BVH18 v MINSITER for Home Affairs

[2019] FCCA 2094

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVH18 v MINSITER FOR HOME AFFAIRS & ANOR [2019] FCCA 2094

Catchwords:
MIGRATION – Immigration Assessment Authority – application for Safe Haven Enterprise Visa (Subclass 790) – whether the Authority erred in its decision in the applicants fear for life – whether the Authority erred in its decision by not giving enough consideration that the applicant will face real harm – whether the Authority denied procedural fairness by not providing country information – whether the Authority made a legal mistake in not applying s36(2A) of the Act – no jurisdictional error made out – application dismissed.  

Legislation:

Migration Act 1958 (Cth), ss.5H(1, 36, 47DE

Cases cited:

CCQ17 v Minister for Immigration and BorderProtection [2018] FCA 1641
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774

Applicant: BVH18

First Respondent: MINSITER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1013 of 2018

Judgment of: Judge Humphreys

Hearing date: 31 July 2019

Date of Last Submission: 31 July 2019

Delivered at: Sydney

Delivered on: 31 July 2019

REPRESENTATION

Applicant appeared in person.

Solicitors for the Respondents: Mr J Lambe, HWL Ebsworth

ORDERS

1. The application is dismissed.

2. The Applicant to pay the First Respondent’s cost fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1013 of 2018

BVH18

Applicant

And

MINSITER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from transcript, as corrected)

Introduction

1. The applicant is a citizen of Nepal. The applicant arrived in Australia by boat in 2012. The applicant was held in various detention centres before being released into the community. The applicant applied for a Safe Haven Enterprise visa (Subclass 790) on 10 June 2016. On 19 June 2017, a delegate of the Minister for Immigration and Border Protection (“the delegate”) refused the application for a Safe Haven Enterprise visa (Subclass 790). The applicant sought merits review by the Immigration Assessment Authority (“the Authority”). Written submissions were provided by the applicant to the Authority dated 10 July 2017. On 19 March 2018, the Authority affirmed the delegate’s decision. The applicant now seeks judicial review of the Authority’s decision.

Immigration Assessment Authority’s Decision

1. The Authority noted that the applicant fears harm from Maoists in connection with his work as a news reporter reader in Nepal who exposed Maoist crimes and misconduct during the period 2005 and 2007. At paragraph 6 of its decision, the Authority accepted the applicant’s identity and that he is a citizen of Nepal. At paragraph 8 of its decision, the Authority noted a document purporting to certify the death of the applicant’s father on 6 June 2005 in a Maoist, and I will use the term that was used, “boom”, although I think it meant bomb blast, and a undated letter purportedly from Kalika FM radio station stating the applicant worked as a news reporter from 14 April 2005 to 20 May 2007.

2. At paragraph 11 of its decision, the Authority noted the applicant claimed he worked in hospitality in India from October 2007 until February 2010 when he returned to Nepal. In November 2011, the applicant went to Malaysia until December 2012. The applicant’s employment in Malaysia ceased and he lost lawful status in that country. The applicant then decided to come to Australia. At paragraph 12 of its decision, the Authority noted the applicant did not mention his employment as a newsreader or reporter as his arrival interview. The applicant stated in response that his brain was not working during his arrival interview due to the protracted boat journey and subsequent detention.

3. At paragraph 13 of its decision, the Authority noted the claims of the applicant in his Protection visa application and 2016 statement that he worked in a radio station during April 2005. The applicant claimed his father was killed in a Maoist bomb blast in June 2005 and a few months later his mother also died.

4. At paragraph 18 of its decision, the Authority noted that at his arrival interview, the applicant was asked why he could not return to Nepal. The applicant responded that there was no one there, so why should he go there. The applicant was asked if he thought anything would happen if he went back. The applicant responded that he does not like to go back and that he is not happy to go back there. If the applicant returns, he will think about what happened to his mother and father. The applicant did not make any references to being at risk of harm if he were to go back.

5. At paragraph 21 of its decision, the Authority deal with the circumstances surrounding the applicant’s father’s death. The Authority accepted that his father was killed but rejected that his father was killed due to having a specific profile which was of adverse interest to Maoists.

6. At paragraph 25 of its decision, the Authority noted that the applicant, when asked to detail what happened, in relation to a claimed attack in March 2007, his evidence lacked detail.

7. At paragraph 28 of its decision, the Authority noted discrepancies in the timeline the applicant gave regarding the jailing and subsequent release of his attackers and the implausibility of reconciling this evidence with other evidence. At paragraph 30 of its decision, the Authority noted the applicant’s evidence that he did not stay in India as he could not live like a human being there and was afraid of being found and killed by the people who were after him as there was an open border between Nepal and India.

8. At paragraphs 31 to 32 of its decision, the Authority deal with the applicant’s return to Nepal in 2010 and subsequent travel to Malaysia. The Authority noted various discrepancies in the applicant’s evidence. At paragraphs 33 and 34 of its decision, the Authority deal with the issue of documents provided that purportedly support the applicant’s claims. The Authority noted country information that document fraud is not uncommon in Nepal. The Authority did not give any weight to these documents in assessing the applicant’s claim.

9. At paragraphs 37 and 38 of its decision, the Authority summarises its findings of facts. They include the following:

   ·The acceptance that the applicant’s father was killed in a bomb blast for which Maoists claim responsibility.

   The rejection of the following claims:

   ·That the applicant worked for Kalika FM and he had a profile as a person broadcasting news against the Maoists.

   ·That the applicant was attacked by Maoists or anyone else in March 2007.

   ·That the applicant has ever been of specific adverse interest to anyone in Nepal, including Maoists.

   ·That the applicant has an adverse profile in Nepal for any reason.

10. At paragraphs 39 and 40 of the decision deal with an assessment of the applicant against the provisions of s 5H(1) and s 5J of the Migration Act 1958 (Cth.) (“the Act”). The conclusion of the Authority is that the applicant does not meet the requirements for the granting of a protection visa under s 36(2)(a) of the Act.

11. Paragraphs 43 to 46 of the decision, deal with the complimentary protection claims. For similar reasons, the Authority concluded that the applicant does not meet the requirements for complementary protection under s 36(2)(aa) of the Act.

Grounds of Appeal

1. Four grounds of appeal were lodged with the court and they are as follows:

   1.   The Immigration Assessment Authority erred in its decision that even after accepting the applicant father was killed in a bomb blast in June for which Maoists claimed responsibility and applicant fear for his life.

   2.   The Immigration Assessment Authority erred in its decision by not giving enough consideration that if the applicant return to Nepal will face real harm from Maoists who is in power.

   3.   The Immigration Assessment Authority denied the applicant procedural fairness by not providing country information which has been taken into account, or opportunity to comment on that information.

   4.   The Immigration Assessment Authority made legal mistake in not applying s 36(2A) of complimentary protection assessment criteria as defined in the rules.

Applicant’s Submissions

1. The applicant appeared before the Court unrepresented but aided by an interpreter. No written submissions were provided to the Court. It was explained to the applicant that the Court could not conduct merits review and could only deal with the matter on the basis if it could be pointed out to the Court that there was an error of law in the Authority’s decision.

2. The applicant told the Court he did not know a lot about the law but that he knew he could not go back to Nepal saying, “Going back would be my death.” The applicant made no further submissions when invited to in response to the first respondent’s submissions to the Court.

Respondent’s Submissions

1. The respondent provided written submissions for which the Court is grateful. During oral argument, Mr Lambe (“the first respondent”), who appears on behalf of the first respondent, emphasised that nothing raised in either the applicant’s written Grounds of Appeal or his submissions amounts to an error of law and it simply disputes the outcome.

2. Ground 2 used the word “enough consideration” that if the applicant return to Nepal, he will face real harm. The first respondent noted that the Authority had found that the applicant was not a credible witness in its decision at paragraphs 11 to 36, and particularly at paragraph 36, and was satisfied that he would not face harm on return to Nepal.

3. In relation to Ground 3, Mr Lambe emphasised there was no requirement for the Authority to provide country information and that the statute provides a complete and absolute outline of the procedural fairness requirements to be conducted in matters such as this. The first respondent made no submissions in relation to Ground 4 and relied upon his written submissions.

Considerations

Ground 1

1. No particulars are provided as to how the Authority erred in accepting that the applicant’s father was killed in a Maoist bomb blast and that this caused the applicant to ‘fear for his life’.

2. Whilst the Authority did accept the applicant’s father was killed in a Maoist bomb blast, it found, however, that the applicant’s father was not specifically targeted (see paragraph 21 of the Authority’s decision) on the basis of any specific adverse profile. The Authority found that the applicant had no adverse profile with Maoists or anyone else in Nepal.

3. While the applicant may have a subjective fear of harm, the Authority found at paragraph 41 of its decision, the applicant faced no real chance of harm in the reasonably foreseeable future for any of the reasons claimed or a well-founded fear of persecution.

4. In my view, these findings were open to the Authority. They were based on a logical and rational review of the evidence. I do not consider they are unreasonable. I accept that the applicant may have a subjective fear of returning to Nepal, but that is not the test the Authority is required to apply under s 5(J) of the Act. The Authority considered the issues and came to a reasonable conclusion.

5. In doing so, it makes certain credit findings in relation to the applicant. That is a matter that is well within the Authority’s purview and is not an error of law if the Authority were to make adverse credit findings, in respect of the applicant and then apply that to the evidence and reach conclusions. If anything, this ground asks for the Court engage in merits review.

6. No jurisdictional error is apparent in relation to Ground 1.

Ground 2

1. Ground 2 is also a matter of merits. It talks about the Authority not giving enough consideration. The fact is, it gave quite specific consideration to the issue of the applicant’s profile if he returned to Nepal. As indicated above, the Authority specifically found the applicant was not of interest to Maoists or anyone else. Again, if anything, this ground invites merits review, which is impermissible by the Court (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).

Ground Three

1. The Authority is not required to give country information to the applicant for comment. None of the country information was “new information” that was required to be given to the applicant under s 473DE(3)(a) of the Act (see CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at paragraph [53]). The Authority noted at paragraph 3 of its decision, that even the applicant’s submissions did not contain new information; rather, they simply contained arguments and a restating of the evidence before the delegate. Ground 3 reveals no jurisdictional error.

Ground 4

1. This is an assertion without any particulars. The Authority at paragraph 44 and 45 of its decision, made specific reference to the criteria in

   
   

   s 36(2)(aa) of the Act but concluded, as it was entitled to, for the same reasons of fact as set out in paragraph 37 of its decision, that the applicant did not meet the complementary protection criteria. No error of law is disclosed. The Authority properly set out the law and legislation and applied its findings of fact to that law. The Authority’s findings as to the applicant’s fears in relation to Maoists were dispositive as to his claims for complementary protection (see SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 per Robertson J at paragraph [56]).

2. I note that the Authority, for completeness, noted that the applicant provided submissions on 10 July 2017. The Authority found that the submissions did not contain new information. It is clear, however, that the Authority did take that information into account when considering the submissions so far as they were relevant. I can see no unfairness or jurisdictional error in the approach that the Authority adopted.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Date: 21 August 2019

Corrections (4 September 2019)

Reasons: Page 1, title