CBZ17 v Minister for Immigration
[2018] FCCA 1325
•23 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CBZ17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1325 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 424A, 438 |
| Cases cited: AAJ17 v Minister for Immigration [2018] FCA 205 BZV15 v Minister for Immigration & Anor [2017] FCCA 981 BZV15 v Minister for Immigration [2017] FCA 1522 Minister for Immigration v Singh [2016] FCAFC 183 MZAFZ v Minister for Immigration [2016] FCA 1081 |
| Applicant: | CBZ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1496 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 23 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 23 May 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Ms C Saunders of DLA Piper |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1496 of 2017
| CBZ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 10 April 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed on 16 May 2018.
The applicant is a female citizen of Nepal. She arrived in Australia as the holder of a subclass 676 (visitor) visa on 28 November 2005.
The applicant first applied for a protection visa as a dependent of her husband on 22 December 2005 (first application).[1] This first application was refused by a delegate of the Minister on 15 March 2006[2] and that decision was affirmed by the Refugee Review Tribunal (RRT) (as it was then called) on 23 August 2006.[3] The applicant was subsequently included in an unsuccessful application for Ministerial intervention made by her husband. The applicant then applied for a bridging visa (bridging visa application) in July 2009. This was refused, and the applicant sought review of the decision by the Migration Review Tribunal (as it was then called), which remitted the matter for reconsideration.[4]
[1] Court Book (CB) 1-41.
[2] CB 262-270.
[3] CB 272-293.
[4] CB 302-318.
The applicant made a second protection visa application on 25 February 2014 (current application).[5] The applicant claimed to have been the victim of domestic violence, and claimed that she would suffer serious or significant harm if returned to Nepal as a result of her status as a single woman.
[5] CB 319-347.
The current application was refused by the delegate on 28 July 2014.[6] The delegate found that despite the applicant’s claims, she had a significant family network which could assist her in Nepal. The delegate also found that the situation had improved for single women in Nepal.
[6] CB 391-410.
The applicant applied to the RRT for review of the delegate’s decision, and the decision was affirmed by the Tribunal on 8 May 2016.[7] The Tribunal found that the applicant was only entitled to be assessed against the complementary protection criteria. However, on 5 October 2016, a Judge of this Court made orders by consent remitting the matter to the Tribunal on the basis that the applicant was not barred from having her claims for protection assessed under the Refugees Convention criterion set out in s.36(2)(a) of the Migration Act 1958 (Cth) (Migration Act).[8]
[7] CB 456-465.
[8] Proceedings SYG1486/2016.
The applicant appeared at a hearing before the Tribunal, differently constituted, on 28 February 2017.[9] Following the hearing, the Tribunal sent a letter to the applicant pursuant to s.424A of the Migration Act inviting her to comment on or respond to information.[10] Specifically, the letter invited the applicant to comment on:
a)inconsistencies in the applicant’s evidence concerning her Christianity claims, including the evidence given by the applicant and her husband during the first application; before the Tribunal in May 2016 and February 2017; and in the application for Ministerial intervention;
b)the applicant’s claims concerning separation from her husband, including evidence provided by the applicant in support of her application for Ministerial intervention; by the applicant’s husband in interviews during the course of the first application and bridging visa application and in the applicant’s claims during the course of the current application; and
c)the applicant’s migration history, including evidence given during the hearing in relation to the bridging visa application and the applicant’s past claims.
[9] CB 472-474.
[10] CB 476-480.
On 28 March 2017, the applicant provided a written response to the s.424A letter which attached supporting statutory declarations from friends and medical evidence.[11]
[11] CB 481-536.
The Tribunal made its decision on 10 April 2017, affirming the decision not to grant the applicant a protection visa.[12]
[12] CB 538-553.
The decision of the Tribunal
The Tribunal found that the applicant was not a truthful witness.[13]
[13] At [29].
Having found that the applicant was not a truthful witness, the Tribunal proceeded to find:
a)that it did not accept that the applicant has any ongoing commitment to Christianity, nor would the applicant be involved in Christianity on her return to Nepal,[14] nor that she would be shunned from her family or the Nepalese community for this reason;
b)that the applicant had not been the victim of domestic violence from her husband upon her return to Nepal;[15]
c)that there is not a real chance or real risk that the applicant would be harmed by her husband upon her return to Nepal, even if they are separated and even if the applicant sought to contact her daughter;[16] and
d)that any difficulties the applicant would have resettling and reintegrating into her community did not amount to serious harm for a Refugees Convention reason, or significant harm within the meaning of the complementary protection criterion.[17]
[14] At [29], [35]-[37] and [48].
[15] At [29], [44]-[45].
[16] At [47].
[17] At [48].
For the reasons given above, the Tribunal found that there was not a real chance that the applicant would suffer serious harm and that she did not have a well-founded fear of persecution if returned to Nepal.[18] Similarly, the Tribunal found that there was not a real risk that the applicant would suffer significant harm as a consequence of being returned to Nepal.[19]
[18] At [51].
[19] At [52].
The present proceedings
These proceedings began with a show cause application filed on 15 May 2017. The applicant continues to rely upon that application. There are three grounds in it:
1.I believe the Tribunal Member failed to give me natural justice and procedural fairness although I had not done myself justice in circumstances where I had a lot of innocent mistakes because in the stress of the moment and given my background I had not been able fully to communicate appropriate answers to the questions asked by the Tribunal Member.
2.Tribunal Member's findings are irrational and illogical because it did not properly or genuinely engage with my claims and evidence. The Tribunal Member failed or ignored to give genuine and realistic considerations in my claims and evidence by ignoring relevant material or relying on irrelevant matters.
3.My claims and evidence were overlooked by the Tribunal Member's arbitrary views given the fact that I am a victim of domestic violence.
(errors in original)
I received as a submission the applicant’s affidavit accompanying the show cause application.
I received as evidence the court book filed on 19 October 2017 and the affidavit of Charlotte Elizabeth Saunders made on 10 May 2018. Annexed to that affidavit are certificates purportedly issued under s.438 of the Migration Act. The documents purportedly covered by the certificates were provided as exhibits in a sealed envelope.
I invited oral submissions from the applicant this morning. After I identified for her the issues raised in her application, it was apparent that she was not able to advance any legal argument in relation to those issues.
The applicant told me that she is a single woman who wants justice. She seeks a further consideration of her claims for protection. As I explained to her, in the absence of any jurisdictional error by the Tribunal, that is entirely a matter for the Minister.
I heard oral submissions from the solicitor for the Minister in relation to the issues concerning several s.438 certificates issued by the Minister’s Department.
It is plain that the four purported certificates are all invalid. It is also plain that the Tribunal treated the certificates as invalid at [56] of its reasons.[20] The Tribunal was correct to do so.
[20] CB 552
There is nothing to indicate that the Tribunal acted in any way on the invalid certificates. I have examined the documents purportedly covered by the certificates, and, in my opinion, they have only passing contextual relevance, if any, to the review conducted by the Tribunal. There was nothing in them enlivening an obligation of disclosure by the Tribunal.
I otherwise agree with the Minister’s submissions in relation to the grounds of review and the certificates issue.
Ground 1 is a broad and unparticularised allegation that the Tribunal failed to afford the applicant natural justice and procedural fairness. Absent further particulars this ground does not disclose any arguable case of jurisdictional error on the part of the Tribunal.
Ground 2 alleges that the Tribunal’s findings are irrational and illogical, and that the Tribunal did not properly consider the applicant’s claims and evidence. Absent further particulars this ground does not disclose any arguable case of jurisdictional error on the part of the Tribunal. Moreover, it is plain from the Tribunal’s decision record that the Tribunal considered all of the applicant’s claims and evidence. The Tribunal considered and rejected the applicant’s claims concerning:
a)her purported conversion to Christianity;[21]
b)domestic violence and separation from her husband;[22]
c)harm by her husband upon her return to Nepal;[23]
d)difficulties reintegrating upon her return to Nepal;[24] and
e)difficulties posed by the community, due to the applicant's purported conversion to Christianity, upon her return to Nepal.[25]
[21] At [30] - [37].
[22] At [38] - [45].
[23] At [47].
[24] At [48].
[25] At [48] and [50].
Ground 3 repeats the allegation that the applicant's claims and evidence were overlooked by the Tribunal. Absent any particulars, this ground does not disclose any jurisdictional error on the part of the Tribunal. It is noted that the Tribunal plainly considered and rejected the applicant's claims to have been the victim of domestic violence.[26]
[26] At [29], [38]-[45], and [47].
Section 438 certificates
The Minister notes that the applicant’s files contain several certificates issued purportedly pursuant to s.438 of the Migration Act. These certificates are reproduced in the court book.[27] As noted above the documents covered by the certificate are exhibited to the affidavit of Ms Saunders.
[27] CB 299 - 301 and 413.
The Tribunal’s decision record reveals that the Tribunal discussed the certificates and covered documents with the applicant during the hearing and found the certificates to be invalid. Relevantly the Tribunal stated as follows at [56]:
As discussed during the Tribunal hearing, some of the documents on the Department files are subject to s.438 certificates. The certificates refer to internal working documents and business affairs and the Tribunal considers that they are invalid.
I accept that it is apparent from the extract above that the certificates were not “acted upon” by the Tribunal, were discussed with the applicant during the hearing, and that the applicant therefore has not been denied procedural fairness in relation to the certificates and the documents covered by them. This is accordingly a matter which is distinguishable from Minister for Immigration v Singh[28] and MZAFZ v Minister for Immigration.[29] See for example BZV15 v Minister for Immigration & Anor,[30] Minister for Immigration v CQZ15,[31] and AAJ17 v Minister for Immigration. [32]
[28] [2016] FCAFC 183.
[29] [2016] FCA 1081.
[30] [2017] FCCA 981 at [49]-[52]. Affirmed in BZV15 v Minister for Immigration [2017] FCA 1522.
[31] [2017] FCAFC 194 at [68]-[69]. Special leave has been granted in relation to this judgment: CQZ15 v Minister for Immigration & Anor [2018] HCATrans 79 (10 May 2018).
[32] [2018] FCA 205 at [31].
Conclusion
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will accordingly order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules2001 (Cth).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied at the time this application was filed. The applicant acknowledged her liability to pay the costs sought.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 24 May 2018
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