BUS16 v Minister for Immigration

[2017] FCCA 2316

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUS16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2316

Catchwords:
MIGRATION – Application under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Administrative Appeals Tribunal – whether applicant has raised an arguable case for the relief he seeks – no arguable case for relief raised – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Applicant: BUS16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1843 of 2016

Judgment of: Judge Manousaridis

Hearing date: 8 September 2017

Date of Last Submission: 8 September 2017

Delivered at: Sydney

Delivered on: 22 September 2017

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitor for the First Respondent:

Ms C Saunders of

DLA Piper

ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1843 of 2016

BUS16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first respondent (Minister) seeks an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that the application for judicial review be dismissed because the application does not raise an arguable case for the relief it seeks. By that application the applicant seeks judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa (Protection visa).

2. The applicant, a citizen of Nepal, arrived in Australia on 13 November 2006 as a holder of a student visa. On 2 April 2014, the applicant applied for a Protection visa.

Claims for protection

1. In his application for a Protection visa,[1] the applicant claimed he left Nepal mainly for safety reasons because he fears harm from Maoists and those who support them. The applicant claimed he always supported the Monarchy and was active in publicising the importance of the Monarchy and the King’s being the symbol of Nepal. The applicant tried to persuade villagers to support the Monarchy; he held a public awareness program in his village and spoke about the importance of the Monarchy. The applicant claimed the Maoists Young Communist League (YCL), the youth wing of the Maoists, warned him that they would torture and kill him. The applicant sought police assistance after receiving the warning but the police told the applicant they could not provide him with “24 hour security”. The applicant went into hiding and lived in constant fear of persecution while he was in Nepal. Members of the applicant’s family continue to urge him not to return to Nepal because they fear he will be harmed or killed by the Maoists. The applicant claimed his fear of returning to Nepal is heightened by the fact there is no monarchy, the Maoists are not in government and would target the applicant for having “outspoken against them”. The applicant claimed the authorities in Nepal will not and cannot protect him from the harm he fears because they have “limited sources” and are “corrupt and weak”. The applicant claimed he is a “hard core Monarchist” and will always defend his political view and demand the “re-installation” of the Monarchy in Nepal.

   [1] CB1-25

2. The applicant further claimed he fears persecution as a westernised and secularised returnee from Australia and will be targeted as an infidel due the applicant’s time spent in Australia.  

3. The applicant made additional claims before the delegate at the interview on 17 October 2014. The applicant claimed he was a member of the Rastriya Prajatantra Party (RPP), but was not a formal member. The applicant carried out community or social work for the party which included handing out pamphlets, attending rallies, and finding young people who wanted to join the party. The applicant commenced the work in 2003, stopped for a period in 2004 because he was “not finding any results” and resumed in January 2006. The applicant claimed the party separated in 2006, and that after the split the applicant started working for the RPP-N. While working for the RPP-N, the applicant attended seminars, found people to support the party and paid people on the street to look as though they were supporting the party. The applicant further claimed he was threatened many times and received two or three phone calls from unknown persons in February or March 2006. The applicant was never physically harmed with the exception of being grabbed in the street “a few times” after June or July 2006. The applicant claimed members of the “communist rebels” in Chhauni grabbed him, put him in a corner and warned him to stop working.

Tribunal decision

1. The Tribunal had “multiple, serious concerns” about the credibility of the applicant’s claims.[2] First, the Tribunal found the applicant’s evidence was confused, lacking in meaningful detail, and frequently unresponsive to the Tribunal’s questioning.[3]  The Tribunal found the applicant’s responses appeared to be rehearsed, were often irrelevant to the questions put to him, and, when pressed on certain details, the applicant’s evidence remained vague. The Tribunal formed the impression the applicant was not talking from personal experience.[4]

   [2] CB140, [72]

   [3] CB140, [73]

   [4] CB140, [73]

2. Second, the Tribunal was unable to form a clear understanding of the applicant’s movements, places of residence and activities following his completion of secondary school. The Tribunal so found because the applicant, during his interview with the delegate, initially gave evidence that he had lived in Kathmandu from the time he was eight years old until the time he left for Australia, but later in the interview the applicant said he had been in hiding but still travelled back and forth between Damak and Kathmandu for the last two months he was in Nepal. At the hearing before the Tribunal, however, the applicant initially stated he had lived in Kathmandu from the time he was eight years old until 2005 and later stated he had returned to Damak from Kathmandu after he completed secondary school but moved back to Kathmandu in about 2000.[5]

   [5] CB140, [74]

3. Third, the Tribunal found the applicant’s description of the phone calls, threats and physical harassment the applicant claimed he received in Nepal persistently vague and the applicant’s evidence about what he thought might happen to him if he were to return to Nepal equally opaque.[6]

   [6] CB140, [75]

4. Fourth, the Tribunal found other aspects of evidence the applicant gave before the Tribunal were inconsistent with the evidence the applicant provided in his Protection visa application form and at the protection visa interview before the delegate.[7] For example, before the delegate the applicant said he started working for the RPP in 2003 and then stopped for a period in 2004 before resuming his activities in around January 2006; whereas before the Tribunal the applicant said he stopped working for the RPP in 2004 or 2005.[8] Another example is that, in his application for a Protection visa the applicant said he approached the police about the threats that were made against him but he was told the police could not provide him with 24 hours security. Before the Tribunal, however, the applicant said he did not go to the police because he had been threatened not to go to the police.[9]

   [7] CB140, [76]

   [8] CB140, [77]

   [9] CB141, [79]

5. Fifth, the Tribunal was of the view that the applicant’s immigration history cast significant doubt over the applicant’s credibility. Of particular significance was the applicant’s not having applied for a Protection visa until seven years after he arrived in Australia,[10] and his having travelled to Nepal twice before he applied for a Protection visa.[11]

   [10] CB141, [83]

   [11] CB142, [84]

6. Given these matters the Tribunal was not satisfied the applicant was ever involved in politics in Nepal, whether for the RPP or otherwise, or that he engaged in public campaigns or programs, or that he sought donations or attempted to recruit supporters, or that the applicant was harmed or threatened by Maoists, their supporters or any other person, or that the applicant holds any genuine fear of being harmed in Nepal by Maoists, members of the RPP or any other person because of the applicant’s past activities, or that the applicant is a hard-core monarchist or genuinely holds political opinions that align with the RPP’s ideologies, or that the applicant wold engage in political activities if he were forced to return to Nepal.[12]

   [12] CB142, [85]

7. The Tribunal accepted that the applicant’s family owns property and may be regarded as reasonably wealthy by Nepalese standards, and that, in the reasonably foreseeable future, it may be known or become known that the applicant had spent a considerable period of time living in Australia, and that the applicant’s parents and brother reside in the United Kingdom.[13] The Tribunal did not accept, however, that the applicant would be the subject of extortion, or that he would be harmed because he would be a returnee from Australia. The Tribunal was not satisfied the applicant would be regarded as an “infidel” or traitor by anyone in the RPP as a result of his departure from Nepal and period of residence in Australia.[14] The Tribunal also did not accept the applicant’s claims that he would feel compelled to engage in politics or align with a political party; but that even if he were to enter the political fray, the Tribunal was not satisfied that would lead to a real chance or risk of the applicant being seriously or significantly harmed.[15]

   [13] CB142, [86]

   [14] CB142, [87]

   [15] CB143, [89]

Grounds of review

1. The application contains five grounds of application.  The applicant, who is not legally represented, did not make any submissions in relation to any of the grounds. The applicant did make some oral submissions, and I will refer to these after I consider each of the grounds stated in the application.

2. The first ground of application is:

   The Tribunal based the finding of lack of credibility was based on a clearly erroneous fact.

3. This ground discloses no arguable case for relief. It does not identify the finding of lack of credibility to which it refers, or the fact it is claimed is erroneous on which the credibility finding is based, or the grounds on which it is claimed the fact is erroneous.

4. The second ground of application is:

   The Tribunal’s decision failed to conform to standards of procedural fairness as apprehended bias was established.

5. This ground discloses no arguable case for relief. It does not identify the standards of procedural fairness with which it is claimed the Tribunal fail to conform; nor does it identify any facts or circumstances on the basis of which could support a claim for bias, actual or apprehended.

6. The third ground of application is:

   The Tribunal Member took irrelevant considerations into account in its decision by ignoring relevant material for me.

7. This ground does not identify the considerations it is claimed were irrelevant and which the Tribunal took into account. The ground discloses no arguable case for relief.

8. The fourth ground of application is:

   The Tribunal Member failed to consider the real question it had to decide and its decision involved a jurisdictional error in respect of the failure to consider the Convention ground of imputed political opinion and membership of a particular social group and the failure to examine the issue of adequate state protection in light of the potential Convention based persecution and the significant, accepted history of failed state protection.

9. This ground, too, is not arguable. It does not describe the political opinion with which it is claimed the applicant claimed he would be imputed and which the Tribunal ignored. Nor does it describe the particular social group of which it is claimed the applicant claimed before the Tribunal he was a member and which the Tribunal did not consider. It is true the applicant claimed that authorities in Nepal would not protect him. That claim, however, was premised on the applicant’s claims about his political views and activities and his being regarded as an infidel if he were to return to Nepal. Given the Tribunal rejected those claims, it is beyond argument there was no occasion for the Tribunal to consider whether the authorities in Nepal would protect the applicant.

10. The fifth ground of application is:

    The Tribunal breached its obligations to provide procedural fairness and natural justice to me.

11. This ground is not arguable because it does not identify any facts or circumstances on the basis of which it could be said the Tribunal failed to provide procedural fairness to the applicant.

12. The only submission the applicant made at the hearing before me was that the applicant wanted the matter to be remitted to the Tribunal. When I asked why I should do that the applicant said he was not believed and he did not have evidence. In response to my question whether he had any complaint about how the Tribunal conducted the review of his case, the applicant said he did not. Nothing the applicant said before me, therefore, discloses any arguable case of jurisdictional error.

Disposition

1. The application raises no arguable case for the relief it seeks. I propose, therefore, to order that the application be dismissed pursuant to r.44.12(1)(a) of the FCC Rules.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  22 September 2017