Bud18 v Minister for Home Affairs

[2019] FCCA 2084

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUD18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2084

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – whether the Tribunal denied procedural fairness as the Tribunal did not request further documents – whether the Tribunal made an irrelevant consideration – whether the Tribunal made an error of law – no jurisdictional error made out – application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss,36, 424AA.

Cases cited:

Abebe v Commonwealth (1999) 197 CLR 510

SZMDB v Minister for Immigration and Citizenship [2008] FCA 1937

Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR

214

Applicant: BUD18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINSITRATIVE APPEALS TRIBUNAL

File Number: SYG 979 of 2018

Judgment of: Judge Humphreys

Hearing date: 30 July 2019

Date of Last Submission: 30 July 2019

Delivered at: Sydney

Delivered on: 30 July 2019

REPRESENTATION

Applicant appeared in person.

Counsel for the First Respondent: Mr Reilly

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application for an adjournment made orally by the Applicant in court is refused.

2. The application is dismissed.

3. The Applicant to pay the First Respondent’s costs fixed in the amount of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 979 of 2018

BUD18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINSITRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from transcript)

Introduction

1. The applicant is a citizen of Nepal. The applicant travelled to Australia on a student visa, first arriving on 9 August 2013. On 28 August 2017, the applicant applied for a protection visa. On 13 September 2017, a delegate of the Minister for Immigration and Border Protection (“the Minister”) refused the application. The applicant then sought merits review in the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 8 March 2018, the Tribunal affirmed the Minister’s decision not to grant a protection visa. The applicant now seeks judicial review of that decision in this Court.

2. At the commencement of the hearing, the applicant applied for an adjournment of the matter so that he could obtain legal representation. That application was refused. It was refused on the basis that the matter has been before the Court since April of 2018. It was further refused on the basis that the applicant has had some many months’ notice of the hearing date, time and place. It is in the interest of justice that these matters proceed. It is in the interest of justice that matters are determined in a swift manner.

Grounds of Appeal

1. There is only one Grounds of Appeal, which is set out as follows:

   1.   The Tribunal denied procedural fairness, as they did not request further document and also made irrelevant consideration.

2. No particulars were provided to support the claim set out in the application.

Administrative Appeal Tribunal’s Decision

1. The Tribunal’s decision runs to some 67 paragraphs, over 20 pages including annexures. At paragraph 3 of the decision, the Tribunal noted that the applicant stated that he had a right to enter and reside in India, due to his citizenship of Nepal. At paragraph 4 of the decision, the Tribunal noted in the applicant’s protection visa interview, the applicant left Nepal to pursue an education and because of his medical condition. The applicant suffers from what is known as Hansen’s disease. The applicant was unable to attend college regularly in Nepal and was avoided by his friends, peers and even some relatives due to Hansen’s disease. The applicant said that he was beaten by Maoists, who are a political party within Nepal.

2. The Minister accepted that the applicant suffered from Hansen’s disease, but found that he would be able to receive treatment if he were to return to Nepal. The Minister did not find the applicant’s claims regarding fear of Maoists credible and the applicant was not at risk of serious harm due to instability and civil war in Nepal.

3. At paragraph 10 of the decision, the Tribunal set out extensive information provided by the applicant in a statutory declaration dated 10 November 2017. In that material, the applicant set out more details as to why, in his view, he was attacked by Maoists, due to his father’s involvement in politics in Nepal and demands for money that had been made to his father.

4. The applicant stated that he completed English studies and had started a Diploma in Business, but his student visa was cancelled due to him being unable to pay his course fees. The applicant was placed in an immigration detention centre within Australia, and it was only then that he became aware of the opportunity to apply for a protection visa. The applicant stated that he feared returning to Nepal due to the fact that he would be discriminated against because of his medical issue.

5. At paragraph 12 of the decision, the Tribunal noted the medical advice that the applicant had completed eight months of treatment in early 2014, that he has been symptom-free for four years and was without relapse as at 28 September 2017. The medical advice is that the applicant should receive follow-up reviews for a period of six years post completion of treatment, and indeed, by my calculation, that six years has now expired.

6. At paragraph 13 of the decision, the Tribunal noted the applicant appeared before it to give oral evidence and present arguments. Following the hearing, the applicant provided the Tribunal with a further statutory declaration, dated 1 December 2017.

7. At paragraphs 15 to 20 of the decision, the Tribunal set out the relevant law and mandatory considerations under the Ministerial Declaration No. 56.

8. At paragraph 21 of the decision, the Tribunal stated that it did not find the applicant to be a credible and truthful witness and for the reasons which followed, concluded that the Minister’s decision should be affirmed.

9. At paragraphs 22 to 48 deal of the decision, the Tribunal deals with the applicant’s political opinion. At paragraph 22 of the decision, the Tribunal notes the claims about the applicant’s father and the applicant’s own connection with the Nepali Congress Party, which were first put forward in his Statutory Declaration of 10 November 2017. These claims are inconsistent with or absent from the evidence the applicant presented initially to the Department. The applicant’s claims in his Protection visa application and departmental interview, centred upon his illness, being socially isolated and discriminated against as a result. The applicant did make reference to being beaten by Maoists, but did not mention his own or his parents’ membership of the Nepali Congress Party. At paragraph 28 of the decision, the Tribunal concluded that this raised doubts as to the veracity of the applicant’s protection claims.

10. At paragraph 30 of the decision, the Tribunal notes the applicant’s oral evidence and his failure to mention key aspects of his claim, which were put to him at the hearing at the Tribunal, under s 424AA of the Migration Act 1958 (Cth) (“the Act”). The Tribunal did not find the applicant’s explanations for the significant inconsistencies in his evidence convincing. The Tribunal was of the view that the applicant had introduced new claims and fabricated evidence to strengthen his protection claims.

11. At paragraph 33 of the decision, the Tribunal found the claims that Maoists had continued to make threats or inquiries in relation to the applicant’s whereabouts, but never directly targeted the applicant’s father, not to be plausible or credible.

12. At paragraph 34 of the decision, the Tribunal was troubled by the delay in the lodgement of the protection visa, being that it has been some four years after the applicant arrived in Australia and after his student visa was cancelled when he was in immigration detention. The Tribunal concluded at paragraph 35 of the decision, the delay in lodging the protection visa application cast serious doubts on the credibility of the claims and the genuineness of the applicant’s fear of persecution.

13. At paragraph 36 to 38 of the decision, the Tribunal discussed concerns it had with newspaper articles the applicant submitted. There were date discrepancies and the applicant was unable to adequately explain the error. The Tribunal concluded that this issue cast further doubt on the reliability of the article and the credibility of the applicant’s claims.

14. At paragraphs 39 to 42 of the decision, the Tribunal noted that document fraud in Nepal is widespread. The Tribunal accordingly placed no weight on the newspaper articles or a letter provided from the Nepali Congress Party.

15. At paragraph 43 of the decision, the Tribunal considered evidence called from a Mr Fisher that the applicant was of good character and the applicant’s cousin, Mr Regmi, confirmed that the applicant had been beaten once, but could not corroborate any of the circumstances in relation to that incident.

16. At paragraph 44 of the decision, the Tribunal did not accept that the applicant’s parents were members or supporters of the Nepali Congress Party, or that Maoists extorted money from the applicant’s father. The Tribunal did not accept that the applicant was threatened or harmed by Maoists, or that Maoists have any interest in the applicant or his family. As a result, the Tribunal concluded there was no risk that the applicant would be targeted by Maoists, or anyone else, due to his political opinion.

17. Country information was considered at paragraph 46 of the decision. The Tribunal considered that the overall risk of political violence in Nepal was low. At paragraph 48 of the decision, the Tribunal concluded that there was no risk to the applicant as a result of a general lack of security, instability or tension in Nepal, if he were to be returned.

18. At paragraphs 49 to 62 of the decision, the Tribunal deals with the issue of the applicant’s Hansen’s disease. The Tribunal noted that the applicant had been free of signs of relapse for some four years as at September 2017. At paragraph 54 of the decision, the Tribunal, relying upon country information, was satisfied that the applicant would be able to access adequate treatment if he were returned and had a relapse of the disease.

19. At paragraph 59 of the decision, the Tribunal put to the applicant that all available information did not suggest that those affected by Hansen’s disease would be denied access to services or deprived of the capacity to earn a livelihood. The Tribunal noted the applicant was and continues to be supported by his parents.

20. At paragraph 60 of the decision, the Tribunal acknowledged the applicant had experienced “low-level” discrimination in the past. It acknowledged the applicant might experience “low-level” discrimination in the future if he was returned to Nepal, due to the fact that he had Hanson’s disease.

21. At paragraph 62 of the decision, the Tribunal noted that these issues did not amount to:

    ...Serious harm, including discrimination amounting to serious harm and economic hardship or denial of access to basic services, or denial of capacity to earn a livelihood, where such hardship threatens his capacity to subsist…

    Accordingly, due to the applicant’s history of Hansen’s disease, the Tribunal found that the applicant did not meet the requirements under

    
    

    s 36(2)(a) of the Act or s 36(2)(aa) of the Act, the latter being in relation to complementary protection.

The Applicant’s Submissions

1. The applicant appeared in Court unrepresented. Whilst an interpreter was present, the applicant communicated to the Court in English and was able to do so without any difficulty. No written submissions were provided in accordance with the orders of the Court.

2. In the applicant’s oral submissions, he renewed the concerns he had, that if he went back to Nepal, he would be ostracised and outcast because of his Hansen’s disease. The applicant stated that he would be at a significant disadvantage. The applicant renewed his application for an adjournment and was reminded that it had been refused.

The First Respondent’s Submissions

1. Counsel for the first respondent, in their written submissions, contended that in the absence of any particulars, the applicant could not succeed. The onus was on the applicant to prove his case and it was not up to the Tribunal to make it or to act as a cross-examiner (see SZMDB v Minister for Immigration and Citizenship [2008] FCA 1937 paragraphs [36] – [37]; and Abebe v the Commonwealth (1999) 197 CLR 510 at paragraph [187]).

2. No irrelevant consideration was even identified within the applicant’s submission, within his application, or indeed his oral submissions. The relevant s 424AA of the Act procedures were followed.

Considerations

1. At the commencement of the hearing, it was explained to the applicant that the Court conducts “judicial review” and not “merits review”. The applicant’s ground of appeal state that he was denied procedural fairness by the Tribunal, in that it did not request a document, or “made an irrelevant consideration”. No particulars were provided in the application, nor were any advanced in either written submissions or during the applicant’s oral submissions to the Court.

2. The procedural requirements for the Tribunal are set out in Division 2, Part 7 of the Act. Section 424AA of the Act sets out the procedure for an adjournment if requested, where the applicant appears before the Tribunal, where new evidence is provided or matters are provided where they may inform the Tribunal as to why it should not refuse the application. No adjournment, in this case, appears to have been requested. I note the clear reference to s 424AA of the Act in the Tribunal’s decision.

3. There was no request made to request further written documentation. I am not sure what matters were raised as being irrelevant. The Tribunal correctly instructed itself as to the requisite law and as to what the mandatory directions from the Minister stated in relation to this type of matter. It considered the applicant’s fears due to his perceived political opinion, his family’s political opinion and membership of a particular social group. It found that those fears were not maintained or borne out.

4. The Tribunal considered a range of issues in relation to the applicant’s Hansen’s disease, but ultimately concluded that he was not at risk of “serious harm”. This was dealt with at paragraphs 61 and 62 of the Tribunal’s decision.

5. There is little doubt in my mind that the applicant will suffer some form of discrimination and ostracisation in his community because of his Hansen’s disease. As it was pointed out to the applicant, however, the relevant test is not whether or not he is going to suffer some form of discrimination or ostracisation by his community, but whether or not he is going to suffer “serious harm” as a result of that particular issue. Unless the applicant can show that he will suffer “serious harm”, he cannot be granted a protection visa.

6. As was submitted by the Minister, it was not for the Tribunal to make the applicant’s case. It was the responsibility of the applicant to advance sufficient arguments to make his case before the Tribunal (see Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 paragraph [76]).

7. Whilst I have sympathy for the applicant because of his medical condition and the undoubted discrimination he has received in the past, I am satisfied that the Tribunal considered all relevant matters raised by the applicant, but found that he did not meet the requirements for a protection visa. In this Court, the applicant has not made out that there has been a jurisdictional error, nor is any error of law apparent that has not been agitated in the Court.

8. It is not for this Court to make findings of fact, it is simply for this Court to make a decision as to whether or not there has been an error of law. There is, in my view, no error of law apparent on the record.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:

Date: 10 October 2019