Cfe17 v Minister for Immigration

[2018] FCCA 3544

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFE17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3544

Catchwords:

MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether Tribunal erred in failing to properly consider evidence – whether the Tribunal erred in undertaking its statutory task – whether the Tribunal erred in failing to obtain information – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.65, pt.7

Other materials cited:
Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A(2)

Cases cited:

Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123

Applicant: CFE17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1599 of 2017

Judgment of: Judge Smith

Hearing date: 7 November 2018

Date of Last Submission: 7 November 2018

Delivered at: Sydney

Delivered on: 7 November 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms A Davyskib, Minter Ellison Lawyers

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1599 of 2017

CFE17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal dated 10 May 2017.  The Tribunal affirmed a decision of the delegate of the Minister to refuse to grant the applicant a protection visa.

2. The applicant arrived in Australia from Nepal on 23 January 2009.  On 1 October 2014, that is almost six years later, she applied for a protection visa.  She claimed that she would be killed by Maoists if she returned to Nepal and that the police would not protect her. Later, during the process of her visa application, the applicant claimed that she feared harm because she had married a person of a different caste.

3. On 9 July 2015 a delegate of the Minister made a decision to refuse to grant the applicant a visa and the applicant applied to the Tribunal for review of that decision.

4. The applicant attended a hearing conducted by the Tribunal on 5 May 2017.  At that hearing, she made it clear that she withdrew the claim based upon any fear of Maoists and relied only upon the claim concerning her inter-caste marriage. On 10 May 2017 the Tribunal made its decision to affirm the decision of the delegate.

5. The Tribunal rejected the applicant’s claim concerning her marriage and the impact of it on the basis of the cumulative impact of three credibility concerns.  First, as explained at [46] of its reasons, the fact that the applicant’s marriage had ended; secondly, as explained at [48], that the applicant had failed to make any mention of the claim in her relevant application forms; and thirdly, at [53], the fact that the applicant had delayed almost six years after arriving in Australia to make the claim for a protection visa at all.

6. For those reasons, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention[1] reason or that there were substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia that there was a real risk that the applicant would suffer significant harm for any reason.  For those reasons, the Tribunal was not satisfied that the applicant met the criteria for a protection visa and affirmed the decision under review. 

   [1] Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A(2).

7. There are three grounds in the application for review.  Before dealing with those, I note that the applicant appeared unrepresented in the application.  She did not file any written submissions and when asked at the hearing what her oral submissions were, she said firstly, that the first ground in the application concerned the fact that her husband had left her and secondly, that she could not return to Nepal because her second husband had also left her even though he said that he would look after her.

8. Nothing in those submissions supports a conclusion that there was any jurisdictional error in the Tribunal’s decision but they appear to be addressed to the merits of the Tribunal’s decision.  It is not the role of the Court to determine whether the applicant has a fear of harm upon return to Nepal.  That matter is reserved for determination by the Tribunal.

9. The first ground of the application is that the Tribunal did not seriously consider her evidence.  I do not accept that that is the case. 

10. First, the Tribunal’s statement of reasons set out in some detail the evidence actually given by the applicant at the hearing. Further, during the course of its exposition of that evidence, the Tribunal reveals that it had raised with the applicant at the hearing some of the issues that it had with that evidence. It also reveals that the Tribunal discussed with the applicant certain country information about inter-caste marriages: see [31]-[34].

11. Next, at [35]-[44] of its reasons, the Tribunal explains a number of specific difficulties that it had with some of the applicant’s evidence. It acknowledged at [43] that two of those issues were reasonably fine points. For that reason, it was prepared to accept that the applicant’s former husband was from a different caste from the applicant, that the relationship and marriage was objected to by the respective families and that she and her husband had left for Kathmandu to escape any adverse reaction from the community and their families. However, in spite of those conclusions, it did not accept the applicant’s overall claims. The Tribunal set out its reasons for those, at [46]-[57], which I have summarised at [5] above.

12. That brief summary of the Tribunal’s reasons establishes, in my view, that the Tribunal did properly consider all of the applicant’s evidence in the sense that it turned its mind to it and addressed, firstly, whether it accepted the evidence; and, secondly, whether the facts found would bring the applicant within the criteria for a protection visa.  For those reasons, the first ground must be rejected.

13. The second ground is that the Tribunal failed to prove that the applicant would be safe in Nepal if she returned. It may be that the background is poorly drafted but it suggests that what the applicant is contending is that the Tribunal in fact bears an onus of establishing her safety. That contention, however, misunderstands the role of the Tribunal. Its express statutory obligation is to review the decision of the delegate in the context of pt.7 of the Migration Act 1958 (Cth). That means that the Tribunal must decide for itself whether it is satisfied that the criteria for the grant of the visa have been met and that arises from s.65 of the Act.

14. That task does not involve any onus either on the applicant or upon the Tribunal.  Although the Tribunal does have powers to obtain information for itself, essentially its task involves it assessing the evidence and material before it and determining on the basis of that evidence whether the criteria for the grant of a visa have been met.  For those reasons, the second ground is rejected.

15. The third ground is that the Department “did not investigate enough about honor killing in Nepal”.  The reference to Department must be taken to be a reference to the Tribunal.  If that is not the case, then the ground must fail because this Court has no jurisdiction to review the decision of the Department or the delegate.

16. Understood as being addressed to the Tribunal, the ground has some difficulties in any event. First, it is clear enough that the Tribunal did obtain and consider information concerning inter-caste marriage and the impact of that: see [14]-[15] of the Tribunal’s reasons. Secondly, there is nothing to support the contention that what it did was insufficient to properly conduct its review. There was no suggestion of any obvious inquiry that the Tribunal could have made which might have revealed critical information:  cf. Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123.

17. I note, as I have already observed, that the Tribunal does not have any duty as such to investigate anything, although in certain circumstances, its failure to exercise its power to obtain information might provide a sufficient nexus to its decision to warrant the conclusion there was jurisdictional error.  I can see no such nexus here in light of the absence of any suggestion of an obvious inquiry that could have been made.  For those reasons, the third ground in the application is rejected.

Conclusion

1. I am not satisfied that the Tribunal’s decision is affected by jurisdictional error.  The application must be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       4 December 2018