DAM16 v Minister for Immigration

[2018] FCCA 521

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAM16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 521

Catchwords:
MIGRATION – Judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision of delegate of Minister for Immigration and Border Protection not to grant Protection visa – whether there arose from the material before it a claim the Tribunal failed to consider – no jurisdictional error.

Cases cited:

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1

NAVK v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1

Applicant: DAM16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2812 of 2016

Judgment of: Judge Manousaridis

Hearing date: 9 February 2018

Date of Last Submission: 9 February 2018

Delivered at: Sydney

Delivered on: 9 March 2018

REPRESENTATION

Counsel for the Applicant: Mr B Zipser (Direct Access)

Solicitor for the First Respondent: Ms S He of Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2812 of 2016

DAM16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This application for judicial review raises one issue; and that is whether the second respondent (Tribunal), when affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa), failed to consider a claim the applicant submits reasonably arose from the material before the Tribunal.

The applicant’s claims for protection

1. The applicant is a national of Nepal. She claimed she left Nepal because she had received threats to her life from the Communist Party of Nepal – Maoist (CPN-M).[1] The CPN-M threatened the applicant because she refused to meet the demands of the CPN-M to leave the Nepal Congress Party (NCP) of which she was a member and join the CPN-M and make donations to the CPN-M. The applicant claimed that because she had refused the CPN-M’s requests she had been physically attacked. The applicant also claimed the CPN-M had tried to scare her family and that she herself had been kidnapped, detained and held up to three days. The applicant submitted a number of documents in support of her claims, including a document purportedly from the NCP attesting to the applicant’s involvement with its youth wing, Tarun Dal.

   [1] The Tribunal appears to use the word “Maoists” interchangeably with CPN-M.

Tribunal’s reasons

1. The Tribunal did not accept that the applicant’s claims were credible:[2]

   a)The Tribunal found the evidence the applicant gave about the threats the CPN-M made against her to be “vague and changed over time”.[3] The Tribunal referred to, among other things, the applicant’s having claimed in her application for a Protection visa that she held receipts for donations she made to the Maoists but before the Tribunal she said she did not pay any donations.[4]

   b)The Tribunal found that the evidence the applicant gave about her kidnapping was vague, and that the details she gave about how long she was held captive changed over time.[5] The Tribunal also found that the applicant’s evidence about when she was kidnapped and how she escaped was vague and, in relation to her claimed escape, improbable.[6]

   c)The Tribunal found that the applicant’s evidence about what action she took to seek help after she escaped from her kidnappers “lacked any persuasive detail”.[7]

   d)The Tribunal found the applicant was unable to explain plausibly why she did not leave Nepal earlier than she did, given that, according to her own evidence, after she escaped from her kidnappers the Maoists continued to threaten her.[8]

   e)The Tribunal found that the applicant’s evidence about her involvement with the NCP was confused and vague.[9]

   [2] CB98, [58]

   [3] CB93, [45]

   [4] CB93, [45]

   [5] CB94, [46]

   [6] CB94, [47]

   [7] CB94, [48]

   [8] CB95, [49]

   [9] CB95, [51]

2. The Tribunal did not accept that the applicant’s case was assisted by the documents she had submitted. The documents were in Nepalese and, in any event, the Tribunal relied on country information that fraudulent documents are readily available in Nepal. The Tribunal concluded that, to the extent the documents can be given any weight, they did not overcome the Tribunal’s concerns about the credibility of the applicant’s claims.[10]

   [10] CB97, [56]

3. The Tribunal, therefore, did not accept that the applicant is now or ever was of any adverse interest to the Maoists or to any person or group in Nepal; or that, on her return to Nepal, the applicant will be active in the NCP or Tarun Dal. For these reasons, the Tribunal did not accept there is a real chance the applicant would face serious harm or significant harm for reasons of her actual or imputed political opinion if she were to return to Nepal.[11] The Tribunal was also not satisfied there is a real chance the applicant will face harm of any type if she returns to Nepal.[12] For the same reasons, the Tribunal was satisfied there are no 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 will suffer significant harm.

   [11] CB98, [59]

   [12] CB98, [61]

Ground of application

1. The amended application contains two grounds. Counsel for the applicant, however, informed me that the applicant does not press the second ground. Thus, the only ground that I must consider is ground 1 which is as follows:

   One reason the applicant feared harm in Nepal from the Maoist [sic] was because she opposed the Maoists and their principles. The applicant’s protection visa application recorded the applicant’s opposition to the Maoists and their principles. Thus, a question which arose on the materials before the Tribunal was whether the applicant faced a real risk of harm from the Maoists in Nepal by virtue of making a protection visa application which was based on the applicant’s opposition to the Maoists and their principles.

Submissions

1. In his written submissions, counsel for the applicant referred to evidence the applicant gave to three of the questions the Tribunal asked of her in which the applicant said she feared that if she returned to Nepal the Maoists will find her and kill her, that the Maoists will mistreat her because she used to oppose their principles, behaviour, and activities, and that she did not like the principles of the Maoists.[13] Counsel then submitted that where an applicant opposes the principles of a political party in their home country and makes a protection visa application in another country based on that opposition, a question which arises is whether the applicant, if required to return to their home country, may be harmed if that political party becomes aware of an applicant’s protection visa application.[14] Counsel further submitted that there arose on the material before the Tribunal the question whether the applicant faced a risk of harm from the Maoists in Nepal “by virtue of making a protection visa application in Australia”.[15] Counsel accepted that applications for protection in Australia are treated and processed confidentially and, for that reason, it is not certain that the Maoists would become aware of the applicant’s protection visa application. Counsel submitted, however, there is a real risk that, on her return to Nepal, government authorities in Nepal would become aware the applicant had applied for protection.[16]

   [13] Outline of Submission for Applicant [9]

   [14] Outline of Submission for Applicant [10]

   [15] Outline of Submission for Applicant [11]

   [16] Outline of Submission for Applicant [15]

2. The Minister, on the other hand, submits the material before the Tribunal could not reasonably have given rise to the claim the applicant submits the Tribunal did not consider.

Principles

1. The principles for identifying the claims the Tribunal is required to consider when reviewing a delegate’s decision not to grant a Protection visa are well known, and I need only refer to two authorities. The first is the judgment of the Full Federal Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) where the Court stated the following principles:[17]

   a)The “function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances”; and neither “the delegate nor the Tribunal is obliged to consider claims that have not been made”.[18]

   b)The Tribunal must “deal with the case raised by the material and evidence before it”,[19] and the “question, ultimately, is whether the case put by the [applicant] before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it”.[20]

   c)That does not mean, however, the Tribunal “is only required to deal with claims expressly articulated by the applicant”.[21] On the other hand, the Tribunal “is not required to consider a case that is not expressly made or does not arise clearly on the materials before it”.[22]

   [17] (2004) 144 FCR 1 (Black CJ, French and Selway JJ)

   [18] (2004) 144 FCR 1 at page 19 [60]. The two quoted passages are respectively from the reasons for judgment of Kirby J in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 quoted by Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at 405 and the reasons for judgment of von Doussa J in SCAL v Minister for Immigration and Multicultural Affairs [2003] 548 also quoted by Selway J in SGBB at [16]

   [19] (2004) 144 FCR 1 at page 19, [60] quoting Selway J in SGBB at [17]

   [20] (2004) 144 FCR 1 at page 19, [60] quoting Selway J in SGBB at [18]

   [21] (2004) 144 FCR 1 at page 19, [60]

   [22] (2004) 144 FCR 1 at page 20, [61]

2. The second case is NAVK v Minister for Immigration and Multicultural and Indigenous Affairs where Allsop J (as his Honour then was) explained when it could be said a claim not expressly made may nevertheless be considered to have been raised:[23]

   From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

   [23] [2004] FCA 1695 at [15]

Did the claim reasonably arise?

1. The applicant does not submit she expressly claimed before the delegate or the Tribunal that she faced a risk of harm from the Maoists, even if her claims were to be rejected, because she claimed she opposed the Maoists and their principles. Whether or not any such claim could be said to have arisen, therefore, depends on whether any such unarticulated claim arose “tolerably clearly from the material”.[24] In my opinion, that question is to be answered in the negative.

   [24] NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15]

2. There was nothing before the Tribunal that could reasonably have alerted the Tribunal that the applicant claimed or could be taken to have claimed there was a risk of harm to the applicant only because she made an unsuccessful claim for protection in Australia based on her opposition to the Maoists and to Maoist principles. In particular, there was nothing before the Tribunal on the basis of which any rational assessment could have been made about the following matters:

   a)Whether authorities in Nepal make inquiries of returning citizens about whether they stayed in overseas countries beyond the time permitted to them by visas issued by foreign countries.

   b)If the authorities do make such enquiries, the circumstances in which such enquiries are made and the purpose or purposes for which the enquiries are made.

   c)Assuming the Nepalese government authorities do make enquiries of the sort referred to in (a) and (b), the probability of any information the Nepalese authorities might obtain as a result of these enquiries finding their way to the Maoists.

   d)Assuming enquiries are made of returning citizens, and information is obtained from those citizens and provided to the Maoists, the purpose or purposes for which the Maoists would be interested in and use such information.

   e)Assuming information would be provided to the Maoists, whether information concerning the applicant’s application for a Protection visa in Australia, and the reason the Protection visa was not granted, namely, a positive finding that the applicant fabricated her claims that she was opposed to the Maoists, would fall within the class of information in which the Maoists would be interested or which would give rise to the risk that the Maoists would seek to harm the applicant.

Disposition

1. I propose to order that the application be dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 9 March 2018