CDW16 v Minister for Immigration

[2016] FCCA 3136

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDW16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3136

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.424A, 425

Applicant: CDW16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2102 of 2016

Judgment of: Judge Driver

Hearing date: 5 December 2016

Delivered at: Sydney

Delivered on: 5 December 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms E Warner Knight of Australian Government Solicitor

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2102 of 2016

CDW16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 7 July 2016.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant is from Nepal and had made claims of a fear of harm there because of his political activities.  The applicant claimed to be a member of the Communist Party of Nepal (Unified Marxist-Leninist) and to have suffered harm at the hands of the Nepalese Maoists.  He came to Australia as a student dependent and says that he did so in order to avoid persecution.  He claimed to be very involved in local politics.  He claimed to have been abducted from his house in January 2009 and to have been physically harmed.  He was able to leave Nepal on a student visa dependent on the basis of a false marriage.  He claimed to have adopted that ruse in order to avoid persecution by the Maoists.  The applicant, nevertheless, returned to Nepal in 2010 to visit his sick mother.  His personal political profile at the local level brought him to the adverse attention of his political enemies within the Maoists and they resented his actions.  Given the lack of government control and law and order throughout the nation, the applicant could not expect to receive protection from the Nepalese authorities.

3. The Minister’s delegate refused the visa on 16 January 2015.  The delegate found that the applicant had a right to enter and reside in India.  The applicant sought review of that decision before the Tribunal and was initially invited to attend a hearing on 14 June 2016.  He requested a postponement on the basis that his great-grandfather had died. 

4. The postponement was granted until 7 July 2016.  At that time, the applicant appeared to give evidence and present arguments.  He was assisted by an interpreter in the Nepali and English languages.  During the hearing, the Tribunal raised a number of concerns with the applicant including that he entered Australia on the basis of a fraudulent marriage, although he was already married to someone else. 

5. The Tribunal raised with the applicant concerns about his evidence which gave rise to credibility issues.  The Tribunal also raised with the applicant his minimal political activity in Australia.  The Tribunal also discussed with the applicant the delay between his entering Australia and his application for a protection visa, which was a period of about five years.

6. In its decision, the Tribunal found serious concerns regarding the credibility of the applicant’s protection claims.  First, the applicant had claimed that his brother was killed by Maoists, but had omitted to mention his brother in his original protection visa application.  Secondly, he made contradictory statements about his brother’s death in his oral evidence and his written evidence.  The Tribunal found that it was not satisfied that the applicant had been politically active within the Communist Party.  His evidence about his political involvement was very broad.  There was also a dearth of activity in Australia. 

7. The Tribunal rejected the applicant’s claims on the basis of a lack of credibility.  This was based upon contradictions in his evidence, his reliance upon a false marriage to enter Australia, and his delay in seeking protection.

8. These proceedings began with a show cause application filed on 4 August 2016.  The applicant now relies upon an amended application filed on 9 November 2016.  There are four grounds in that application:

   1.The Tribunal Member stated that it does not find me to be a credible witness and The Tribunal is of the view that I have fabricated claims to strengthen my protection application. The Tribunal Member based the finding of Jack of credibility was based on a clearly erroneous fact.

   2. The Tribunal Member made a cursory conclusion in my claims of fear on return to Nepal and it committed a jurisdictional error in failing to address every part of my claims of persecution upon return to Nepal. The Tribunal did not comply with the requirements of s.424A. The Tribunal did not provide its adverse information in writing as required by s.424A (2)(a) and s.441A of the Act.

   3. The Tribunal erred when addressing Art 1C(5) of the Refugees Convention in that it failed to consider whether the change in circumstances in Nepal was durable and substantial and failed to consider whether I might nevertheless be at risk from the Maoists and whether the Nepalese authorities had taken reasonable measures to protect me.

   4. The Tribunal's conclusion that, even if my activities in Nepal or in Australia are considered cumulatively it was not satisfied that I would have an adverse profile with the Maoists or Nepalese authorities, indicated that the Tribunal approached the issue on the basis of the balance of probabilities, rather than by appropriately assessing the possibilities of future persecution. There is a degree of artificiality or stereotyping about the process of categorising me as either 'high-profile' or 'low-profile'. The Tribunal failed to consider, namely whether I have a well-founded fear of persecution for a Convention reason. The Tribunal's decision was affected by jurisdictional error by reason of a failure to follow the mandatory procedure required by s.424A(1).

9. Neither the applicant nor the Minister made pre-trial written submissions. 

10. The only evidence I have before me is the book of relevant documents, filed on 25 October 2016.

11. I invited oral submissions today from the applicant in relation to his grounds of review. In respect of Ground 1, he was unable to identify the “clearly erroneous” fact upon which the Tribunal is said to have relied in order to reach its finding on his lack of credibility. Neither (in relation to Ground 2) was the applicant able to point to any information that was not disclosed to him, pursuant to s.424A of the Migration Act 1958 (Cth) (Migration Act).

12. In relation to Grounds 3 and 4, the applicant focused on the Tribunal’s credibility findings and expressed concern that he was not believed.

13. In my view, no arguable case of jurisdictional error has been advanced by the applicant. There is no substance to the assertion that the Tribunal’s credibility findings are based on any erroneous fact. There was no information that was required to be disclosed, pursuant to s.424A of the Migration Act, and it is obvious from the Tribunal’s record of what occurred at the hearing before it that the applicant was put on notice, for the purposes of s.425 of the Migration Act, of the significant issues upon which the review would turn.

14. The Tribunal was plainly aware of its responsibilities in relation to consideration of the Refugees Convention.  Further, its credibility findings rendered it immaterial whether political changes in Nepal were durable or not. 

15. Finally, it was not material whether the applicant was a high profile or low profile political operative.  The Tribunal’s conclusion was that the applicant had no political involvement at all. 

16. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. 

17. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.

18. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the current Court scale and rules.  The applicant did not wish to be heard on costs.

19. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 6 December 2016