BZAGC v Minister for Immigration

[2014] FCCA 2983

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAGC v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2983

Catchwords:
MIGRATION – Protection (Class XA) visa – where suggested that tribunal should have sourced and taken into account recent country information.

Legislation:  

Migration Act 1958

Craig v South Australia (1995) 184 CLR 163

Applicant: BZAGC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 1137 of 2013

Judgment of: Judge Jarrett

Hearing date: 8 December 2014

Date of Last Submission: 8 December 2014

Delivered at: Brisbane

Delivered on: 8 December 2014

REPRESENTATION

Counsel for the Applicant: Mr W.J. Markwell

Counsel for the First Respondent: Mr McGlade

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

1. The amended application filed 11 April 2014 is dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the proceedings fixed in the sum of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT BRISBANE

BRG 1137 of 2013

BZAGC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

ex tempore

1. The applicant came to Australia on a student visa in 2007.  On 24 November, 2011 he applied to the Department of Immigration and Citizenship, as it was then described, for a grant of a Protection (Class XA) visa.  A delegate of the first respondent refused that visa.  

2. The applicant applied to a refugee review tribunal for a review of that decision and on 22 November, 2013 a tribunal affirmed the decision of the delegate.  It is from the decision of the tribunal that the applicant now brings this application for constitutional relief in respect of the tribunal’s decision.

3. The applicant suggests there are three grounds upon which the tribunal’s decision might be impugned.  Before the delegate and the tribunal, the applicant made a number of claims.  He claimed that he was a supporter of the Nepalese monarchist party.  He claimed that he had suffered harassment before he left Nepal by Maoists on a number of occasions due to his allegiance to the monarchy, and, put shortly, his case was that he feared that should he return to Nepal, he would be harmed by those persons because of his political opinions. 

4. He gave to the tribunal some evidence about his involvement in political matters when he was a university student.  He gave to the tribunal some evidence about the type of harassment and harm that he says he endured while he lived in Nepal.  There were, in particular, only two or three episodes of harassment that the applicant particularised for the tribunal. 

5. The tribunal understood the applicant’s claims.  There is no suggestion in the materials before me – either in the grounds of the application that the applicant now presses, or in any of his submissions – that would suggest that the tribunal did not properly understand and recognise the claims being made by the applicant for protection. 

6. Given the nature of the claims that the tribunal apprehended that the applicant was making, it undertook a review of some information, described in the reasons for decisions as country information, which bore on the political landscape in Nepal.  Some of the information was dated.  There was, for example, a BBC report from November, 2006.  There was a report which was much more recent from 2012 to which the tribunal had regard.

7. At paragraph 20 of the tribunal’s reasons, it said this:

   Independent information, such as that noted at paragraphs 13-16 establishes that whilst Nepal has been subject of Maoist-monarchist violence in the past, significant gains have been made towards practical political solutions resulting in peaceful co-existence of varied Nepalese political groups.  The Tribunal accepts that [the applicant] will continue to hold, and, at times, profess pro-monarchy views, but that this will not result in any harm stemming from Maoist or other assailants upon his return to Nepal.  The Tribunal finds on the basis of independent data that the ‘politics of cooperation’ generally continue to prevail in Nepal with disparate parties working ‘in government together’ (para 13).  The applicant will be able to hold and express his political opinions without any adverse repercussions.  Certainly ‘sharp debates’ (para 15) will continue and [the applicant] might well be involved in heated discussions around politics in the future.  However, particularly considering that the monarchists parties are of ‘limited importance’ (para 16) in the overall political matrix, [the applicant] and his views will not be seen to be in any way threatening to other groups.  In summary, the Tribunal finds that there is no objective basis to the subjective fears of harm held by the applicant.

8. The first ground of the application asserts that the tribunal failed to take into account a relevant consideration, and therefore, the tribunal’s decision was affected by “a jurisdictional error of law”.  That ground is expanded in some particulars.  In those particulars, the applicant suggests that:

   … the Tribunal Member has not taken into account relevant material that proves that Nepal is far from a safe place, where persons like the Applicant can engage in political discourse in order to actively promote their political views.  A research article on the internet, namely Nepal Assessment 2014 stated that political violence did increase considerably during 2013 and activists of political parties, clashed with each other on at least 22 occasions resulting in 4 deaths and 167 injuries.  An election was held in Nepal on 19 November 2013 and this was disrupted by an explosion and then also a strike implemented by the Nepal Maoists, who had vowed to disrupt the elections.  None of this information has been taken into account and the Tribunal Member’s sources appear to be dated.

9. The applicant argues that it was morally and professionally incumbent on the tribunal to access the most up-to-date information that it could about the political situation in Nepal.  I am prepared to accept that is so; that it was morally and professionally, perhaps, incumbent upon the tribunal to do just that.  But that is not the point. 

10. What is to the point is what the tribunal was legally required to do.  I was taken to no authority which suggested that the tribunal was legally obliged to make the inquiries and seek out the information that the applicant now identifies. 

11. The applicant argues that had the tribunal accessed the information that he has identified, the conclusions that the tribunal arrived at about the objective basis for the applicant’s fears of harm, would have been made out. 

12. The first thing to say about that is that the first piece of information identified by the applicant is information that did not exist when the tribunal made its decision. The Nepal Assessment 2014 to which the applicant has referred, was published in 2014.  The tribunal’s decision was given in 2013.  It was not material to which the tribunal could have referred even if it was obliged to do so.

13. The applicant suggests that the tribunal ought to have informed itself about the Nepalese elections that were held only days before the tribunal’s decision in this matter.  He identified that there was information available about the elections.  There were some articles in the New York Times that the applicant identifies as available to the tribunal when it made its decision.  He suggested that the tribunal should have made its own inquiries about the elections.

14. But in my view the authorities clearly establish that the tribunal was not under any obligation to seek out that information.  The tribunal was only obliged to act upon the material that was before it.  Counsel for the applicant accepted that the material before the tribunal was capable of leading to the conclusions that the tribunal set out in paragraph 20 of its reasons for decision:

    Independent information, such as that noted at paragraphs 13-16 establishes that whilst Nepal has been the subject of Maoist-monarchist violence in the past, significant gains have been made towards practical political solutions, resulting in peaceful co-existence of varied Nepalese political groups.  The Tribunal accepts that [the applicant] will continue to hold and at times profess pro-monarchy views, but that this will not result in any harm stemming from Maoist or other assailants upon his return to Nepal.  The Tribunal finds on the basis of independent data that the ‘politics of cooperation’ generally continue to prevail in Nepal (para 14), with disparate parties working ‘in government together’ (para 13).  The applicant will be able to hold and express his political opinions without any adverse repercussions.  Certainly ‘sharp debates’ (para 15) will continue and [the applicant] might well be involved in heated discussions around politics in the future.  However, particularly considering that the monarchist parties are of ‘limited importance’ (para 16) in the overall political matrix, [the applicant] and his views will not be seen to be in any way threatening to other groups.  In summary, the Tribunal finds that there is no objective basis to the subjective fears of harm held by the applicant.

15. The first ground of review must fail; it seems to me, because there was no legal obligation on the tribunal to undertake the inquiries or source the information that the applicant suggests it ought to have.

16. The second ground of review suggests that the tribunal member has reached a mistaken conclusion and, therefore, the decision was affected by jurisdictional error.  I have already recounted paragraph 20; the parties seem to agree and my perusal of the decision confirms that that is the paragraph in which the tribunal records the conclusions which are of real meaning in this case.

17. The applicant’s counsel’s concession that there was material before the tribunal upon which it could have reached those conclusions, disposes of this point;  that the tribunal’s conclusion might have been mistaken is not to the point, because a mistaken conclusion of itself does not amount to a jurisdictional error, and, the passage to which I was taken in Craig v South Australia (1995) 184 CLR 163 does not suggest that all mistaken conclusions necessarily lead the Court to conclude that there has been a jurisdictional error in the relevant decision.

18. Indeed, the passage to which I was taken in Craig v South Australia, reproduced at paragraph 13 of the written submissions for the applicant, makes it clear that the reference by the High Court in that case to the tribunal reaching a mistaken conclusion is qualified. It is qualified in the following way:

    …at least in some circumstances, to make an erroneous finding, or, to reach a mistaken conclusion is a jurisdictional error.

19. Those circumstances exist where the erroneous finding or the mistaken conclusion leads the tribunal to the wrong inquiry, or demonstrates that the tribunal has asked itself the wrong question and thereby either misdirected itself to its own jurisdiction, or deprived itself of jurisdiction.  Some of the cases talk about the tribunal making an error about a “jurisdictional fact”.

20. That is not this case.  The conclusions that the tribunal arrived at in paragraph 20 are not jurisdictional questions.  It was not suggested that the tribunal has asked itself the wrong question, or somehow deprived itself of jurisdiction by reaching a wrong conclusion about those matters.

21. The conclusions that the tribunal reached in paragraph 20 – and for that matter, the conclusions that it reaches in other parts of its reasons for decision including those set out in paragraphs 23 and 24 – were all conclusions that were supported by material that was before the tribunal.  It was not the case that there was no evidence to support the conclusions that the tribunal reached.  There was evidence upon which the tribunal was entitled to reach them.  Indeed, it is the tribunal’s task to make those decisions.  It is not a matter in respect of which this Court can interfere. 

22. I accept the submissions for the first respondent in that the third ground of review is not really expressed as a ground of review at all.  The particulars to that ground suggest that despite the tribunal’s findings, the applicant has a well founded fear of persecution and should he return to Nepal, there is a real chance that he will be persecuted because of his political views.  I accept the first respondent’s submissions that that ground of review, such as it is, does nothing more than cavil with the merits of the tribunal’s decision.  Paragraphs 15, 16 and 17 of the outline of argument filed for the applicant on 24 November, 2014 confirm that the argument in respect of ground 3 is really an argument that goes to the merit of the tribunal’s decision.

23. Although paragraphs 16 and 17 suggest that the tribunal has made an error of law in that it has not applied the appropriate test, there is really no substance in that submission.

24. In all of those circumstances, there is no jurisdictional error revealed by the tribunal’s decision and the amended application filed on 11 April, 2014 must be dismissed. 

RECORDED  :  NOT TRANSCRIBED

1. Costs ordinarily follow the event, unless there are special circumstances which displace that rule.  This is civil litigation in the ordinary sense, and so the general rule that costs should follow, applies.  Impecuniosity ordinarily is no answer to an order for costs, and it usually does not amount to a special circumstance for the purposes of displacing the ordinary rule. 

2. In all of those circumstances, it is appropriate that costs follow the event. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:       22 December 2014