CET16 v Minister for Immigration

[2016] FCCA 3400

FEDERAL CIRCUIT COURT OF AUSTRALIA

CET16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3400

Catchwords:
MIGRATION – Protection (Class XA) visa – impermissible attempt at merits review – no jurisdictional error.

Legislation:

Migration Act 1958, ss.36(2)(a), 36(2)(aa)

Applicant: CET16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 726 of 2016

Judgment of: Judge Jarrett

Hearing date: 7 December 2016

Date of Last Submission: 7 December 2016

Delivered at: Brisbane

Delivered on: 7 December 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed on 9 August, 2016 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application, fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 726 of 2016

CET16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant in this case is a citizen of Nepal.  He arrived in Australia on a student visa on 11 November, 2008.  That visa was in effect until 10 December, 2010.  On 11 July, 2014 he applied for a protection visa.  According to his application for the protection visa and some other material that he has provided both to the delegate of the first respondent that decided that application and a subsequent tribunal, the applicant claimed fear of persecution due to threats against his father and family by Maoists, due to his father and brother’s positions in the National Investigations Department in Nepal.  He also claimed embarrassment at returning to Nepal when having not been as successful as expected whilst in Australia. 

2. A delegate of the first respondent refused the applicant’s application on 30 January, 2015.  He applied for a review of that decision by a refugee review tribunal and that application was subsequently dealt with by a tribunal.  Because the tribunal could not determine the application for review in the applicant’s favour on the material before it, it invited the applicant to attend a hearing. 

3. That hearing took place on 2 February this year and on 13 July this year the tribunal affirmed the delegate’s decision to refuse the visa. 

4. The tribunal delivered reasons for its decision.  Those reasons reveal that the tribunal, at least in my view, properly apprehended the claims that were being made by the applicant.  The tribunal set out those claims and the evidence that was presented to the tribunal in support of those claims in its reasons for decision.  The tribunal also considered relevant country information, including a background report on Nepal.  The statement of reasons from the tribunal provides the detail of those reports.

5. Ultimately, the applicant’s claim failed because the tribunal did not accept that the applicant, his father or his family had ever been threatened by the Maoists as a result of his father’s position or actions with the National Investigations Department.  The tribunal did not accept that the applicant will be harmed in the future if he returns to Nepal.  Between paragraphs [41] and [46] of the tribunal’s reasons the tribunal set out six reasons why it came to that conclusion.  The tribunal provided:

   41. First, the Tribunal has not seen any country information indicating that Maoists are currently harming government officials in retaliation for past anti-Maoist activity.

   42. Secondly, the applicant’s description of the alleged threat in 2008 is implausible. The Tribunal does not accept that Maoists posted a threatening letter on Maoist letterhead on the wall of the village development centre in the village of his father’s birth. None of the applicant’s family live in the village or were in the village at the time. It is implausible that, if Maoists were trying to threaten the applicant’s father or his family, they would attach a letter to a wall in a place where the applicant’s family did not live and expect that somehow the letter would come to the attention of the applicant’s family. Further, the applicant could not describe the contents of the letter or the nature of the threat. The Tribunal finds that the applicant has fabricated this element of his claims to bolster his chances of being granted a protection visa.

   43. Thirdly, the Tribunal does not accept that the applicant’s father was threatened over the telephone in 2012. The applicant could not tell the Tribunal who made the call, or importantly, what the nature of the threat was. The applicant was asked multiple times to elaborate on the threat and to describe what his father had told him but the applicant was evasive and instead repeated that the Maoists wanted to hurt his father for assisting in Maoist arrests in the past. The Tribunal finds that the applicant has fabricated this element of his claims to bolster his chances of being granted a protection visa.

   44. Fourthly, the Tribunal notes that the applicant’s father remained with the National Investigations Department after the Maoist-dominated government took power in 2008 and no action was taken against him for his past actions. In fact, the applicant described that his father had been promoted from Inspector to Deputy Superintendent and then to Superintendent after the Maoist-dominated government came to power in 2008.

   45. Fifthly, and significantly, despite the claimed threats, neither the applicant’s father nor any of his other family members have been harmed following the alleged threats. This evidence weighs against the applicant’s claims that Maoists wish to harm the applicant’s father and his family.

   46. Finally, the Tribunal accepts that the applicant’s claim that he may feel some embarrassment if he returns to Nepal at having not been as successful as he had expected in Australia. However, the Tribunal does not accept that any embarrassment that the applicant may feel on return constitutes serious or significant harm for the purposes of s.91R(2) or s.36(2)(a).

6. The tribunal concluded that the applicant did not satisfy the requirements of s.36(2)(a) of the Migration Act 1958 and, by reason of its findings in respect of the facts relating to that application, it also determined that the applicant did not satisfy the requirements for complementary protection, pursuant to s.36(2)(aa). Accordingly, the tribunal affirmed the decision under review.

7. Before me the applicant relies on five grounds.  He filed his application himself.  The grounds are handwritten.  They are in the following terms:

   There is real chance that I will suffer serious and significant harm if I returned to Nepal.

   Residency in India is only easy on paper and situation of Nepalese in India is worse than Nepal Because the Human Rights in India is just a joke.  Other thing if I leave to Australia I don’t have any other place to go and I don’t want to go back to Nepal because I am not safe in Nepal.

   Maoist in Nepal is still harming people my family has been threatened by Maoist but Tribunal didn’t take in consideration.

   I believe Tribunal did not take any consideration what I said and they did not made decision on facts.

   I believe Tribunal does not know the current situation of Nepal.  They made Decision Based on Media Report and every occasion Media Report is not true they can be wrong as well.

8. Essentially, the first respondent’s response to those grounds is that the applicant seeks nothing more than merits review.  I tend to agree.  The first ground relied upon by the applicant cavils with the conclusion arrived at by the tribunal.  It asserts no jurisdictional error, rather, the opposite to the proposition determined by the tribunal. 

9. The second ground, as the Minister’s submissions points out, asserts no jurisdictional error either.  The ground tends to suggest that the tribunal determined the case on the basis that the applicant might relocate and live in India rather than Nepal.  But, as the submissions for the first respondent make clear, whilst the tribunal member questioned the applicant about that, the application was decided on the basis that the applicant was a national of Nepal and that there was not a real chance that he would suffer serious harm or a real risk that he would suffer significant harm if he returned to Nepal.  It was, therefore, unnecessary to determine whether the applicant had a right to enter and reside in India under the treaty nominated by the tribunal in its hearing with the applicant. 

10. The next two grounds might be read as suggesting that the tribunal did not take into account relevant considerations but a fair reading of the tribunal’s decision and the statement of reasons makes it very clear that the tribunal did consider the matters that the applicant says the tribunal did not take into account.  The difficulty for the applicant is that whilst the tribunal considered the matters upon which he relies, the tribunal did not accept those matters as the applicant put them to the tribunal.

11. Those matters are dealt with in the findings that I have extracted earlier in these reasons.  The tribunal did not accept that the applicant’s family had been threatened by Maoists, as he claimed.  The tribunal, in fact, determined that some of the applicant’s claims were fabricated. 

12. The final ground too, does not assert any jurisdictional error.  The ground complains that the tribunal made its decision based on media reports and the ground suggests that the media report or reports relied upon by the tribunal were not accurate or they “can be wrong”.

13. As the submissions for the first respondent point out, the information to be relied upon by the tribunal is a matter for it.  The tribunal can decide which information it relies upon and in respect of which information it might accord significant weight.  Those matters are not matters that can be ordinarily interfered with on an application like this. 

14. The conclusion that I have come to, having regard to the tribunal’s statement of reasons and its decision, the submissions made by the applicant and the submissions made by the first respondent is that the tribunal’s decision is not attended by jurisdictional error. 

15. The application made in this case by the applicant on 9 August, 2016 must be dismissed.

RECORDED: NOT TRANSCRIBED

1. The impecuniosity of a person to whom an order for costs might be directed is generally not seen as special circumstances sufficient to displace the ordinary rule that costs should follow the event.  Costs should follow the event in this case.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered 7 December, 2016.

Date: 23 December 2016