on 27 October 2007 as the holder of a dependant student visa.
The appellant arrived in Australia on his Nepalese passport issued on 14 January 2004. The passport shows that he returned to Nepal from Australia in 2009 and 2013 for visits. The appellant separated from his wife who was the primary visa holder in 2012.
On 9 September 2013, the appellant lodged an application for a protection visa. The appellant made a number of claims in support of his protection visa application.
The delegate refused the appellant’s protection visa application on 13 June 2014. Pursuant to s 36(3) of the Migration Act 1958 (Cth) (the Act), the delegate found that the appellant could avail himself of third country protection in India. The delegate also considered that the appellant’s claims were vague and lacking in detail. The delegate noted that the appellant had lived outside Nepal from 1999 to 2007 and that he had travelled to Nepal in 2009 and 2013.
The appellant applied for Tribunal review of the delegate’s decision. The appellant attended a hearing before the Tribunal and was assisted at the hearing by his migration agent and an interpreter. The Tribunal also heard the evidence of another witness.
On 6 August 2015, the Tribunal affirmed the decision under review.
THE TRIBUNAL DECISION
The Tribunal summarised the appellant’s claims to the Department of Immigration as follows:
ŸThe local police, Nepalese government agencies, and the Indian government want to arrest him. He will be tortured, subject to degrading treatment, or killed: he will be harmed physically and mentally.
ŸHe is considered as an active member of the Communist Party of Nepal (Maoist).
ŸHe has been “booked” in both India and Nepal for his political activities and involvement.
ŸHe believes his name is on a list provided from Nepal to India. He is innocent but will fall prey to the political masters of both nations.
ŸThe police have searched for him; and he is to be handed over to the border authorities.
ŸThree particular allegations are: first that, in Bihar, he, together with 100 other Maoists attacked villagers and a truck driver, and he destroyed a telecoms tower and set a truck on fire. Second, he has opposed the government in open public and opposed Indian government interference in Nepal. Third, he was the member of an armed group of Naxalites who on 6-7 November 2009 attacked a primary school in another Indian state. He was in Australia at this time (November 2009), so it could not have been him.
ŸThe false accusations are from political opponents and a few known friends turned foes, as well as local journalists who are conniving, as well as Maoists from other groups. A journalist knows he is in Australia.
With his application to the Department, the appellant had produced what was described by the Tribunal as a ‘notification’ by the Gorkha police office dated 10 September 2013, a court order, two arrest warrants, a first information report submitted to the Gorkha police office, and a translated newspaper extract, with some untranslated newspaper material.
The appellant made a new claim at the Tribunal hearing that “because of the earthquake there are chances that he will be suffering more because there is nothing remaining at the place where he will return”. The appellant produced documents at the hearing, including an untranslated article in relation to the earthquake, a photograph of him shaking hands with his friend, and documents relating to how his family had been affected by the earthquake.
At the hearing the Tribunal put a number of pieces of information to the appellant pursuant to s 424AA of the Act:
(a)That the appellant’s evidence at hearing was inconsistent with evidence given by the appellant at a previous hearing before the Migration Review Tribunal on 25 March 2010, in which he did not suggest he had been a member of the Maoists since 1999 or sought after by the Nepalese government as a Maoist for a terrorist attack since 2009.
(b)That the appellant’s visa was cancelled in 2009, he had previously used the services of a migration agent, and had travelled to Nepal in 2009 and 2013, yet had not lodged his protection visa application until September 2013. That evidence was said by the Tribunal to undermine the appellant’s claim as the Tribunal considered that if the appellant had a genuine fear of persecution he would have lodged his protection visa application earlier, and would not have returned to Nepal.
(c)Evidence of the appellant’s friend at the hearing to the effect that he had visited the appellant’s parents’ home in 2015 and was told by the appellant’s parents that police had come looking for the appellant. That evidence was said by the Tribunal to be so vague so as to lead the Tribunal to consider that the appellant’s parents did not say what the appellant’s friend claimed.
The Tribunal did not accept that the appellant had provided truthful evidence about his claims concerning Nepal or, indeed, India. On this basis the Tribunal stated that it:
… does not accept that the [appellant] has been subjected to a case of mistaken identity, suspected of being a terrorist or involved in any incidents, charged or the subject of any adverse attention of the authorities either in Nepal or India, or the subject of any proceedings or investigations; that he has had any political involvement or was a Maoist or supported the Maoists, that he has expressed or would have wished (or will wish) to express any political views, or was targeted by any Maoists, governmental authorities, or anyone including friends turned foes or journalists or political opponents.
Further, the Tribunal did not accept that any of the appellant’s allegations about the consequences flowing from the appellant’s claims were true, “(such as being subject to notices or arrest warrants or on a list; that his wife or girlfriend left him because he is a target, that people fear he has knowledge he will tell authorities, or for any reason flowing from his claims, or that he will commit suicide for reasons associated with his claims)”. The Tribunal did not accept that he faced harm from, or was of adverse interest to Nepalese or Indian authorities or anyone else. It did not accept that there were any charges, investigations or proceedings against him by any country, nor that he had any political opinion that he wished to express, or would wish to express, in Nepal.
The Tribunal’s failure to accept the appellant’s claims was substantially based on its failure to accept that he had provided truthful evidence. The Tribunal’s adverse view of the appellant’s credibility was based on what it perceived to be the appellant’s evasiveness in answering the Tribunal’s questions, giving answers which appeared rehearsed, inconsistencies in his evidence, and unsatisfactory responses to the Tribunal’s concerns. The bases for this view was explained in a detailed analysis of the appellant’s evidence.
In considering the appellant’s evidence, the Tribunal accepted that he may have been nervous but did not accept that this meant that he was unable to give articulate evidence. It took into account the corroborative evidence of the appellant’s friend but considered it was made up to support the appellant’s protection visa application. It also considered the documents provided by the appellant to the Department and concluded that, having regard to country information about the prevalence of fraud in Nepal and its concerns about the appellant’s credibility generally, it did not give the documents any weight.
In relation to the appellant’s claim to fear harm as a result of the Nepalese earthquake, after finding that the appellant was prepared to change his evidence on this matter with little regard to the truth, the Tribunal found that the appellant did not face harm for a Convention reason on account of the earthquake and it could not form the basis of a claim within s 36(2)(a) because the claim had no Convention basis. Nor could it fall within s 36(2)(aa) because the harm was faced by the Nepalese population generally and so fell within the exception to s 36(2)(aa) of the Act, set out in s 36(2B)(c). Accordingly the Tribunal found that his claims arising from the earthquake could not form the basis of a successful claim pursuant to s 36(2)(a) or 36(2)(aa) of the Act.
In summary, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution on return to Nepal for a Convention reason, so as to satisfy s 36(2)(a). It was also not satisfied that that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Nepal, there was a real risk that the appellant would suffer significant harm within s 36(2)(aa) of the Act. There being no other potential basis for the grant of a protection visa, the Tribunal affirmed the decision not to grant the appellant a protection visa.
PROCEEDINGS BEFORE THE FEDERAL CIRCUIT COURT
By an application dated 2 September 2015, the appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court, stating:
1. I was not given a fair hearing at the Tribunal.
2.The Tribunal was biased towards the Department of Immigration and Border Protection.
The application was heard on 16 November 2017. The appellant appeared in person. On the same date, the Federal Circuit Court dismissed the appellant’s application. The primary judge delivered judgment the same day.
In relation to the appellant’s first ground of review, the primary judge held that she was unable to detect anything in the Tribunal’s reasons or process that supported the allegation that the appellant’s hearing was not fair, noting that the appellant had been invited to a hearing before the Tribunal which he had attended with the assistance of a migration agent and an interpreter; that the Tribunal had put its concerns to the appellant pursuant to s 424AA of the Act, and that the appellant would have been on notice that his credibility was in issue in light of the delegate’s adverse findings.
In relation to the appellant’s second ground of review, the primary judge noted that an allegation of bias must be clearly particularised and proven, and that the appellant had not provided any evidence that would substantiate such a claim. Her Honour found that the Tribunal had carefully and thoroughly considered the appellant’s claims and evidence, and expressed thorough and cogent reasons for not accepting his claims.
Since the primary judge was unable to detect anything that would amount to jurisdictional error, her Honour dismissed the application.
THE APPEAL
The appellant appeals from this judgment. The grounds of appeal allege that the Tribunal “and/or the Federal Circuit Court erred in law and/or in fact, and thereby fell into jurisdictional error when they incorrectly applied s 36(2)(aa) of the Migration Act 1958 to the Applicant’s circumstances in Nepal insofar as”:
i)Failing to consider the evidence in totality and cumulatively;
ii)Failing to properly and/or adequately investigate and assess the claims of the Applicant as to his situation in Nepal;
iii)Failing to give proper consideration and weight to the evidence presented by the Applicant;
iv)Displaying signs of bias against the Applicant;
v)Taking into account irrelevant evidence.
To the extent that grounds (i), (ii), (iii) and (v) were not raised before the primary judge, they require leave to raise them in this Court. The first respondent has opposed the grant of such leave on the basis that the appellant has not advanced any reason for the failure to raise the grounds below; the new grounds do not have reasonable prospects of success; and the place for the determination of jurisdictional error in the terms raised by the appellant is in the original jurisdiction of the Federal Circuit Court. The last point may be accepted, but there is always the capacity of this Court on appeal to grant leave to enable a new ground to be raised where it considers this expedient and in the interests of justice. It does not appear to me that this self-represented appellant is capable of explaining why he did not raise the ground before. Since in this case there can be no relevant injustice to the respondents, the first respondent having already taken the opportunity to respond to the claimed new grounds, I would grant leave to the extent necessary. As will be seen, I accept that, even so, these grounds must fail.
I accept that, as the first respondent submitted, the appellant has apparently proceeded on a misunderstanding of the function of the primary judge on judicial review. Her Honour was unable to determine the appellant’s visa application, by applying s 36(2)(aa) of the Act to the appellant’s circumstances as her Honour found them. It was not open to her Honour to make her own independent assessment of the appellant’s claims and evidence. In this case, her task was, as her Honour recognised, to determine whether or not, as advanced by the appellant, the Tribunal’s decision involved jurisdictional error and on this basis the appellant was entitled to the relief he sought.
It also seemed to me that the appellant proceeded on the same mistaken basis on this appeal. It is not open to this Court to determine whether or not the appellant should be granted the visa he seeks. Its task is to determine whether or not the judgment of the Federal Circuit Court involved appellable error, which in a case such as this required consideration of whether or not the primary judge erred in finding that the decision of the Tribunal did not involve jurisdictional error of the kind the appellant had identified.
Ground one
There is no basis shown for a complaint that the Tribunal failed to apply s 36(2)(aa) correctly. The Tribunal correctly set out the relevant law at annexure A of its decision. As indicated already, the Tribunal did not accept the appellant’s evidentiary narrative in support of his claim that he had a well-founded fear of persecution on return to Nepal for a Convention reason. He was therefore unable to satisfy s 36(2)(a) of the Act. In so far as the same narrative also sought to support a claim under s 36(2)(aa), it too failed for the same reasons. The Tribunal found that the appellant’s claims in relation to the earthquake in Nepal could not give rise to a claim for complementary protection in light of s 36(2B)(c) of the Act, on the basis that the harm claimed was faced by the population generally. In this respect, no error is apparent in the Tribunal’s consideration of the appellant’s circumstances in relation to the complementary protection criterion in s 36(2)(aa) of the Act.
Grounds one (i)-(iii)
Grounds one (i)-(iii) variously allege that the Tribunal failed properly to consider the appellant’s claims and evidence. These grounds must fail.
As already stated, the Tribunal carefully set out the appellant’s claims. No error is evident in this regard. The Tribunal took account of the documentary evidence that the appellant had submitted to the Department and to it. Further, as already stated, it analysed the appellant’s evidence in detail, finding, for numerous reasons, that the appellant was not a truthful witness. The Tribunal did not give the appellant’s corroborative evidence any weight for reasons that were open to it in this case. The Tribunal’s rejection of the appellant’s earthquake claim turned on the fact that the harm claimed could not fall within s 36(2)(aa) in light of s 36(2B)(c) of the Act.
At the hearing today, the appellant indicated that his central complaint was that the Tribunal had found that the documents he presented to the Department and relied on in the Tribunal were “fake”. He said that they were not.
The Tribunal did not specifically find that the documents were “fake”, as the appellant stated. What it said was that it had put to the appellant at the hearing that “independent information suggests that documents from Nepal can be fabricated”, citing information given by the Immigration and Refugee Board of Canada in 2009. It went on to state:
Having regard to this information, as well as the Tribunal’s concerns about the [appellant’s] credibility, the Tribunal does not give the claimed corroborative evidence provided any weight.
In addition, as counsel for the first respondent noted, the Tribunal also said that it was “concerned that the documents he produced showed that he was on a wanted list on 20 and 28 January 2013; yet he left the country using his passport in February 2013, which the Tribunal suggested was indicative that there was no arrest warrant”. The appellant’s evidence in response was such that, in the Tribunal’s view, it undermined his credibility.
In its reasons, the Tribunal identified the nature of its concerns about the appellant’s credibility with some care and in some detail. In light of its adverse findings about the appellant’s credibility, it was open to the Tribunal, in the circumstances it outlined, to determine that the documents in question should have no weight.
There was no jurisdictional error of the kind suggested disclosed in the Tribunal’s reasons for decision, and the primary judge did not err in so concluding.
Ground one (iv)
As the primary judge observed, an allegation of bias must be distinctly made and clearly proven. The primary judge correctly held that this was not done. At the hearing, the appellant confirmed that his complaint was in fact about a finding that his documents were “fake”: see above.
Ground one (v)
For a matter to constitute an irrelevant consideration, the consideration must be one that a decision maker must not take into account. The Tribunal’s decision that it was not satisfied the appellant met the criteria at ss 36(2)(a) and (aa) of the Act was primarily reached on the basis of its assessment of the appellant’s and his witness’s evidence, country information, and the appellant’s delay in applying for a protection visa. It was open to the Tribunal to consider these matters in rejecting the appellant’s claims. This ground must also fail.
There is no discernible jurisdictional error in the decision of the Tribunal. There is therefore no error in the judgment of the primary judge.
The appeal should be dismissed, with costs.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate:
Dated: 21 August 2018
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