Cir15 v Minister for Immigration

[2019] FCCA 1413

FEDERAL CIRCUIT COURT OF AUSTRALIA

CIR15 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1413

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the non-disclosure of the s 438 certificate gave rise to any practical injustice – whether the Tribunal considered the applicant’s claims and evidence – whether the Tribunal’s adverse findings were open – whether the Tribunal complied with its statutory obligations – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

Applicant: CIR15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3023 of 2015

Judgment of: Judge Street

Hearing date: 27 May 2019

Date of Last Submission: 27 May 2019

Delivered at: Sydney

Delivered on: 27 May 2019

REPRESENTATION

The Applicant appeared in person.
Solicitors for the Respondents:	Mr L Leerdam DLA Piper

ORDERS

1. The Application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $6,825.00.

DATE OF ORDER: 27 May 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3023 of 2015

CIR15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 8 October 2015 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of Nepal and his claims were assessed against that country. The applicant applied for the protection visa the subject of the Tribunal’s decision on 23 April 2013. The application was assessed under the grounds of complementary protection, as the applicant had previously applied for a protection visa on 21 January 2010, which was refused by a delegate on 17 June 2010. That delegate’s decision was affirmed by a Tribunal on 8 September 2010 and the applicant was unsuccessful in an application for review before what was then called the Federal Magistrates Court and unsuccessful on appeal to the Federal Court.

3. The applicant claimed to fear harm by reason of his sexual orientation and also from the Maoist Young Communist League (“YCL”) and by reason of having been forced to undertake criminal activities and fearing that he would be the subject of demands for donations in the future.

4. On 25 August 2014, the delegate found the applicant failed to meet the criteria in respect of complementary protection and refused the grant of a visa.

5. On 25 September 2014, the applicant lodged an application to the Tribunal for review. By letter dated 22 July 2015, the applicant was invited to and appeared before the Tribunal on 23 September 2015 to give evidence and present arguments.

6. The Tribunal identified the background to the visa and also referred to the applicant having entered Australia on 1 December 2009 on a fraudulent passport in respect of which the name had been altered. The alteration of the passport was a matter identified by the applicant in his original statutory declaration as well as in the original delegate’s decision and the original Tribunal’s decision. The applicant also referred to the false passport in the second application for protection in answer to questions 4, 27 and 52 and attached his previous supporting statement in which there was a reference to arriving on the false passport. The delegate’s decision the subject of these proceedings also referred to the applicant’s arrival on the false passport.

7. The Tribunal identified the background to the applicant’s application and summarised the applicant’s claims. The Tribunal referred in detail to the submissions advanced on behalf of the applicant. The Tribunal accepted the applicant’s claims in respect of his sexual orientation but referred to country information and found that the discrimination and/or disapproval that the applicant may face would not amount to significant harm.

8. The Tribunal referred to the applicant’s other claims to fear harm in respect of being forced to join the YCL and carry out criminal activities and made adverse credibility findings, referring to the numerous inconsistent accounts given by the applicant in respect of his activities and referred to those issues being raised by the previous Tribunal with the applicant in respect of the inconsistencies and contradictions at the hearing, as well as inconsistencies in relation to the applicant’s evidence about being harassed and the limited knowledge by the applicant of the aims of the YCL or where its recruiters came from.

9. The Tribunal was not satisfied as to the credibility of the applicant’s claims that he was forced into joining the YCL in 2007, or was indoctrinated by them, or was required to undertake criminal and other activities on their behalf, was harassed, threatened, or had his family threatened either for leaving the YCL or for expressing his view that he wished to leave. The Tribunal was not satisfied the applicant has had any involvement with the YCL, or that he or his family have been threatened by them.

10. The Tribunal was not satisfied the applicant faces a real risk of significant harm as a result of any past involvement in the YCL, or the YCL or Maoists having an adverse interest in the applicant as a result of the applicant either leaving the organisation or indicating he wished to do so.

11. The Tribunal referred to the applicant’s claims in respect of fearing harm and being required to pay donations. By reason of the adverse credibility findings, the Tribunal was not satisfied that the applicant is at real risk of being forced to pay money to YCL as a result of their adverse interest in him. The Tribunal was not satisfied there is a real risk of the applicant facing significant harm as a result of future requests for donations by the YCL or Maoists.

12. The Tribunal referred to the applicant’s claims of a political opinion being opposed to Maoists. The Tribunal was not satisfied there is a real risk of the applicant facing significant harm due to his political opinion in opposing the Maoists.

13. The Tribunal also considered the difficulties and discrimination the applicant may face in respect of employment and found that it would not constitute significant harm.

14. Having considered the applicant’s claims cumulatively, the Tribunal found there is not a real risk of significant harm to the applicant based on his sexuality or the attitude of society or his family to his sexuality.

15. The Tribunal was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk the applicant will suffer significant harm.

16. The Tribunal found the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 6 November 2015. On 10 December 2015, a Registrar of the Court made orders giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions. The applicant did put on submissions dated 14 May 2019.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant referred to the s 438 certificate that was not included in the Court Book and which the applicant identified had not been disclosed to him in the conduct of the hearing by the Tribunal, nor had the documents the subject of the certificate.

4. An affidavit was read by the first respondent identifying the certificate and the documents the subject of the certificate. The documents the subject of the certificate identified the applicant arrived in Australia on a fraudulent passport. That was an issue of which the applicant was well aware and was identified in the applicant’s own statement, as well as in the questions referred to in the application for the visa identified above, as well as in the decision of the delegate the subject of these proceedings.

5. The applicant suffered no practical injustice in the conduct of the review by reason of a nondisclosure of the certificate or the documents the subject of the certificate. The Court has considered the documents carefully and is satisfied that a nondisclosure of the certificate and the documents in the certificate could not possibly have given rise to any different result in respect of the review conducted by the Tribunal. The Court notes in that regard the adverse credibility findings were not based on and did not take into account the fraudulent passport.

6. In these circumstances, there is no jurisdictional error by reason of a nondisclosure of the certificate or the documents the subject of the certificate.

7. From the bar table, the applicant’s only reference was to the certificate and requesting the Court to remit the matter to the Tribunal. For the reasons just given, there is no jurisdictional error by the Tribunal as a result of a nondisclosure of the certificate or the documents the subject of the certificate. The applicant’s submissions otherwise invite the Court to determine the matter on discretionary or compassionate grounds. This Court has no power to determine the matter on discretionary or compassionate grounds. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   1. I am not happy with the Tribunal Member's decision because I believe the Member has overlooked my fear of problems as a result of being a homosexual based on his arbitrary view rather than the fact.

   2. The Tribunal Member failed to give me natural justice and the benefit of the doubt as to my claim of fear on return to Nepal.

   3. I argue that the Tribunal member's decision involved an error of law.

Ground 1

1. In relation to ground 1, it is apparent that the Tribunal did take into account the applicant’s claims in respect of his sexual orientation and, in fact, accepted that the applicant was homosexual and provided detailed reasoning, taking into account country information, in finding that the applicant did not meet the criteria under s 36(2)(aa) of the Act. Those adverse findings were open to the Tribunal for the reasons given by the Tribunal. The adverse findings cannot be said to lack an evident and intelligible justification.

2. The applicant’s disagreement with the adverse finding does not of itself identify any jurisdictional error. The assertion that the decision was arbitrary is inconsistent with the reasoning of the Tribunal, which reflects a logical, cogent and rational approach to the determination of the review application.

3. Insofar as the reference to “arbitrary view” seems to suggest that the Tribunal conducted the review in a manner involving bias by reason of the adverse findings, those adverse findings are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.

4. On the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal. On the face of the material before the Court, there is nothing to suggest that the Tribunal did other than approach the review with an open mind reasonably capable of persuasion as to the merits. No ground of actual or apprehended bias is made out. The assertion of an arbitrary view is without substance. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the bare assertion of a denial of natural justice does not of itself identify any error. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review, and there is no basis to find that there is any denial of natural justice.

2. In this regard, the Court has also taken into account that the nondisclosure of the certificate and the documents the subject of the certificate gave rise to no practical injustice in the conduct of the review in the circumstances of the present case. There has been no finding identified in respect of which the Tribunal is required to give the applicant the benefit of the doubt. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, the bare assertion of an error of law does not identify any jurisdictional error. On the face of the Tribunal’s reasons, the Tribunal correctly identified the law in respect of complementary protection. The Tribunal was correct to assess the applicant’s claims only in relation to complementary protection. No jurisdictional error is made out by ground 3.

2. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 19 July 2019