BVX16 v Minister for Immigration

[2016] FCCA 3282

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVX16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3282

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – Protection (Class XA) visa – whether the Tribunal’s findings were irrational or illogical – whether the Tribunal gave the applicant meaningful opportunity to give evidence and present arguments – the adverse findings made by the Tribunal cannot be said to lack an evident and intelligible justification – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 48A, 424AA, 476

Cases cited:

MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

Applicant: BVX16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1892 of 2016

Judgment of: Judge Street

Hearing date: 16 December 2016

Date of Last Submission: 16 December 2016

Delivered at: Sydney

Delivered on: 16 December 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Mr M Glavac

Clayton Utz

ORDERS

1. The Court dispenses with the show cause hearing.

2. The application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1892 of 2016

BVX16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 14 June 2016 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant is a citizen of Nepal and arrived in Australia on 21 May 2009 having obtained a fraudulently altered passport under a false name. The applicant lodged his first application for protection on 30 June 2010 which was refused on 15 October 2010. The delegate’s decision was affirmed by the refugee review tribunal on 25 February 2011. 

3. On 25 March 2011 the applicant commenced proceedings for judicial review and on 6 July 2011 the matter was remitted to a differently constituted Tribunal for further determination.  On 20 February 2012, a differently constituted Tribunal affirmed the decision refusing to grant the applicant a protection visa. On 16 March 2012 the applicant appealed again seeking judicial review.  That application was dismissed on 16 September 2012. On 3 October 2012 the applicant sought Ministerial Intervention and was notified on 8 March 2013 that the Ministerial Intervention outcome was not considered. 

4. On 9 April 2013, the applicant lodged a second application for protection. On 10 April 2013, that application was deemed invalid under s.48A of the Act. On 2 August 2013 the applicant was notified that the second application was treated as valid in relation to the grounds of complementary protection. On 28 February 2014 the applicant failed to provide biometrics and the protection visa application was treated as invalid.

5. On 21 May 2014, the applicant lodged a third application for protection which was treated as valid for the purpose of complementary protection under s.36(2)(aa) of the Act.

The Delegate

1. The applicant claimed to fear harm because he is a monarchist and a member of the Rastriya Prajatantra Party Nepal and that the applicant was opposed to and targeted by the Maoists in Nepal. The applicant alleges that he left Nepal to avoid harm and that he experienced mental torture in Nepal. The applicant fears physical and mental harm, along with financial hardship if he returns to Nepal. The applicant fears anti-monarchists, including Maoists, may harm the applicant in Nepal because of the applicant’s support for the monarchy and his opposition to anti-monarchists, including Maoists. The applicant alleges that the authorities in Nepal will not protect him because they are weak and corrupt. 

2. The delegate found that the claimed harm does not amount to significant harm. The delegate was not satisfied that Australia has protection obligations to the applicant under s.36(2)(aa) of the Act and refused to grant the applicant a protection visa on 21 November 2014.

The Tribunal

1. On 12 December 2014, the applicant applied for review of the delegate’s decision. By letter dated 3 May 2016, the applicant was informed that the Tribunal had considered the material before the Tribunal but was unable to make a favourable decision on that information alone. The applicant was invited to attend a hearing on 7 June 2016 by that letter. The applicant completed and returned a response in relation to the hearing invitation. The applicant appeared at the hearing on 7 June 2016 to give evidence and present arguments. 

2. The Tribunal’s reasons incorporated Annexure 1 setting out the relevant law and Annexure 2 which set out independent country information which was incorporated in the Tribunal’s reasons. The Tribunal’s decision identified that the third application was a valid application as a result of the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71. The Tribunal identified that the delegate was not satisfied that the applicant was a person in respect of whom Australia had protection obligations. The Tribunal correctly identified the relevant law.

3. Having reflected on all the evidence before it, the Tribunal had significant concerns regarding the truth of certain aspects of the applicant’s claims and evidence. The Tribunal regarded the concerns cumulatively as casting doubt on the truth of the central aspects of the applicant’s claimed circumstances in Nepal. Those factors, together with the Tribunal’s assessment of reliable, independent reports regarding the situation in Nepal currently resulted in the Tribunal holding that it was unable to be satisfied that the applicant faces a real risk of significant harm in Nepal in the reasonably foreseeable future for any of the reasons claimed or arising on the evidence. 

4. The Tribunal identified the applicant’s claims and evidence. The Tribunal summarised what occurred during the hearing including the Tribunal raising issues with the applicant under s.424AA of the Act. The Tribunal found the applicant to be a low level supporter of the monarchy and the Rastriya Prajatantra Party Nepal who does not support the Maoists. The Tribunal did not accept that the applicant had ever been an active member of the Rastriya Prajatantra Party or the Rastriya Prajatantra Party Nepal or an active or vocal supporter of the monarchy or an active vocal supporter of the Maoists.

5. On the basis of the Tribunal’s assessment of the applicant and the country information, the Tribunal was not satisfied that as the applicant as a low-level supporter of the monarchy, the Rastriya Prajatantra Party Nepal and opponent of the Maoists, that the applicant faces a real chance of significant harm as contemplated by the relevant law in connection with his political opinions in Nepal in the reasonably foreseeable future, or for any other reason. 

6. The Tribunal did not accept that the modest living arrangements of the applicant when considered in the context of the applicant’s circumstances and profile in Nepal give rise to a real chance of the applicant or his household being targeted, forced donations or extortion or other harm. The Tribunal was not satisfied that the applicant’s financial concerns reveal any intention on the part of anyone to harm the applicant in any way. 

7. The Tribunal was not satisfied that the applicant faces a real risk of being arbitrarily deprived of his life or of the death penalty being carried out on him for any reason, including those claimed as arising on the evidence, including in respect of his financial concerns and political opinions. The tribunal was not satisfied that the requisite intention exists on the part of anyone in Nepal to inflict harm in the nature of torture, cruel or inhumane treatment or punishment and degrading treatment or punishment on the applicant for any reason, including in respect of his financial concerns and political opinions. The tribunal was not satisfied the applicant faces in Nepal a real risk of being arbitrarily deprived of his life or the death penalty being carried out him, being subjected to torture, being subjected to cruel and or inhumane treatment or punishment or being subjected to degrading treatment or punishment. 

8. The Tribunal was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, the applicant faces a real risk of significant harm. The Tribunal found that it was not satisfied the applicant is a person in respect of whom Australia has protection obligations. The Tribunal found the applicant did not satisfy the criterion under s.36(2)(aa) of the Act for a protection visa and affirmed the decision of the delegate.

Proceedings before This Court

1. On 22 September 2016 a registrar of the court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. The applicant handed up to the court today an outline of submissions, in respect of which the three paragraphs are as follows, and I will have those three paragraphs set out:-

   1. I contend that the Tribunal committed a jurisdictional error in that there was no evidence to support certain factual findings made by the Tribunal and that its findings were irrational or illogical.

   2. The Tribunal Member's comments also obviously and impermissibly impeded my right to give evidence and present arguments in support of my case. There was a breach of procedural fairness.

   3. It is submitted that Judge Beach's judgement m MZAFZ v Minister for Immigration and Border Protection should be applied in my case for justice.

2. The grounds identified in the application are as follows:-

   1. I disagree with the Member's decision because I believe the Member made an error of law in my case.

   2. The Member failed to take into account relevant considerations in its decision.

   3. The Member failed to give genuine and realistic considerations relying on irrelevant matters and ignoring relevant material for me.

Consideration

The Submissions

1. In relation to paragraph 1 of the applicant’s outline of submissions, this purports to be a separate allegation of jurisdictional error but it has not identified any finding in respect of which it is contended there was no evidence and it has not identified any finding in respect of which it is alleged the finding was irrational or illogical. The Tribunal’s reasons reflect an orthodox and comprehensive approach to the applicant’s evidence and the determination of the applicant’s claims. It is not apparent to the Court that there was any finding made by the Tribunal that was made without evidence. Further, on the face of the Tribunal’s reasons, the adverse findings cannot be said to lack an evident and intelligible justification. The Court is not satisfied that the Tribunal’s findings can be said to be irrational or illogical. No jurisdictional error is made out as alleged by paragraph 1 in the outline of submissions. 

2. In relation to paragraph 2, there is nothing before the Court to support the proposition that the Tribunal impeded the applicant’s ability to obtain evidence and present arguments. The Tribunal complied with its statutory obligation by inviting the applicant to appear at the hearing. On the face of the Tribunal’s reasons, the Court finds that the applicant had a genuine and meaningful opportunity to give evidence and present arguments in support of his case. On the face of material before the Court, the Tribunal complied with its statutory obligations. On the face of material before the Court, the Court is not satisfied that there was any denial of procedural fairness in the conduct of the review by the Tribunal. Paragraph 2 of the outline of submissions fails to make out any jurisdictional error.

3. In relation to paragraph 3 of the outline of submissions, there was no evidence that there was any relevant certificate relied on in any consideration of the issue raised in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081. Accordingly, there is no evidentiary basis to support any alleged jurisdictional error in that regard and paragraph 3 of the outline of submissions fails to identify that there was an error.

The grounds of the application

1. In relation to Ground 1 of the application, the applicant’s disagreement with the adverse findings does not of itself identify any jurisdictional error. The applicant’s assertion that the Tribunal made an error of law does not make out any jurisdictional error. Ground 1 fails to make out any jurisdictional error.

2. In relation to Ground 2, there is no relevant consideration identified that the Tribunal failed to take into account. On the face of the Tribunal’s reasons, the Tribunal correctly identified the applicant’s claims and made adverse findings in relation to the essential integers of the applicant’s claims. There is no apparent relevant consideration that the Tribunal failed to take into account.  Ground 2 fails to make out any jurisdictional error.

3. In relation to Ground 3, the Tribunal’s reasons reflect an orthodox approach to the decision making. There is no basis on the material before the Court to find that the Tribunal failed to give genuine and realistic consideration to the applicant’s claims and evidence. Further, no irrelevant matter has been identified by the applicant that was taken into account by the Tribunal, nor has any relevant matter been identified that the Tribunal ignored. Ground 3 fails to make out any jurisdictional error.

4. At the commencement of the hearing, it was explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness. The Court explained that in summary this meant that the Court was considering whether the Tribunal’s decision was unlawful or whether the Tribunal’s decision was unfair.  The Court explained that if satisfied that the Tribunal’s decision was affected by a relevant legal error, the Tribunal’s decision would be set aside and sent back for further consideration. The Court explained that if the Court was not satisfied that the Tribunal’s decision was affected by relevant legal error, the application would be dismissed.

5. The Court explained to the applicant that the Court would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant for a reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.  Nothing in the applicant’s submissions made from the bar table identified any jurisdictional error. The applicant requested that he be given the opportunity to have his case considered again. The Court explained to the applicant that it did not have power to make fresh findings of fact or to set aside the Tribunal’s decision on compassionate grounds.

6. The Court repeated in its explanation to the applicant that it could only grant relief if the Court was satisfied that the Tribunal’s decision was affected by relevant legal error. The Court again explained that the relevant legal error had to be one in which the Tribunal’s decision was unlawful or unfair. Nothing said by the applicant from the bar table identified any jurisdictional error.

Conclusion

1. The application and written submissions failed to make out any jurisdictional error.

2. The application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  25 January 2017