CXM18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 654

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CXM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 654

File number(s):	SYG 1576 of 2018
Judgment of:	JUDGE LAING
Date of judgment:	25 July 2024
Catchwords:	MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal overlooked dealing with a claim – whether the Tribunal misunderstood or misapplied the concept of “serious harm” – whether the Tribunal considered the wrong question – application succeeds
Legislation:	Migration Act 1958 (Cth) s 5J
Cases cited:	CRG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1567
Division:	Division 2 General Federal Law
Number of paragraphs:	34
Date of hearing:	10 July 2024
Place:	Sydney
Counsel for the Applicant:	Mr B Zipser
Solicitor for the Applicant:	Westside Legal
Solicitor for the First Respondent:	Ms K Pieri of MinterEllison
Second Respondent:	Submitting appearance, save as to costs

ORDERS

SYG 1576 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CXM18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE LAING
DATE OF ORDER:	25 JULY 2024

THE COURT ORDERS THAT:

1.A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 14 May 2018.

2.A writ of mandamus issue directed to the second respondent requiring it to determine the review of the decision of a delegate of the first respondent dated 19 October 2015 according to law.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LAING:

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).

   BACKGROUND

2. The applicant is a citizen of Nepal who arrived in Australia in 2015.

3. On 13 April 2015, the applicant applied for a protection visa.

4. On 19 October 2015, the Delegate refused the application. The applicant applied to the Tribunal for review of the Delegate’s decision on 3 November 2015.

5. The applicant appeared before the Tribunal on 12 December 2017, 9 January 2018, 20 February 2018 and 7 March 2018.

6. On 14 May 2018, the Tribunal affirmed the Delegate’s decision.

   THE TRIBUNAL’S DECISION

7. The Tribunal’s findings may be summarised as follows:

   (a)The Tribunal accepted that the applicant was a vocal advocate for Dalits and that his action of arranging a feast for Dalits in a Hindu temple was disapproved by some local Brahmins (at [48]).

   (b)The Tribunal accepted that an organisation with which the applicant claimed to have been involved (Organisation) was a registered organisation in Nepal and that the applicant was the president of the Organisation from about 2010 (at [49]). The Tribunal found that the organisation’s primary focus was on campaigning against ethnicity-based federalism, especially leading up to the election of the new Constituent Assembly in 2013 (at [50]-[51]).

   (c)The Tribunal considered the applicant’s evidence regarding the decline of his canteen hostel business to be inconsistent and therefore did not accept that the actions of the Federal Socialist party adversely affected the business to the extent that it had to be closed down (at [53]).

   (d)The Tribunal accepted that during the period leading up to the second Constituent Assembly elections, the political situation was turbulent. It accepted that the applicant’s Organisation was vandalised on one occasion and the applicant was threatened by leaders of the Federal Socialist party. However, the Tribunal found that there was no real chance of harm to the applicant in the reasonably foreseeable future on this basis, or as an advocate against ethnicity-based federalism, for reasons that will be considered further below (at [56]-[64]).

   (e)The Tribunal accepted that the applicant had been active in human rights advocacy in Nepal and had also been involved in Nepalese community work while in Australia. However, based upon the available country information and the applicant’s own evidence, the Tribunal was not satisfied that he would face a real chance of serious or significant harm in Nepal because of his human rights activity or advocacy (at [65]-[74]).

   (f)The Tribunal considered the applicant’s claim to be at risk of harm from high caste people in Nepal because of his advocacy for the rights of Dalits. The Tribunal found that although some were critical of his advocacy, he had not been targeted for actual harm. Considering this and the country information, the Tribunal was not satisfied that there was a real chance of serious or significant harm to the applicant because of his advocacy for Dalits’ rights (at [75]-[79]).

   (g)Although the Tribunal accepted that some animosity against Brahmins existed among people and groups, such as the Federal Socialist party, it found that country information indicated Brahmins as the higher and more powerful caste. In the absence of evidence to the contrary, the Tribunal was not satisfied that the applicant was at risk of serious or significant harm as a member of this caste (at [80]).

8. By reference to the above, the Tribunal was not satisfied that the applicant met the criteria for a protection visa. Accordingly, the Tribunal affirmed the Delegate’s decision (at [81]-[85]).

   PROCEEDINGS BEFORE THIS COURT

9. The applicant commenced the current proceedings through an application filed on 5 June 2018. The applicant ultimately relied upon the following grounds contained in an amended application filed on 26 June 2024:

   1.The AAT at [62] found that the applicant, if required to return to Nepal, did not face a real chance of serious harm based on his campaigning against ethnic federalism in the years before he left Nepal in 2015. The AAT fell into jurisdictional error in making this finding for the following reasons:

   a.The applicant claimed the leaders of the Federal socialist party threatened him both publicly (eg during public statements and speeches) and privately (eg by phone or written communication to the applicant). The AAT overlooked dealing with the applicant’s claim concerning receipt of threats privately. Alternatively, if the AAT rejected the applicant’s claims that he received threats privately, the AAT fell into jurisdictional error in relation to the manner in which it rejected the claim.

   b.The AAT reasoned that if a person “makes critical and threatening public remarks about” another person, but the former person did not intend to carry out the threats at the time they made the threats, the threats cannot constitute “serious harm”. This reasoning process is inconsistent with the definition of “serious harm” in s5J(5) of the Migration Act.

   2.A question which the AAT was required to address was, if the applicant is required to return to Nepal, whether he might resume his advocacy against ethnicity-based Federalism, and thereby face a real chance of serious harm. The AAT found at [64] that “there is no real chance of harm to the applicant in Nepal as an advocate against ethnicity-based Federalism”. The AAT fell into jurisdictional error in making this finding. The reason is that a step in the AAT’s analysis was whether “there is a real chance of Nepal reverting to ethnicity-based federalism in the reasonably foreseeable future”. But this was not the correct question for the AAT to address. The correct question was whether there is a real chance of re-ignition of the debate about ethnicity-based federalism in the reasonably foreseeable future.

   Ground 1(a)

10. Ground 1(a) contended that the Tribunal overlooked or otherwise failed to deal with the applicant’s claim to have received threats privately as well as publicly. The Minister accepted that such a claim was made but contended that it was considered and dealt with by the Tribunal.

11. Attention was drawn to the following parts of the Tribunal’s reasoning (emphasis added):

    55.When trying to explore the nature and instances of threats to the applicant at hearing the applicant and his witnesses tended to refer primarily to public statements against the applicant by leaders of the Federal Socialist party, mainly [names redacted], during the period of Constitutional reform…

    56.The Tribunal notes that the period leading up to the second Constituent Assembly elections was politically volatile with clashes reported between opposing groups and with the security forces. The Tribunal accepts that during this period leaders advocating an ethnic-based Federalism would publicly threaten and try to disrupt the campaign of an effective opposing group, such as the applicant's organisation… Despite the internal discrepancies in some of the evidence submitted the Tribunal accepts the threats and disruptions occurred. The Tribunal also accepts that the organisation's office was vandalised at some time. The Tribunal further accepts that because of the second Constituent Assembly election result, specific leaders of the Federal Socialist party publicly criticised and threatened the applicant, as a Brahmin. In sum the Tribunal accepts that the threats and actions against the applicant in Nepal took the form of hostile statements by leaders of the opposing Federal Socialist party; vandalism of the organisation's office on one occasion; and disruption of the organisation's campaign activities…

    58.The Tribunal has accepted that the applicant was threatened in Nepal because he was president of an organisation campaigning against ethnic federalism…

12. The applicant submitted that there was a similar focus upon public statements in [59]-[62] of the Tribunal’s decision.

13. I am not persuaded that the Tribunal overlooked or otherwise failed to consider and determine the applicant’s claims regarding private threats:

    (a)Firstly, the Tribunal made reference to such threats in summarising the evidence before it, including at [18(t)] and [18(vv)] of the decision. It is therefore unlikely that the Tribunal overlooked this evidence, which was expressly referred to in its decision.

    (b)Secondly, although the Tribunal stated that the applicant and his witnesses had tended to refer primarily to public statements against the applicant, the Tribunal did not suggest that this was done exclusively. The use of the word “primarily” therefore suggests some consciousness on the part of the Tribunal that the threats had not been claimed to have exclusively occurred publicly.

    (c)Thirdly, I accept the Minister’s submission that the Tribunal’s reasoning at [56], [58]-[59] and [61], in referring more generally to “threats” and “hostile statements”, included language at a level of generality capable of encompassing both private and public threats. Such language was capable of encompassing threats of the type claimed, including those involving threats of death and those said to have been made by persons “sent” to threaten the applicant.

    (d)I accordingly find that the Tribunal’s non-acceptance that the applicant would face a real chance of harm by reference to the threats was purportedly determinative of the applicant’s claims in this regard, subject to the issue raised under ground 1(b).

    Grounds 1(b) and 2

14. The second aspect of ground 1 contended that the Tribunal misconstrued the meaning of “serious harm” in s 5J(5) of the Migration Act 1958 (Cth) (Act). The applicant contended that the Tribunal’s reasoning was that if a person “makes critical and threatening public remarks about” another person, but the former person did not intend to carry out the threats at the time they made the threats, the threats cannot constitute “serious harm”. This reasoning process was submitted to be inconsistent with the definition of “serious harm” in s 5J(5) of the Act. That provision read as follows:

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)       a threat to the person's life or liberty;

    (b)       significant physical harassment of the person;

    (c)       significant physical ill-treatment of the person;

    (d)significant economic hardship that threatens the person's capacity to subsist;

    (e)denial of access to basic services, where the denial threatens the person's capacity to subsist;

    (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

15. A similar issue was considered by Wheelahan J in CRG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1567 (CRG17). In that case, the Tribunal had reasoned that although the applicant may be subjected to extortion demands, there was not a real chance that this would result in serious harm. His Honour considered:

    46.For reasons upon which I will further elaborate, the appellant’s submission that a threat of harm may constitute serious harm for the purposes of the Act should be accepted…

    47.The next question is whether the Authority gave adequate consideration to the appellant’s claim in conducting its review. Again, this directs attention to the Authority’s written reasons. Those reasons should be read fairly and without a rigid focus on particular language or phrasing: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-2 (Brennan CJ, Toohey, McHugh and Gummow JJ). Yet, even allowing this beneficial construction, it does not appear that the Authority evaluated whether the threat of harm, which it accepted that the appellant might face on returning to Sri Lanka, constituted serious harm under the Act. The Authority appears to have focused on the absence of recent physical harm to the appellant or his father, rather than turning its attention to the likely seriousness of any threats that might underpin the extortion demands.

16. His Honour then considered various features of the reasoning that influenced this conclusion, including that the language used by the Authority “strongly suggest[ed] that it did not consider that anything other than physical harm might constitute serious harm”, thereby overlooking “the possibility that the threats that were made… might themselves have constituted serious harm” (at [48]-[50]). After considering the relevant case law, his Honour reasoned:

    65.I accept the appellant’s submission that the obiter comments of McHugh and Kirby J in Appellant S395 describe a general principle, illustrated by the decisions of this Court in SZTAP and SZVRQ, which has not been overtaken by DQU16. That principle is that the serious harm feared by an applicant for the purposes of a refugee claim under the Act may consist in the threat that the applicant will be subjected to some harmful consequences if the applicant does not modify his or her conduct in a certain way. For example, by not engaging in certain activity or by paying bribes or satisfying other extortionate demands.

    66.Of course, the outcome of any application for judicial review must turn on the facts of the case and an analysis of the unique reasoning of the relevant decision-maker: SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 at [35] (Robertson, Griffiths and Perry JJ). The circumstances of the present appeal are materially different from those that existed in SZTAP or SZVRQ in which it was determined that the decision-maker reasoned illogically or unreasonably. Here, the error lay in the Authority’s failure to engage with the appellant’s claim that by reason of his Tamil ethnicity he would suffer serious harm in the form of the threats to which he claimed he would be subjected. The error was material and therefore jurisdictional because if the Authority had engaged with this aspect of the appellant’s claims, realistically its evaluation could have been different. Accordingly, the primary judge erred and grounds 1 and 3 of the notice of appeal should be upheld.

17. From the above, it is apparent that the Tribunal was required to consider and determine whether there was a real chance of the applicant suffering serious harm in the form of threats of harm to which the applicant had claimed to be exposed due to his political activities. The Minister did not contend otherwise. This was in circumstances where the applicant had claimed to the Tribunal that his political opponents did not accept the Constitution, continued to oppose it and were “very active” (CB 250). The applicant had claimed that his family were “not in good mental health condition because of their fear and intimidation”. It was also in circumstances where the Tribunal accepted that the applicant had been threatened by leaders of the Federal Socialist party who were dissatisfied with the second Constituent Assembly election result (at [56]). The Tribunal did not cavil with the applicant’s claims that members of the party had blamed the applicant for their losses, resulting in the threats.

18. Of particular relevance to the ground was [61]-[64] of the Tribunal’s decision:

    61.The applicant had specifically identified the people that threatened him in Nepal. The Tribunal notes that from the time the threats started, in late 2013, until the time the applicant departed Nepal in April 2015 no action was taken against him to realise the threats. The Tribunal notes that the applicant was not personally harmed and there is no evidence that any attempt was made to harm him personally. There is also no evidence of anyone in his organisation being harmed or subjected to attempts to harm them. The Tribunal notes the applicant continued to maintain a public and working life in the year and a half he remained in Nepal. The applicant stated at hearing that he was careful and did not move around openly but his statements are not supported by the substantial evidence he submitted of carrying on an open public as well as personal life. The Tribunal finds that the lack of any attempt to cause the applicant actual harm in this period means the threats by the leaders of the Federal Socialist party were empty ones, with no intent to carry them out.

    62.There is no accepted evidence before the Tribunal that the leaders of the Federal Socialist party had any intention to cause the applicant harm or have formed any such intention since the applicant departed Nepal. The Tribunal notes there is no mention or indication in the available country information about Federal Socialist party leaders such as [names omitted] being involved in actual violence against opposing individuals in Nepal. There is country information that confirms [name omitted] makes critical and threatening public remarks about politicians he considers opposed to his ideals, such as government leaders, but no indication he has resorted to any violent act. The country information as submitted by the applicant also shows that the authorities took action against [name omitted] for posting messages considered disruptive to social harmony, imprisoning him for some days. In view of the evidence and available country information the Tribunal is not satisfied that the applicant faces a real chance of serious harm from people such as [names omitted], or any other Federal Socialist party leaders, senior figures or members in Nepal.

    63.The Tribunal does not consider that the past vandalism of the organisation's office or the disruption of the organisation's campaign activities represent any current threat to the applicant in Nepal. While they were a method of obstructing the applicant's and his organisation's campaign, in view of the end of that campaign there would no longer be any chance of harm arising to the applicant or his organisation recurring.

    64.The applicant and his Agent have submitted that the Constitution remains a divisive issue in Nepal with the Central Maoist party, a part of the ruling coalition, remaining in favour on ethnicity based Federalism. They submit the applicant will remain at risk as of harm in Nepal as an anti-ethnicity based Federalism advocate. However the major party in the coalition government, the CPN-UML reportedly remains firmly against ethnicity based Federalism and is protective of the Constitution as it has popularly resulted. Analysts and commentators are also speaking of this being a period of stability and optimism for Nepal after many years of political and violent turmoil, with the Constitution and Federalism being achieved and largely settled issues. The majority of Nepalese are against ethnicity based Federalism, and the new Constitution has popular support in Nepal. In view of these circumstances the Tribunal is not satisfied there is a real chance of Nepal reverting to ethnicity based federalism in the reasonably foreseeable future. The Tribunal therefore finds there is no real chance of harm to the applicant in Nepal as an advocate against ethnicity based Federalism.

1. The Minister submitted that it should not be inferred from the above reasoning, and in particular [62], that the Tribunal found that the claimed threats did not meet the definition of ‘serious harm’. Rather, it was submitted that the Tribunal was not satisfied that the applicant faced a real chance of serious harm. It was submitted that this was a separate test that needed to be satisfied in relation to the refugee criterion.

2. The Tribunal’s reasoning at [61]-[64] is curious and also forms the focus of ground 2. Respectfully, this part of the Tribunal’s decision is difficult to follow. This is notwithstanding what otherwise appears to have been a fairly detailed and careful decision.

3. At [64], the Tribunal found that there was “no real chance of harm to the applicant as an advocate against ethnicity based Federalism”. Expressed at this level of generality, such a finding may have been dispositive of the applicant’s claims to face any sort of harm (including any harm capable of meeting the categories in s 5J(5) of the Act).

4. However, the Tribunal did not reject, at least expressly, anywhere in its reasons that the applicant may face threats in the future (empty or otherwise) from those who had threatened him in the past. Instead, the Tribunal’s reasoning at [62] relied heavily upon the Tribunal’s consideration that those who had threatened the applicant in the past lacked “any intention to cause the applicant harm” and had not “formed any such intention since the applicant departed Nepal”. Within this context, the Tribunal’s use of the word “harm” in [64] appears to have contemplated actual acts of violence as distinct from threats of the nature claimed. This is supported by the Tribunal’s reliance at [62] on its findings that the perpetrators had not been involved in “actual violence” as distinct from threats. It is also supported by what appears to have been the Tribunal’s heavy reliance in [61] upon its finding that the lack of any attempt to cause the applicant “actual harm” during the period he was threatened meant that “the threats by the leaders of the Federal Socialist party were empty ones, with no intent to carry them out”.

5. The Tribunal also relied at [59]-[64] upon country information indicating that the situation had calmed, with “violent outbreaks” mostly limited to a particular region, and with the Constitution and federalism being achieved and largely settled with popular support. However, the Tribunal did not reject the applicant’s claim that his political opponent(s) continued, actively, to oppose the Constitution and blamed the applicant for the outcome that had been achieved in that regard. The Tribunal’s language at [62], by reference to country information confirming that a political opponent “makes” threats, indicates some acceptance of currency regarding the situation. The Tribunal did not expressly reject that the applicant may be subjected to further threats (albeit empty ones) in the future “as an advocate against ethnicity based Federalism”.

6. Viewed as a whole, and on balance, I accept the applicant’s contention that the most likely reading of the Tribunal’s reasoning at [61]-[64] is that the Tribunal fell into the error considered in CRG17 by focusing on the concept of physical harm or violence and, therefore, not engaging with the question of whether the applicant may suffer serious harm in the form of threats. The latter question required consideration of whether the applicant may face threats in the future and, if so, whether the threats may amount to serious harm. The claim that the applicant may face further threats of harm was sufficiently raised by the applicant’s claims to have experienced such threats in the past (which the Tribunal accepted) and by his contention that the perpetrators remained dissatisfied with the second Constituent Assembly election result, were active against it, and blamed the applicant for the situation. The Minister did not contend otherwise. As in CRG17, if the Tribunal had engaged with this aspect of the claims according to a correct understanding of s 5J(5), then, realistically, it is possible that its decision may have been different.

7. It follows that I accept the applicant’s contention that ground 1(b) demonstrates jurisdictional error.

8. Ground 2 contended that the Tribunal further erred in finding that there was no real chance of harm to the applicant in Nepal as an advocate against ethnicity-based federalism. This was said to have occurred because of the Tribunal’s reliance upon its finding that it was not satisfied there was a real chance of Nepal reverting to ethnicity-based federalism in the reasonably foreseeable future. This was said to have not been the correct question, which required consideration of whether there was a real chance of re-ignition of the debate and whether the applicant may resume his advocacy in the future.

9. As considered above, the applicant had claimed to be at ongoing risk from proponents of ethnicity-based federalism who continued to oppose the Constitution. I accept that this required consideration of whether the applicant may face a real chance of relevant harm on account of his previous and any future role as an opponent of ethnicity-based federalism.

10. As I have said above, I do not find the Tribunal’s reasoning on this issue at [61]-[64] of its decision to have been entirely clear. I accept the applicant’s submission that the requisite question was not answered by the Tribunal’s conclusion that there was no real chance of Nepal reverting to ethnicity-based federalism.

11. However, I am not persuaded that the Tribunal was precluded from taking this into consideration. A fair reading of the Tribunal’s decision does not suggest that the Tribunal’s reasoning was limited to the impugned sentence, nor that the Tribunal used that sentence as a substitute for the applicable test.

12. The Tribunal’s reasoning at [61]-[64] took into account country information indicating “a period of stability and optimism for Nepal after many years of political and violent turmoil, with the Constitution and Federalism being achieved and largely settled issues”. The Tribunal observed that the Constitution had popular support in Nepal, with the majority of people being against ethnicity-based federalism. The Tribunal relied upon this information, together with its findings that the applicant’s political opponents had not intended to cause him actual harm (despite their threats), in concluding at [64] that the applicant did not face a real chance of harm as an advocate against ethnicity-based federalism.

13. Put another way, the Tribunal was not satisfied that the applicant’s political opponents (whom the applicant claimed continued to be a threat) ever actually intended to harm him physically (whether in the past or in the future). Taking this into account together with the more settled country information, the Tribunal was not satisfised that the applicant would face a real chance of harm in the future even if he continued to advocate against ethnicity-based federalism.

14. If I had found no error in relation to the Tribunal’s understanding of serious harm, I would likely have concluded that this reasoning was open to the Tribunal and did not involve the asking of the wrong question or misapplication of the relevant test. However, as I have found above that the Tribunal did misunderstand or misapply the definition of serious harm in coming to its conclusion, this resulted in the error that has been found under ground 1(b).

    CONCLUSION

15. For the above reasons, the application before this Court succeeds.

16. I will hear from the parties in relation to costs.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Associate:

Dated:       25 July 2024