BVK15 v Minister for Immigration

[2015] FCCA 3177

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVK15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3177

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – Show Cause Hearing – whether the Tribunal erred in giving certain documents little weight – whether Tribunal erred in making adverse credibility findings against applicant – no arguable case of jurisdictional error – application dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 476

Applicant: BVK15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2472 of 2015

Judgment of: Judge Street

Hearing date: 27 November 2015

Date of Last Submission: 27 November 2015

Delivered at: Sydney

Delivered on: 27 November 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr K Eskerie
Sparke Helmore

ORDERS

1. The application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2472 of 2015

BVK15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 24 August 2015 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Nepal and his claims were assessed against that country.

2. The applicant arrived in Australia on 18 November 2008 on a student visa which ceased on 15 March 2011.  The applicant applied for protection on 13 January 2014.  The applicant claimed that Maoists were creating problems for him in Nepal and alleged that he was badly assaulted by a Maoist terrorist group that are now running the government. 

3. The applicant alleged that his parents had sold their property and he had been sent to Australia, otherwise he would have lost his life.  The applicant alleged he had been hit in the head and stabbed in the back on the left side, just below the neck.  The applicant alleged he was tortured because he was not supporting the Maoists and not joining their army or engaging in their criminal activities. 

4. The applicant alleges he did not have resources to give them ransom money and that he feared he would be killed or kidnapped should he return.  The applicant alleged that he was harmed when he tried to complain to the police and that they would not do anything.  The applicant said he was hit again by the Maoists for complaining to the police and that the authorities cannot exist because the Maoists are running the government.  The applicant has a younger brother and a younger sister who are in Nepal. 

5. Consistent with the statutory regime, by a letter dated 14 August 2015, the applicant appeared before the Tribunal on 18 August 2015 to give evidence and present arguments.  The Tribunal found that the applicant had made inconsistent claims and was not satisfied that the applicant was a truthful witness.  The Tribunal expressly took into account the applicant’s assertion of having forgotten dates and his alleged nervousness, and referred to medical evidence that was summarised in para.39 and identified relevantly in paras.42, 43 and 44. 

6. The applicant confirmed at the beginning of the hearing before the Tribunal that there was no impediment to him giving evidence.  The Tribunal was not satisfied that the applicant was confused or in an uncertain state that would be consistent with the applicant’s suffering a medical condition or being affected by medication such as would impair his ability to participate in the review. 

7. The Tribunal identified reasons for its concern in respect of the applicant’s credibility, including the significant delay in the application for protection.  The Tribunal identified certain documents that were produced by the applicant in support of his claims and identified the ease by which forged documents may be obtained in Nepal and because of the concerns as to the applicant’s credibility, gave little weight to those documents. 

8. The applicant’s evidence at the hearing was that neither his parents, nor his siblings, had suffered any harm from Maoists.  The Tribunal was also satisfied that the applicant would be able to subsist if he was returned to Nepal and made adverse findings in respect of the applicant’s alleged claims.

9. On 17 September 2015, a Registrar of the Court fixed the matter for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 and provided the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed.  The grounds of the application are as follows:

   1. The decision of the RRT was not legally reasonable.

   2. There was a denial in procedures of fairness in RRT.

   3. The Decision made by the Member didn’t fulfill the criteria. The RRT didn’t consider my facts and figure.  It’s was mostly based on my nervousness and forgetfulness nature. 

10. I accept the first respondent’s submission that ground 1 fails to identify, in its unparticularised form, any arguable jurisdictional error.  It is clear from the Tribunal’s reasons that the Tribunal identified the criteria to be applied, as well as identifying the applicant’s claims and evidence and made findings based on that evidence which were open to the Tribunal.  The adverse findings cannot be said to lack an evident and intelligible justification.  Nothing in ground 1 identifies any arguable jurisdictional error.

11. In relation to ground 2, I accept the first respondent’s submission that the bald assertion of a denial of procedural fairness does not identify any arguable jurisdictional error.  In the material before the Court, there is nothing to indicate that there was any denial of procedural fairness in the conduct of the review by the Tribunal. 

12. In relation to ground 3, it is clear that the Tribunal identified the relevant legal criteria to be applied in determining whether Australia owed the applicant a protection obligation under s.36(2)(a) and s.36(2)(aa) of the Migration Act.  It is equally clear that the Tribunal made findings in relation to the applicant’s claims and evidence and that the Tribunal took into account the applicant’s alleged forgetfulness and nervousness expressly in its reasons.  Nothing said in ground 3 raises any arguable jurisdictional error.

13. From the bar table, the applicant raised the concerns he had in relation to the Tribunal not accepting the documents he had provided in support of his claims.  It was a matter for the Tribunal to determine what weight to give the documents produced by the applicant in support of his claims.  It is clear that the Tribunal raised with the applicant that the documents allegedly in support of his claims were ones that were able to be forged in Nepal.  Nothing said by the applicant in this regard identified any jurisdictional error. 

14. To the extent that the applicant referred to the medical report from his doctor, it is clear that the Tribunal took that into account, both in respect of assessing the applicant’s credibility and in relation to explaining the alleged inconsistencies in the applicant’s evidence.  Nothing said by the applicant in this regard identified any arguable jurisdictional error. 

15. It was a matter for the Tribunal whether or not to accept the applicant’s credit. In these circumstances, nothing said by the applicant raised any arguable jurisdictional error. The application fails to disclose any arguable case. I am satisfied that this is an appropriate matter in which the Court should exercise their powers under r.44.12 of the Federal Circuit Court Rules 2001.  The application is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 30 November 2015