DRM19 v Minister for Immigration
[2020] FCCA 1190
•15 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DRM19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1190 |
| Catchwords: MIGRATION – Review of decisions – judicial review – grounds of review – bias. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12, Sch.1 Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa) |
| Cases cited: BBT16 v Minister for Home Affairs [2018] FCA 1225 |
| Applicant: | DRM19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 380 of 2019 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 14 May 2020 |
| Date of Last Submission: | 14 May 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 15 May 2020 |
REPRESENTATION
| The Applicant in person via telephone link assisted by a Nepalese interpreter |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| The Second Respondent entered a submitting appearance |
ORDERS
The application filed on 25 September 2019 is dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $3,737.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
PEG 380 of 2019
| DRM19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By his application to show cause filed on 25 September, 2019 the applicant seeks judicial review of a decision of the second respondent dated 21 August 2019, which affirmed a decision of a delegate of first respondent to refuse the applicant a Protection (Class XA) (Subclass 866) visa.
Despite having the opportunity to do so, the applicant has not filed any amended application and he seeks to proceed on his application as originally filed. Further, despite being directed to do so, the applicant has not filed any written submissions in support of his application.
I have the benefit of written submissions from the first respondent. The first respondent contends that the application fails to raise an arguable case for the relief sought and must be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).
The applicant arrived in Australia on a Visitor (Business) (Class FA) (Subclass 600) visa on 29 August, 2014. He is a citizen of Nepal. On 6 October, 2014 he applied for a Protection (Class XA) (Subclass 866) visa.
An interview was scheduled for the purposes of his visa application with a delegate of the first respondent. After failing to attend his first scheduled interview, the applicant attended a rescheduled interview on 29 February, 2016. In his written statement made for the purposes of his visa application, the applicant claimed to fear harm from gangsters who had robbed him of 45 Lakhs that he was holding overnight for a local school after a fundraising event in November, 2013. The next day, he was accused of stealing the money by people in his village and was taken to the police. While he was at the police station, his family were tied up with ropes at the family house. After this incident, the applicant left his village and variously spent time in other parts of Nepal, India, Kenya and Uganda. He claimed that he would be killed if returned to Nepal as the gangsters operate all over the country, and the Nepalese authorities are corrupt and cannot protect him.
On 16 August, 2016, the first respondent’s delegate refused to grant the visa. The same day, notification of the delegate’s decision was posted to the applicant to his residential address listed in his visa application. On 29 September, 2016 the first respondent’s department re-sent notification of the delegate’s decision to the applicant to a PO Box and an email address.
On 31 October, 2016 the applicant applied to the second respondent for review of the delegate’s decision. He was represented by a registered migration agent. On 23 July, 2019 the applicant appeared before the second respondent to give evidence and present arguments. He was assisted by a Nepali interpreter at the hearing.
On 21 August, 2019 the second respondent affirmed the decision under review. It considered each of the applicant’s claims.
The second respondent recorded that the fundraising event raised over 4 million rupees (the equivalent of approximately $60,000 AUD), which was a huge amount of money for a small, rural village community to raise and then lose. Despite this, the applicant could not describe the event in any plausible or coherent detail, even after repeated questions from the second respondent.
The second respondent found the applicant’s evidence about the burglary was lacking in detail, vague and implausible. Contrary to his written claims, at the hearing the applicant denied going out to cry for help when the gangsters left his house after holding him at knifepoint and robbing him. Instead, he said he went to bed because it was after midnight and his neighbours lived more than 20 to 50 metres away. The second respondent found this evidence bizarre and unreliable: [13].
The second respondent found the applicant’s evidence about what happened the day after the burglary was lacking in detail. It pointed to inconsistencies between his written claims and his evidence at hearing. It recorded that he was released by police the same day. The applicant could not give any coherent indication of what the attackers said to his family when they allegedly tied them up, but confirmed that his family were not hurt. They and the applicant moved twice within Nepal after the burglary, then the applicant went to India, Kenya and Uganda, before returning to India and then back to Nepal where he arranged to come to Australia. He found all of these places unsuitable and was unable to find work.
Despite telling the delegate that the burglary may have been reported in the newspaper and that he may be able to obtain advertisements for the fundraising event, the applicant did not provide any further evidence to either the delegate or the second respondent. At the hearing, the applicant claimed that the gangsters were Maoists. He confirmed that no one in his family had been targeted by them because of him, and he has had no contact with them since the burglary.
The second respondent found the applicant’s evidence lacked plausibility generally. He was unable to provide expected detail about the fundraising event, the burglary, the arrest of the alleged offenders, whether the money had been recovered, and the threats made against his family. It found his evidence about why he did not call for help immediately after the burglary wholly implausible and lacking in credibility. The second respondent was not satisfied that any of the events the applicant claimed in his written or verbal evidence occurred.
The second respondent did not accept that the applicant left Nepal due to fear of persecution by gangsters or Maoists, or by his local community. It did not accept that the applicant was entrusted with 4.5 million rupees after a fundraising event, that he was the victim of a burglary, that he identified a local Maoist as one of the perpetrators, that he was arrested and then released or that his family was “tied up” and threatened whilst he was in custody. It did not accept that the applicant would face a real chance of serious harm for any reason in Nepal, now or in the reasonably foreseeable future. It did not accept that the evidence before it raised or established that the applicant would face harm in Nepal for any other reason. It did not accept that there was a real chance that the applicant would suffer serious harm (or harm of any kind) if returned to Nepal, now or in the reasonably foreseeable future. It found that the applicant did not have a well-founded fear of persecution in Nepal.
The second respondent found that the applicant did not satisfy the criterion set out in s.36(2)(a) of the Act or, relying on its anterior findings, the criterion set out in s.36(2)(aa) of the Act.
In his application to this Court filed on 25 September, 2019 the applicant specifies two grounds of review. They are as follows (faithfully reproduced):
1. The second respondents decision was affected by apprehended bias. Throughout the hearing the second respondent expressed doubts about the applicant’s claims that were without reasonable or logical foundation.
Particulars
Paragraph 12.
2. The decision the second respondent made is affected by an error as the second respondent failed to deal with the applicants claim in relation to relocating for safety purposes.
Particulars
Paragraph 14.
The first respondent argues that these grounds are vague and barely particularised. In the absence of particulars the application cannot succeed and should be dismissed on this basis alone: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.
I accept that submission. As the first respondent submits whilst the Court may exercise patience and leniency in the standard of compliance with its rules a self-represented litigant remains subject to them: BBT16 v Minister for Home Affairs [2018] FCA 1225 at [5] citing Nobarani v Mariconte [2018] HCA 36 at [47].
I dismiss the application on the basis that the grounds sought to be agitated by the applicant are not sufficiently particularised so as to give his application for review any content. However, in the event that I am in error to do so, I shall consider his grounds separately.
Ground one is misconceived. Paragraph 12 of the second respondent’s decision is in the following terms:
12. I asked the applicant to describe the festival in more detail. He struggled to explain anything about it, even after repeated questions about what people came to see and do or what events there were, finally stating there was ‘dancing’ and ‘celebration of people donating money.’ No other aspects were initially volunteered by the applicant. When pressed for more detail, the applicant said there was also some singing and they would put garlands around the necks of the donors. He said that around 1500 people live in his village but people came from other villages surrounding the area. However, he could not describe the actual event itself in any coherent or plausible detail. The limited description the applicant provided sounded more like a door knock appeal rather than a festival. The applicant said that more than 4 million rupees was raised, and agreed it was a lot of money for a small rural village in Nepal to raise. I noted that it would be around $60,000 Australian dollars which is a huge amount for a small community to raise and then lose it. The applicant said that people gave money from around the area because they want to see the school funded. Also, lots of family from the area are abroad and so they could send back larger amounts earned overseas. He said the notes were counted but the coins were not and that an amount of around 4.5 million rupees was raised. The applicant appeared oddly untroubled about the loss of the community funds for the school, and lacking any interest in whether that money had ultimately been recovered and the perpetrators punished.
There is nothing in this paragraph that supports the claim of apprehended bias. What the second respondent has done here is to record the troubling matters that it put to the applicant for his comment. As the second respondent recorded, it was not required to accept uncritically any and all the allegations made by an applicant. Putting the applicant on notice of its doubts during the hearing afforded the applicant the opportunity to address these concerns as the dispositive issue in the review, in compliance with its procedural fairness obligations.
As the first respondent submits, without further evidence such as a transcript, the general claim that “throughout the hearing the second respondent expressed doubts about the applicant’s claims that were without reasonable or logical foundation” does not indicate that a fair minded and informed person might reasonably apprehend that the second respondent might not have brought an impartial mind to bear on the decision: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32].
Again, as the first respondent submits, a claim of bias is a serious claim which must be firmly and distinctly made and clearly proven. These submissions are well-made: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]. The applicant has not clearly proved that the second respondent’s process or decision was affected by bias, apprehended or actual.
As to ground two, the second respondent’s reasons make it clear that it did indeed consider the applicant’s claim in relation to relocating for safety purposes. It did so in paragraphs 10 and 15. In paragraph 10 it recorded his claim that he had left his village in Nepal and went to several places in that country but did not feel safe and that thereafter he went to India, Kenya, Uganda and Thailand. In paragraph 15 it recorded that he and his family had moved away from his home village to stay with his wife’s relatives initially and then much further away nearer India. The second respondent recorded that the applicant’s family remains in that area.
Although the second respondent clearly recorded and was aware of the applicant’s claims about relocation, both for himself and for his family, and the reasons for that, because the second respondent did not accept any of the applicant’s claims upon which his fear of harm was based, it did not find that he left Nepal due to fear of persecution:
23. I do not accept that the applicant left Nepal due to fear of persecution by robbery, his local community, by a gang or Maoists. I do not accept that the applicant was entrusted with 4.5 million rupees after a fundraising event, that he was the victim of a robbery, that he identified a local Maoist as one of the perpetrators, that he was arrested and then released or that his family was ‘tied up’ and threatened whilst he was in custody. I do not accept that the applicant would face a real chance of serious harm for any reason in Nepal, now or in the reasonably foreseeable future. I note the applicant’s reference to his family being pressured by Maoists in their new home area to make donations or to ‘join the cause’. Whilst I accept such a situation is plausible, I do not consider that such conduct amounts to causing the applicant or his family serious harm, even if it were to occur to him on his return to Nepal. I have not accepted his claims about the robbery and therefore do not accept that Maoists in Nepal would target him on is return for that reason. I do not accept that the evidence before me raises or establishes that the applicant would face harm in Nepal for any other reason.
I accept the first respondent’s submission that there is nothing in paragraph 14 of the second respondent’s reasons for decision that supports the assertion that the second respondent failed to consider the applicant’s claim.
Conclusion
The application does not raise an arguable case for the relief claimed by the applicant. The application must, accordingly, be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules.
The first respondent seeks his costs. Cost should follow the event. The amount sought is derived from schedule 1 to the Federal Circuit Court Rules and is entirely appropriate.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 15 May, 2020.
Associate:
Date: 15 May 2020
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