CXJ16 v Minister for Immigration
[2017] FCCA 1239
•8 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CXJ16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1239 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a protection visa – the Tribunal addressed the applicant’s claim in respect of his conversion to Christianity – the Tribunal made adverse findings where were open – the Tribunal complied with its obligations under s.425 – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 91R, 425, 476. |
| Applicant: | CXJ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2730 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 8 June 2017 |
| Date of Last Submission: | 8 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 8 June 2017 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondents: | Mr T Liu Clayton Utz |
ORDERS
The application is dismissed.
The applicant to pay the first respondent’s costs fixed in the amount of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2730 of 2016
| CXJ16 |
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 20 September 2016 affirming a decision of the delegate not to grant the applicant a protection visa.
The applicant was found to be a citizen of Nepal, and his claims were assessed against that country. The applicant arrived in Australia on a Student TU 572 visa on 14 May 2007. It was not until 24 February 2014 that the applicant applied for protection. On 20 February 2014 the delegate found that the applicant failed to meet the criteria under the Act for the grant of a visa.
The Tribunal’s decision
On 27 February 2015 the applicant applied for review. By letter dated 5 August 2016 the applicant was invited to attend a hearing on 26 August 2016. The applicant appeared on that date to give evidence and present arguments.
The applicant claimed to fear harm on return to Nepal because Christians are ostracised from the community and are subject to abuse, public humiliation and persecution. The applicant referred to Nepal having criminally charged preachers and individuals for apostasy. The applicant claimed that he was born high caste in his family and that they were strong followers of Hinduism, and that his father had been previously president of their village district.
The applicant claimed that he first became impressed by Christianity when he was 11 or 12. The applicant claimed that when he arrived in Australia in 2007, he felt very free so he could practice his own religion. The applicant alleges that he started attending church in 2013 and that he had been busy studying and working from 2007 to 2013. The applicant told the Tribunal that he had not yet converted to Christianity because he is still training to be baptised. The applicant met a Hindu woman whom he married in May 2012. The applicant alleged that his wife reacted poorly after they were married when he informed her that he was a Christian.
Consideration of the applicant’s claims
The Tribunal accepted that the applicant’s interest about Christianity piqued while he was a student in Kathmandu and that he intended to be baptised and to practice Christianity in the future. The Tribunal also gave the applicant the benefit of the doubt and found that he had a genuine subjective fear of serious harm. The Tribunal concluded that any chance of the applicant being persecuted in Nepal was remote and far-fetched. The Tribunal found that the country information in Nepal indicated there is a place for religious tolerance in which Christians have a long and accepted place in history.
The Tribunal noted that the recent enactment of the new 2015 Constitution establishes Nepal as a secular state and provides for every person’s right to profess and practice his or her own religion. The Tribunal noted that while the Constitution banned religious conversion, there was authoritative country information that confirmed that the ban was not enforced. The Tribunal concluded that there had been very few violent attacks on Christians.
The Tribunal accepted that the applicant may suffer some low-level discrimination or ostracism as a Christian. However, the Tribunal found that such treatment would not amount to serious harm as defined by s.91R(1) of the Act as it applied at the relevant time. The Tribunal found that this was the position even though the applicant’s ostracism may be exacerbated by his higher caste and his father’s former position as a village president.
The Tribunal found that if the applicant returned to Nepal, the applicant would be able to practice his religion freely and that he would not be involved in proselytising because he has shown little interest in evangelical activities in the past or in his future plans. The Tribunal noted that although proselytising was illegal, there was only one recorded case of such conduct. The Tribunal acknowledged that this was concerning, but found that such prosecutions were not systemic or discriminatory.
Having considered the applicant’s claims and evidence singularly and cumulatively, the Tribunal did not accept that the applicant if returned to Nepal now or in the reasonably foreseeable future, that there is a real chance he will face serious harm for reasons of his religion or any other Convention related reason.
Consideration of complementary protection criteria
The Tribunal was not satisfied there are 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 the applicant will suffer significant harm. The Tribunal found that the applicant did not meet the criteria under s.36(2)(a) or s.36(2)(aa) of the Act and is not a person in respect of whom Australia had protection obligations.
Before this Court
On 16 February 2017 a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.
The ground in the application are as follows:-
1. The Tribunal failed to appreciate my mental state and lack of capacity and in the circumstances has not provided me with a real and meaningful hearing, in breach of section 425 of the Migration Act,
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 review. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the Court would dismiss the applicant’s application.
The Court explained that it would have identified the evidence, then hear submissions from the applicant as to why the Tribunal’s decision was unlawful or unfair, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply.
Applicant’s submissions from the bar table
From the bar table, the applicant repeated his claims that he was high caste and that he could not practice his religion if returned to Nepal. The applicant maintained that he would be persecuted on return. The applicant also asserted that the Tribunal had not taken him seriously and he disagreed with the country information that the Tribunal took into account.
The applicant maintained that his life would be at risk and that the Tribunal had not understood his mental state and that he could not practice Christianity. No issue concerning the applicant’s mental state was the subject of evidence or any claim before the Tribunal. A matter not raised before the Tribunal cannot give rise to any jurisdictional error.
It is apparent on the face of the Tribunal’s reasons that the Tribunal gave weight to the applicant’s claims and evidence and indeed, accepted much of the applicant’s evidence. There is no substance in the assertion that the Tribunal failed to conduct its task in accordance with the statutory regime, nor is there any basis on the material before the Court, to find that the Tribunal failed to afford the applicant procedural fairness in the conduct of the review.
The Tribunal conducted a hearing in accordance with the statutory requirements and on the face of the material before the Court and in particular, the Tribunal’s reasons and summary of the evidence in relation to what occurred at the hearing, the Court is satisfied that the applicant had a real and meaningful hearing. The applicant’s submissions are in substance an invitation for this Court to engage in an impermissible merits review. This Court does not have power to make fresh findings of fact or to revisit the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.
Consideration
Ground 1
Insofar as ground 1 raises an issue concerning the applicant’s mental state and capacity, that was not an issue before the Tribunal as earlier identified and accordingly, it is not a matter that could give rise to any jurisdictional error by the Tribunal. The broad assertion that the applicant did not have a real and meaningful hearing is not consistent on the face of the Tribunal’s reasons. On the material before the Court, the Tribunal complied with its obligations under s.425 of the Act and the applicant had a real and meaningful hearing.
Additional ground identified in the applicant’s affidavit
Mr Liu, solicitor for the first respondent, has also drawn the Court’s attention to paragraph 12 of the applicant’s affidavit in which it is asserted that:-
the AAT did not consider the social, spiritual and legal implication of the applicant converting to Christianity in Nepal.
Mr Liu pointed out that the proposition of social, spiritual or legal implication of conversion was not a matter raised in any claim before the Tribunal and did not arise on the material beyond the allegation of the applicant’s conversion to Christianity, which it is clear the Tribunal took into account and accepted the applicant.
The Tribunal took into account country information in making adverse findings as to whether the applicant met the criteria under the Refugees Convention and in respect of complementary protection. The Tribunal had annexed to its reasons an Attachment A in which it set out the relevant law, as well as an Attachment B concerning independent country information about Christianity, conversion and proselytising in Nepal.
On the face of the Tribunal’s reasons, the Tribunal addressed the applicant’s claim in respect of his conversion to Christianity and made adverse findings that were open to it in respect of the criteria under the Act. No jurisdictional error was made out by reason of the alleged additional ground identified in the applicant’s affidavit.
Conclusion
There are no jurisdictional errors made out. The application is dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 29 June 2017
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