Cso16 v Minister for Immigration

[2017] FCCA 386

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSO16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 386

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.422B, 424A, 424AA, 425

Cases cited:

Abebe v Commonwealth (1999) 197 CLR 510

ApplicantWAEE v Minister for Immigration [2003] FCAFC 184; (2003) 75 ALD
Htun v Minister for Immigration (2001) 194 ALR 244
Minister for Immigration v Wu Shan Liang & Ors (1996) 185 CLR 259
Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407
SZBYR v Minister for Immigration (2007) 235 ALR 609
SZGIY v Minister for Immigration [2008] FCAFC 68

Applicant: CSO16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2577 of 2016

Judgment of: Judge Driver

Hearing date: 2 March 2017

Delivered at: Sydney

Delivered on: 2 March 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr K Eskerie of Sparke Helmore

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2577 of 2016

CSO16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application seeking review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 31 August 2016.  The Tribunal affirmed a decision of the delegate of the Minister (delegate) not to grant the applicant a protection visa.  The background facts relating to the applicant’s claims for protection, and the Tribunal decision on them, are uncontroversial and are set out in the Minister’s outline of submissions filed on 23 February 2017. 

Background

1. The applicant, a citizen of Nepal, arrived in Australia on 9 January 2013 as an irregular maritime arrival.[1] On 23 May 2013, the applicant lodged an application for a protection visa.[2]  The applicant set out his claims to fear harm in Nepal in a statutory declaration dated 22 May 2013 and annexed to his protection visa application.[3] In summary, the applicant claimed to fear harm on the basis that:

   a)From 2007, the applicant worked in an illegal business exporting red sandalwood. The police often intervened in the smuggling activities, and arrested and detained the smugglers. The applicant was in constant danger of being caught by the police.

   b)The police raided his worksite and detained and arrested some of his colleagues. He was told that he was on a wanted list and he feared that he would be arrested, detained, and forced to provide information to the police about the smugglers. He went into hiding in Kathmandu because he feared for his safety.

   c)The police investigated him and questioned his wife about his involvement with the smugglers and his whereabouts. The smugglers also questioned his wife about him. His wife and child moved to Kathmandu. He feared that the smugglers would kill or harm him because they suspected that he informed or would inform the police about them.

   d)If returned to Nepal, he feared that the smugglers would kill, torture and/or force him to work for them. He feared harm because they suspected he had informed on them to the police and/or because he was perceived to have rejected and betrayed them.

   e)He feared he would be detained, tortured or harmed by the police to make him inform on the smugglers. He feared he would be imputed with a political opinion of opposition to the government because of his participation in smuggling and because he refused to cooperate with the police. The authorities could not protect him because it was the police from whom he feared harm.

   [1] Court Book (CB) 90

   [2] CB 15-44

   [3] CB 70-74

2. During the interview with the delegate, the applicant also claimed that he feared the police would harm him because they colluded with the smugglers.

3. On 28 November 2014, the delegate refused the grant of a protection visa.[4]

   [4] CB 90-104

4. On 4 December 2014, the applicant sought review of the delegate’s decision.[5] On 25 August 2016, the applicant appeared at a hearing before the Tribunal with the assistance of a Nepali interpreter.[6] On 31 August 2016, the Tribunal affirmed the decision under review.[7]  The Tribunal rejected the totality of the applicant’s claims as fabrications, based on comprehensive adverse credibility findings.

   [5] CB 105-112

   [6] CB 124-126

   [7] CB 129-141

Current proceedings

1. The show cause application was filed on 23 September 2016.  The applicant continues to rely upon that application.  There are eight grounds in the application:

   1.The Administrative Appeal Tribunal (AAT) made factual error in its judgment at paragraph 9 without properly applying relevant law.

   2. The Administrative Appeal Tribunal denied the applicant procedural fairness by reaching adverse conclusion without considering written evidence provided.

   3. The Administrative Appeal Tribunal (AAT) erred in its judgment on credibility conclusion at paragraph 17 about Red Sandalwood.

   4. The Administrative Appeal Tribunal (AAT) erred in its judgment at paragraph 35 by not accepting the applicant has provided truthful evidence.

   5. The Administrative Appeal Tribunal (AAT) erred in its judgment not giving enough consideration in favour of Applicant that his life in danger if he return to Nepal.

   6. The Administrative Appeal Tribunal (AAT) erred in its judgment at paragraph 48 even after providing evidence on oath that applicant is Christian.

   7. The Administrative Appeal Tribunal made legal error that Applicant not face serious harm at paragraph 51 if he will return to Nepal.

   8. The Administrative Appeal Tribunal (AAT) in its judgment failed to use its reasoning in applying UN refugee convention, Migration Act – 1958 and Migration Regulation – 1994.

   (errors in original)

2. The application is supported by an affidavit filed with it, which makes uncontroversial factual assertions, which I receive as evidence.  I receive paragraphs [7] and [9] of the affidavit as submissions. 

3. There is one peculiarity in the application in that, although the applicant is Nepalese and was assisted by a Nepali interpreter before the Tribunal, in these proceedings he requested a Hindi interpreter.  This was plainly an error, apparently by a friend who was assisting the applicant. The error was detected at the first court date, but unfortunately was not corrected.  A Hindi interpreter had been booked for today’s show cause hearing, but a Nepali interpreter was required by the applicant.  The Hindi interpreter was released, and the hearing proceeded with the assistance of two Nepali telephone interpreters. I satisfied myself that the standard of interpretation provided was at least adequate for the purposes of the hearing. 

4. I also confirmed with the applicant and the Minister’s solicitor that they had had sufficient time to file any material for the purposes of today’s hearing.  The applicant had filed nothing following his application and supporting affidavit. He confirmed that he did not wish to file anything further.  I considered that this step was necessary because of what appeared to me to be anomalies in the timetable put in place by a registrar for today’s hearing. 

5. I received, as evidence, the court book filed on 17 February 2017.  The applicant had a copy of the court book with him, and confirmed receipt of the Minister’s written submissions.  However, the applicant said that he had not had the opportunity to properly read the Minister’s submissions.  I dealt with that problem by having the Minister’s solicitor present his submissions orally first, and then hearing from the applicant.

6. After hearing the Minister’s submissions, and my explanation of the purpose of today’s hearing, the applicant stated that he did not have much to say.  Essentially, he has brought these proceedings because of his concerns that he was not believed by the Tribunal.  He viewed the proceedings as an opportunity to attempt to deal with the merits of the Tribunal’s adverse credibility conclusions.  As I explained to the applicant, he was mistaken in that expectation.  The applicant had nothing further to say.

7. The Minister’s submissions are clear, and deal adequately with the grounds of review advanced by the applicant. I agree with those submissions. 

Ground 1

1. By Ground 1, the applicant contends that the Tribunal made a factual error at [9] of its decision[8] without properly applying the relevant law, but provides no particulars as to the alleged factual error. In any event, paragraph [9] of the Tribunal’s decision merely sets out the applicant’s background in line with his own evidence. Even if the Tribunal had made a wrong finding of fact, this in itself would not generally constitute jurisdictional error.[9]

   [8] CB 131

   [9] Abebe v Commonwealth (1999) 197 CLR 510 at [137]

Ground 2

1. Ground 2 advances two contentions: first, the applicant was denied procedural fairness and, secondly, the Tribunal reached an adverse conclusion without considering the written evidence provided by the applicant.

2. In relation to procedural fairness, the applicant has not provided any particulars or evidence in support of this contention. In any event, the Tribunal complied with the requirements of Division 4 of Part 7 of the Migration Act 1958 (Cth) (Migration Act), which by virtue of s.422B of the Migration Act is an exhaustive statement of the natural justice hearing rule in relation to the matters that it deals with.

3. Pursuant to s.425 of the Migration Act, the applicant attended a hearing before the Tribunal on 25 July 2016, during which he gave evidence and presented arguments with the assistance of a Nepal interpreter.[10]

   [10] CB 124

4. In light of inconsistencies in the applicant’s evidence, the Tribunal had doubts about the credibility of his claims of harm. There was no obligation on the Tribunal, pursuant to s.424A, to put these inconsistencies and doubts to the applicant. ‘Information’ for the purposes of s.424A does not include the existence of doubts, inconsistencies or the absence of evidence.[11]  It also does not include country information or information provided by an applicant for the purpose of the decision under review.[12] Notwithstanding this, the Tribunal’s decision record indicates that it put to the applicant its concerns about the credibility of his claims and country information purportedly pursuant to s.424AA.[13] No error is revealed in the Tribunal’s cautious approach in inviting the applicant’s response to the inconsistencies.[14]

   [11] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [18]

   [12] Migration Act, s.424A(3)(a) and (ba)

   [13] CB 130 at [7]

   [14] SZGIY v Minister for Immigration [2008] FCAFC 68 at [30]

5. In relation to the second contention, the applicant has not specified which written material he contends the Tribunal failed to consider and no such error is apparent on a fair reading of the Tribunal’s reasons. The applicant provided a statutory declaration with his protection visa application.[15]  He also provided to the Tribunal a copy of the delegate’s decision, which set out details of the applicant’s evidence at the delegate interview, country information, and the delegate’s reasons for refusing the application.[16] There is no suggestion that the applicant provided any further documents or submissions to the Tribunal.[17]

   [15] CB 70-74

   [16] CB 130 at [5]

   [17] CB 130 at [6]

6. In reaching its credibility findings, the Tribunal made specific references to inconsistencies in the applicant’s statutory declaration, his evidence at the delegate interview as set out in the delegate’s decision, and his oral evidence at the Tribunal hearing.[18] There is, therefore, no basis for an inference that any written materials, or claims contained therein, were overlooked.[19] 

   [18] CB 133-136 at [18]-[29]

   [19] ApplicantWAEE v Minister for Immigration [2003] FCAFC 184 at [47]; (2003) 75 ALD

7. Accordingly, Ground 2 cannot be made out.

Grounds 3 and 4

1. Grounds 3 and 4 contend that the Tribunal erred in its credibility findings at [17] and [35] of its decision.[20] Credibility findings, while not immune from judicial review, are factual findings “par excellence” entrusted to the Tribunal to make.[21] The Tribunal’s findings about the applicant’s credibility were reasonably open to it on the evidence before it. At [17] of its decision, the Tribunal found that the applicant was not credible on the basis of his changing and inconsistent evidence about red sandalwood. The Tribunal also referred to the applicant’s inconsistent evidence as to when he started working in the illegal smuggling business,[22] when he became aware that it was illegal,[23] when he first had problems due to his work,[24] and how long he was hiding after the police raid.[25] It concluded at [35] that it did not accept that the applicant had provided truthful evidence about his claims concerning Nepal or his colleagues fleeing to India.[26] 

   [20] CB 133, 136

   [21] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]

   [22] CB 134-135 at [21]-[22]

   [23] CB 135 at [23]

   [24] CB 135 at [24]-[25]

   [25] CB 135-136 at [26]-[27]

   [26] CB 136

2. Insofar as Ground 3 contends that the Tribunal made a wrong finding of fact that red sandalwood is not harvested in Nepal or the applicant’s home district, there is generally no jurisdictional error in the Tribunal making a wrong finding of fact.[27] In any event, it is clear that the Tribunal’s adverse credibility finding was not based on whether red sandalwood is actually harvested in Nepal. Rather, the Tribunal considered as relevant to the applicant’s credibility his changing and inconsistent evidence about his work harvesting red sandalwood in Nepal.[28]

   [27] Abebe v Commonwealth (1999) 197 CLR 510 at [137]

   [28] CB 132-134 at [18]-[20]

Ground 5 

1. Ground 5 contends that the Tribunal erred in not giving adequate consideration in favour of the applicant that his life was in danger if he returned to Nepal. Contrary to the applicant’s assertion, the Tribunal gave extensive consideration to his claims that his life was in danger from smugglers and the police,[29] but found that his evidence and claims were not credible.[30]

   [29] CB135-136 at [24]-[27]

   [30] CB 136-137 at [36]-[39]

2. Ground 5 does little more than express disagreement with the Tribunal’s findings and, as such, invites impermissible merits review.[31]

   [31] Minister for Immigration v Wu Shan Liang & Ors (1996) 185 CLR 259

Ground 6

1. Ground 6 contends that the Tribunal failed to consider the applicant’s claim to fear harm as a Christian. There is nothing in evidence before the Court to suggest that the applicant ever advanced such a claim; nor can it be said that such a claim clearly arose on the material before the Tribunal.[32]

   [32] Htun v Minister for Immigration (2001) 194 ALR 244 at 259 at [42]

2. At [48] of its decision,[33] the Tribunal found that it was not satisfied that the applicant had made a claim to fear harm on the basis of his religion in Nepal. In coming to this conclusion, it noted that the applicant claimed to be a Christian on his visa application form, but had not made any claims of harm as a Christian in his written materials. The Tribunal noted the delegate’s decision referring to the interview in which the applicant was asked whether he would be targeted or harmed due to his religion on return to Nepal, to which the applicant responded “no”. The Tribunal also noted the applicant’s evidence at the Tribunal hearing that he went to church in Nepal, but since arriving in Australia had not practised his religion. It further noted that he stated that he did not suffer any harm when practising his religion in Nepal. Accordingly, Ground 6 cannot be sustained.

   [33] CB 139

Ground 7

1. Ground 7 contends that the Tribunal made a legal error in finding, at [51] of its decision,[34] that the applicant did not face serious harm. Paragraph 51 summarised the Tribunal’s conclusion that it was not satisfied that the applicant faced a real chance of serious harm for any of the reasons claimed and that, therefore, he did not meet the Convention criterion. The contention is otherwise unparticularised and is little more than a bald assertion. No error of law is apparent on the face of the Tribunal’s reasons.  Ground 7 cannot succeed.

   [34] CB 139

Ground 8

1. Ground 8 contends that the Tribunal failed to use its reasoning in applying the Refugee Convention, the Migration Act, and the Migration Regulations1994 (Cth). It is clear that the Tribunal correctly applied the relevant law and gave extensive reasons for making adverse credibility findings on the basis of which it found that the applicant did not meet the Convention criterion or the complementary protection criterion. Therefore, this contention, too, must fail.

2. The applicant’s affidavit at [7] and [9] adds nothing material to the grounds of review. Further, and noting that the applicant has no legal representation, on my own reading of the available material I am unable to discern an arguable case of jurisdictional error by the Tribunal.

3. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error. I will order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

4. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant did not oppose a costs order.

5. I will order the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,416.

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

Associate: 

Date:  6 March 2017