CEZ16 v Minister for Immigration and Anor (No.2)
[2017] FCCA 2824
•10 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CEZ16 v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2017] FCCA 2824 |
| Catchwords: MIGRATION – Application under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Administrative Appeals Tribunal – whether applicant has raised an arguable case for the relief he seeks – no arguable case for relief raised – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a) Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa) |
| Applicant: | CEZ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2144 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 10 November 2017 |
| Date of Last Submission: | 10 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 10 November 2017 |
REPRESENTATION
| Applicant in person assisted by an interpreter. |
| Solicitors for the Respondents: | Mr J Pinder of Minter Ellison |
ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules2001 (Cth) the application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2144 of 2016
| CEZ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The first respondent (Minister) seeks an order, under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that the application for judicial review be dismissed because the application does not raise an arguable case for the relief it seeks. By that application the applicant seeks judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa (protection visa).
The applicant is a citizen of Nepal. On 16 January 2013, he lodged an application for a protection visa. The applicant had previously applied for, but was refused, a protection visa because a delegate of the Minister and, on review, the Refugee Review Tribunal, were not satisfied the applicant met the criteria prescribed by s.36(2)(a) of the Migration Act 1958 (Cth) (Act). In the application he lodged on 16 January 2013, the applicant claimed protection on the ground that he satisfied the criterion prescribed by s.36(2)(aa) of the Act. That is to say, the complementary protection criterion.
In his application for a protection visa, the applicant claimed he was attracted by the Communist political ideologies because of their concern for social justice and joined the student union of the United People’s Front, or Sanyukta Janamorcha (SJM). Sometime after 1990, the SJM split and the applicant began supporting the hardline front of the Maoists. The applicant has been an active member of the Maoists communist hardline faction since 1992, and he fears he will be targeted by anti-Maoists political parties and the security forces due to the applicant’s affiliation with the Maoists’ hardline and will face a real risk of harm including torture, inhuman, cruel and degrading treatment at the hands of the opponents of the Maoists.
The applicant further claimed he will be perceived as a wealthy person due to his continued stay in Australia for more than fifteen years, and as a result, he fears he will abducted for the purpose of extorting money by the “criminal elements” and the Maoists’ opponents. The applicant fears that even if he moves to other parts of Nepal, he will continue to face harm due to his political affiliation and fears he will not receive adequate state protection because the “Nepalese security forces still have hatred towards Maoists hardliners”.
In a statutory declaration made on 6 June 2014, the applicant made claims similar to those set out in his application for a protection visa. He claimed he was involved with SJM from the mid-1990s, and was actively involved in the grassroots promotion of the ideas of Maoism. The applicant later joined a hardline faction of SJM, which separated to form a party under the leadership of Prachandra. The applicant engaged in political activities such as organising meetings, distributing flyers, and engaging in door-to-door campaigning. The applicant claimed to have continued to support and hold “the political opinion supporting the Maoists” since his arrival in Australia in April 1996. The applicant claimed that if he is returned to Nepal, he would continue to engage in political activity supporting the Maoists. He said he was interested in the hardline Maoist party that was formed in 2012. He claimed that if he moved to other parts of Nepal, he will continue to face harm because he would continue to promote and engage in political activities supporting hardline Maoists party.
In submissions made by the applicant’s representative, the applicant also claimed he would face harm, not only from anti-Maoists, but also from Maoists, because they will perceive him to be a defector. Before the delegate, the applicant expanded his claims. He said he was on a police terrorist list. Before the Tribunal, the applicant further expanded his claims. He claimed he had harmed people and broken things, he had been involved in strikes and he vandalised property, his name had been published in a few weekly magazines and newspapers, including a publication affiliated with the Nepali Congress and the national publication, and he had received a threat from the police and was arrested and detained for one or two weeks, three or four times, because of his political activities.
I then turn to the Tribunal’s reasons for decision. The Tribunal was not satisfied the applicant provided a truthful account of his involvement in politics in Nepal, before he arrived in Australia. The Tribunal found the applicant’s evidence at the hearing regarding the nature of his political activities was remarkably brief and lacking in detail. The Tribunal found the applicant’s oral evidence, given before the Tribunal, was significantly different from the evidence the applicant provided in his first protection visa application, and the material supporting the applicant’s current protection visa application because he claimed, for the first time, to have been arrested and detained for periods of up to two weeks on three or four occasions. The Tribunal was of the view that if this claim were true, the applicant would have made mention of it when given the opportunity previously. The Tribunal found the applicant’s explanation that he had not mentioned the detentions because there had been no formal warrant or charge, lacked plausibility.
The Tribunal found other aspects of the applicant’s oral evidence problematic. The Tribunal referred to the applicant’s claim that he was always released after “things had calmed down” and he was just warned because he was young, and it found improbable, in light of this evidence, the applicant’s claims that the authorities and his political rivals were still after him, and the police may still wish to arrest him, owing to his past activities.
The Tribunal was not satisfied of the following matters:
a)that the applicant was ever a matter of the SJM or involved with any other hardline leftist or Maoist political group;
b)that the applicant was ever arrested or detained or that his name has ever appeared on any wanted or terrorist list;
c)that the applicant’s name appeared in any publication in connection with any student political activities;
d)that any past or present members of the Nepali Congress, or any other political party or faction has, in the past, wished to harm the applicant owing to his political affiliations or activities; or
e)that the applicant will be viewed by any former member of the SJM or any part or present Maoist party as a traitor or opportunist.
The Tribunal was not satisfied there is a real, as opposed to remote, risk the applicant would be targeted by any political party or criminal element for extortion, kidnapping or any other form of crime constituting significant harm. The Tribunal accepted Maoists hardliners continue to be active in Nepal and recent to the time of the Tribunal’s decision engaged in some violent acts. The Tribunal also accepted that reported crime in Nepal has generally increased. The Tribunal, however, referring to its findings in relation to the applicant’s political and personal profile, and also country information, was not satisfied there is a real risk of the applicant being significantly harmed by hardline Maoists or any other militant group or criminal, should he return to Nepal.
The Tribunal also referred to the range of difficulties the applicant claimed he would experience if forced to return to Nepal as a consequence of his being absent from the country for 20 years, and accepted the applicant may suffer some hardship while he re-establishes himself in Nepal, and that he has lost contact with his Nepalese relatives. The Tribunal, however, was not satisfied the applicant would be unable to find any form of employment, notwithstanding his age and his not having completed a tertiary qualification. Furthermore, the Tribunal was not satisfied that any of the personal, practical or financial difficulties the applicant described constituted significant harm. For those reasons, the Tribunal concluded it was not satisfied the applicant is a person in respect of whom Australia has protection obligations under the complementary protection provisions provided for by the Act.
I then turn to the ground of application. It is as follows:
I am not happy with unfavourable decision given against me.
That does not disclose an arguable case of jurisdictional error. At most, it manifests unhappiness with the Tribunal’s decision. There is not much more that can be said about that ground.
The applicant also filed a document titled applicant’s outline of submissions. In that document, the applicant submits the Tribunal’s decision “was affected by jurisdictional error which is a denial of procedural fairness”. The submission continued as follows:
I submit that Judge Beach’s judgment in MZAFZ v Minister for Immigration and Border Protection, and Judges Kenny, Perram and Mortimer JJ in the judgment in Singh v Minister for Immigration and Border Protection should be applied in the interest of justice in my case.
That submission – or, indeed, ground - assumes that a certificate under s.438 of the Act has been issued in relation to the applicant’s application for review before the Tribunal. When this matter was first before me on a show cause hearing on 19 October 2017, Mr Pinder, who appeared for the Minister, stated from the bar table that on his instructions no certificate under s.438 of the Act had been issued. At my request the Minister prepared and filed an affidavit in relation to that issue. That affidavit was filed on 19 October 2017, and it is an affidavit affirmed by Jennifer Louise Strugnell.
I read that affidavit. There is no need for me to set out its contents other than to say that on the basis of that affidavit I am satisfied that no certificate under s.438 of the Act has been issued in relation to the applicant’s application for review that is the subject of this proceeding. The consequence of that is that the ground set out in the applicant’s outline of submissions discloses no arguable case of jurisdictional error.
It will be apparent from my having set out in some detail the claims for protection the applicant made and the Tribunal’s reasons for not accepting those claims that there was an opportunity for me to consider whether there was anything apparent on the face of that decision that could give rise to any arguable case of jurisdictional error. On the face of the Tribunal’s reasons for decision, the Tribunal identified the applicant’s claims, and the Tribunal member engaged with the applicant in relation to those claims. Unfortunately for the applicant, the Tribunal, for reasons that were reasonably open to it, did not accept the claims the applicant made.
On the face of the Tribunal’s reasons for decision, there is nothing to suggest that the Tribunal made any arguable jurisdictional error. For those reasons, I am satisfied that the application filed by the applicant does not raise an arguable case for the relief it seeks and that it is appropriate that I make an order under r.44.12(1)(a) of the FCC Rules that the application be dismissed; and I propose to make such order in a moment after I deal with the question of costs.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 17 November 2017
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