EFK17 v Minister for Immigration

[2018] FCCA 3881

FEDERAL CIRCUIT COURT OF AUSTRALIA

EFK17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3881

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – denial of procedural fairness – whether the Tribunal erred by failing to disclosure existence of s.438 Certificate – validity of Certificate – whether the Tribunal erred by failing to consider claims – internal relocation – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36, 359A, 359AA, 360, 424A, 424AA, 425, 438, pt.7

Cases cited:

Hossain v Minister for Immigration & Border Protection (2018) 92 ALJR 780
Minister for Immigration & Border Protection v Singh (2016) 244 FCR 305
MZAFZv Minister for Immigration & Border Protection (2016) 243 FCR 1

MZANX v Minister for Immigration & Border Protection [2017] FCA 307
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1
SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190
SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415

Applicant: EFK17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2925 of 2017

Judgment of: Judge Smith

Hearing date: 28 November 2018

Date of Last Submission: 28 November 2018

Delivered at: Sydney

Delivered on: 28 November 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr D McLaren, Minter Ellison

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2925 of 2017

EFK17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal dated 6 September 2017.  The Tribunal affirmed a decision of a delegate of the Minister made on 12 April 2016 to refuse to grant the applicant a protection visa.

2. The applicant is a citizen of Nepal who arrived in Australia on 5 September 2015 and on 12 October 2015 lodged an application for a protection visa which was supported by the following statement[1]:

   My grandfather was born in Humpung Village of Dhading District. His occupation was farming and would hardly earn bread from the farming. He got married with CR and my father Mr. U is one of their sons. They could not sustain life in Hill; therefore they migrated to Piple VDC, 7 of Chitwan District. But, my father was born in Dhading itself.

   My father also embraced agriculture as his profession to obey the direction of grandfather. He got married with BK. They gave birth to five children among whom I am ... one.

   Dear Sir, the anarchy of the Mukhiya (highest local authority in feudal system) was at its optimum level. With bearing all those trouble, my parents admitted me in the school. I also studied up to class 10 with assisting my father in his work. After that I could not join the higher education because of the economic condition of my family. I joined the struggle against the Feudal system and the system was abolished with the declaration of Multiparty Democracy in 1990. Though I could not continue my study, I kept myself busy in social work. I established a youth club and continued to raise voice for the suppressed ethnic group and made them aware about their rights.

   Later on, I came to know that I was regarded as the upper caste elite and was accused of hijacking their rights by Tharuwan. I was in target of them. That is why, I was compelled to fly Quarter for my own safety. I got back in two years from Quarter. In Quarter also, Tharuwan leaders SM, JM and others threaten me to death. That is why I returned back to Nepal in 2 years given that the situation was comparatively peaceful. I would like to inform you that I had worked in Quarter as driver.

   I opened one restaurant in Simara after coming back to Nepal. My restaurant business was going well. In the meanwhile, again Tharuwan and Madhesh movement started. Tharuwan took the old issue and closed my restaurant. They came to my home at midnight and beat me till I was unconscious. I came to know that I had a serious injury in my head as I became conscious in Bir hospital bed in Kathmandu. I could not get back to my home which was at Madhesh. So, me and my wife started to stay in Kathmandu in rented room. In Kathmandu also, Pahadi organizations started to torture us knowing that my house is in Tharu village in Madhesh. They threw my belongings in the road and threaten me to be back to my village. They also gave threat that they will kill us if we did not leave the place. We reported the case to police also. But, Police also did not favor me. That is why I left my wife to her parents’ house and I kept hiding in a hotel in Kathmandu. In the meantime, I took the Aatma Gyan and became member of the organization. During that time I met PRJM. I-le informed me that he was coming to Australia for a program and was ready take some of his disciples who are willing to join him. That offer gave me a hope to save my life being in this country. As I landed In Australia, I became sick and was in complete bed rest. Due to which I could not participate in the program. I have nobody in this land. I had gone through a lot of trouble which I am saying to you. I am writing this application with the great hope that you will allow me to stay in your country.

   At last, I would like to inform you that I have not taken any papers from Nepal as I had to rush to Australia to save my life. I am very much hopeful that you will save my life by allowing me to stay here rater sending me back to Nepal to meet the terrible death. I hope Australia offer me a shelter and save my life.

   (Errors in original, identifiers removed)

   [1] The statement was provided in Nepali with a translation and is set out in full at [14] of the Tribunal’s reasons.

3. In essence, as summarised in the first respondent’s submissions, the applicant claimed to fear harm on account of having established and being president of a youth club; and being threatened and harmed by certain ethnic groups including the Tharuwan, Madhesh and Pahadis people.  He claimed that his restaurant was closed and that he suffered harm in his home village as well as in Kathmandu. 

4. On 12 April 2016 a delegate of the Minister made a decision to refuse to grant the applicant a visa and the applicant applied to the Tribunal for review of that decision. On 10 May 2016 the Assistant Director of Protection Processing Administration in the Department of Immigration signed a certificate purporting to be made under s.438 of the Migration Act 1958 (Cth). I will refer to that as the s.438 certificate and will return to it and the documents to which it relate later in these reasons.

5. The applicant attended a hearing conducted by the Tribunal on 18 July 2017.  The transcript of that hearing is in evidence before the Court.  Subsequently, the applicant was invited to attend a further hearing to be conducted on 10 August 2017.  He attended that hearing and, once again, the transcript of that hearing is in evidence before the Court.

6. Prior to the second hearing the applicant’s migration agents, Cosmos Consulting, sent to the Tribunal a submission in support of the applicant’s case.  Amongst other things, the submissions addressed the question of recent unrest and the boycott of an election.  It stated (without alteration):

   ...

   In Nepal, The current situation is highly volatile.  Most of Terai based parties are boycotting the local election.  Different definition of Nationalist feeling is coming among Hilly Origin and Non-hilly origin people.  Social harmony is deteriorating.  Still fraction of Maoist based parties is very active in violence against those who do not believe Maoism.

   ...

7. On 6 September 2017 the Tribunal made its decision to affirm the decision of the delegate.  The Tribunal’s reasons for its decision are set out at [5] to [9] of the first respondent’s submissions, which I adopt for the purpose of this judgment:

   5.The Tribunal rejected the applicant’s claims on the basis of adverse credibility findings and because he could reasonably relocate to Kathmandu. The Tribunal identified the following concerns with the applicant’s evidence:

   (a)his claimed advocacy against the interests of the Tharus and Madeshis was inconsistent with the activities of, and his role in, the youth group;

   (b)his evidence about difficulties he faced prior to going to Qatar in 2013 was vague and did not seem to justify leaving (and returning to) his village on multiple occasions;

   (c)his claim about having suffered specific threats and harm at the hands of Pahadis in Kathmandu was inconsistent and the Tribunal concluded the claim was manufactured;

   (d)he gave inconsistent evidence about where the claimed attack in 2015 occurred, although this was not given significant weight; and

   (e)he gave inconsistent evidence about where his family lived.

   6.Having regard to the applicant’s evidence and country information, the Tribunal made the following key findings:

   (a)     he may have been injured as part of generalised violence;

   (b)he may have political views against the interests of the Tharus and Madeshis like those of his ethnic / religious group, but he was not a ‘community or public advocate’ of that position and this claim was manufactured;

   (c)he did not suffer harm between 2000–2013 due to being perceived to be against the interests of Madeshi or Tharus, did not flee his village for fear of harm, did not travel to Qatar because of feared harm in the Terai, and was not threatened by Tharu leaders in Qatar or elsewhere;

   (d)he may have suffered harm in 2015 but this was a result of ethnic tensions rather than the applicant being specifically targeted; and

   (e)his restaurant may have closed but this was because of ethnic tensions and because he moved to Kathmandu.

   7.The Tribunal had regard to country information indicating that protests and violence had ‘died down’ and noted the applicant’s family lived in Piple / the Terai region without difficulty. Accordingly, the Tribunal concluded the applicant would not face a real chance of harm in his home area.

   8.Further, the Tribunal found that assuming it was wrong about the risk to the applicant in the Terai region, the applicant could relocate to Kathmandu such that any real chance of persecution did not apply to all areas of the receiving country: paragraph 5J(1)(c) of the Act. For these reasons, the Tribunal rejected the applicant’s claims and concluded he did not satisfy the refugee criterion.

   9.For the same reasons, the Tribunal found that the applicant did not satisfy the complementary protection criterion. In this context, the Tribunal found that it would be reasonable for the applicant to relocate to Kathmandu: paragraph 36(2B)(a) of the Act.

   (References omitted)

8. The applicant now seeks judicial review of the Tribunal’s decision.  The Court’s jurisdiction on such an application is limited to determining whether or not the Tribunal’s decision is affected by jurisdictional error.  It is not part of this Court’s role or jurisdiction to determine whether or not the applicant’s claims for protection in Australia are true.  That is a matter that was entirely for the Tribunal.

9. In the applicant’s amended application there are three grounds of review.  The applicant, who appeared in person at the hearing today, did not address those grounds of review, but he made several submissions.  The first was he said that it was true that, as he claimed, he was attacked in his hometown.  That is a submission that goes to the merits of the Tribunal’s decision and as I have explained, is not a matter for the Court.  In any event, I note that at [56] of its reasons the Tribunal accepted the applicant’s claim about having been attacked in July 2015.

10. Secondly, the applicant submitted that he has a head injury and that that was the cause of the inconsistencies in his evidence.  This gives rise to the question of whether or not the applicant was properly able to give evidence at the Tribunal hearing.  It might also, depending upon the other evidence before the Court, mean that the Tribunal might have fallen into an error such as unreasonably failing to take into account the consequences of the head injury.  The problem with the ground however, is that there is no evidence to support this assertion.

11. While it may be accepted that the applicant suffered a head injury during an attack that occurred while he was in Nepal, there is nothing in the evidence before me that suggests that there was any consequence of that attack and injury that had any impact upon the applicant’s ability to give a truthful account of his past experiences in Nepal.  In that respect, I have read the transcripts and can discern nothing which might support such a consequence. 

12. Further, I can see no reference in them to any claim made by the applicant that his memory might be affected by his head injury, although he referred to his head injury on two occasions[2]. Those were statements at the hearing going to the establishment of that fact, rather than the consequence of that fact.  For those reasons, I can see no jurisdictional error arising in the Tribunal’s decision as a consequence of the applicant’s head injury. 

    [2] See 18 July 2017 transcript at page 16, line 13 and 10 August 2017 transcript at page 4.

13. The third matter that the applicant raised in oral submissions was that he could not arrange documents because he left Nepal in fear of his life.  Once again, that is a matter that goes to the merits of the Tribunal’s decision and it is not a matter that has any consequence in the proper fulfilment of the Tribunal’s role, namely, it does not establish any jurisdictional error.

14. Finally, the applicant said that he would not be safe anywhere in Nepal and that he still has nightmares as a consequence of the attack upon him in July 2015.  Once again, the truth of those assertions were matters for the Tribunal.  The Tribunal, contrary to the assertion, found that the applicant had no well-founded fear of harm if he were to relocate or, indeed, if he were to return to his home area and there was no real risk of significant harm in either of those places.  I turn then to the grounds in the application. 

15. The first ground is that the Tribunal denied the applicant procedural fairness.

16. This ground relies upon the s.438 certificate and the fact that the Tribunal did not reveal its existence to the applicant although, he asserts, it did have regard in some way to the documents covered by the certificate. The applicant says that procedural fairness required the Tribunal to disclose the existence of the certificate to him to determine whether the documents contained information that should be disclosed under ss.359A or 359AA and determine whether the documents supported the applicant’s case and so should be disclosed to enable the applicant properly to present his case as required by s.360 of the Act.

17. I note that the references to those provisions of the Act do not apply to this case which was governed by the provisions of pt.7 of the Act and relevantly ss.424A, 424AA and 425. Nevertheless, I understand the argument to be relied upon the effect of the decisions of the Full Court in MZAFZv Minister for Immigration & Border Protection (2016) 243 FCR 1 and Minister for Immigration & Border Protection v Singh (2016) 244 FCR 305.

18. The first point to note is that the certificate which is contained at page 81 of Exhibit A relies upon the assertion that it would be contrary to the public interest to disclose certain information because the information relates to internal working documents. The Minister accepts, and I find, that that is not a proper basis for a claim that s.438 applies to the documents in question. For that reason, the certificate is invalid.

19. The Tribunal came to the same conclusion at [69] of its reasons.  It noted that the basis for the certificate did not justify public interest immunity under the provision of the Act.  That statement leads me to infer that the Tribunal was aware of, and applied, the decision of Beach J in MZAFZ.

20. It continued by stating that in any event, the documents were not materially relevant to the applicant’s claims. I infer from that, that the Tribunal did not act on the certificate in any way and that the information referred to in the certificate would not be the reason or part of the reason for its decision. In light of that s.424A could not possibly apply: see SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190.

21. Thirdly, given that the Tribunal was aware that the certificate was invalid, did not act on it, and did not take into account for the purposes of its review the material referred to in it, there was no denial of procedural fairness in the failure by the Tribunal to bring the certificate to the attention of the applicant.  That is simply because the applicant lost no opportunity by the Tribunal’s failure to do so.  The only possible opportunity that he could have got was to attempt to convince the Tribunal not to rely on the certificate.  But that was the outcome in any event.

22. I have, in addition to considering the way in which the Tribunal dealt with the certificate and the documents, considered for myself the documents to which the certificate related.  The first document, consisting of two pages, was a form entitled “Application and Identification Test Details”.  In my view, nothing in that document had any material relevance to the issues before the Tribunal and the Tribunal was correct to characterise that document in that way. 

23. The second document, being folio 61 of the Department’s file, was a document entitled “Disclosure Decision Checklist (to be completed at the time of making the RRT Reviewable Decision)”. This, somewhat oddly, is a checklist relating to whether or not there are any, relevantly, sub-s.438(1)(a) related documents. I say oddly because the person completing the certificate indicated that there were no such documents which seems to be inconsistent with the view later taken by the officer who completed the s.438 certificate.

24. In any event, there is nothing in this document that could have affected one way or another the outcome of the applicant’s application for review to the Tribunal. The failure by the Tribunal to disclose it, in addition to the reason I have given in respect of s.424A, did not amount to a denial of procedural fairness. Even if there were some error involved in the Tribunal’s failure to disclose any of those documents to the applicant, that error was not material to the Tribunal’s decision and so did not constitute jurisdictional error: Hossain v Minister for Immigration & Border Protection (2018) 92 ALJR 780. For those reasons, I reject ground 1. 

25. The second ground is that the Tribunal failed to consider a number of the applicant’s claims.  There are three claims said not to have been considered.  I will deal with the first two together and then the third one separately.  The first two particulars to this ground are set out below:

    A.In the applicant statement he noted that he is a Brahmin, a high caste in Nepal. He also noted that he was accused as hijacking the rights by Tharuwan. He further said he was their target, (CB 40). The Tribunal failed to consider his claim that as a Brahmin accused of hijacking the rights of Tharuwan, whether the applicant would face any harm.

    B.The applicant submitted that he is from Hilly region and belongs to Hill tribes. (CB 73) As a result of that, Tharuwan targets Hill tribes’ people. (CB 123) The Tribunal failed to assess the above claim of the applicant, namely, a person belongs to Hill Tribe.

    (Without alteration)

1. It may be accepted that the applicant made such claims.  However, the Tribunal acknowledged them and dealt with them.  I note in particular that at [56], the Tribunal found:

   ... that the applicant might well have been perceived in opposition to the interests of the Madeshis and Tharus, by reason of his ethnicity and caste, ...

2. It concluded at [63] in spite of that finding and the other matters dealt with between [56] and [63] that the applicant would not be singled out for targeting and he could return to his home without facing a real chance of serious or significant harm. 

3. In any event, as submitted by the Minister, the Tribunal had an alternative basis for its conclusion, namely that if it were wrong about his previous conclusion, the applicant could reasonably relocate within Nepal, in particular to Kathmandu, and there was no real risk of harm to the applicant there.  Thus, even if the applicant had established failure to the consider the claims in particulars (a) and (b) of ground 2, that would not have amounted to jurisdictional error unless it affected the Tribunal member’s consideration of the issue of relocation. 

4. The third particular is that the Tribunal did not consider the implicit claim that the applicant would be perceived as a person against Maoists.  This arises from a statement made by Cosmos Consulting in the submissions to the Tribunal of 2 August 2013 (I note that that should be 2017).  The difficulty with the claim, however, is that while there was an express statement that Maoist-based parties were very active in violence against those who do not believe Maoism, there was nothing in the applicant’s claims to link that claim to the applicant himself.  There was, contrary to particular (c) in ground 2, nothing implicit in what the applicant had said that he would be perceived as anti-Maoist and therefore face a real risk of harm from the Maoists. 

5. Properly read, in my view, the claim, or the statement made in the submissions of Cosmos Consulting at pages 124 and 125 of Exhibit A, is meant to address the general situation of political disharmony in Nepal, rather than to address the real risk of harm the applicant himself faced.  It was not, in other words a substantial, clearly articulated argument relying upon established facts: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 at [58]. For that reason, the second ground will be rejected.

6. The third ground is that the Tribunal failed to consider relevant considerations in assessing whether internal relocation was a reasonable option.  There are two particulars of the ground which it is said the Tribunal ought to have considered but did not.  First, whether it would be reasonable for a person from the Hill area to live with his family in Kathmandu, and secondly, whether it was reasonable for a person who holds opinions against Maoists to live in Kathmandu. 

7. The question of relocation arises in two distinct ways in applications for protection visas. First, as recognised in [71] of the Tribunal’s reasons, a person does not have a well-founded fear of persecution for the purpose of s.5J of the Act unless that fear of persecution relates to all areas of Nepal: see sub-s.5J(1)(c). Secondly, in respect of the complimentary protection criteria in sub-s.36(2)(aa), there would not be a real risk that the applicant would suffer significant harm if the Tribunal was satisfied that it would be reasonable for the applicant to relocate to an area in Nepal where there would not be a real risk that the applicant would suffer significant harm.

8. A contention in ground 3 is expressly addressed to the second of these contexts, namely the complimentary protection criteria which is recognised in [72] of the Tribunal’s reasons.  In SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415, Tracey and Foster JJ said at [124]:

   The test for relocation is whether it is practicable in the particular circumstances of the particular applicant ...  The answer to that question in turn

depends upon the framework set by the particular objections raised to relocation...

(Citations omitted) 

1. As Mortimer J noted in MZANX v Minister for Immigration & Border Protection [2017] FCA 307, the Tribunal is not necessarily constrained only to consider that of which is put forward by an applicant. It must also consider other matters that arise from the material before the Tribunal. The difficulty for the applicant in this case is that the matters said not to have been considered by the Tribunal cannot reasonably be said to have arisen either in the framework set by any objection by the applicant or from any material before the Tribunal.

2. The Tribunal’s consideration of the question of relocation focused upon the objections raised by the applicant and in addition, drew from the conclusion after consideration of the material before it, that there was no other evidence which indicated that it would not be reasonable for the applicant to relocate to Kathmandu: [68]. Those two facts reveal that the Tribunal properly addressed itself on the question of relocation as understood in s.36(2B) of the Act and that it did not err in failing to consider the matters now set out in the particulars to ground 3. For those reasons, ground 3 will be rejected.

Conclusion

1. I am not satisfied that the applicant has established any jurisdictional error in the Tribunal’s decision and for that reason the application must be dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       15 January 2019