CPF15 and Ors v Minister for Immigration and Anor (No.4)
[2018] FCCA 1169
•17 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CPF15 & ORS v MINISTER FOR IMMIGRATION & ANOR (No.4) | [2018] FCCA 1169 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for protection visas – whether the Tribunal took into account irrelevant considerations – whether the Tribunal failed to consider the harm by the third applicant if they were to return to Nepal – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424AA, 476 |
| Cases cited: CPF15 v Minister for Immigration and Border Protection [2018] FCA 330 CPF15 & Ors v Minister for Immigration & Anor [2018] FCCA 1162 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| First Applicant: | CPF15 |
| Second Applicant: | CPG15 |
| Third Applicant: | CPH15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3293 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 9 May 2018 |
| Date of Last Submission: | 9 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 17 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Young |
| Solicitors for the Applicant: | G&S Law |
| Counsel for the Respondents: | Ms N Laing |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The first and second applicant’s pay the first respondent’s costs fixed in the amount of $8,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3293 of 2015
| CPF15 |
First Applicant
| CPG15 |
Second Applicant
| CPH15 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 10 November 2015 affirming a decision of the delegate not to grant the applicants protection visas.
The applicants were found to be citizens of Nepal. The first applicant is the mother of the third applicant and was appointed as the child’s tutor. The third applicant was born in Australia after the arrival of the first and second applicants in Australia on 22 February 2008, the first applicant being granted a subclass TU 572 Vocational Education Sector Student visa on 16 January 2008 and arrived in Australia on 22 February 2008. On 2 February 2010 the first applicant commenced an application for a subclass TU 573 Higher Education Sector Further Stay Student (“TU 573”) visa. On 25 February 2010, the first applicant was granted a TU 573 visa valid until 30 September 2011. On 29 September 2011, the first applicant commenced an application for a TU 573 visa. On 21 October 2011 the first applicant was granted a further TU 573 visa valid until 30 August 2013.
On 30 April 2013 the first applicant commenced an application for a subclass VC 485 skilled graduate visa. On 9 September 2013 the VC 485 skilled graduate visa was refused. On 9 October 2013 the first applicant commenced proceedings for review of that refusal before a differently constituted Tribunal. On 26 November 2013, a differently constituted Tribunal concluded it had no jurisdiction.
On 11 December 2013 the first applicant lodged an application for a protection visa. The second applicant also arrived in Australia in February 2008 and has a substantially similar migration history and applied for a protection visa on 11 December 2013 as a dependent applicant. Included in that protection application was the third applicant as a dependent applicant.
Protection claims
The first applicant claimed she left Nepal in 2008 due to continuing harassment and intimidation by the Maoists and pressure from the Maoists to join their party when she was affiliated with, or a supporter of the Communist Party of Nepal (“UML”). The first applicant claimed that Maoists constantly monitored her activities, forced her to work as a messenger for them, told her to recruit members and made her gather money and information, threatened to harm her family if she did not join them or if she took any government occupation and made her life full of “mental torture”. The first applicant stated she moved to Kathmandu twice, first in 2003 for the purpose of study and once after she was asked by Maoists in August 2006 to become a volunteer.
The first applicant claimed that if she returns to the village there is a strong chance the Maoists might harm her because she left her village against the Maoist wishes and did not always carry out their demands in Kathmandu. The first applicant alleged if she returns to her village the Maoists will extort her and may harm her child. The first applicant alleged Maoists will expect the applicant to have money after living in Australia and therefore provide donations. The first applicant fears that if she would refuse, the Maoists might harm her or her child. The first applicant alleged the government cannot ensure public safety and the Maoists still ask for her whereabouts. On 2 May 2014 the delegate found the applicants failed to meet the criteria for the grant of a protection visa.
The Tribunal’s decision
The applicants applied for review on 27 May 2014. By letter dated 6 August 2015 the applicants were invited to attend a hearing on 29 October 2015. On 15 October 2015 submissions were provided to the Tribunal on behalf of the applicants by their migration agent. Those submissions expressly referred to the first applicant being worried about the wellbeing of her daughter, who was born in Australia, and that the daughter is well acquainted with Australian culture, value and country and that the third applicant child cannot be deprived of this opportunity only because of disturbing past of her parents. It was asserted that it would be punishing the child if she was deprived of that opportunity.
The first applicant in her statement in support of her claims identified that she now had a small baby girl, aged two and a half years, who was born in Australia and did not want to spoil her daughter’s life over there now onwards because, if she takes her to Nepal, the applicant alleges she cannot look after her as a normal baby needed during her childhood and that the first applicant’s mind will be full of mental torture and suffocation of life.
The first applicant appeared before the Tribunal on 29 October 2015 to give evidence and present arguments and the hearing was conducted with the assistance of an interpreter and that the applicants were represented in relation to the review by their migration agent. The Tribunal, in its reasons dated 10 November 2015, summarised the background to the application for review.
The Tribunal identified that the issues in the review were whether there is a real chance that, if the applicants return to Nepal, the applicants will be persecuted for one or more of the five convention reasons set out in the Refugee Convention and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Nepal there is a real risk the applicants will suffer significant harm.
The Tribunal expressly referred to the submissions made on 15 October 2015 and summarised the first applicant’s evidence at the hearing before the Tribunal, which relevantly referred to another reason the first applicant could not go back was that she now had a small child and there was a critical situation in Nepal with strikes and protests as not everyone was satisfied with the new Constitution. The first applicant claimed that the Maoists were even attacking children and that she did not feel safe. The first applicant claimed that if she did not follow the Maoists they could harm her child. The first applicant alleged that having been in Australia, the Maoists would expect the first applicant had a lot of money and expect donations from her and inflict significant harm on her and her child if she did not pay.
The Tribunal made reference to having carefully considered and weighed a range of independent material about Nepal, including that referred to in the delegate’s decision. The Tribunal made reference to accepting, until the signing of the Comprehensive Peace Agreement in November 2016, the decade-long Maoist insurgency was known as the people’s war and was a period of instability and threat for many Nepalese people, including the applicant and her family. The Tribunal accepted that during this time the first applicant and her family may have been pressured by Maoists to provide assistance.
The Tribunal accepted that the first applicant’s family sent her to study in Kathmandu from 2003 for her safety. The Tribunal found that the situation in Nepal changed at the end of 2006 and that the Maoist party abandoned a revolutionary past in favour of mainstream. The Tribunal noted that the first applicant claimed in spite of these changes she would still have to live with the same Maoists in her village and they would harm her because she used to work for them and did not always fulfil their demands. The Tribunal made reference to the depleted strength of the militant Maoists and the Tribunal considered that they have higher priorities than the applicant and her activities some seven years ago. The Tribunal expressed having serious reservations as to whether the applicant was involved with the Maoists at all, as claimed.
The Tribunal referred to the first applicant having provided inconsistent evidence in the course of her protection visa application on the key issue of the nature of her involvement with Maoists while she was in Nepal, including whether or not she joined the Maoist Party. The Tribunal referred to the first applicant telling the Tribunal variously that she was forced to join the Maoist Party when she was in year 8 and that she figured if she returned she would be forced to join the party and to do things she did not like to do and that she really did not like the party and the people. The Tribunal recorded in response to a question for clarification that the applicant alleged “they forcefully made me join, but from the bottom of the heart I did not feel like that”.
The Tribunal referred to the fact that the first applicant’s statement in support of her claims identifies that the first applicant refused to join the party, identified in paragraph 7 of the statement, in spite of continued pressure and feared that if she returned to Nepal they would again try to make her join the party against her will. The Tribunal also referred to the departmental interview, to which the Tribunal had listened and the first applicant said that she feared that if she returned to Nepal, the Maoists would take revenge for her not joining the party and that the reason they did not take revenge while she was still in Nepal was that they thought she might one day join the party.
The Tribunal also referred to inconsistent evidence as to the demands of the Maoists made upon her when she was in Kathmandu and what she did about them. The Tribunal referred to the Maoists having made the same demands as when she was living in her village, that the first applicant collect information about the army and security personnel as well as recruit people and collect money. The first applicant variously said she did not do it or only carried out some of the tasks, such as telling friends to join the Maoists and collecting information on what the public thought about the party, which she had to do to leave. The Tribunal noted in contrast at the Departmental interview the first applicant had said that while she used to report on the army when she was in her village, when she was living in Kathmandu the Maoists only asked her to promote the party and get her friends to join. The first applicant said variously that she did not do this, only did some things and after her marriage did not do anything at all.
The first applicant’s application for a protection visa identified that she married the second applicant on 25 August 2006 at Kathmandu. The Tribunal also expressed concern about the first applicant’s inconsistencies in her evidence as to whether or not she returned to live in her village after finishing studies in Kathmandu. The Tribunal noted that in her statement in support of her claims and evidence at the hearing the first applicant said she did do so. However, her evidence to the Department, the first applicant said several times that she did not return to her village, but stayed in Kathmandu until she left for Australia. The Tribunal noted that even when the Department put the inconsistency with her statement of claims to her, the first applicant confirmed that she never went back to her village, even for one day.
The Tribunal noted that pursuant to s 424AA of the Act, the Tribunal invited the first applicant’s comment or response in an agreed timeframe on the inconsistencies mentioned above arising from her interview with the Department. The Tribunal explained the relevance of the information was that it raised real doubts about the first applicant’s credibility and truthfulness. The Tribunal noted the first applicant responded several times that there was a difference in the way questions were asked of her by the Department and the Tribunal and that the delegate stopped her and did not allow her to tell her story. The Tribunal found that explanation disingenuous and noted that, as discussed with the first applicant, its concerns were what she said, rather than what she did not say. The Tribunal found the first applicant shifted her evidence to suit her needs and embellished her evidence before the Tribunal in an attempt to strengthen her claims, for instance, claiming that she was forced to join a Maoist Party and required to report on the army while living in Kathmandu.
The Tribunal found the multiple inconsistencies gave rise to the Tribunal not being satisfied the first applicant had been truthful about her experiences in Nepal or that any of her evidence can be relied upon. The Tribunal was not satisfied that the first applicant is in fear of persecution for a Convention reason or that there is a real chance she will suffer serious or significant harm on return to Nepal. The Tribunal was not satisfied the first applicant was ever a member of the Maoist Party, nor that she assisted them in any significant capacity, including as a messenger either in Phidim or in Kathmandu, or that she left her village against the Maoists’ wishes, as claimed. The Tribunal did not accept the applicant was contacted by Maoists, was required to work for them at any time or in any capacity, including recruiting members for the party, collecting money, informing people about the party, gathering information and reporting on the army and security personnel or being a whistleblower while in Kathmandu. The Tribunal therefore found the first applicant did not fail to carry out the Maoist demands after going to Kathmandu, as claimed.
It followed that the Tribunal was not satisfied that if the first applicant returns to Nepal the first applicant will face serious harm from the Maoists or the army because she left her village against Maoists’ wishes and did not carry out their demands in Kathmandu, nor that the Maoists will forcibly recruit her into a party, making her life full of humiliation and mental torture amounting to serious or significant harm.
The Tribunal expressly referred to having regard to the first applicant’s claim, summarised at paragraph 9(k), that the Maoists will expect that on a return from Australia she will have a lot of money, making her and her young daughter, the third named applicant, potential victims of an extortion attempt and inflict significant harm on her and her child if she could not pay. The Tribunal considered this claim to be speculative and was not satisfied that the first applicant’s fear in this regard constitutes a real chance that the applicants will suffer serious or significant harm on return to Nepal in the reasonably foreseeable future.
The Tribunal referred to having considered the submission that the first applicant is worried about the wellbeing of her daughter, who was born in Australia and is well acquainted with its culture and values. The Tribunal expressly referred to the submission that the third applicant should not be deprived of this opportunity, which the Tribunal presumes to mean the opportunity to live in Australia because of the disturbing past of her parents and it will be punishment for the child if she is deprived of that opportunity. The Tribunal was not satisfied that if the first applicant returns to Nepal with the third applicant, the third applicant will suffer serious or significant harm in the reasonably foreseeable future.
The Tribunal referred to the timing of the protection application by the first applicant, being five years after she and her husband arrived in Australia on student visas and the failure to secure a skilled visa in 2013 as exacerbated the Tribunal’s concerns regarding the first applicant’s credibility. The Tribunal made reference to, notwithstanding the first applicant’s comment that the reason she applied for protection was a fear of the Maoists as the Tribunal had discussed in its reasons, the Tribunal was of the view that the first applicant applied for the visa in an effort to secure her child’s future and achieve a migration outcome for her family. The Tribunal found on the evidence before it that it was not satisfied the first applicant will be targeted by the Maoists in Nepal, as claimed, or that there is a real chance that she will suffer serious or significant harm from Maoists on return to Nepal in the reasonably foreseeable future.
The Tribunal was not satisfied that the first applicant has a well-founded fear of persecution in Nepal now or in the reasonably foreseeable future arising essentially and significantly for one or more of the five Convention reasons, including political opinion. The Tribunal was not satisfied the first applicant’s husband, being the second applicant, or the daughter, being the third applicant, has a well-founded fear of harm should they return to Nepal now or in the reasonably foreseeable future.
The Tribunal referred to having also considered the first applicant’s claims under the complementary protection provisions. The Tribunal referred to its findings of fact that it did not accept the claimed events occurred and on the basis of the first applicant’s lack of credibility, the Tribunal did not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the first applicant being removed from Australia to Nepal there is a real risk that the first applicant will suffer significant harm as defined in s 36(2A) of the Act. The Tribunal was also not satisfied that the second applicant or third applicant will suffer significant harm on return to Nepal.
In these circumstances, the Tribunal was not satisfied that the criteria under s 36(2)(a) or s 36(2)(aa) of the Act was met and it followed that the criteria under s 36(2)(b) or (c) of the Act could not be satisfied. Accordingly the Tribunal affirmed the decision under review.
History of the proceedings
Before the Federal Circuit Court
The history of these proceedings are that they were commenced on 3 December 2015. On 11 February 2016 a Registrar of the Court made orders standing the matter over into a callover list on 13 October 2016. Those orders also provided the applicant with an opportunity to file an affidavit containing additional evidence, including a transcript of the Tribunal hearing by 17 March 2016 and gave the applicant an opportunity to put on an amended application. Those orders provided for submissions to be filed 14 days before the hearing date by the applicants and seven days before the hearing date by the first respondent and granted liberty to apply. On 10 October 2016, the Registrar made a further order standing the matter over for callover on 24 July 2017 and granted the parties liberty to apply to the Court for a listing for further directions on three days’ notice.
On 4 April 2017, this Court vacated the callover date, fixed the matter for hearing on 21 July 2017, and granted liberty to apply on two days’ notice. The practice for the listing of matters in this Court differs between different judges. Some judges stand matters over into callovers rather than fix the matters out of a protracted period of time. The Court retains control over matters, whether in the callover list or otherwise, and judges of the Court assist each other in relation to the disposition of the workload in the Court. In that regard, this Court has on a number of occasions, assisted other judges by taking matters listed in callovers and/or fixed for hearing and, to assist the other judges and listed them for hearing at an earlier date. The Court’s practice has been to provide liberty to apply on two days’ notice to ensure that if there is a relevant issue in respect of the proposed hearing date, the parties have liberty to apply in that regard. This Court heard the substantive application on 21 July 2017 and made orders dismissing the application as well as an order for costs. In the course of that hearing, there was also an oral application for an adjournment that was refused by the Court.
Before the Federal Court
On 16 March 2018, the learned Flick J in the Federal Court of Australia set aside the orders made by this Court by orders that allowed the appeal and remitted the matter to the Federal Circuit Court for reconsideration in accordance with law. The orders also provided for the first respondent to pay the appellant’s costs, including the preparation of submissions on filed on 1 November 2017 and 13 December 2017. It was apparent that the hearing took place on 23 November 2017 and that the last submissions were received by the Federal Court of Australia on 13 December 2017.
The orders made by the learned Flick J did not provide for this matter to be remitted to the Federal Circuit Court by a different judge so as to be differently constituted and at [21] of the reasons in CPF15 v Minister for Immigration and Border Protection [2018] FCA 330 expressly noted that an argument in relation to a reasonable apprehension of bias on the part of this Court was abandoned.
Remittance to the Federal Circuit Court
Approximately a month after the delivery of the reasons by the learned Flick J, this Court on 16 April 2018 made an order fixing the matter for hearing on 9 May 2018. No order had been made varying the orders made by both the Registrars and this Court granting liberty to apply. On 30 April 2018, an application in a case was filed asking this Court to disqualify itself and/or for an adjournment which was supported by an affidavit by the first applicant.
Interlocutory hearings 7 May 2018
At the commencement of the hearing today, the court first heard an application for disqualification in relation to ground 1 of the application of the case and delivered ex tempore reasons in CPF15 & Ors v Minister for Immigration & Anor [2018] FCCA 1162 for declining to recuse itself.
A further oral application was made based on the reasons that had been given, for the Court to again recuse itself. The Court delivered a further ex tempore judgment refusing the second application for recusal in CPF15 & Ors v Minister for Immigration and Anor (No.2) [2018] FCCA 1163.
The Court then heard the application for an adjournment and for reasons given in a separate judgment CPF15 & Ors v Minister for Immigration & Anor (No.3) [2018] FCCA 1164, the Court declined to grant an adjournment and was not satisfied that an adjournment was warranted in the interest of the administration of justice.
Substantive hearing 7 May 2018
The grounds in the application are as follows:
1. The Second Respondent took into account irrelevant considerations at paragraph 24 of the decision.
Particulars
a) The Second Respondent states that the Applicant " ... applied for the visa in an effort to secure her child's future and achieve a migration outcome for her family"
b) The Second Respondent took a negative inference from this. However all genuine Refugees and persons desperately needing protection from persecution and harm have the goal of securing the future of their children and achieving a migration outcome for their families.
2. The Second Respondent made jurisdictional error as it relied on an incorrect interpretation and application of the relevant law.
Particulars
a) The Second Respondent states at paragraph 25 that it is " ... not satisfied that the applicant has a well-founded fear of persecution in Nepal, now or in the reasonably foreseeable future, arising essentially and significantly for one or more of the five Convention reasons ... "
b) The requirement that the Second Respondent assess the Applicant under Section 36(2)(a) under the definition of Refugee does not require an analysis of whether the harm is 'now or in the reasonably foreseeable future.
c) The Second Respondent has mixed the test for 36(2)(a) and 36 (2)(aa) by assessing whether the Applicant meets the Refugee Criteria 'now, or in the reasonably foreseeable future' .
3. The Second Respondent failed to consider relevant considerations while assessing whether the Applicant's meet the Complementary Criteria, namely the harm that will be faced by the Third Applicant child, who was born in Australia, if they were to return to Nepal.
The Court then heard submissions on behalf of the applicant in support of the three grounds in the application.
Ground 1
In relation to ground 1, Mr Young of counsel took the Court to paragraph 24 of the Tribunal’s reasons. Mr Young referred to the place of birth of the third respondent as being Australia in 2011 and drew the Court’s attention to the claims identified in paragraph 9(k) of the Tribunal’s reasons. Mr Young argued that the safety of the child raised by paragraph 9(k) was a legitimate and proper consideration by the mother of the child and should not have been the subject of a negative inference in relation to the first applicant seeking to secure the future of her child and seeking a migration outcome for their family.
The Tribunal’s reasons are not to be read with a keen eye for error. The Tribunal in its reasons has identified why the Tribunal did not accept the first applicant’s claims in relation to her alleged fear as giving rise to a real chance that the applicants will suffer serious or significant harm on their return to Nepal in the reasonably foreseeable future. The Tribunal referred to the applicant’s inconsistency evidence in relation to her involvements with Maoists and joining the Maoist party and her delay in seeking protection. Those adverse findings have been summarised above and were open for the reasons given by the Tribunal. The reference to the word constitutes, on a fair reading, reflects the Tribunal engaging in an objective assessment in respect of the first applicant’s claimed fear applying the correct criteria, both under the Refugees Convention and in relation to complementary protection, taking into account the reasonably foreseeable future. The Tribunal correctly identified the relevant law and the reasons summarised above reflect a correct application of the law. The Tribunal did not rely upon an incorrect interpretation or an incorrect application of the law.
The Tribunal also took into account the submissions that have been advanced on behalf of the daughter in addition to the claim identified in paragraph 9(k) which was expressly referred to in paragraph 22 of the Tribunal’s reasons. It was in that context that the Tribunal was not satisfied that if the first applicant returns from Nepal the third applicant will suffer serious or significant harm in the reasonably foreseeable future. This again reflects the correct forward-looking test in relation to the third applicant. It was in that context that the Tribunal then made reference to the timing of the application in the context of when the first and second applicants first arrived in Australia and the making of the application after a failure to secure a skilled visa. It was logical and reasonable for the Tribunal to take into account that matter as impacting on the first applicant’s credibility.
The Tribunal made reference to the applicant’s comment that she applied for the visa because of her fear of Maoists, but the Tribunal noted that as it had discussed with the first applicant, and the Tribunal was of the view that she applied for the visa in an effort to secure her child’s future and achieve a migration outcome for her family.
The Tribunal’s reference to the motive of the first applicant was raised as an issue with the first applicant during the hearing in relation to the delay in applying for the protection visa was a relevant consideration. The Tribunal proceeded to find that it was not satisfied the first applicant has a well-founded fear of persecution now or in the reasonably foreseeable future and that the second and third applicants do not have a well-founded fear of harm should they return to Nepal now or in the reasonably foreseeable future.
There was no negative inference as characterised in the particulars to ground 1. Rather, the Tribunal identified what had occurred before the Tribunal. The Tribunal formed a view in respect of the first applicant’s motivation was open in the context of the adverse findings that have been made, both in relation to the first applicant’s claims and in relation to the delay in the application for the protection visa. No irrelevant consideration was taken into account. No jurisdictional error is made out by ground 1.
Ground 2
In relation to ground 2, Mr Young of counsel focused on paragraph 22 of the Tribunal’s reasons and in particular, the language where the Tribunal said it was not satisfied that the first applicant’s fear in this regard constitutes a real chance that the applicants will suffer serious or significant harm on their return to Nepal in the reasonably foreseeable future. The Tribunal’s reasons are not to be read with a keen eye for error. Mr Young argued that the reference to constitutes indicated that the Tribunal had failed to apply an objective assessment in considering the reasonably foreseeable future and that the Tribunal had misdirected itself by referring to whether the first applicant’s fear in this regard constitutes real chance.
For the reasons already given, the Court is of the view that the Tribunal correctly identified the relevant law in relation to both the Refugees Convention and complementary protection identified in paragraph 6 of the Tribunal’s reasons. Further, it is apparent on reading the Tribunal’s reasons as a whole, that the Tribunal correctly understood and applied the criteria in s 36(2)(a) and s 36(2)(aa) of the Act in its reference to serious or significant harm in the reasonably foreseeable future.
The Tribunal referred to the real chance of serious or significant harm in the reasonably foreseeable future in paragraph 22, 23, 25 and 26 of the Tribunal’s reasons. The proposition identified in ground 2(b) that the reasonably foreseeable future was not relevant to the objective analysis in determining whether the applicant had a well-founded fear of persecution is incorrect. I accept the first respondent’s submission that it is uncontroversial that s 36(2)(a) of the Act requires a consideration of whether there is a real chance that the applicant may suffer persecution in the reasonably foreseeable future; see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [279].
I accept the first respondent’s submissions that the decision fairly read as a whole makes clear the Tribunal properly applied s 36(2)(a) and s 36(2)(aa) of the Act. On the face of the Tribunal’s reasons, the Tribunal clearly understood that the Refugees Convention and complementary protection criteria were separate and discrete considerations and this is supported by the reasoning of the Tribunal in paragraphs 6, 19 and 26.
The Tribunal’s findings in relation to s 36(2)(a) of the Act went to the first applicant’s lack of credibility which invalidate the factual foundation for the first applicant’s assertions. On a fair reading of the Tribunal’s reasons, those adverse credibility findings incorporated and subsumed the claim identified in paragraph 9(k) to which the Tribunal expressly referred in paragraph 22 of its reasons. Accordingly, the Court does not accept that the Tribunal misunderstood or mixed the tests in relation to the criteria in respect of which the applicant sought protection under the Refugees Convention and in respect of complementary protection. It was open to the Tribunal to rely upon the adverse findings in respect of the Refugees Convention in determining the claim for complementary protection. The Tribunal did not have to expressly repeat its findings in that regard. No jurisdictional error as alleged in ground 2 is made out.
Ground 3
In relation to ground 3, Mr Young of counsel submitted that the Tribunal had failed to deal with an essential integer of the applicant’s claim in relation to the harm faced by the third applicant child if she were to return to Nepal. Mr Young in that regard again relied upon paragraph 9(k) of the Tribunal’s reasons and submitted that whilst paragraph 22 referred to paragraph 9(k), an essential integer of the applicant’s claims being that the third applicant would be harmed by Maoists was not dealt with by the Tribunal.
The Tribunal clearly identified in its reasons the claims concerning paragraph 9(k) and took the same into account in the reasoning that commenced in paragraph 22. That reasoning was in the context of having made adverse credibility findings in respect of the first applicant’s claims concerning harm from Maoists. Those adverse credibility findings, on a fair reading of the Tribunal’s reasons as a whole, subsumed the claimed fear of harm to the third applicant. I do not accept that the Tribunal’s reasons should be read selectively, or as if 22 were isolated and as if the Tribunal had ignored the whole of paragraph 9(k) in its adverse determination in paragraphs 22, 23, 25 and 26. The finding rejecting the applicants’ claimed fear of harm in relation to Maoists, on a fair reading, subsumed the applicant’s claimed fear of harm by Maoists to her child.
The Tribunal further dealt with the submission that was advanced in relation to the wellbeing of the daughter and the opportunity that she wanted as well as the claim in relation to alleged extortion in relation to paragraph 9(k) the express reference to inflict significant harm on her and her child does not reflect any misunderstanding of the applicant’s claims in relation to the third applicant. The Tribunal’s reasons were dispositive of the applicant’s claims and there is no essential integer or relevant consideration in relation to the claims concerning the third applicant that were not taken into account.
I accept the first respondent’s submissions that the adverse conclusions by the Tribunal in respect of all three applicants are amply supported by the factual findings of the Tribunal in paragraphs 9(k) read with 22, 23, 25 and 26. Those findings make clear that the Tribunal properly considered the claims that the third applicant would face harm if she were to return to Nepal. The Tribunal found those claims to be speculative and did not constitute a real chance that the applicants would suffer serious or significant harm. The reference to speculative by the Tribunal on a fair reading means remote and does not reflect any error. The Tribunal squarely found that, although the third applicant had been raised in Australia, returning her to Nepal did not constitute serious or significant harm. The reference to Mr Young submitted that the Tribunal had made adverse findings in relation to past events, but had not addressed the claim in relation to the third applicant or the reasons given. It is apparent that the Tribunal did address that claim and gave sufficient reasons as summarised above. No jurisdictional error as alleged in ground 3 is made out.
Accordingly, the application is dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 17 May 2018
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