CPH16 v Minister for Immigration

[2017] FCCA 1114

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPH16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1114

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – the Tribunal took into account and made observations regarding the applicant’s health – there is nothing to support the assertion that the applicant was not given an opportunity or chance to explain her claims – no jurisdictional error identified – application dismissed.

Legislation:

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

Applicant: CPH16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1836 of 2016

Judgment of: Judge Street

Hearing date: 25 May 2017

Date of Last Submission: 25 May 2017

Delivered at: Sydney

Delivered on: 25 May 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms S Sangha
Mills Oakley

ORDERS

1. For the purpose of these proceedings the applicant is to be described as CPH16.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.

THE COURT NOTES THAT:

The applicant in the present matter was originally identified in the initiating application by the pseudonym BUM16 and that was subsequently changed by the Registry to CPH16.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1836 of 2016

CPH16

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 Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 16 June 1016 affirming the decision of the delegate not to grant the applicant a protection visa.

2. The applicant arrived in Australia on 28 June 1020, travelling on the passport of her sister-in-law who had been granted a student dependent visa on 17 March 2009. It was on 10 August 2010 that the applicant lodged her first application for a protection visa which was refused on 12 April 2011. The applicant applied for a review of the refusal on 9 May 2011 and the decision in respect of the first visa application was affirmed on 30 September 2011. 

3. This was the applicant’s second application for protection and was lodged on 22 May 2014. The applicant is a citizen of Nepal and her claims were assessed against that country. The applicant claimed to fear harm from Maoists and as a single or divorced woman from her husband. The second application was correctly confined by the Tribunal to the issue of complementary protection, the applicant having made unsuccessfully an earlier application for protection.

4. The delegate made adverse credibility decisions and found on 15 January 2015 that the applicant did not meet the criteria under the Act for the grant of a protection visa on the grounds of complementary protection.

The Tribunal’s decision

1. The applicant applied for review on 30 January 2015. By letter dated 31 March 2016, the applicant was invited to attend a hearing on 28 April 2016. The applicant failed to appear on that date and provide an explanation, as a result of which the applicant was sent a further letter on 4 May 2016 inviting the applicant to appear at a hearing on 17 May 2016. The applicant appeared on that date to give evidence and put submissions.

2. On the basis of the hearing record, the hearing occupied approximately two hours. The Tribunal identified the applicant’s background and correctly set out the relevant law in respect of complementary protection. The Tribunal identified the applicant’s claims and evidence.  The Tribunal set out in summary what occurred at the hearing before the Tribunal which included the Tribunal raising credit issues with the applicant in the course of that hearing and the applicant’s responses.

Consideration of harm feared from Maoists

1. The Tribunal made adverse credibility findings in relation to the applicant’s claims to fear harm in Nepal. The Tribunal gave detailed reasons in support of those adverse findings in respect of the applicant’s claimed fear of harm from the Maoists. The Tribunal identified the inconsistency in the applicant’s accounts and also made reference to the difficulty in accepting the applicant that if the applicant genuinely feared the Maoists, that she would abandon her husband and children to this clear danger and leave for Australia.

2. The Tribunal did not accept the applicant’s credibility in relation to her account of experiences in respect of the Maoists.  The Tribunal was not satisfied that the applicant was threatened by the Maoists or that they extorted her for money. The Tribunal was not satisfied that the reason for the applicant moving to Kathmandu was because of her fear of harm from the Maoists. The Tribunal was not satisfied that the applicant was motivated to leave Nepal for Australia by news that Maoists had located her in Kathmandu and were planning to kill her.  The Tribunal was unsatisfied with the applicant’s overall reliability as a witness. 

Consideration of harm feared from the applicant’s husband

1. The Tribunal did not accept that the applicant was credible in relation to her claims of harm from her husband. The Tribunal was not satisfied that she received threats from him to kill her and their children, that she fears harm of any kind from him or that their marriage, has in fact broken down. The Tribunal found it likely that the claims were advanced by the applicant at the last moment before her protection visa interview, when she realised that the previous claim to fear harm from Maoists was likely to be rejected.

2. The Tribunal made express reference to the applicant’s assertion that she was mentally disturbed as a result of the demands and threats she received from her husband. The Tribunal was not satisfied that the applicant had any mental difficulties ascribed to threats from her husband. The applicant indicated that she had not consulted any specialist such as a psychologist or a psychiatrist. The Tribunal observed there was nothing in the information before the Tribunal to indicate she had received any other form of treatment. The Tribunal observed, having had the opportunity to observe the applicant at some length during the hearing, the applicant gave no appearance that her ability to respond to questions or articulate claims was hindered by any mental or cognitive difficulties. The Tribunal was not satisfied that the applicant in fact suffered mental disturbances as she claimed in her statement.

Consideration of harm feared as a single woman

1. The Tribunal was not satisfied that the applicant would be in any way at risk of harm from members of society because she would be regarded as a single or divorced woman, or a person of bad character. 

2. Having considered the claims individually and cumulatively, the Tribunal was not satisfied there was 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 she would suffer significant harm in terms of s.36(2)(aa) of the Act from Maoists, her husband or any other member of society. The Tribunal was not satisfied there was a real risk she would be arbitrarily deprived of her life, the death penalty would be imposed, nor would she be subjected to torture or subjected to cruel or inhumane treatment or punishment, or degrading treatment or punishment. The Tribunal found that the applicant failed to satisfy the criteria under s.36(2)(aa) of the Act and affirmed the decision of the delegate.

Before this Court

1. A Registrar of the Court made orders on 15 September 2016 providing the applicant with an opportunity to file an amended application, affidavit and submissions. No such documents were filed by the applicant.

2. The grounds in the application are as follows:-

   1. My health was not good on the day of interview. I could not explain my situation properly while I was not well, I was panic nervous.

   2. They did not ask me all my situations. They made juristic error as they need to go thoroughly in my case.

   3. I had lot of queries and need to explain in detail but could get chance to explain why I have substantial risk to go back my country.

   4. I humbly request you to review the case.

3. At the commencement of the hearing, the Court explained to the applicant that this was a final 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 a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. 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 that the Tribunal’s decision was unlawful or unfair, the application would be dismissed. 

4. The Court explained it would have identified the evidence, then hear submissions from the applicant, then hear submission from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that she understood the nature of the hearing as explained by the Court. 

Applicant’s submissions from the bar table

1. From the bar table the applicant stated that she was not satisfied with the decision and made a criticism that she was not accepted as telling the truth. The applicant also asserted that she could not go back, and that she needed to stay in Australia and that she liked it here. Nothing said by the applicant from the bar table identified any jurisdictional error.

Consideration

Ground 1

1. In relation to ground 1, it is apparent that the Tribunal took into account the applicant’s assertions in relation to her health. The Tribunal made observations that there was nothing to indicate that the applicant suffered from any mental disturbance. The Tribunal’s summary of the hearing before the Tribunal is consistent with the applicant having a real and meaningful opportunity to put her evidence and submissions. On the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the material before the Court, the Tribunal complied with the obligations of procedural fairness.  The assertion by the applicant that she was not well and nervous at the time of the interview is not supported by anything before the Court. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, it is apparent from the Tribunal’s summary that the Tribunal explored the applicant’s claims and evidence. It was open to the Tribunal to make the adverse credibility findings made in respect to the applicant’s evidence. Those adverse credibility findings cannot be said to lack an evident and intelligible justification. The Tribunal’s reasons reflect an orthodox approach to the review and there is no substance in the assertion that the Tribunal failed to address the whole of the applicant’s case. No jurisdictional error is made out by ground 2. 

Ground 3

1. In relation to ground 3, on the face of the material before the Court, the applicant had an opportunity to put her claims and submissions before the Tribunal. There is nothing to support the assertion that the applicant was not given an opportunity or chance to explain her claims. The Tribunal’s summary of what occurred at the hearing is inconsistent with that assertion. Ground 3 fails to make out any jurisdictional error.

Ground 4

1. Ground 4 is a request to this Court to engage an impermissible merits review. This Court has no power to revisit the merits or make fresh findings of fact. This Court has no power to determine the matter on compassionate grounds. 

Conclusion

1. No jurisdictional error is identified by the application. The application is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 29 June 2017