CPF15 v Minister for Immigration

[2017] FCCA 1703

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPF15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1703

Catchwords:

MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – protection visa – whether the Tribunal took into account irrelevant considerations – whether the Tribunal incorrectly interpreted the law – no jurisdictional error made out – application dismissed.

PRACTICE AND PROCEDURE – Application for an adjournment – whether an adjournment was in the interests of the administration of justice – application refused.

Legislation:

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

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: 21 July 2017

Date of Last Submission: 21 July 2017

Delivered at: Sydney

Delivered on: 21 July 2017

REPRESENTATION

The first applicant appeared in person.

Solicitors for the Respondents: Ms E Cheesman
Clayton Utz

ORDERS

1. The application is dismissed.

2. The first and second applicants pay the first respondent’s costs fixed in the amount of $6,825.00.

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

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 10 November 2015 affirming a decision of the delegate not to grant the applicants protection visas. The first applicant is the wife of the second applicant and mother of their child, the third applicant. The second and third applicants were included as members of the family unit.

2. The first and second applicants arrived in Australia on student visas on 22 February 2008. The third applicant was subsequently born in Australia. The first and second applicants applied for subclass 485 (Temporary Skilled) visas on 30 April 2013. That application was refused on 9 September 2013. The applicants appealed to the Tribunal on 9 October 2013, and, on 26 November 2013, the Tribunal found that it had no jurisdiction to determine the matter.

3. It was not until 11 December 2013, that the applicants applied for protection. On 2 May 2014, a delegate of the Minister found that the applicants failed to meet the criteria for the grant of a protection visa and the application for the visas was refused.

The Tribunal’s decision

1. The applicants applied to the Tribunal for review on 27 May 2014. By a letter dated 6 August 2015, the applicants were invited to attend a hearing before the Tribunal on 29 October 2015. The first applicant appeared on that date to give evidence and present arguments and the applicants were represented in the review by their migration agent.

Refugee assessment

1. The Tribunal identified the first applicant’s background and correctly set out the relevant law in an appendix incorporated into the reasons of the Tribunal. The Tribunal identified the first applicant’s claims, which, in summary, were a fear by the first applicant of harm from Maoists if she returned to her village in Nepal, or from the army, as the first applicant alleged the same people were still there in her village. The Tribunal set out the first applicant’s claims and evidence in detail and referred to the submissions advanced on the applicant’s behalf prior to the hearing on 15 October 2015.

2. The Tribunal identified that the first applicant gave inconsistent evidence in the course of her protection visa application on the key issue of the nature of her involvement with the Maoists while she was in Nepal, including whether or not she joined the Maoist party. The Tribunal also identified the inconsistency in the first applicant’s claim that was raised by the Department about whether she returned to her village or stayed in Kathmandu.

3. The Tribunal raised in the course of the hearing those inconsistencies with the first applicant and explained that they went to the credibility of the first applicant, and the first applicant alleged that the Delegate stopped her and did not allow her to tell her story. The Tribunal found that explanation disingenuous, and noted that it discussed with the first applicant its concerns with what she said rather than what she did not say.

4. The Tribunal formed the view that the first applicant shifted her evidence to suit her needs and embellished her evidence before the Tribunal in an attempt to strengthen her claims. The Tribunal identified in that regard an example being the first applicant saying she was forced to join the Maoist party and required to report to the army while living in Kathmandu. Because of the multiple inconsistencies, the Tribunal was not satisfied the applicant was being truthful about her experiences in Nepal or that any of her evidence can be relied upon.

5. 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 her return to Nepal. The Tribunal was not satisfied the first applicant was ever a member of the Maoist party, nor that she had assisted them in any significant capacity, including as a messenger, either in her village or Kathmandu, or that she left her village against the Maoists’ wishes as claimed.

6. The Tribunal did not accept that the applicant was contacted by the Maoists, was required to work or work for them, at any time in or in any capacity, including recruiting members of the party, collecting money, informing people about the party, gathering information, reporting on the army and security personnel, or being a whistle-blower while in Kathmandu. The Tribunal found the applicant did not fail to carry out the Maoists’ demands after going to Kathmandu as claimed.

7. The Tribunal was not satisfied that if the first applicant returns to Nepal the first applicant will face serious harm from Maoists or the army because she left her village against the Maoist’s wishes and did not carry out their demands in Kathmandu, nor that the Maoists will forcibly recruit her into their party, making her life full of humiliation and mental torture amounting to serious or significant harm.

8. The Tribunal referred to the first applicant’s claim that she would be exposed to extortion on return. The Tribunal considered that claim to be speculative. The Tribunal was not satisfied that her 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.

9. The Tribunal referred to the first applicant’s concern in relation to her daughter and the opportunities she wanted her to have in Australia. The Tribunal was not satisfied if the first applicant returns to Nepal the third applicant will suffer serious or significant harm in the reasonably foreseeable future.

10. The Tribunal made reference to the timing of the applicant’s protection visa application and found that the migration history of the applicants exacerbated the Tribunal’s concerns about the first applicant’s credibility. Notwithstanding the first applicant’s claim that she applied for the visa because she was in fear of the Maoists, for the reasons identified by the Tribunal, 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.

11. The Tribunal was not satisfied the first applicant will be targeted by Maoists in Nepal as claimed, or that there is a real chance she will suffer serious or significant harm from the Maoists on her return to Nepal in the reasonable foreseeable future. The Tribunal was not satisfied 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 that the first applicant’s husband or daughter, being the second and third applicants, have a well-founded fear of harm should they return to Nepal now or in the reasonably foreseeable future.

Complementary protection assessment

1. The Tribunal then turned to the issue of complementary protection, and, in light of the findings made and the adverse credibility findings, 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.

2. The Tribunal also found that it was satisfied that the second and third applicants will not suffer significant harm upon their return to Nepal, and, in these circumstances, the Tribunal found that the applicants failed to meet the criteria under s.36(2) of the Act and affirmed the decision under review.

Proceedings before this Court

1. The proceedings were commenced on 3 December 2015, and, on 10 October 2016, a Registrar made orders placing the matter in a callover. On 11 February 2016, a Registrar made orders providing the applicants with an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed. On 4 April 2017, this Court made an order fixing the matter for hearing today.

2. At the commencement of the hearing, the Court explained to the first applicant that this was a hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or denial of procedural fairness to the first applicant, her husband, or child. The Court explained that, in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair.

3. The Court explained that, if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that, if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed. The Court explained it would have identified the evidence and then hear submissions from the first applicant and then hear submissions from the solicitor for the first respondent and then hear submissions from the first applicant in reply. The first applicant confirmed that she understood the nature of the hearing as explained by the Court.

4. From the bar table, the first applicant maintained that she would suffer harm if she were to return to Nepal, and that the people who she feared were still there. The Court repeated its explanation to the first applicant of the nature of the limited power of the Court to consider whether the Tribunal’s decision was unlawful or unfair and that the Court could not consider the merits of the matter, or make fresh findings of fact, or determine the matter on compassionate grounds.

Application for an adjournment

1. The first applicant then raised that she was hoping to have a barrister represent her, but because the matter was brought forward she was not able to have a barrister present. The Court sought to clarify whether the first applicant was seeking an adjournment, and the first applicant confirmed that she was seeking an adjournment. No earlier notice of an adjournment had been given to the first respondent. The adjournment was opposed by the first respondent.

2. The first applicant said that she had spent money on her child and had limited ability to earn income and did not have the capacity to afford a barrister. The Court asked the first applicant why, in circumstances when the proceedings were commenced on 3 December 2015, the Court should have any confidence that an adjournment would be of any utility. Nothing said by the first applicant from the bar table identified any utility in an adjournment. The Court is not satisfied that an adjournment is warranted in the interests of the administration of justice, and it was for these reasons that the adjournment was refused.

3. Nothing said by the first applicant from the bar table identified any jurisdictional error.

Grounds in the application

1. 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.

Consideration

Ground 1

1. In relation to Ground 1, the Tribunal identified logical and rational reasons in support of the adverse credibility findings. The inconsistencies of the first applicant and the delay in the applicants’ application for a protection visa are obvious and relevant considerations and it was open to the Tribunal to take into account those inconsistencies and that delay in the making of adverse credibility findings. It was open to the Tribunal in the circumstances to make the adverse observation in relation to the real reasons behind the applicants’ application for protection. No jurisdictional error is made out by Ground 1. There is no irrelevant consideration that the Tribunal took into account.

Ground 2

1. In relation to Ground 2, the Tribunal correctly identified the relevant law and, on the face of the Tribunal’s reasons, correctly applied the relevant law in determining whether the applicants met the criteria under the Refugees Convention and/or whether the applicants met the criteria in relation to complementary protection. On the face of the material before the Court the Tribunal complied with its statutory obligations in the conduct of the review and complied with its obligations of procedural fairness in the conduct of the review. There was no conflation of the relevant tests by the Tribunal. No jurisdictional error as alleged in Ground 2 is made out.

Ground 3

1. In relation to Ground 3, it is apparent on the face of the Tribunal’s reasons that the Tribunal considered the issue of complementary protection in relation to the second and third applicants and made adverse findings that were open on the material before the Tribunal. No jurisdictional error is made out by Ground 3.

Conclusion

1. No jurisdictional error is made out by the application. The application is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  16 August 2017