DPB16 v Minister for Immigration
[2018] FCCA 2455
•16 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DPB16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2455 |
| Catchwords: MIGRATION – Application for review of decision of the Administrative Appeals Tribunal – protection (Class XA) visa – whether Tribunal failed to consider documents submitted by the Applicant post hearing – whether Tribunal failed to give additional time for the Applicant to submit further documents – alleged bias against the Tribunal – whether Tribunal failed to afford the Applicant procedural fairness by not informing him of procedural guidelines for giving evidence at the hearing – whether the decision was irrational, illogical and/or manifestly unreasonable – lack of particulars – no jurisdictional errors established. |
| Legislation: Migration Act 1958 (Cth) ss.5, 5J, 36, 359AA, 424A, 476 |
| Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 SZBEL v The Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 |
| Applicant: | DPB16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3296 of 2016 |
| Judgment of: | Judge Baird |
| Hearing date: | 16 August 2018 |
| Date of Last Submission: | 16 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 16 August 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Mr A. Keevers, Sparke Helmore |
ORDERS
The application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3296 of 2016
| DPB16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore, revised from transcript)
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) seeking judicial review of a decision of the Administrative Appeals Tribunal dated 27 October 2016 affirming the decision of a Delegate of the First Respondent, the Minister for Immigration and Border Protection, dated 23 April 2015 to refuse to grant the Applicant a Protection (Class XA) Visa.
Background
The Applicant is a citizen of Nepal, born in 1970. He arrived in Australia in August 2014 on a FA 600 Business Stream Visitor visa to take part in what is referred to in the Applicant’s Visa application as the “JAA International Jewellery Fair” in 2014.
On 10 September 2014, he lodged an application for the Visa. The Applicant was invited to attend an interview with the Delegate on 23 April 2015. He did not attend the interview. That same day, the Delegate refused to grant the Applicant the Visa. The Delegate was not satisfied that the Applicant is a person to whom Australia has protection obligations under s.36 of the Act. The Delegate further found that evidence of the Applicant's Nepalese citizenship was sufficient to demonstrate that he had a right to enter and reside in India. The Delegate was not satisfied that the Applicant had taken all possible steps to avail himself of the right to enter and reside in India.
On 13 May 2015, the Applicant applied to the Tribunal for review of the Delegate's decision. On 13 October 2016, the Applicant appeared before the Tribunal together with the assistance of a Nepalese interpreter to present evidence and give arguments. As I have said, on 27 October 2016, the Tribunal affirmed the decision under review.
On 24 November 2016, the Applicant applied to this Court for judicial review of the Tribunal's decision.
Legislative Framework
The criterion for a protection visa is set out in s.36 of the Act. Subsection 36(2) provides that the applicant for a visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations because the person is a refugee;
or, in subparagraph (aa), where the Applicant is:
(aa)a non-citizen in Australia, (other than a non-citizen mentioned in paragraph (a)), in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm.
In addition, s.36(3) provides that:
Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
The meaning of “refugee” in s.36(2)(a) is defined in s.5H of the Act as follows:
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well founded fear of persecution, is unable or unwilling to return to it.
The meaning of “well founded fear of persecution” is defined in s.5J as follows:
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
What constitutes “significant harm” for the purposes of s.36(2)(aa) of the Act is exhaustively defined in s.36(2A): see s.5(1) of the Act.
The Applicant's protection claims
In an undated statement annexed to his application for the Visa, the Applicant provided some reasons for seeking protection, which I summarise as follows:
(a) his primary objective to come to Australia was to apply for a protection visa;
(b) he has a company specialising in the export of Nepali handmade products in Kathmandu Nepal;
(c) he started to receive threats, letters demanding donation and was terrorised by gangsters. He claims the number of calls with threats to abduct and kill him came on a daily basis and intimidated him to leave the country “if [he] wanted to save [himself] and [his] family.” The Applicant claims he could not conduct his business. He claims that if he returns to Nepal, “they [the gansters] will kill [him]”;
(d) the circumstance in Nepal “has ruined [his] well-established business. [He] could not grow his business further. Rather [he] become [sic] compelled to stop it”.
In response to the Delegate's finding that he had not availed himself of his right to reside in India, in a letter to the Tribunal dated 13 May 2015, the Applicant claimed that he was not safe in India because the gangsters can enter India easily and harm him.
Proceeding before the Tribunal
In the evidence before the Tribunal, initially during the Tribunal hearing the Applicant indicated that his intention in coming to Australia was to expand his business operations: see [24]. He indicated that his business in Nepal is thriving and it is one of the most successful businesses of its type: at [25]. The business had grown, and at the time of the Tribunal hearing had 50 employees.
The Tribunal's decision at [26] records that the Applicant had stated to the Tribunal that his brother-in-law was running the business. At [30] of its decision, the Tribunal records that when the Tribunal put to the Applicant that the evidence of his business thriving was inconsistent with his written statement that the donation requests and associated threats had ruined his business, the Applicant indicated that the business currently being operated was that of his brother-in-law and not his own: at [30]. The Applicant reiterated that submission before me today.
Before the Tribunal, the Applicant claimed that several months before he came to Australia, his factory in Nepal had been broken into and goods were stolen. In his post-hearing submission, the Applicant stated that his father and wife have relayed messages that he is still constantly receiving threats from the looters, and the life of his wife, father, and child, a daughter, are also at risk.
Before the Tribunal, the Applicant gave evidence that he took legal proceedings against some of the employees involved in the theft and received compensation and remediated the factory. I note that at [27] of the Tribunal's decision, the Tribunal records that the Applicant says he received compensation of US$100,000, which he indicated did not cover the loss. In response to a question from the Tribunal, the Applicant indicated that although some of the equipment was returned damaged he remediated the factory.
At [28], the Tribunal records that at the commencement of the hearing before it, the Applicant provided a bundle of untranslated documents which he indicated related to the theft and legal proceedings. The Tribunal said to the Applicant that it was prepared to accept his evidence that there had been a theft from the factory involving employees and associated legal proceedings. The Tribunal informed the Applicant that if there were other aspects of the contents of the documents which supported his claims, then he should provide translated versions to the Tribunal, and the Tribunal gave the Applicant additional time to do so.
The Tribunal received documents on 17 October 2016, which were a document headed “Nepal Government Ministry of Home Affairs, Metropolitan Police Office, Kathmandu Branch”, which appears to be a police report, and a statement by the Applicant dated 15 October 2016, which went to the Applicant's views about resettlement in India of Nepalese people, including himself.
The police report, dated “21 August 2007 AD”, is reproduced in the court book, and notes that the Applicant was an applicant in the prosecution of a "mysterious theft case". The police report stated the court could not make any verdict due to lack of time and refers to handing over three identified defenders to "the authorised security personnels". The translation of the document is by a NAATI-certified translator.
In his post-hearing submission dated 15 October 2016, to which I have referred, the Applicant claimed that sheltering in India is not possible: there are no legal protections for Nepalese citizens in India. The Applicant stated that he would like to do business in Australia and could contribute to the Australian community.
The Tribunal’s decision
At [10] of the decision, the Tribunal identified the issue in the case before it was the credibility of the Applicant, and whether on his accepted claims the criteria for protection are fulfilled. At [18] and [19] of its decision, the Tribunal set out certain principles by reference to authorities, including that it remains for an applicant to satisfy the Tribunal that all of the statutory elements of the claimed fear of persecution, and for the reasons claimed, are made out, that it is for the applicant himself, or herself, to provide as much detail as is necessary to enable a decision-maker to establish the relevant facts, and that a decision-maker is not required to make the applicant's case for him or her.
The Tribunal also observed that it is not required to accept uncritically any and all the allegations made by an applicant by reference to Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437. The Tribunal sought to adopt the liberal approach outlined in cases such as Randhawa, and Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at 191, and noted the remarks of Gummow and Hayne JJ at [19] that “the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising”.
The Tribunal then went into detail considering the evidence of the Applicant and the credibility concerns it had with the Applicant's claims of forced donation requests and threats by gangsters associated with political parties driving the Applicant's business to close and causing the Applicant to flee to Australia for his safety. In particular, the Tribunal referred to the following concerns:
(a) first, the Applicant's written claims to the Department indicating that the donation requests and threats ruined his established business were inconsistent with his oral evidence at the Tribunal hearing that his business was operating and thriving (at [22] and through to [34]). There, the Tribunal was concerned at the inconsistencies between the earlier part of the Applicant's oral evidence to the Tribunal, and his later indications that the business had ceased following theft, and then that the business currently being operated was the business of his brother-in-law, and not his own business. At [31], the Tribunal stated that it was not satisfied that these claims were true in light of the Applicant's clear evidence in the early part of the Tribunal hearing that his business was successfully operating when he came to Australia, that it was his intention to expand the business in Australia, and that his own business had been growing and thriving since he came to Australia. At no point in this part of the evidence did the Applicant say that his business had failed and that this was a motivation for coming to Australia;
(b) second, the Tribunal had concerns that the Applicant's claim that there was a real chance of serious or significant harm to himself and his family from gangsters as a result of the success of his business was inconsistent with the continued operation and growth of the business in Nepal, and the absence of any significant problems or difficulties for the business since he came to Australia: I refer to [35] to [41] of the Tribunal's decision;
(c) third, the Applicant's evidence in the hearing concerning both donation requests and threats to both himself and his family lacked clarity and was vague, and in some cases was inconsistent. At [48], the Tribunal states that that evidence did not persuade the Tribunal to consider the Applicant was speaking from actual experience or knowledge. For example, in relation to threats to his wife, at [42] to [45] of the decision, the Tribunal considered that it seemed more logical that gangsters would target the person running the business, and referred to country information in this regard. The Tribunal at [46] considered the threats to the Applicant's wife to be implausible, given the absence of any significant difficulties faced by the Applicant's brother-in-law who was operating the business.
Whilst the Applicant's oral evidence about donation requests and threats lacked clarity, was vague, and in some respects inconsistent, and that he spoke in general terms and provided few specifics or details, at [48] to [52] of the decision, the Tribunal note it drew limited adverse inference from this, given difficulties of culture and language;
(d) fourth, the Tribunal also noted at [55] to [57] of its decision that neither the Applicant nor his wife had made a complaint to the police, notwithstanding that they took legal action with respect to the theft from the factory.
The critical finding at [58] was thus, considering all of the evidence and the four credibility concerns I have just spoken about, that the Tribunal did not consider that the Applicant had been a truthful witness in relation to the extent of donation requests, and threats to both the Applicant and his family from gangsters, and rejected his claims that his business was ruined by the requests and threats. The Tribunal was not satisfied that the Applicant’s business closed prior to his coming to Australia.
As I have said, the Tribunal did accept that there had been an incident of theft and the factory was remediated. At [59], the Tribunal found that the business was being operated successfully by the Applicant’s brother-in-law. At [60], the Tribunal accepted that the Applicant has had to pay donations to politically aligned groups, which is consistent with what regularly occurs in Nepal: it is part of doing business in that country, and that he would have paid to foster political goodwill. The Tribunal considered that the Applicant had significantly embellished evidence as to the amounts which have been paid.
It was not satisfied that the amounts that had been requested and paid have threatened the viability of the business. At [61] through to [70] of its decision, on the basis of the adverse credibility findings, the Tribunal indicated it was not satisfied of a number of things, including that:
(a) the Applicant had faced anything beyond routine requests for donations;
(b) he had been threatened with being killed, kidnapped, or with other physical harm;
(c) his family had been threatened or harmed;
(d) his wife had been called and threatened by gangsters demanding money and his whereabouts after his departure;
(e) the request and payment of donations constituted serious harm or led to a real chance of physical harm (at [69]); or
(f) the gangsters would constitute significant harm (at [70]).
I note that at [65] the Tribunal accepted that goods and equipment were stolen from the Applicant’s factory, but was not satisfied that gangsters were involved. As I’ve said, it found at [66] that the factory was remediated and the business continued to operate and thrive.
The Tribunal also, at [56], asked the Applicant how the Applicant’s indication that he did not complain to the police about threats to himself or his wife because he was told he would be killed if he complained was consistent with taking legal action in respect to his employees linked with gangsters stealing property from his factory.
In these circumstances, the procedure that was adopted by the Tribunal at the hearing served to put the Applicant on notice that the credibility of his claims was a live issue for determination by the Tribunal. I refer to SZBEL v The Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [35] and [47].
The Tribunal took into account, and considered, the post hearing written submission of the Applicant. The Tribunal noted at [88] and [89] that it was not satisfied that gangsters would have the resources or ability to track him and his family down in India to harm them. The Tribunal therefore concluded at [90] to [92] that it not satisfied that the Applicant faced a real chance of serious or significant harm in India.
The Tribunal further proceeded on an alternative basis, and found at [73] to [85] that the Applicant had a right to enter and reside in India. The Tribunal was not satisfied that the Applicant had taken all possible steps to avail himself of the right to enter and reside in India.
The Tribunal noted at [91] that the Applicant provided no independent evidence in relation to an assertion that he would not be protected by the law in India. In the absence of such evidence, the Tribunal was not satisfied that the Applicant would face a real chance of serious or significant harm as a result of lack of legal protection in India. The Tribunal then considered whether Indian authorities might return the Applicant to Nepal or a third country. It concluded, at [99], that Australia does not owe the Applicant protection obligations as a result of s.36(3) of the Act, and the fact that none of the qualifications to that provision are met.
The Tribunal concluded at [101] that the Applicant did not meet the criteria in ss.36(2)(a) or 36(2)(aa) of the Act. And in the alternative, if he did meet that criteria, the Tribunal found that the Applicant had not taken all possible steps as required pursuant to s.36(3).
Grounds of review
In his application, the Applicant sets out 3 grounds of review as follows (without alteration):
1. The Second Respondent reached mistaken conclusion based on personal opinion and bias assumptions against the Applicant’s submission.
2. The Second Respondent made a jurisdictional error by not taking into consideration relevant evidence submitted before the tribunal, therefore refusing to give weight to evidence provided by the Applicant and thereby made an erroneous findings and mistaken conclusions.
3. The Second Respondent make a procedural error by not informing the Applicant the proper way of giving evidence at the Tribunal or failed to identify and or clarify on the proper procedure and guidelines to give evidence at the hearing, thus, made a jurisdictional error.
In an affidavit affirmed 1 June 2017, the Applicant advanced 3 further grounds, which I confirmed at the hearing I would accept as additional grounds, but would not receive as evidence.
These additional grounds, which I will refer to as grounds A, B, and C, are as follows (without other alterations):
The grounds of the Applications are:
(A) The Second Respondent made a jurisdictional error by not taking into consideration relevant evidence of the applicant and/or refusing to give weight to evidence provided by the applicant and thereby made erroneous finding and mistaken conclusion in circumstances whereby there had not been an adverse finding to the applicant’s credibility, and/or the well of credibility had not been poisoned beyond redemption. [Ground A]
Particulars
(i) The Second Respondent gave evidence of consideration relevant to the question to be determined by the Second Respondent including applicant's work history, family residential status, local newspaper article relevant to applicant's claim, letter from government authority, financial status of family members. Such evidence was given no weight on the basis that no corroborative documentary evidence was provided by the applicant.
(ii) The Second Respondent did not make adverse finding as the applicant's credibility tantamount to the well of credibility having been poisoned beyond redemption and the applicant was entitled to have claim considered accordingly.
(iii) The Second Respondent took into account unsubstantiated belief and personal opinion as the expected acts and omissions of the applicant and accordingly made findings and reached conclusions adverse to the applicant.
2. The Second Respondent made jurisdictional error by making a determination which was irrational, illogical, not based on findings or inferences of fact supported by logical grounds, and/or which was manifestly unreasonable. [Ground B]
Particulars
(i) The Second Respondent made contradictory findings in relation to the applicant's conduct.
(ii) The Second Respondent failed to consider the evidence submitted by me in relation to the applicant's claim that the applicant would be harmed by Maoist If the applicant was located by them in Nepal.
3. The Administrative Appeals tribunal gave little weight to the documentary evidence and emphasised on oral evidence that was difficult to recall. [Ground C]
Particulars
(i) The Second Respondent failed to consider the relevant fact of my circumstances which was critical in reaching their decision. The Second respondent did not give any weight to the documentary evidence such as letter form government authority, newspaper article, incident report and relied on others sources to discredit the applicant.
(ii) Thus, for above reasons, the decision of the Administrative Appeals Tribunal was thus effected by actual or ostensible bias tantamount to jurisdiction error.
4. The decision record documents made by the tribunal was submitted to the Court on 24 November 2016.
In an earlier affidavit affirmed 24 November 2016 (November 2016 affidavit), the Applicant claimed that the Tribunal erred in the following ways (references in square brackets are to the paragraph numbers of the affidavit, without other alterations):
(a) [11] The Administrative Appeals tribunal gave little weight to the documentary evidence and emphasised on oral evidence that was difficult to recall.
(b) [12] The Administrative Appeals tribunal failed to consider the relevant fact of my circumstances which was critical in reaching their decision.
(c) [13] The Administrative Appeals Tribunal focused on wrong questions to determined my credibility and wrongly formed its opinion based on irrelevant information that was not part of my claim.
(d) [14] The decision of the Administrative Appeals Tribunal was thus effected by actual or ostensible bias tantamount to jurisdiction error.
I have taken those claims as submission. Again, they are not evidence, and I did not accept them as evidence before me.
I note in that affidavit that the Applicant asked the Court to review the Tribunal’s decision, and that of the Delegate. This Court does not have jurisdiction to review the Delegate’s decision.
Although procedurally the grounds set out in the affidavit of 1 June 2017 should properly have been included in an amended application, and the paragraphs I have referred to above from the earlier November 2016 affidavit should have been in a written submission, I have permitted the Applicant to rely on those additional grounds, and I have taken the paragraphs of the affidavit dated 24 November 2016 as submissions. I note that the Minister’s solicitor, Mr Keevers, has addressed the additional grounds in written submissions.
Proceeding before the Court
At the hearing today, the Applicant has appeared unrepresented, and with the benefit of a Nepalese interpreter. The Applicant confirms that he wishes to proceed today, that he presses the 3 grounds of the application as well as the 3 additional grounds, and that he relies on the written submissions. I have explained to the Applicant the cost consequences of proceeding with the application should he lose today and he has indicated that he accepts that he will bear costs if he loses. He has said “I like to go ahead” today.
I invited the Applicant to make oral submissions. I note that, in the course of addressing me, the Applicant has said that he wanted more time and he would be able to find some more documentary evidence. He said that his wife had recently either said or obtained evidence about the Maoists trying to harm him, and that she was, as I understood it, ready to post some of it. I drew the Applicant’s attention to the consent orders made by Registrar Morgan on 6 April 2017, in particular, paragraph 3 of those orders, which required that the Applicant file and serve any affidavit containing additional evidence to be relied on, including any transcript of a Tribunal hearing, by 1 June 2017.
The Applicant did not have any documents to hand up to me today and I am not satisfied that there is any sufficient reason to grant the Applicant more time. I have declined to grant him more time.
The Applicant’s oral submissions
The Applicant’s oral submissions may be characterised under 3 aspects or groupings that:
(1) the police report and his post hearing written submission of the situation in India were not considered or, if considered, were not taken to be legitimate or reliable;
(2) the Applicant’s oral evidence was not believed and that, although he could not remember all of it, or not recall it, this does not mean that he was not truthful, and he should have been believed;
(3) he could not submit all of the material and he was not given additional time, he did not get a proper timeframe and chance to submit real evidence. He also indicated that he had submitted all the evidence and was truthful, and that his prime consideration is the human right to live here freely and do business here and be with his family.
As I have said, he also made submissions about the difficulties for himself and, as I understood it, other Nepalese citizens in India. He submitted that, although the governments follow the rules, the gangsters do not follow rules.
Consideration
The Applicant’s oral submissions
As to the documents not being considered, [28] of the Tribunal decision records that the Applicant provided the Tribunal with a bundle of untranslated documents, and, as I have said, the Tribunal indicated that it was prepared to accept his evidence that there had been a theft from the factory involving employees, and associated legal proceedings, and gave the Applicant time to provide translated documents.
At [29] of the decision, the Tribunal refers to the police report, and appears to refer to it further at [55] through to [57], where the Tribunal contrasts the apparent report to the police of the theft of property from the factory with the lack of reporting to the police of threats or extortion from gangsters to either the Applicant or his wife. That the Tribunal considered the documents is apparent in the consideration of the Tribunal at [55] to [60]. That additional ground in oral submissions is not made out.
As to the post hearing submission relating to both the threat to the factory and resettlement in India, the Tribunal accepted that there had been theft from the factory, and it considered the Applicant’s submission in relation to resettlement in India under the heading “Third Country Protection and the Right to Enter and Reside in India”, from [73] through to [99]. The post hearing written submission was expressly referred to at [91] of the decision, and the Tribunal both considered it, and, given there was no independent information, and in light of the DFAT country information available to it, concluded that it was not satisfied of the Applicant’s claim he would not be protected by the law in India.
Given the information before it, the analysis of the Tribunal and the conclusions it gave, I find that it was open to the Tribunal to reach the conclusions at [91] and [92], as I have said, on the evidence before it and for the reasons it gave.
As to the second aspect of the Applicant’s oral submissions that he was not believed, I do not accept that submission. The Tribunal accepted parts of the Applicant’s evidence, as I have indicated, but said that the Applicant embellished his evidence. The Tribunal went into some detail in identifying, considering and weighing up the inconsistencies in the Applicant’s oral evidence and in his written evidence, and I should say in relation to the oral evidence, the internal inconsistencies in that evidence given during the course of the hearing.
The Tribunal accepted some aspects of the Applicant’s evidence, but not others. I have concluded that it was open to the Tribunal, on the evidence before it and for the reasons it gave, to reach the conclusions it did in relation to the credibility of the Applicant, and to not accept all of the Applicant’s evidence. I do not find that the Tribunal has engaged in any jurisdictional error.
Lastly, as to the third oral submission to the effect that the Applicant was not given additional time, or not given sufficient additional time to provide more documents, I have referred to the Tribunal’s decision at paragraph [28], which contradicts the Applicant’s submission. Although it is not clear from the face of the Tribunal decision how long the Applicant was given to provide the translated documents, I note that the hearing took place on 13 October 2016, the additional documents were received by the Tribunal in the afternoon of 17 October 2016, and the decision was issued some 10 days later.
I also note that in the interaction between the Tribunal and the Applicant as recorded in the Tribunal decision, there is no suggestion that the Applicant asked for further time or indicated that he would provide further documents. This is a different matter from the Applicant’s submission that documents had been stolen as part of the factory theft, and I refer to [54] of the Tribunal’s decision.
I conclude there can be no jurisdictional error by the Tribunal in failing to grant further time to the Applicant over the time it gave, in circumstances where there is no request made and no time was sought by the Applicant.
The Applicant’s written grounds of review
By Ground 1, and also [11] of the November 2016 affidavit, the Applicant alleges bias against the Tribunal. Any allegation of bias must be firmly and distinctly made and clearly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507. In the absence of any such evidence, such as transcript from the Tribunal hearing, this ground is not established.
The decision record indicates that the Applicant appeared at the Tribunal hearing, and had the assistance of a Nepalese interpreter. There is no basis disclosed on the Tribunal record, in any of the documents in the court book, in the oral submissions and in the written submissions of the Applicant, for any claim that the Tribunal approached the matter with a closed mind or did not conduct its review in good faith. None of the material provides any support for the contention that a fair minded and informed person might reasonably apprehend that the decision-maker, the Tribunal member, might not bring, or have brought, an impartial mind to bear on the decision.
When I asked the Applicant today to identify the bias, the Applicant referred to the police report, and that he was not trying to go to India, and, as I said, made the submissions that Nepalese citizens are not safe, or they have no right under the Indian Constitution. None of those matters establish any bias. I have come to the conclusion that ground 1 is not made out. There is no jurisdictional error.
Ground 2 is the contention that the Tribunal failed to consider evidence. I have already addressed the documents and the evidence that the Tribunal did consider, and I find, for the reasons I have already given, that ground 2 is not made out.
Ground 3 is a contention that the Tribunal failed to afford the Applicant procedural fairness by not informing him of the procedural guidelines for giving evidence at the hearing. This ground appears to be misconceived. The Tribunal has not rejected any of the Applicant’s evidence on the basis that it was not provided in a proper way or not in accordance with some sort of procedure. What the Tribunal did is reject the Applicant’s claims on the basis of adverse credibility findings.
There is nothing on the face of the Tribunal’s decision record to suggest that the Applicant was not afforded a real and meaningful opportunity to participate in the hearing: see SZRMQ v The Minister for Immigration & Border Protection [2013] FCAFC 142; (2013) 219 FCR 2012 at [22] per Allsop CJ.
Further, the Minister contended that there is no obligation on the Tribunal pursuant to s.424A to put to the Applicant its doubts about the credibility of its claims, and I accept that submission. In any event, the Tribunal did put to the Applicant during the hearing (in accordance with s.359AA) the inconsistencies regarding his business being thriving when he came to Australia, the continued operation of the business by the Applicant’s brother‑in‑law, and that if the Applicants faced threats and donation requests to the extent it threatened the viability of his business, why the brother-in-law did not face similar difficulties: see [41] to [42]. In relation to the question of whether there were threats against the Applicant’s wife, and the Tribunal’s observation that it seemed more logical that gangsters would threaten those actually running the business, I refer to [23(c)] above.
I also note that the Tribunal received the post-hearing submission from the Applicant, and in these circumstances I have concluded that the Tribunal complied with its procedural fairness obligations under the Act and that this ground 3 must fail.
Additional grounds
Ground A essentially repeats ground 2, and that contention cannot succeed for the reasons I have already given. In addition, ground A appears to contend that the Tribunal failed to consider and give weight to evidence in circumstances where there had not been an adverse credibility finding. This ground is misconceived. The Tribunal clearly made adverse credibility findings, and it did so throughout the decision from [22] to [57]. The Tribunal did not accept the Applicant’s claims regarding the request for donations and threats of harm, and for the reasons that I have already given, the Tribunal’s adverse credibility findings were findings of fact and were reasonably open to it on the evidence before it and for the reasons it gave. I reject that ground. No jurisdictional error is shown.
Ground B can be summarised as a contention that the decision was irrational, illogical, and/or manifestly unreasonable. There has been no further particularisation than in the affidavit, and I have already addressed the oral submissions. In the absence of anything more meaningful by way of particulars, the contention in ground B, particular 1, is not sustainable.
As to Ground B, particular 2, the Applicant has not identified what evidence he claims the Tribunal failed to consider, and there is nothing in the evidence before this Court to suggest that the Applicant advanced in the Tribunal any evidence or claims to fear harm by Maoists. If it is a reference to the threats of donation requests by political groups and ensuing threats of harm by gangsters supported by political groups, the Tribunal did have regard to those claims and the evidence advanced by the Applicant in support of those claims. It rejected them on the basis of adverse credibility findings that were open to it. At its heart this ground goes no higher than a disagreement with the Tribunal’s findings. It is not made out.
Ground C asserts that the Tribunal gave little weight to the documentary evidence, and emphasised in the Applicant’s oral evidence, which he argues was difficult to recall. By reference in the particulars to documents, the only document that the Applicant has referred to is the police report, and as I have said, the Tribunal has considered the police report at [29], and I have referred to it above.
The Tribunal also accepted the Applicant’s evidence of theft from the factory involving employees and associated legal proceedings (at [28] and [32]). The Applicant did not provide any further material, notwithstanding the additional time given to provide translated documents.
The Tribunal was not obliged to accept uncritically the Applicant’s claims. The weight to be given to those claims and the evidence was a matter for the Tribunal to assess as part of its fact-finding function: Randhawa; see also Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 281 and 282.
The Tribunal’s adverse credibility findings did not require positive evidence. It was sufficient for the Tribunal to disbelieve the evidence because of the surrounding circumstances. The findings in relation to the credibility of the Applicant’s claims, as I have already said, were open to it on its consideration of the evidence before it.
Paragraphs [11] to [14] of the November 2016 affidavit do not take the Applicant’s grounds any further. My consideration of these grounds are encompassed in the reasons I have already delivered, and those submissions do not establish any of the grounds.
Finally, I note that the Minister has made submissions on the basis of the Tribunal’s alternative findings that the Applicant had the right to enter and reside in India but had not availed himself of that right. The Minister contends that even if the Tribunal’s findings with respect to the claimed harm in Nepal are found to be erroneous, relief in this Court should be denied as the Tribunal made an independent alternative finding that the Applicant could avoid persecution or significant harm in India.
I accept that submission. The Tribunal’s findings in that regard are reasoned, and the Tribunal, whilst considering the Applicant’s submissions, in the light of DFAT country information, and no independent evidence supporting the Applicant’s submission, was entitled to, and properly came to, the conclusions it did in relation to its alternative finding.
It follows that I conclude that the application should be dismissed, and it then follows that the Minister is entitled to costs.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Baird
Date: 4 September 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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