Elr18 v Minister for Home Affairs

[2019] FCCA 251

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELR18 & ANOR v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 251

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Protection visas – whether the Tribunal identified the relevant law – whether the Tribunal failed to consider the relevant law – whether the applicants had a real and meaningful hearing – whether the Tribunal complied with the requirements of procedural fairness – whether the Tribunal conducted the review with an open mind – no jurisdictional error made out – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth).

Migration Act 1958 (Cth), ss.5J, 36, 425, 476

Applicant: ELR18

Second Applicant: ELS18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2406 of 2018

Judgment of: Judge Street

Hearing date: 6 February 2019

Date of Last Submission: 6 February 2019

Delivered at: Sydney

Delivered on: 6 February 2019

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondents: Ms K Evans
Sparke Helmore

ORDERS

1. The oral application for an adjournment is refused.

2. The application is dismissed.

3. The applicants pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 6 February 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2406 of 2018

ELR18

First Applicant

ELS18

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 31 July 2018 affirming the decision of the delegate not to grant the applicants’ Protection visas.

2. The applicants were found to be citizens of Nepal and their claims were assessed against that country. The applicants are husband and wife. The wife, being the first applicant, arrived in Australia on 4 May 2015, and the husband, the second applicant, arrived in Australia on 30 March 2015. The applicants lodged an application for protection on 15 May 2015.

3. The first applicant claimed to fear harm by reason of her ill treatment and falsely being accused of having married a man of a different caste. The first applicant also claims to fear harm by reason of unpaid debts by her husband. The first applicant also claims to fear harm from her former husband. The second applicant claims to fear harm as a result of business borrowings and threats from Maoist lenders, as well as marrying a woman of a different caste. On 21 January 2016, the delegate found the applicants failed to meet the criteria for the grant of protection visas.

4. The applicants applied for a review on 9 February 2016. The applicants were invited to attend a hearing on 23 July 2018, in which they attended to give evidence and present arguments. The Tribunal in its reasons identified the background to the application for review and set out the relevant law. The Tribunal summarised the applicants’ claims.

5. The Tribunal found the first applicant’s marriage has ended and that she has officially married the second applicant. The Tribunal accepted that both of the first applicant’s marriages have been inter-caste marriages. The Tribunal accepted that the first applicant is awaiting the outcome of a court dispute over her land. The Tribunal was not satisfied this situation gives rise, separately or a cumulatively, to a real chance of the first applicant being persecuted.

6. The Tribunal was not satisfied the first applicant faces a real chance of physical or mental harm, or any other form of harm capable of being characterised as serious harm, let alone amounting to persecution, from anyone in Nepal in relation, separately or cumulatively, to her divorce, remarriage, gender or caste.

7. The Tribunal was not satisfied that the second applicant faces a real chance of being persecuted in Nepal, either directly or indirectly, for reasons of marrying the first applicant, or for reasons of entering into a second marriage, or for reasons of marrying a woman of a different caste, or for any other reason involving inferences about their relationship. The Tribunal was not satisfied that the second applicant faces a real chance of being persecuted for a reason cited in s 5J(1)(a) of the Act due, either separately or cumulatively, to his predicament in relation to his financial circumstances as a lender or an investor.

8. The Tribunal did not accept that the creditors of the second applicant were Maoists or Maoists-backed. The Tribunal did not accept the second applicant was abducted in December 2012 and given five weeks, under threat of serious harm, to repay moneys either lent to or invested in him. The Tribunal was not satisfied the second applicant faces a real chance of being persecuted in Nepal in the reasonably foreseeable future, let alone for any of the five reasons cited in s 5J(1)(a) of the Act.

9. The Tribunal is not satisfied the second applicant faces a real chance of being persecuted in Nepal for reasons involving the first applicant’s claimed concerns about caste, remarriage and imputed moral standing in Nepalese society. The Tribunal found the second applicant is not a person whom Australia has protection obligations under s 36(2)(a) of the Act.

10. The Tribunal was not satisfied the first applicant faces a real chance of being persecuted in Nepal in the reasonably foreseeable future for reasons of being a member of a particular social group characterised by the second applicant’s family or second marriage.

11. The Tribunal was not satisfied there is a real chance of the first applicant being persecuted in Nepal in the reasonably foreseeable future, let alone for any of the reasons identified in s 5J(1)(a) of the Act. The Tribunal found the first applicant is not a refugee. The Tribunal was not satisfied the first applicant is a person whom Australia has protection obligations under s 36(2)(a) of the Act.

12. The Tribunal found there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Nepal, there is a real risk the applicants will suffer significant harm.

13. The Tribunal found the applicants did not meet the requirements of s 36(2)(aa) of the Act.

14. In the alternative, the Tribunal was satisfied that the applicants have an enforceable right to enter and reside in India, a third country, which the applicants took temporary steps to reside in for a number of years.

15. The Tribunal did not accept that the second applicant was followed in India by creditors or their proxies. The Tribunal was not satisfied the applicants face a real chance of being persecuted in India, or that they have substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants’ availing themselves of their rights to enter and reside in India, there would be a real risk that they will suffer significant harm in relation to that country.

16. The Tribunal was not satisfied the applicants have a well-founded fear of being returned to Nepal from India. The Tribunal was satisfied on the evidence that the applicants are caught by s 36(3) of the Act and did not fall within s 36(4), (5) or (5A) of the Act.

17. Accordingly, the Tribunal found that the applicants are not persons in respect of whom Australia has protection obligations and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 23 August 2018. On 19 September 2018, orders were made giving the applicants an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing, the Court explained to the applicants the nature of the hearing and the applicants confirmed that they understood the nature of the hearing as explained by the Court.

3. During the course of the hearing, the applicants sought an adjournment so that they could try and obtain a lawyer. The Court file indicates that a notice of withdrawal of a lawyer was filed on 21 December 2018. That notice was filed after it had been earlier served on the applicants in accordance with the Federal Circuit Court Rules 2001 (Cth). The applicants asserted that if they were given a chance, they may be able to obtain a lawyer. The applicants referred to having been looking for a lawyer, but their circumstances were one where they were facing financial hardship.

4. Nothing said by the applicants from the bar table identified any basis upon which the Court would be confident that by granting an adjournment the applicants would be able to obtain any representation. The adjournment was opposed by the first respondent. The applicants have had ample opportunity if they were able to obtain a lawyer to do so. The Court is not satisfied that an adjournment would give rise to the applicants being represented. Further, the Court is of the view that the merits of the substantive application are wanting and for this further reason there would be little utility in granting an adjournment. The Court is not satisfied an adjournment is warranted in interests of the administration of justice. It is for these reasons that the Court refused the oral application for an adjournment.

5. From the bar table, the applicants maintained that they could not return to Nepal and could not return to India. The applicants disagreed with the adverse findings by the Tribunal and contended that the Tribunal must have erred in failing to accept their claims. The applicants’ submissions from the bar table in substance invite the Court to engage in merits review. This Court has no power to review the merits.

6. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with the requirements of procedural fairness in the conduct of the review. The applicants’ submissions from the bar table in substance took issue with the adverse findings by the Tribunal. The Tribunal, on the face of its reasons, made dispositive findings in respect of the applicants’ claims that were open to the Tribunal as summarised above and which cannot be said to be illogical, irrational or unreasonable. Nothing said by the applicants from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   1. The Second Respondent made jurisdictional error by wrongly assuming that its findings in relation to s 36(2)(a) of the Migration Act 1958 ("the Act") effectively concluded its enquiry under s 36(2)(aa) of the Act

   2. Further in the alternative to I, the Second Respondent made jurisdictional error by failing to consider in relation to s 36(2)(a) of the Act whether there was a real risk that the Applicants would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to a receiving country.

   3. The Second Respondent made error of law in relation to the construction of s 36(3) of the Act by failing to consider whether the Applicants had a right to enter and reside in India and merely assuming such right from the fact that they had for a temporary period taken steps to reside in India.

   4. The Second Respondent made jurisdictional e1rnr by failing to consider the operation or application of s 36(4)(b) of the Act.

   5. The Applicants were denied procedural fairness or alternatively the Second Respondent made jurisdictional error by acting in breach of s 425 of the Act.

   Particulars

   a) Particulars will be supplied once a transcript is obtained.

   6. The Second Respondent made jurisdictional error in that the decision was attended by a reasonable apprehension of bias.

   Particulars

   a) Particulars will be provide once a transcript is supplied and is available.

Ground 1

1. In relation to ground 1, the assertion of the Tribunal wrongly assuming a matter in its findings does not identify what it is that the applicants said the Tribunal wrongly assumed. The Tribunal’s reasons reflect correctly identifying the relevant law and, on the face of the Tribunal’s reasons, correctly applying the relevant law. Further, it was open to the Tribunal to take into account the findings under the Refugee Convention in relation to consideration of the applicants’ claims in respect of complementary protection. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, the Tribunal’s reasons in respect of the Refugee Convention identified forward-looking language consistent with the Tribunal correctly applying the relevant test. The Tribunal expressly referred to the future in paragraph 39. In paragraph 42, the Tribunal was referring to findings to be made in the future. Further, in paragraph 53, the Tribunal expressly referred to the reasonably foreseeable future, as the Tribunal did in paragraph 56. In these circumstances, the Court is not satisfied that there was any jurisdictional error as alleged in ground 2.

Ground 3

1. In relation to ground 3, the Tribunal’s reasons are not to be read with a keen eye for error. It is apparent that the Tribunal took into account the ability of the applicants to have resided temporarily in India and referred to the India-Nepal Treaty of Peace and Friendship as well as the provisions of s 36(3) of the Act. On a fair reading of the Tribunal’s reasons, paragraph 68 reflects a finding that the applicants have a right to enter and reside in India. The reference to the applicants being able to reside in India supports that conclusion.

2. Further, in any event, the subject matter of ground 3 was an independent finding and is not capable, in these circumstances, of giving rise to any jurisdictional error given the adverse findings by the Tribunal under the Refugee Convention and complementary protection which were open to the Tribunal. No jurisdictional error of the kind alleged in ground 3 is made out.

Ground 4

1. Ground 4 concerns the application of s 36(4) of the Act. There is an express reference by the Tribunal to consideration of s 36(4) of the Act. In these circumstances, there is no basis to find that there was any error as alleged in ground 4.

2. Further, for the reasons already given, any error in relation to s 36(4) of the Act could not give rise to a jurisdictional error as the adverse findings under the Refugee Convention complementary protection were open to the Tribunal and are independent findings by the Tribunal. No jurisdictional error as alleged in ground 4 is made out.

Ground 5

1. In relation to ground 5, on the face of the material before the Court, the applicants were properly invited to attend a hearing to give evidence and present arguments. On the face of the material before the Court, the applicants had a real and meaningful hearing. On the face of the material before the Court, including the Tribunal’s reasons, the applicants had a real and meaningful opportunity to address the issues in respect of their claims and the concerns of the Tribunal. There is no basis to find that there was any denial of procedural fairness in the conduct of the review by the Tribunal. Further, no breach of s 425 of the Act is made out. No jurisdictional error as alleged in ground 5 is made out.

Ground 6

1. In relation to ground 6, the allegation of bias is unparticularised. Bias is a serious allegation that must be properly alleged and clearly proved. No bias is made out on the bare assertion identified in ground 6. Insofar as ground 6 is to be understood as an assertion of apprehended bias based on the adverse findings, the adverse findings are not conduct by reason of which a fair minded lay-observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.

2. On the face of the material before the Court, the Tribunal conducted the review with an open mind reasonably capable of persuasion as to the merits. The Tribunal’s reasons are consistent with that finding. No jurisdictional error as alleged in ground 6 is made out.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 8 March 2019