DGQ16 v Minister for Immigration
[2019] FCCA 2170
•12 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DGQ16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2170 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal (AAT) – whether the Tribunal denied the applicant procedural fairness by finding that the applicant was not a credible witness – whether the Tribunal failed to give the applicant the benefit of the doubt – whether the Tribunal undermined the applicant’s claims to fear serious harm – whether the Tribunal took a rigid and arbitrary view – whether the Tribunal failed to apply the relevant natural justice principles – whether the Tribunal failed to put the applicant on notice of its concerns or perception – whether the Tribunal failed to give the applicant the opportunity to rebut the relevance of material and dispute the Tribunal’s concerns or perception – whether the Tribunal failed or breached the rule of natural justice and procedural fairness – whether the Tribunal’s decision is infected with jurisdictional error – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 424, 424A, 422B, 425, 476, Part 7 |
| Cases cited: SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235; (2013) 299 ALR 246; (2013) 138 ALD 1 |
| Applicant: | DGQ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3018 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 5 August 2019 |
| Date of Last Submission: | 5 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 12 August 2019 |
REPRESENTATION
| Applicant: | In Person |
| Appearing for the Respondents: | Mr A. Moss |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 2 November 2016 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3018 of 2016
| DGQ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) on 2 November 2016 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 5 October 2016 which affirmed the decision of the Minister’s delegate (“the delegate”) made on 4 March 2015 to refuse to grant the applicant a protection visa.
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (the Court Book – “CB” – “RE1”).
Background
The applicant is a citizen of Nepal (CB 2). He arrived in Australia on 8 March 2008 as the holder of a student visa. On 19 October 2011 the applicant applied for a protection visa. At that time the relevant criterion for the grant of the visa was whether the applicant met the definition of “refugee”.
That application was refused. The applicant sought merits, and then judicial, review. He was unsuccessful.
On 23 May 2014 he lodged a second protection visa application, this time asserting he was owed protection on the basis of the complementary protection criterion which had been inserted into the Act since his previous application (SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 (“SZGIZ”)).
The delegate decided not to grant the applicant a protection visa on 4 March 2015. The delegate found that the applicant had “effective protection” in a third country, and was therefore deemed by s.36(3) of the Act to be a person not in need of protection from Australia.
The applicant applied for review to the Tribunal on 24 March 2015. The applicant’s claims to protection were initially set out in a written statement (CB 43–CB 46). He claimed that he was a monarchist who supported the restoration of the monarchy and had been an active member of a pro-monarchy political party (“the RPP-N”).
He, and his father, who was also a supporter of the monarchy, had been threatened and harassed by Maoists. This included that they wanted him to cease his political activities, and they made demands for money.
The Maoists wanted the applicant to join their organisation. He refused and was subsequently abducted by them in 2007, and held for two days. He continued to support the pro–monarchy party, and was injured in a scuffle with Maoists in 2008.
He fled to Kathmandu. The youth wing of the “Maoist rebels” warned him that they would kill him. The police advised that they could not protect him.
The Maoists seized some of his father’s land because the applicant had criticised them.
The applicant claimed to fear harm on return. He stated that he would be kidnapped, tortured and killed because of his political view, and his stance against the Maoists. He also feared harm from other anti-monarchists.
Further, the applicant claimed to fear harm from criminals and Maoists, if he were to return to Nepal from Australia, because they would presume that he had money, and would seek to extort money from him.
The Tribunal
The Tribunal found that the applicant was not a credible witness ([25] at CB 84). The Tribunal gave extensive reasons to explain this finding. In its decision record the Tribunal referred to the applicant’s written statement of his claims, and to his evidence given at the hearing before it on 7 September 2016.
The Tribunal found that the applicant’s “testimony” in relation to his political beliefs was “general and appeared rehearsed” and that he was “vague and spoke in generalities”. The Tribunal found that the applicant could not demonstrate the way in which he “expressed his opposition to the Maoists since leaving Nepal” and that the applicant seemed to be “intentionally evasive” ([30] at CB 85).
The Tribunal accepted that the applicant is a supporter of both the restoration of the monarchy and a Hindu state, and that he became a member of, and continues to support the RPP-N. However, due to the generality of the applicant’s evidence, and “lack of credibility”, the Tribunal did not accept that the applicant had a leading role in the RPP- N ([37] at CB 87-CB 88).
The Tribunal found, based on country information before it that Maoists did go to the home of the applicant’s family during the war and request financial and “other support”. Due to the applicant’s “lack of credibility” the Tribunal did not accept that the applicant was “specifically targeted or harmed”, remained in contact with “a political leader in Nepal”, or since arriving in Australia, spoke out against the Maoists ([38] at CB 88).
The Tribunal found that the applicant would express his political view if he returned to Nepal ([38] CB 88). However, on the country information before it the Tribunal found that the situation in Nepal has altered “dramatically” since the applicant left, and the applicant would not be at risk of suffering significant harm on account of these opinions ([39]-[40] at CB 88-CB 89).
Although the Tribunal accepted that the applicant supported the monarchy, and had RPP-N membership it found that since the applicant left Nepal the applicant’s parents have not been “threatened or asked for money by Maoists since the applicant left” ([41] at CB 89). Given the “applicant’s lack of credibility”, and the country information consulted by the Tribunal, the Tribunal found that upon return to Nepal the applicant would not suffer significant harm due to his father’s past or current political activity ([41] at CB 89).
The Tribunal did not accept that upon return to Nepal the applicant would be targeted because he would be perceived as wealthy because the applicant’s evidence in relation to this was “unsatisfactory”, and the information before it did not indicate that such harm would occur ([42] at CB 89-CB 90). Further, the Tribunal found that the applicant’s claim that the Maoists would be threatened by him as he undertook education in Australia was “fanciful” ([43] at CB 90).
In relation to the applicant’s claim of his father’s land being taken, and not returned by Maoist cadres, the Tribunal accepted that land had been taken and not returned. But also found that as no further land had been taken there was no “real risk” of land being taken in the future. Further, there was no indication that the applicant’s father had been significantly harmed in connection with the land seizure. The Tribunal concluded that there was not a “real risk” that the applicant will experience “significant harm” on account of the past land seizure ([44] at CB 90).
Concerning the security situation in Nepal generally, the applicant identified that his primary concern was in relation to expression of his political opinion. The Tribunal considered independent evidence which indicated that the overall security situation in Nepal had significantly improved, and held that as the Tribunal had found that the applicant would not experience significant harm due to his political opinion, that he also would not “suffer significant harm” on account of the “security situation in Nepal” ([45] at CB 90-CB 91).
The applicant also raised a claim concerning corruption in Nepal. The Tribunal found that corruption is experienced by the population generally in Nepal. The Tribunal accepted that there was a “real risk” that the applicant “would suffer some harm” on account of corruption if he returned to Nepal. However, because this risk is “one faced by the population generally” the exception in s.36(2B)(c) of the Act applied.
The Tribunal concluded that the applicant is not a person who is eligible for complementary protection under s.36(2)(aa) of the Act.
Before the Court
The applicant applied for judicial review in this Court on 2 November 2016. The grounds of the application are in the following terms:
“1. I argue that I was denied procedural fairness based on the Tribunal’s findings that I am not a credible witness because the Member took an irrelevant consideration into account to cast a doubt on my claims. Thus the Tribunal Member proceeded on an erroneous factual conclusion.
2. The essential contention in my claim was that the Tribunal failed to give me the benefit of the doubt and deal with the claim articulated by me that I had a well-founded fear of persecution based on my political opinion or membership of a particular social group as a returnee and the Tribunal Member undermined my claims of fear of serious harm on return to Nepal and it is unfair that the Tribunal member had taken a rigid and arbitrary view towards my claims.
3. I have concerns as to whether the Tribunal satisfied all its statutory requirements in dealing with my matter and it would appear that the Tribunal failed its duty to confer common law natural justice in determining my application.
4. The Tribunal Member failed to put me on notice of its concerns and perception in my evidence and claims and also failed to give me an opportunity to rebut the relevance of that material to my circumstances in writing. I also argue that the Tribunal failed to give a proper opportunity to dispute the Tribunal Member’s concerns of perception.
5. The Tribunal Member failed or breached the rule of natural justice and procedural fairness in my case.
6. The Tribunal Member’s decision is infected with jurisdictional error.”
The applicant appeared before a Registrar of the Court on 9 March 2017 when orders were made giving the applicant the opportunity to file any amended application, or evidence by way of affidavit in support of his application. No such documents have been filed to date.
At the hearing the applicant appeared in person. He was assisted by an interpreter in the Nepali language.
Before the Court the applicant submitted that he was “not satisfied” with the Tribunal’s decision, and wanted his application to be reviewed again. I sought to explain to the applicant the nature of the proceedings before the Court. In short, that the task for the Court was to consider whether the Tribunal’s decision contained any “legal mistake”. The applicant’s claimed lack of satisfaction was not a proper assertion of legal error. I directed him to the grounds of his application. The applicant responded that he had nothing further to say beyond what was written in the grounds of his application. In that light the Minister relied on his written submissions.
Consideration
Ground one of the application is a bare assertion of a denial of procedural fairness. No particulars have been provided. However, it appears the real complaint is to take issue, without explanation, with the Tribunal’s adverse credibility finding.
There is no doubt, as the Minister submits, that credibility findings, while matters for the Tribunal, are susceptible to challenge on recognised grounds. Noting of course the caution in not embarking on an exercise of merits review (CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (“CQG15”)).
What is required to avoid legal error is that such findings by the Tribunal must be reasonably open to it on the material before it, based on rational grounds, and arrived at after consideration and engagement with the matters “logically probative of the issue” (CQG15 at [36]-[44]; Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407.
In the current case although the applicant says that the Tribunal took an irrelevant consideration into account in making the adverse credibility finding, he does not identify what this could be.
On what is before the Court the Tribunal gave extensive and comprehensive reasons to explain its adverse credibility finding. These reasons were probative of the material before the Tribunal and were reasonably open to it.
Despite opportunity the applicant has not put a transcript of the Tribunal hearing into evidence before the Court. The Tribunal’s account of the hearing, on which its adverse credibility finding, and the findings that informed it, were based, is the only account in evidence.
As the Minister submits each of the matters on which the finding was based was considered logically and rationally and in light of the applicant’s evidence to the Tribunal.
Nor is the Tribunal required to uncritically accept any or all of the applicant’s evidence. (Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 535). Nor is the Tribunal obliged to have in its possession evidence rebutting the applicant’s claims, before rejecting any such claims (CQG15).
In all ground one is not made out.
Ground two asserts that the Tribunal failed to give the applicant the benefit of the doubt, and took “a rigid and arbitrary view” of his claims in dealing with his claim that he had “a well-founded fear of persecution based on [his] political opinion or membership of a particular social group”. In short the complaint is that the Tribunal did not properly consider his claims to fear “serious harm”.
What must immediately be said is that this language relates to the criterion for the grant of the visa set out in s.36(2)(a) of the Act.
As is clear the applicant had already had his claims to protection pursuant to that subsection, or criterion, considered and reviewed and determined. In the circumstances, the applicant was barred from making any subsequent application relying on that criterion.
As the Tribunal correctly found, its task, given SZGIZ was to consider whether the applicant satisfied s.36(2)(aa) of the Act for the grant of the protection visa.
On this basis the ground as stated cannot succeed.
In any event even if in some way the ground were to be taken as referring to s.36(2)(aa) of the Act, it is still without merit.
There was no obligation on the Tribunal to give the applicant the benefit of the doubt. The task before the Tribunal was to consider the applicant’s claims and evidence, as to why he said he feared harm on return to Nepal, in the manner as is explained in such authorities as Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22 (“GUO”). In Guo and Abebe v The Commonwealth of Australia [1999] HCA 14, the High Court set out how the determination of whether there is a real chance that an event will occur in the future should be conducted.
For current purposes it is sufficient to note that had the Tribunal found that it was only a matter of some lesser probability that the applicant would be harmed, then it would have been required to apply what is colloquially known as the “what if I am wrong?” approach to the test of a real chance of harm (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 at 293 and Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719).
This is not a case where the Tribunal arrived at any finding, including on credibility, with such doubt as to oblige it to consider the alternative, that is, based on the proposition that the claim may be true.
The Tribunal’s statutory obligation was to see if it could reach the statutory level of satisfaction, in this case with reference to s.36(2)(aa), such that the protection visa must be granted (s.65 of the Act).
In this it is for the applicant to provide such evidence and arguments in sufficient detail to enable the Tribunal to reasonably be satisfied as to those facts relevant to that task.
At its highest, in the circumstances before the Court, the applicant’s complaint in ground two is no more than an attempt to cavil with the Tribunal’s findings which informed its conclusion.
The reference to “rigid and arbitrary view” as the Minister submits, may be some attempt to assert bias, or the apprehension of bias. If so it must fail. Such serious allegations must be distinctly made and clearly proven. On what is before the Court neither of those two requirements is indicated. (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28).
Ground two is not made out.
Ground three is a mere, unparticularised, and it must be said, confused statement. Before the Court the applicant was unable to explain what he meant by ground three.
The reference to common law natural justice, if it is meant as an allegation that the Tribunal failed to apply the relevant principles, must in the circumstances fail.
Section 422B of the Act provides that the matters set out at Division 4 of Part 7 of the Act are the exhaustive statement of the natural justice hearing rule. In any event the applicant has not explained, not is it apparent on the evidence before the Court, that the applicant was denied procedural fairness.
Ground five is again no more than an unparticularised statement which without particulars does not advance the bare assertion made in ground three.
It may be that what is set out in ground four is an attempt to give particularity to this general complaint which appears to arise from grounds three and five.
The Tribunal’s relevant procedural fairness obligation is that arising from s.425 of the Act. The Tribunal is required to invite the applicant to a hearing, and to ensure that it is a meaningful opportunity for the applicant to give his evidence and arguments, and to make his claims and explain them (SZQBN v Minister for Immigration and Border Protection [2014] FCA 686). On the evidence before the Court that is what occurred.
The Tribunal is not obliged to give the applicant a running commentary of its thought processes at the hearing in relation to what the applicant says (SZBEL v Minister for immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (“SZBEL”).
The obligation is to ensure that the issues determinative of the review are exposed, and that the applicant be given the opportunity to comment. (SZBEL). On the evidence that is before the Court that is what occurred.
For the sake of completeness I note that s.424A(1) was not enlivened, and the Tribunal did not employ s.424.
In all grounds three, four and five are not made out.
Ground six, absent any particularity whatsoever, is in reality meaningless. If the applicant had some complaint, even of a general nature, to explain the bare assertion, then he plainly had the opportunity to advance it. In any event no jurisdictional error is indicated on what is before the Court.
Conclusion
None of the applicant’s grounds reveal jurisdictional error. It is therefore appropriate to dismiss the application. I will make the appropriate order.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 12 August 2019
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