BVK15 v Minister for Immigration and Border Protection
[2016] FCA 210
•4 March 2016
FEDERAL COURT OF AUSTRALIA
BVK15 v Minister for Immigration and Border Protection [2016] FCA 210
Appeal from: BVK15 v Minister for Immigration & Anor [2015] FCCA 3177 File number: NSD 1635 of 2015 Judge: BARKER J Date of judgment: 4 March 2016 Catchwords: MIGRATION – application for protection (class XA) visa – application for judicial review in Federal Circuit Court of Australia dismissed at show cause hearing – application for leave to appeal from Federal Circuit Court of Australia – whether Tribunal failed to consider applicant’s claims – whether findings of fact open to Tribunal – whether Tribunal failed to consider relevant evidence – whether Tribunal failed to provide procedural fairness – whether decision of primary judge sufficiently attended by doubt Legislation: Migration Act 1958 (Cth) s 36(2)(a), s 36(2)(aa)
Federal Circuit Court Rules 2001 (Cth) r 44.12
Convention relating to the Status of Refugees. Opened for signature 28 July 1951. 189 UNTS 137 (entered into force 22 April 1954)
Protocol relating to the Status of Refugees. Opened for signature 31 January 1967. 606 UNTS 267 (entered into force 4 October 1967)
Cases cited: BVK15 v Minister for Immigration & Anor [2015] FCCA 3177
VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158
Date of hearing: 4 March 2016 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 44 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr A Burgess Solicitor for the First Respondent: Sparke Helmore Lawyers ORDERS
NSD 1635 of 2015 BETWEEN: BVK15
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BARKER J
DATE OF ORDER:
4 MARCH 2016
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the costs of the first respondent to be taxed, if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BARKER J:
The applicant is a male citizen of Nepal who applied for a protection (class XA) visa under the Migration Act 1958 (Cth) on 13 January 2014 (visa application).
The applicant claimed to fear that he would be killed or tortured by Maoists if returned to Nepal.
By his visa application, the applicant said he left Nepal because Maoists were “giving him a hard time” and he was badly assaulted by a Maoist terrorist group who were running the government in Nepal. He further said that, because he did not support the Maoists and did not join their army or engage in their criminal activities, he was hit in the head, stabbed in the back just below the neck, and tortured. The applicant claimed he did not have the resources to give the Maoists ransom money, and would have lost his life if his parents had not sold their property and sent him to Australia.
The applicant further said that he tried to complain to police about the alleged harm but they could not do anything and he was “hit again” by the Maoists for having made the complaint. The applicant claimed the authorities in Nepal could not protect him because Maoists were running the government.
The applicant arrived in Australia on 18 November 2008 on a student visa that ceased on 15 March 2011.
On 22 August 2014, a delegate of the Minister for Immigration and Border Protection refused to grant the applicant a protection visa. The delegate found the applicant had a right to enter and reside in India. The delegate further found the applicant did not have a well-founded fear of persecution for a reason in the Convention relating to the Status of Refugees. Opened for signature 28 July 1951. 189 UNTS 137 (entered into force 22 April 1954), as amended by the Protocol relating to the Status of Refugees. Opened for signature 31 January 1967. 606 UNTS 267 (entered into force 4 October 1967) (Convention reason), or face a real risk of suffering significant harm if returned to India.
The applicant then sought merits review of the delegate’s decision. The Administrative Appeals Tribunal, however, affirmed the delegate’s decision on 24 August 2015.
On 27 November 2015, the Federal Circuit Court dismissed the applicant’s application for judicial review of the Tribunal’s decision at a “show cause” hearing on the basis the application did not raise an arguable case for relief. See BVK15 v Minister for Immigration & Anor [2015] FCCA 3177.
By application for leave to appeal filed 11 December 2015 – the Federal Circuit Court’s decision being an interlocutory decision – the applicant now applies for leave to appeal from that decision.
TRIBUNAL’S DECISION
In a statement and documents provided to the Tribunal on 17 August 2015, the applicant claimed he was forcibly detained by the Maoist group. The applicant further claimed that, as supporters of the royal family, he and his family were fearful of the Maoists.
At the Tribunal hearing on 18 August 2015, the applicant indicated to the Tribunal that there was no impediment to the hearing proceeding. The Tribunal was aware that the applicant had health issues, including by reference to the medical report from a mental health practitioner.
He then gave oral evidence that in late 2005, he and four or five other boys were approached by Maoists in Pokhara and laughed when the Maoists sought to persuade the applicant and his friends to join them. The applicant said this caused the Maoists to detain them overnight, when he was beaten up for stating his support for the royal family. Due to his father’s promise that the applicant would work for the Maoists, the applicant said he was released and went to Kathmandu with his father the next day.
The applicant further told the Tribunal that, while he did not have any real problems with Maoists in Kathmandu, Maoists visited his home in Pokhara. He stated that he and his father lived in Kathmandu until the applicant came to Australia in 2008.
When the Tribunal brought a number of inconsistencies in the applicant’s oral and written evidence to his attention, the applicant agreed there were inconsistencies but attributed them to being nervous; not having planned for the hearing; and forgetting due to medication he was taking for his medical condition.
Considering the totality of the applicant’s evidence, the Tribunal was not satisfied the applicant had been a truthful witness with regard to the claims at [12] and [13] above. The Tribunal did not accept, given the significant nature of a number of inconsistences, that such matters could be forgotten due to the passage of time or nervousness.
The Tribunal was also not satisfied such inconsistencies were attributable to the applicant’s medical condition or medications for such condition due to the applicant’s own indication at the beginning of the hearing that there was no impediment to him giving evidence; the statement in his doctor’s letter indicating his symptoms were under control; and the composed and clear manner in which the applicant gave evidence.
The Tribunal further considered the documents provided by the applicant to support and corroborate his claims did not overcome these credibility issues, and attached little weight to them. In doing so, it considered that forged documents were easy to obtain in Nepal; the generalised nature of the claims in the supporting letters; and the absence of any indication as to how authors of two of those letters, including the applicant’s doctor, could have been independently aware of the events claimed.
In those circumstances, the Tribunal was not satisfied the events at [12] and [13] above occurred; that Maoists in Pokhara were looking for the applicant; or that, as a result of Maoists learning the applicant had travelled to Australia, they would look for and harm him if returned to Nepal. While it accepted the letter of the applicant’s doctor to be genuine, the Tribunal gave it little weight, and so was not satisfied the applicant’s various diagnoses were the result of harm from, or fear of harm from, Maoists. Consequently, the Tribunal was not satisfied there had been any harm, or threats of harm, against the applicant or his family by Maoists that would create a real chance of the applicant facing serious harm in the reasonably foreseeable future if returned to Nepal.
The Tribunal was also not satisfied, having regard to country information, that there was a real chance of serious harm to the applicant from Maoists, or anyone else, due to him being a supporter of the royal family.
Despite accepting the claim made by the Dashrathchan Municipality Office in its supporting letter that, due to being in a difficult financial situation as a result of “the earthquake” in Nepal (presumably in reference to the earthquakes in April and/or May 2015), the applicant’s family would not be able to support him, the Tribunal did not consider this constituted a real chance of serious harm to the applicant for a Convention reason.
In the result, the Tribunal was not satisfied the applicant had a well-founded fear of being persecuted for a Convention reason. For the same reasons, the Tribunal was not satisfied the applicant faced real risk of significant harm from Maoists, or anyone else, if returned to Nepal.
The Tribunal was therefore not satisfied the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(a) or (aa) of the Act.
SHOW CAUSE DECISION IN THE FEDERAL CIRCUIT COURT
In his grounds of judicial review before the Federal Circuit Court, the applicant contended:
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 fulfil the criteria. The RRT didn’t consider by facts and figure. It’s was mostly based on my nervousness and forgetfulness nature.
On 17 September 2015, a Registrar fixed the matter for a show cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth). While the applicant had the opportunity to file an amended application, affidavit evidence and submissions, he did not do so.
The primary judge accepted the Minister’s submission that, in its unparticularised form, ground 1 failed to identify any arguable jurisdictional error. His Honour considered it was clear from the Tribunal’s reasons that it identified the criteria to be applied, and the applicant’s claims and evidence; and made adverse findings that were open to the Tribunal on such evidence and could not be said to lack any evident and intelligible justification.
The primary judge also accepted the Minister’s submission with regard to ground 2, namely that the bald assertion of a denial of procedural fairness did not identify any arguable jurisdictional error. His Honour considered there was nothing on the material before him to suggest there was a denial of procedural fairness in the Tribunal’s conduct.
With regard to ground 3, the primary judge considered it was clear the Tribunal identified the relevant “legal criteria” to be applied in determining whether Australia owed the applicant protection obligations under s 36(2)(a) and (aa) of the Act. Consequently, his Honour considered that nothing in ground 3 raised any arguable jurisdictional error.
With regard to the applicant’s concern raised at the hearing on 27 November 2015, that the Tribunal did not accept documents he provided in support of his claims, the primary judge considered it was a matter for the Tribunal to determine what weight to give those documents. His Honour noted the Tribunal raised its concerns that those documents could be forged in Nepal and took the applicant’s medical report into account. His Honour did not consider anything said by the applicant in this regard identified any jurisdictional error.
In the result, the primary judge dismissed the application pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth).
APPLICATION TO THIS COURT
The applicant raises the following six prospective grounds of appeal in his application for leave to appeal filed 11 December 2015:
Grounds of application
1. (In relation to my Medical document)
The reason for the inconsistency is due to medication I am on and has nothing to do with being a truthful witness or not . The fact is that I was on medication was not taken into account by the RRT. As for the nervousness, of course any one would be nervous in situation.
2. (In relation to Fact)
The reason for the delay in lodging the application for protection visa I have already explained and False documents can be obtained in any country, the RRT basis dismissed by documents as forged. This was not taken into account on appeal.
3. (In relation to Evidence)
The unfairness in the procedures was that the basis-less assertions made in my case.
4. (In relation to Migration law)
The Tribunal failed to consider under the Migration Act 1958 due to my medical illness I am owed Non-Refoulement obligation.
5. (In relation to law)
The Tribunal failed to take into account properly my accordingly or the inconsistencies in my evidence, Everything that I have submitted or all jurisdictional errors.
6. (In relation to law)
All above arguments is evidence of judicial error by tribunal. The Tribunal did not put that account that if I will be sent back I have harm to death.
Some of these overlap with or repeat the three grounds dealt with by the Court below.
The applicant did not file any submissions but appeared, as a self‑represented party, at the hearing and made oral submissions. In effect he repeated the three grounds dealt with by the Court below.
The Minister made submissions both in writing and orally at the hearing.
As prospective grounds 2, 4, 5 and 6 would appear to raise issues that were not the subject of the three grounds of the application to the Federal Circuit Court and were not dealt with at the show cause hearing, there is an argument that leave to raise them now is required, just as leave would have been required to raise them in the Court below. In that regard, the Minister cites the decision of the Full Court of this Court in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [48], which provides:
The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is not adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.
The Minister does not point to any prejudice that would arise should the applicant be granted leave to advance these additional grounds but contends leave should not be granted because they have no merit.
The Court will deal with all prospective grounds on this substantive basis.
Ground 1 shares similarities with ground 3 in the applicant’s application to the Federal Circuit Court. The primary judge found the Tribunal identified relevant criteria and had expressly taken into account the applicant’s assertions and evidence, and took into account his alleged forgetfulness and nervousness when assessing them. The judge also noted the Tribunal regarded evidence regarding his medical condition. No legal error is demonstrated by the way in which the primary judge dealt with that ground at [12] of his reasons.
As to ground 2, the primary judge gave consideration, at [7] of the reasons, to the Tribunal’s reasoning for its findings regarding the applicant’s credibility, which included the significant delay in the visa application, and its treatment of the documents produced by the applicant in support of his claims. His Honour’s conclusion, at [10], that the Tribunal’s findings were open to it, and cannot be said to lack an evident and intelligible justification, does not disclose error.
Ground 3 shares similarities with ground 2 of the applicant’s application to the Federal Circuit Court. The Tribunal raised with the applicant each issue it considered arose in the matter. The primary judge correctly rejected ground 2 for the reasons at [11] of the decision on the basis there was nothing to disclose any denial of procedural fairness in the conduct of the hearing.
As to ground 4, the applicant made no submission to the Tribunal that he faced harm in Nepal on the basis of his medical illness and so the Tribunal was not required to consider this claim.
In any event, I accept the Minister’s submission that the Tribunal was aware of the applicant’s medical condition and gave little weight to the assertion that the applicant faced abuse and harm in Nepal. Even if the Tribunal was required to consider this claim, it was disposed of by the Tribunal’s general findings in this regard.
Grounds 5 and 6 are not sufficiently particularised and effectively seek to engage the Court in a merits review process. That is not open to this Court, which deals only with legal error on an appeal. In any event, the Tribunal’s reasons for decision disclose that it had regard to all the applicant’s evidence and claims, and its findings were open to it on the evidence before it.
It follows that none of the prospective grounds of appeal have sufficient merit to justify the grant of leave to appeal. Consequently, the application should be dismissed with costs.
CONCLUSION AND ORDERS
The Court orders:
(1)The application be dismissed.
(2)The applicant pay the costs of the first respondent to be taxed, if not agreed.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate:
Dated: 4 March 2016
0