CTJ16 v Minister for Immigration

[2017] FCCA 3170

FEDERAL CIRCUIT COURT OF AUSTRALIA

CTJ16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3170

Catchwords:
MIGRATION – Application for judicial review of Administrative Appeals Tribunal (Tribunal) decision affirming delegate’s decision not to grant the applicant a protection visa – whether Tribunal considered applicant’s evidence – whether Tribunal failed to take into account relevant consideration or took into account irrelevant considerations – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424A

Applicant: CTJ16

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2605 of 2016

Judgment of: Judge Manousaridis

Hearing date: 24 November 2017

Date of Last Submission: 24 November 2017

Delivered at: Sydney

Delivered on: 24 November 2017

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitor for the first respondent: Ms E. Cheesman

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2605 of 2016

CTJ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, a citizen of Nepal, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant to the applicant a Protection (Class XA) visa (Protection visa).

2. The applicant arrived in Australia on 6 April 2008 as the holder of a student visa. On 3 June 2010 the applicant applied for a further student visa. A delegate of the Minister refused to grant the applicant a further student visa and, on 7 August 2013, the Migration Review Tribunal affirmed the delegate’s decision. On 1 April 2014 the applicant applied for a Protection visa.  On 1 December 2014 a delegate of the Minister refused to grant the applicant a Protection visa, and on 29 August 2016 the Tribunal affirmed the delegate’s decision.

3. I first turn to the applicant’s claims for protection.  These are contained in a statement dated 1 April 2014 that form part of the applicant’s application for a Protection visa (Statement). In that statement the applicant claimed he borrowed money from personal lenders to fund his study and living expenses in Australia.  The applicant promised to repay the loan with “very high interest” but, after arriving in Australia, the applicant could not save money to repay his “debtors” in Nepal. The applicant claimed he frequently received threatening phone calls and messages to repay the lender or face the consequences. He claimed he has not returned to Nepal in the previous six years because he fears he might be killed, kidnapped, or beaten by the lenders. The applicant further claimed that the money lenders continuously call and hassle the applicant and his family. The applicant claimed that the Nepalese government does not have the resources to protect citizens from torture, blackmail, and kidnapping and people are shot, killed, or kidnapped by gang members for extortion purposes. 

4. Before the Tribunal the applicant claimed he had borrowed AUD$25,000 (which is between 18-20 lakhs) at an interest rate of 13 per cent from a man named Mr P who is a high aristocrat in the applicant’s home area. The money was given to the applicant’s mother and there was no documentation, just a “gentleman’s agreement”.

5. The Tribunal found the applicant had not given truthful or credible evidence about his circumstances, and it did not accept the applicant’s claims on this basis.  The Tribunal did not accept the applicant owed money to a Mr P and consequently was not satisfied the applicant faces a real chance of serious or significant harm from Mr P or anyone else if the applicant returns to Nepal in the reasonably foreseeable future.  The Tribunal relied on a number of matters. 

6. First, there was no documentation to support the existence of a loan from Mr P to the applicant.  The Tribunal had concerns about accepting oral evidence that there was never any documentation for the loan or the arrangements for repayment of the loan because it was an oral “gentlemen’s agreement”. The Tribunal found the applicant’s claim that he borrowed the money for the purposes of travelling to Australia and studying contradicted, and was inconsistent with, the documentary evidence the applicant had provided to the Department for Immigration and Border Protection with his student visa application, which indicated the applicant had access to an education loan from Lumbini Bank obtained with a mortgage of a property held in his mother’s name and his mother’s income of NPR9,00,830. The Tribunal also referred to the inconsistency between the applicant’s oral response, in which he said the income presented as his mother’s came from his uncle’s shop, and his sister was guarantor for the loan, and the applicant’s written response, in which he said the income was that of the family which his mother shared with other members of her father’s family, and the mortgage given to obtain the loan was in relation to his grandfather’s land. The written response to which I refer is that which was given in response to a letter dated 11 May 2016 which the Tribunal sent to the applicant’s representative which is to be found at Court Book page109. That letter appears to have been sent pursuant to s.424A of the Migration Act 1958 (Cth) (Act). The Tribunal noted these inconsistencies caused it to have serious concerns about the truthfulness and reliability of the applicant’s testimony and contributed to its concerns about the credibility of the applicant’s claims regarding the loan. 

7. Second, the Tribunal found it difficult to accept that if the applicant had borrowed the money as he claimed from Mr P in 2008 that he would not have made any repayments on the loan in the past eight years he has been in Australia.  The Tribunal referred to the applicant’s evidence that, apart from a period in 2008 to 2009, the applicant has not engaged in any work in Australia and has been financially supported by his cousin and a previous girlfriend; but the Tribunal found it difficult to accept the applicant would not have been working in this period as claimed, and considered the applicant’s insistence that he had not worked further detracted from the applicant’s credibility.

8. Third, the Tribunal found it difficult to believe that if the money were owing to Mr P there would be no repercussions for the applicant’s family members given the lack of any repayments in a prolonged period, and the Tribunal considered this also detracted from the credibility of the applicant’s claims. 

9. Fourth, the timing of the protection visa application, which was made after the delegate’s refusing the applicant’s application for a student visa and the Migration Review Tribunal’s affirming that decision, added to the Tribunal’s concern about the truthfulness of the applicant’s claims.  The Tribunal found it was not credible or plausible that if the applicant owed a creditor money as he claimed, he would not have worked and made some repayments in the extended time he has been in Australia, and considered the timing of the application for a protection visa was more consistent with extending his time in Australia than his holding a genuine fear of harm if he were to return to Nepal.

10. All in all the Tribunal did not accept the applicant borrowed money from a man named Mr P in Nepal, or that the applicant owed money to this individual or anyone else in Nepal. The Tribunal, having considered the applicant’s claims individually and on a cumulative basis, was not satisfied the applicant has a well-founded fear of persecution for a Convention-based reason now or in the reasonably foreseeable future, and the Tribunal was not satisfied the applicant was a person to whom Australia owes protection obligations pursuant to s.36(2)(a) or s.36(2)(aa) of the Act.

11. I next turn to the grounds of review.  The application the applicant filed with the Court contains two grounds of application and these are as follows. The first ground is:

    The Tribunal did not correctly interpret law relating to the applicant’s protection claims, namely s.36(2)(a) and s.36(2)(aa) of the Migration Act 1958;

    Particulars

    The applicant submits that the Tribunal did not appropriately consider whether there is a real chance that he will be persecuted if he returns to Nepal. He submits that the Tribunal took the decision that he will not be persecuted in Nepal by merely refusing to accept evidence he presented and/or not recognising him as a credible witness. In doing so, the Tribunal failed to take into account evidence that were related significantly to establishing elements of sections 36(2)(a) and 36(2)(aa).

12. The second ground is:

    The applicant pleads that the Tribunal took into account irrelevant considerations and disregarded relevant considerations. The applicant submits he was not given a fair hearing. Therefore, the applicant submits that there was procedural unfairness during the decision making process of the Tribunal which resulted in the breach of rules of natural justice.

13. The applicant is not legally represented. When I invited him to make submissions he said that he was not satisfied with the Tribunal’s decision.  He said that the Tribunal did not believe he borrowed money from Mr P. The applicant then referred to particular paragraphs from the Minister’s submissions. In particular, he referred to paragraphs 11(a) and 11(b). The applicant responded by expressing disagreement and repeating matters he had put before the Tribunal. The applicant then said that if he goes back to Nepal he will be in trouble because he will not be able to pay the money he owes. He also said that his mother is being pursued.  The applicant also referred to the Tribunal’s reliance on his delay in applying for a protection visa.  The applicant said that the Tribunal gave the impression that the applicant lodged the protection visa application to buy time.  The applicant submitted that he applied for a protection visa for his own protection.

14. None of these matters demonstrate any jurisdictional error by the Tribunal.  They express disagreement with the Tribunal’s findings.  It may be that the applicant does not understand the limited functions of this Court when an application is made to it in relation to decisions made by the Tribunal affirming decisions not to grant a protection visa.  Under the Act whether or not a person is entitled to a protection visa is a matter which is to be determined by the Minister, by himself or through his delegates, and, in the circumstances set out in the Act and regulations made under the Act, by Tribunal if an applicant applies for review in accordance with the Act and regulations. This Court does not itself have jurisdiction to determine whether an applicant such as the applicant before me is entitled to a protection visa. That places limitations on what this Court can do when an application is made to it in relation to a decision by the Tribunal affirming a delegate’s decision not to grant a protection visa.  The Court cannot embark on an inquiry into the facts that were before the Tribunal for the purpose of determining whether the Court itself is of the view that the applicant is entitled to a protection visa.  The Court’s role is to determine whether, on the grounds set out in the application that is before the Court, the Tribunal has made any jurisdictional error.  The notion of jurisdictional error is a technical one and is not self-explanatory to an unrepresented person, but in broad terms and not significantly less accurate, it may be said that the Court’s role is to determine whether, on the grounds set out in an application, the Tribunal has reviewed an applicant’s case according to law. 

15. Coming back to the case that is before me, therefore, the jurisdiction that I have is limited to my determining whether the Tribunal considered the applicant’s claims for protection according to law.  Whether or not the applicant understands what I have just said, it appears that this understanding is held by whoever completed the grounds for application, and it is to those that I turn to.

16. I should first note that in relation to each of the grounds I had the interpreter interpret them to the applicant. I asked the applicant whether he had any submissions to make in relation to the grounds as interpreted. More particularly, I asked questions about specific elements of each of those grounds with a view to determining whether the applicant wished to say anything about those particular aspects.

17. I turn to ground 1 as stated in the application. As stated it does not disclose any jurisdictional error essentially because it is unparticularised.  It does not identify how it is said that the Tribunal did not appropriately consider whether there is a real chance the applicant will be persecuted if he is returned to Nepal.  It is said that the Tribunal took a decision “by merely refusing to accept evidence he presented and/or not recognising him as a credible witness. To the extent that is a claim that the Tribunal did not consider his evidence and did not apply any process of rational reasoning in not accepting that evidence, such a claim cannot be accepted. As should be clear from my summary of the claims the applicant made and the reasons for which the Tribunal did not accept those claims because it did not accept the applicant to be a credible witness, the Tribunal did apply a rational process of reasoning. Its conclusions that the applicant’s claims were not credible were conclusions that were reasonably open to it for the reasons it gave and the material on which the Tribunal relied.

18. The particulars to ground 1 claim the Tribunal failed to take into account evidence. I asked the applicant whether he could identify the evidence that was claimed in the particulars was not taken into account.  The applicant said nothing more than “I am not satisfied the Tribunal did not believe me” and then he referred to the existence of a verbal agreement.  This submission does not disclose a jurisdictional error by the Tribunal.  It again manifests a disagreement and dissatisfaction with the Tribunal’s reasons.  The applicant also said in this context that if he returns to Nepal he will be harmed, and that people will know by word of mouth where the applicant would be.  This too does not disclose any jurisdictional error but is an appeal to the merits of his case for protection.

19. As drafted, ground 2 does not disclose any jurisdictional error. It doesn’t identify the considerations which it is claimed were irrelevant or the considerations which it is claimed the Tribunal disregarded.  It does not state the respects in which the applicant claims he was not given a fair hearing. 

20. I asked the applicant whether he could identify the irrelevant considerations, or the considerations the Tribunal did not take into account. I also asked him in what respects he claimed the hearing was unfair. The applicant’s response was, in effect, that the Tribunal did not believe him, and that he would be harmed if he were to return to Nepal. These responses do not disclose any jurisdictional error on the part of the Tribunal. 

21. After Ms Cheesman, who appeared for the Minister, made her submissions, the applicant was given an opportunity to make submissions in reply.  At that point the applicant said he wished to have more time. As I understood him, what he said was he wished to obtain the assistance of the person who had assisted him before the Tribunal. The applicant said that he had recently seen that person and, after he told the person that this matter was before the Court, the person said to the applicant that sometimes the Court gives further time to applicants and that if that were to occur the person will assist the applicant.  I took this to be an application for an adjournment but I informed the applicant I would not give him more time. My reasons are that the applicant has had more than sufficient time to prepare for this case. He did say to me that he did not have money with which to engage lawyers. He has not suggested that that situation has changed and there is no explanation why the applicant did not consider seeking the assistance of this person earlier than on the occasion on which the applicant, only recently, so he says, met this person. In these circumstances, there is nothing to suggest that there would have been any utility in giving the applicant further time.  It is for these reasons that I declined to give the applicant further time and decided that I would give my judgment in this matter.

22. The end result is that the grounds, as stated in the application, do not succeed and nothing that the applicant has said, either in relation to those grounds or otherwise, discloses any jurisdictional error by the Tribunal. I accordingly propose to order that the application be dismissed.

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

Associate: 

Date:  14 December 2017