DMF16 v Minister for Immigration

[2019] FCCA 1420

FEDERAL CIRCUIT COURT OF AUSTRALIA

DMF16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1420

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether Tribunal considered application for review with an open mind – whether the Tribunal applied correct test for assessing future harm – whether the Tribunal was required to give applicant notice of concerns it had about applicant’s credibility – no jurisdictional error.

Legislation:

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

1951 Convention Relating to the Status of Refugees, Art.1A(2)

Cases cited:

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

First Applicant: DMF16

Second Applicant: DMG16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3194 of 2016

Judgment of: Judge Manousaridis

Hearing date: 18 May 2018

Date of Last Submission: 18 May 2018

Delivered at: Sydney

Delivered on: 31 May 2019

REPRESENTATION

Applicants in person, assisted by an interpreter

Solicitors for the First Respondent: Ms J Strugnell of Minter Ellison

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3194 of 2016

DMF16

First Applicant

DMG16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants, who are husband and wife and citizens of Nepal, seek judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants Protection (Class XA) visas (Protection visas).

Background

1. The first applicant (applicant) arrived in Australia on 30 November 2013.[1] He departed Australia on 8 December 2013 and on 27 September 2014 he returned to Australia. The second applicant arrived in Australia on 16 October 2014. [2] The applicants applied for Protection visas on 27 October 2014. The second applicant applied as a member of the first applicant’s family unit.

   [1] CB188, [1]. This was not the applicant’s first visit to Australia. He previously visited Australia in 2004.

   [2] CB188, [1]

Claims for Protection

1. The applicant provided a written statement of his claims dated 15 April 2015, where he stated as follows:[3]

   [3] CB72

   a)The applicant was born on 31 December 1968 into a Hindu family of good repute. He is of Hindu faith and Magar ethnicity. His father was a politician, businessman, and “hard core [sic]” monarchist. His family has always supported the King and his officials. The applicant’s wife and son reside in Australia. The applicant’s son is a university student in Australia.

   b)On 15 June 1988 the applicant enlisted in the Singapore Police Force. His goal was to work hard to support his family. He served in the force for 26 years and retired at the age of 45.

   c)When the applicant first enlisted in the Singapore Police Force, Nepal was safe and peaceful during the rule of the King. The applicant had hoped for Nepal to “be much better with time” after 26 years, and he intended to retire and spend the rest of his life there.

   d)The applicant retired in December 2013 and he returned to Nepal. He commenced operating a fitness business in Kathmandu in January 2014 with the aim of helping society’s wellbeing and fitness.

   e)The applicant is opposed to the Maoists and anti-monarchists. He holds strong views in favour of the constitutional monarchy. The applicant met Kamal Thapa, the central leader of the Rastriya Prajatantra Party Nepal at a family get-together in December 2013. The applicant’s political involvement is based on a genuinely held belief in democracy and the monarchy being a positive force for the good of the Nepalese people.

   f)As the applicant is a “hardcore” monarchist, he became a member of the Rastriya Prajatantra Party Nepal (RPP Nepal), assisted the party financially, and supported the party in his capacity as a member. The applicant’s enemies, who include the Maoists, do not want him involved in the politics of Nepal because they see him as aligned with the West. His political opponents, including the Maoists, mistreated the applicant. The Maoists threatened to kill the applicant because of his involvement with the RPP Nepal. The applicant continued to be threatened by members of different criminal gangs “for extortion”.

   g)On 15 August 2014 a group of Maoists went to the applicant’s house and attacked him. He was physically and mentally tortured. He was asked not to be involved in politics. The Maoists did not kill the applicant on the condition that he would give up his involvement in politics. The Maoists made the applicant enter into an agreement to pay them 250,000 rupees, and to agree to give up political activities. The applicant paid the money. The Maoists said that this was a warning about what the applicant would face if he continued to participate in politics. The applicant was extremely frightened, and the applicant ceased his involvement in politics.

   h)On 22 September 2014 around five criminals approached the applicant, demanded 1,500,000 rupees, and threatened that if the applicant refused to pay them the money they would kill him. The applicant paid them 500,000 rupees and promised he would pay the rest within a week.

   i)The applicant faced a severe financial crisis or death. He assessed his situation and focused on his safety. He did not see any prospect of being protected against the Maoists and the criminals either by himself or from the government. His fear was so great that he could not remain in Nepal. He left the country for his personal security. He was lucky that he had a valid Australian visa, and was able to come to Australia for the sake of his safety, where he has since stayed for his “safety”.

   j)The applicant cannot return to Nepal because he opposes the Maoists and cannot satisfy the criminals’ demands for money. The applicant would support the monarchy and follow the politics of the RPP Nepal. These political stances would lead the applicant’s political opponents and criminals to persecute him.

   k)The new constitution has not been formulated yet in Nepal. Politics is in turmoil, and criminals are growing in number. The law of Nepal is feeble and has been unable to reign in crime. Human rights are trampled upon.

   l)The applicant fears he will face extortion if he returns to Nepal because, in the minds of criminals he must have made money while employed by the Singapore Police Force. The applicant further fears that the Maoist criminals are determined to kill him as he has attracted their attention. He is unable to obtain protection from the authorities because they lack basic resources and are corrupt. Nepalese police do not respond to most incidents of violence, particularly events involving Maoists and armed groups in Nepal.

The Tribunal’s Reasons

1. The Tribunal accepted the applicant is a citizen of Nepal, of the Hindu faith, and of Magar ethnicity; that his family were monarchists who supported the King and that his family was wealthy; that in 1988 the applicant enlisted in the Singapore Police Force from which he retired and returned to Nepal in December 2013; that the applicant now holds a pension from the Singapore Police Force; that the applicant was robbed in a taxi in 2004 in Nepal; that the applicant had previously travelled to Australia in 2004 and in 2013 and that his son is studying in Australia; that when the applicant returned to Nepal in 2013 he did not have concerns about returning to Nepal; that the applicant continues to have a financial interest in a fitness studio in Kathmandu that is profitable, and which has not experienced any problems after the applicant left Nepal; and that the applicant supports the RRP Nepal.[4] The Tribunal also accepted the applicant owns investment properties in Kathmandu and Okhaldhunga, and that the applicant has lent money to friends and family of the applicant who pay interest on the loans.[5]

   [4] CB196-197, [48]

   [5] CB197, [49]

2. The Tribunal, however, did not accept the applicant had been attacked on 22 September 2014 because it found the applicant’s evidence to be “improbable and speculative”.[6] The Tribunal set out examples, including the applicant’s being unable to identify who attacked him, other than to say that it was a group; the applicant’s being unable to say exactly why he was attacked; although the applicant said that it was around five persons who attacked him, he could not remember the exact number; when asked whether the applicant could provide further information about the identity of the persons who attacked him the applicant suggested the group could be part of a criminal gang belonging to a famous criminal.[7]

   [6] CB197, [50]

   [7] CB197-191, [51]-[52]

3. The Tribunal also did not accept the applicant’s claims he was attacked on 15 August 2014 in Okhaldhunga because of his involvement in the RPP Nepal. The Tribunal found this claim was undermined by inconsistent evidence the applicant gave about whether he joined the RPP Nepal before or after the claimed attack.[8] Further, the Tribunal found that the applicant’s own evidence indicated that his involvement with the RPP Nepal began after he retired from the Singapore Police Force, and his involvement was “fairly limited”.[9] At the Tribunal hearing the applicant said he did not join RPP Nepal until 20 August 2014, which was after the attack of 15 August 2014; and before 2014 the applicant was working in Singapore for a significant time and was not involved in politics.[10]

   [8] CB199, [55]

   [9] CB199,[56]

   [10] CB199, [56]

4. The Tribunal also found that the applicant’s claims about the threats that were made against him after the claimed attack of September 2014 to be “extremely vague and lacking in meaningful detail and it was difficult to accept that an organised crime gang who knew where his business was would not go after that business to get the money that [the applicant] promised to them”.[11] The Tribunal found that the applicant’s wife’s having remained in Nepal until October 2014 without experiencing any problems, the fitness studio continuing to operate smoothly over two years after the applicant departed Nepal, and the applicant’s business partner experiencing no difficulties casted doubt on the applicant’s claims that he is of adverse interest to a criminal gang because he is a businessman or a wealthy businessman, or because he promised to pay the criminal gang money but failed to do so.[12]

   [11] CB200, [60]

   [12] CB200, [60]

5. The Tribunal then considered whether the applicant had a well-founded fear of persecution because of the political opinions the Tribunal accepted the applicant holds. Although the Tribunal had serious doubts about whether the applicant was a member of the RPP Nepal, the Tribunal was prepared to assess the applicant’s claims on the assumption that he supports the RPP Nepal; he made financial donations to the RPP Nepal in 2014; he met the leader of the RPP Nepal at a family gathering; he is from a pro-monarchist family; and if he returns to Nepal the applicant would continue to be a member and supporter of the RPP Nepal, make donations to RPP Nepal, and speak publicly about his belief in the RPP Nepal and, more broadly, the monarchy. Even on these assumptions, however, the Tribunal was not satisfied there is a real chance the applicant will face harm of any type as a result of any of these matters.[13]

   [13] CB202, [65]

6. First, the Tribunal referred to a report prepared by the Department of Foreign Affairs and Trade for Nepal dated 21 April 2016 (DFAT Report) which stated that a diverse and competitive array of political parties operate in Nepal, though the system faced considerable instability over the years; that Nepal’s lively political environment provides an opportunity for diverse political parties and views where an individual’s membership of a political party and his or her ability to be identified as a member and to be politically active are generally respected; and that although violence occurred in the aftermath of the new constitution, and that Maoists and disillusioned splinter groups continue to threaten a return to violence, the overall risk is low.[14] Second, the applicant had not encountered any problems in the past because of his political activities and views;[15] and the applicant did not claim that his father or any other member of his family were ever harmed because of their political opinions or wealth.[16]

   [14] CB202, [67]

   [15] CB203, [69]

   [16] CB203, [71]

7. The Tribunal then considered whether the applicant faced a real risk of harm because of his wealth or because he might be perceived to be wealthy. As I have already noted, the Tribunal accepted the applicant has operated a business in Nepal, and that he has investment properties in Nepal. The Tribunal also accepted that because the applicant is a businessman who has worked in Singapore for over two decades he might be perceived as wealthy by others if he were to return to Nepal. It concluded, however, that although there are reports of threats against businesses throughout Nepal, it was not satisfied there is a real chance the applicant will be subjected to serious harm or significant harm by criminals because he is a businessman or a wealthy businessman, or because he might be perceived to be wealthy.[17] The Tribunal relied on applicant’s business not having been the subject of any threats, and that it continues to operate profitably.[18]

   [17] CB204

   [18] CB204-205, [76]

8. The Tribunal also considered whether the applicant faced a serious risk of harm because of general corruption and the absence of security. The Tribunal found it was “mere speculation” that the applicant will suffer serious harm or significant harm because of crime or corruption in Nepal and, for that reason, was not satisfied there is a real chance the applicant will suffer serious or significant harm.[19] The Tribunal was also not satisfied that the applicant faced a real chance of serious or significant harm because of the general security situation in Nepal.[20]

   [19] CB205, [77]

   [20] CB205-206, [79]-[80]

9. In the light of these findings, the Tribunal was not satisfied the applicant met the criteria for the granting of a protection visa prescribed by s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth) (Act).

Grounds of Application

1. The grounds of application are as follows (errors in original, numbers added):

   [1] The Tribunal Member’s conclusion in most parts of my claims had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly. [2] The Tribunal Member based the finding of lack of credibility was based on a clearly erroneous fact and its arbitrary views towards my claims but it was not based on the facts and evidence.

   [3] The Tribunal’s findings that I am not a credible witness because the Tribunal Member is of the view that I have not suffered any harm in the past because of my actual or perceived political opinion and the Tribunal is of the view that it is mere speculation that I will suffer serious harm or significant harm as a result of crime and corruption in Nepal. My peculiar background in respect of my employment as a police officer, the special place I have in the esteem of the Nepalese community and the fact that my employment with Singapore Police Force for many years clearly placed me into a category that be best described under the Convention as a particular social group which is set apart and readily identifiable from the community at large. Although I did not specifically argue this particular group at the hearing, the issue was raised squarely before the Tribunal on the facts presented to it.

   [4] 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 and evidence. The Tribunal Member made a cursory conclusion in every part of my claims of fear on return to Nepal and it committed a jurisdictional error in failing to address every part of my claims of persecution upon return to Nepal.

   [5] The Tribunal erred when addressing Art 1C(5) of the Refugees Convention in that it failed to consider whether the change in circumstances in Nepal was durable and substantial and failed to consider whether I might nevertheless be at risk from the Maosits or other opponents including criminal gang and [6] whether the Nepalese authorities had taken reasonable measures to protect me. [7] The Tribunal’s decision was affected by jurisdictional error by reason of a failure to follow the mandatory procedure required by s.424A(1).

   [8] The Tribunal Member failed to put me on notice of some 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.

2. The applicant, who is not legally represented, appeared at the hearing for himself and on behalf of the second applicant, and he made a number of submissions.

3. In relation to that part of the grounds of application that appear after [1], I asked the applicant what occurred before the Tribunal that made the applicant include this as a ground in the application. The applicant, as I understood him, only referred to a claim that corruption is very high in Nepal, but the Tribunal member did not believe the applicant. This submission appears to go no further than submitting the Tribunal ought to have believed the applicant, and therefore does not disclose any jurisdictional error. Perhaps the applicant also intended to state that during hearing before the Tribunal, the Tribunal said it did not believe the applicant. If that is what the applicant intended to have stated I do not accept that is what occurred before the Tribunal because the transcript of the hearing before the Tribunal is not in evidence. When [1] is viewed on its own, it also discloses no jurisdictional error. As should be apparent from my summary of the Tribunal’s reasons, the Tribunal considered each of the applicant’s claims, and there is nothing on the face of its reasons that could suggest the Tribunal did not approach its tasks with an open mind.

4. The part of the grounds of application that appears after [2] claims the Tribunal based its finding of lack of credibility “on a clearly erroneous fact and arbitrary views”. At the hearing before me I asked the applicant whether he was in a position to identify the erroneous fact on which he claimed the Tribunal relied. The applicant said he did not want to comment too much on that. He said he was the victim who has suffered, and knowns what “will go on me”.[21] Given the applicant, either in the grounds of application, or at the hearing before me, was unable to identify the erroneous fact on which the Tribunal is said to have based its adverse credibility findings, this part of the grounds must fail. Nor does the ground identify how it is said the Tribunal’s not accepting the applicant’s credibility was based on “arbitrary views”. The Tribunal’s conclusion that the applicant was not credible was not based on an arbitrary view. The Tribunal did not accept the applicant’s claims largely because it found the evidence he gave to be vague and improbable. These findings were reasonably open to the Tribunal for the reasons it gave.

   [21] T8.25

1. The part of the grounds of application that appears after [3] claims that the Tribunal failed to consider a claim based on the applicant being a member of a particular social group, namely, the Singapore Police Force. As the ground itself states, the applicant himself did not claim protection because he claimed he feared a real chance of harm because he was a member or a former member of the Singapore Police Force. He did, however, claim that because of his long service with the Singapore Police Force and the pension to which he had become entitled because of that service he might be the subject of extortion. The Tribunal considered that claim. A claim based on the applicant’s having served for the Singapore Police Force, divorced from the applicant’s claimed fear of extortion, did not “arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence”.[22] This part of the grounds of application, therefore, also fails.

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

2. The part of the grounds of application that appears after [4] claims the Tribunal took a “rigid and arbitrary view” towards the applicant’s claims and evidence, and the Tribunal made a “cursory conclusion on every part” of the applicant’s claims. I do not accept this part of the grounds. The Tribunal set out the applicant’s claims, considered them and, for reasons that were reasonably available to it, did not accept them. The Tribunal’s reasons cannot be characterised as cursory.

3. The part of the grounds of application that appears after [5] claims the Tribunal failed to consider whether the change in circumstances in Nepal was durable and substantial, and failed to consider whether the applicant might nevertheless be at risk from the Maoists or other opponents including criminal gangs. This part of the grounds may be taken to claim that, when it assessed the risk of harm the applicant may face in the future, the Tribunal did not consider whether in the future, or did not consider the correct period into the future for which it had to assess, whether the applicant faced a real chance of harm. That ground cannot be made out. For a person to be a “refugee” within the meaning of Art.1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (Refugees Convention), there must be “a real chance that [that person] would be persecuted for a Convention reason were he to return at this time or within the reasonably foreseeable future”.[23] The Tribunal did posit a future period by reference to which the applicant faced a real chance of risk, and that the period it posited was the “reasonably foreseeable future”. That is apparent in its conclusion that it was not satisfied “there is a real risk the applicant will face harm of any type for any of the reasons claimed if he returns to Nepal now or in [the] reasonably foreseeable future”.[24]

   [23] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at page 279

   [24] CB206, [82]

4. The part of the grounds of application that appears after [6] claims the Tribunal failed to consider whether the Nepalese authorities had taken reasonable measures to protect the applicant. Given the Tribunal was not satisfied the applicant suffered the attacks and other harms he claimed he suffered, the question whether the Nepalese authorities had taken reasonable measures to protect the applicant did not arise. The Tribunal, therefore, made no jurisdictional error by not considering whether the Nepalese authorities had taken reasonable measures to protect the applicant.

5. The part of the grounds of application that appears after [7] claims the Tribunal came under an obligation to comply with s.424A of the Act. The grounds, however, do not identify any information it is said the Tribunal considered would be the reason or part of the reason for affirming the decision that is under review.

6. Finally, there is that part of the grounds of application that appears after [8]. Here the applicant claims the Tribunal failed to put the applicant on notice of the concerns it had about the applicant’s evidence, and failed to give the applicant an opportunity to respond in writing to those concerns. Perhaps it is the concerns the Tribunal had with the applicant’s evidence that the part of the ground after [7] claims is “information” to which s.424A applies. This does not disclose any jurisdictional error.

7. Concerns the Tribunal may have had with the applicant’s evidence is not “information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under the review”, as these words appear in s.424A of the Act; and that is because the notion of “information” for the purposes of s.424A of the Act “does not encompass the tribunal’s subjective appraisals, thought processes or determinations”.[25] Further, a “decision-maker would not be otherwise obliged to expose his or her mental processes or provisional views to comment before making the decision in question.”[26] In any event, it is apparent from the Tribunal’s reasons that the Tribunal did raise with the applicant concerns it had with aspects of his claims. For example, the Tribunal’s reasons record that it put to the applicant that he had joined the RPP Nepal after the date of the claimed attack, and that in the context of the applicant relying on what purported to be a membership receipt the Tribunal referred to country information to the effect that fraudulent documentation is readily available in Nepal.

   [25] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, at [18], quoting from the judgment of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at pages 476-477

   [26] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [24] quoting from the judgment of Northrop, Miles and French JJ in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd at (1994) 49 FCR 576.

Conclusion and disposition

1. The applicants have not succeeded on any of the grounds on which they rely. I propose, therefore, to order that the application be dismissed. I will consider the question of costs at the time I pronounce my order.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 31 May 2019