Eqb18 v Minister for Home Affairs
[2019] FCCA 1279
•15 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EQB18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1279 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.5, 5J, 36, 422B, 424A, 425 |
| Cases cited: NAHI v Minister for Immigration [2004] FCAFC 10 |
| Applicant: | EQB18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2506 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 15 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 15 May 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr J Pinder of Minter Ellison |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,737 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2506 of 2018
| EQB18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 2 August 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are conveniently summarised in the Minister’s outline of submissions filed on 8 May 2019.
The applicant is a citizen of Nepal who arrived in Australia on 4 May 2015 on a FA-600 Family Sponsored visitor visa.
On 3 July 2015 the applicant lodged a valid application for a protection visa.[1]
[1] Court Book (CB) 2–43
On 13 January 2016 the applicant attended an interview with the delegate.
On 21 January 2016 the delegate refused to grant the applicant a protection visa.[2]
[2] CB 90–105; esp. CB 96–105
On 17 February 2016 the applicant applied for review of the delegate's decision to the Tribunal.[3]
[3] CB 106–112
On 25 July 2018 the applicant appeared before the Tribunal to give evidence and present arguments.[4]
[4] CB 136–138
On 2 August 2018, the Tribunal affirmed the decision under review.[5]
[5] CB 139–155; esp. CB 144–155
Applicant’s claims
The applicant claimed to fear harm in Nepal from criminals on the basis that he is a businessman who is perceived to have a lot of money and who has stopped paying extortion money. In support of those claims, the applicant stated that:
a)he suffered mental torture from these criminals when they threatened to kill him or kidnap his children;
b)he went to the police for assistance but they told him they were unable to assist and he also claims the Nepalese police are weak and corrupt; and
c)he attempted to relocate in Kathmandu but the criminals were able to find him.
Tribunal decision
The Tribunal comprehensively summarised the applicant’s claims[6] and made the following relevant findings:
a)the Tribunal accepted that the applicant was a businessman who lived, worked and operated in Nepal;[7]
b)the Tribunal noted that the applicant’s wife and children are still in Kathmandu and are getting on with day-to-day matters.[8] The Tribunal gave some weight to the fact that his family are unaffected by alleged harassment, threats and other criminal gang activity that the applicant claims were his reasons for leaving Nepal;[9]
c)while the Tribunal was satisfied that the applicant lost a valuable source of rental income when earthquakes struck Nepal in April and May 2015,[10] it was not satisfied that the financial loss due to the destruction of property amounted or gave rise to a real chance of persecution, let alone for any reason in s.5J(1)(a) of the Migration Act 1958 (Cth) (Migration Act), or that it involves significant harm as defined in s.5(1) of the Migration Act;[11]
d)the Tribunal accepted that the applicant had sold his real estate business, but was not satisfied that he faced a real chance of being persecuted in Nepal in the reasonably foreseeable future as a result.[12] The Tribunal also did not accept that Maoists had taken over the applicant’s real estate business,[13] as claimed by the applicant at the interview with the delegate, as he gave evidence in the hearing that he had sold this business.[14] The Tribunal similarly concluded that the applicant’s claim about Maoist interference with his investment company was “a product of exaggeration and invention”.[15] The Tribunal also noted that the applicant did not claim to fear persecution from Maoists in the future and was not satisfied that any of the five factors cited in s.5J(1)(a) was a factor in the alleged interference or the alleged implications;[16]
e)the Tribunal did not accept that the applicant faced a real chance of serious harm from any gang that he claimed had extorted money from him.[17] The Tribunal made that finding in light of inconsistencies in his evidence and because he had left his son in Kathmandu despite threats allegedly being made to kidnap the son.[18] The Tribunal also noted that no relevant harm had come to the applicant’s son and that the applicant had evidently not discussed any of the risks to his family with any of those family members.[19] The Tribunal found the applicant’s evidence on this point to be “grossly exaggerated and highly unreliable” and was unable to find a nexus with any of the five factors in s.5J(1)(a) of the Migration Act;[20]
f)the Tribunal considered the applicant’s claim that he was receiving abusive telephone calls from people addressing him as “fatty” and other “vulgar and derogatory terms”.[21] Due to the applicant’s poor explanations as to why he would not simply change his telephone number and overall lack of reliability, the Tribunal did not believe that the applicant had been receiving abusive telephone calls from people who intend to harm him or extort money from him, and gave no weight to the screenshot images of “No Caller ID” the applicant produced at the hearing;[22] and
g)the Tribunal also found that the applicant could avail himself of effective state protection from extortionists and accessible arbitration mechanisms in the event of a perceived property dispute in Nepal.[23]
[6] CB 146–150 at [15]–[38]
[7] CB 150 at [39]
[8] CB 150 at [39]
[9] CB 150 at [39]
[10] CB 150 at [39]
[11] CB 150 at [40]
[12] CB150 at [41]
[13] CB 150 at [41]
[14] CB 148 see [27]
[15] CB 150 at [42]
[16] CB 150 at [42]
[17] CB 151 at [43]
[18] CB 151 at [43]
[19] CB 151 at [43]
[20] CB 151 at [43]
[21] CB 149 at [32] and CB 151 at [44]
[22] CB 151 at [44]
[23] CB 151 at [45]
In light of these findings, the Tribunal ultimately found that the applicant did not face a real chance of being persecuted in Nepal in the reasonably foreseeable future and it was not satisfied that the applicant would be persecuted for any reason in s.5J(1)(a) of the Migration Act.[24] The Tribunal found that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Migration Act.
[24] CB 151 at [46]
The Tribunal also found that the lack of credibility regarding his claims to be a refugee similarly undermined a claim to complementary protection, as outlined in s.36(2)(aa) of the Migration Act.[25]
[25] CB 152 at [52]–[56]
The Tribunal also found, in the alternative, that the applicant failed to satisfy s.36(3) of the Migration Act because he had not taken all possible steps to avail himself of a legally enforceable visa-free right to enter and reside in India.[26]
[26] CB 152 at [56]
The present proceedings
This proceedings began with a show cause application filed on 6 September 2018. The applicant now relies upon an amended application filed on 9 January 2019. The grounds in that application are:
1.The Second Respondent committed jurisdictional error by failing to consider the real question in the applicant's case is whether the applicant has a well-founded fear of persecution in the future for a Convention reason, and not whether the applicant has a well-founded fear of the continuation of the past persecution and failed to consider the issue of adequate state protection for the applicant in light of the significant, accepted history of Nepal failed state protection.
2.The Second Responde[nt] fell in jurisdictional error when it failed to comply with s.424A(1) of the Act. As the Second Respondent had relied on the inconsistencies between claims made in the Protection Visa Application and claims made the Tribunal to find that the applicant was not a credible witness, the Second Respondent was obliged to provide this information to the applicant in writing for the applicant's comment pursuant to s.424A(J) of the Act.
3.The Second Respondent committed a jurisdictional error in that it failed to give proper consideration to the applicant's claims having regard to country information.
4.The Second Respondent made its mind to affirm the decision of a delegate in which my case was taken in breach of the rules of procedural fairness and natural justice.
5.The Second Respondent undermined the applicant's claims that the applicant suffered long standing and insidious risk of being extorted or harmed by the criminal gang as a businessman, which is still prevalent in Nepal.
6.The Second Respondent failed to consider the totality of the Applicant's claims that the Applicant faced a real chance of persecution as a member of a particular social group.
7.The Second Respondent erred by failing to disclose adverse country information on which it relied in the making of its decision.
I have before me as evidence the applicant’s affidavit filed with his original application and the court book filed on 21 November 2018.
Only the Minister filed written submissions in advance of today’s hearing. I invited oral submissions from the applicant this morning. He raised three matters. First, he submits that the Tribunal was wrong in finding that he had sold his company. That required some analysis because the applicant had claimed to have two businesses. The first business was a real estate business, and the second was an investment business called Rapport. The applicant himself claimed to have sold the real estate business, which the Tribunal accepted. The applicant claimed that his investment business had been taken over by Maoists. The Tribunal rejected that claim, but made no factual finding that the investment business had been sold.
Secondly, the applicant claimed that the Tribunal fell into error in dealing with the question of resettlement in India. It is apparent from [38] of the Tribunal’s reasons that this issue was raised with the applicant at the Tribunal hearing. It had also figured in the decision of the Minister’s delegate. The Tribunal purported to make an alternative finding on this question at [56] of its reasons.[27] If that finding had been dispositive of the review application, I would have accepted the need for a final hearing in this case, given the paucity of reasoning in support of it. However, the purported alternative finding was not dispositive. The Tribunal was in no doubt that the applicant did not face a real risk or real chance of harm in Nepal. The question of possible relocation to India, therefore, simply did not arise.
[27] CB 152
The applicant also submitted the two hearing CDs which he had obtained from the Tribunal. He complained that there was no sound on the CDs, and hence he was unable to review the conduct of the Tribunal hearing. After a short adjournment, I had my staff play the start of both CDs in a portable CD player in court. That satisfied me that the CDs do record in sound the hearing conducted by the Tribunal.
The applicant complained that while the CDs may be playable on a CD player, he was unable to play them on his computer. I do not rule out the possibility that the applicant may have faced some technical issue. I conclude, however, that the problem, if there was one, was not with the CDs themselves, but with the device on which the applicant was attempting to play them.
The applicant’s submissions in reply focused on the merits of the Tribunal decision, which are beyond the scope of this proceeding.
I otherwise agree with the Minister’s submissions concerning the grounds of review advanced.
Ground 1
The first ground of review contends that the Tribunal failed to consider whether the applicant has a well-founded fear of persecution in the future for a Convention reason, and failed to consider the issue of adequate state protection for the applicant in Nepal.
Contrary to this allegation, the Tribunal did consider, and did properly consider, the applicant’s claims and evidence, as well as country information, and made findings that were open to it on the material. Those findings included findings that the applicant did not face a real chance of being persecuted in Nepal in the reasonably foreseeable future, let alone for any of the reasons cited in s.5J(1)(a) of the Migration Act[28] and that there was not a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed to Nepal.[29]
[28] CB 151 at [46]
[29] CB 152 at [54]
The Tribunal also considered the adequacy of state protection.[30]
[30] CB 151 at [45]
It was reasonably and logically open to the Tribunal to make those findings on the basis of the evidence before it and for the reasons that it gave, and to conclude that the applicant was not a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Migration Act.[31]
[31] CB 152 at [57]
Ground 2
The second ground of review contends that the Tribunal was required to apply, and failed to apply, the procedure set out in s.424A(1) of the Migration Act in respect of the inconsistencies in the applicant's claims which led to the Tribunal’s conclusion that the applicant was not a credible witness. For the purposes of s.424A(1), “information” refers to the “existence of evidentiary material or documentation, not to the existence of doubts, inconsistencies or the absence of evidence”.[32] Accordingly, inconsistencies in the applicant’s evidence over time did not engage the obligation in s.424A(1) of the Migration Act.
[32] SZBYR v Minister for Immigration (2007) 235 ALR 609; [2007] HCA 26 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ
Ground 3
The third ground of review argues that the Tribunal failed to consider country information when considering the applicant’s claims. This ground cannot succeed as the Tribunal’s decision record clearly states at [12][33] what country information was considered and the Tribunal also refers to specific country information reports and articles throughout the decision record. The choice of, and weight given to, country information was a matter for the Tribunal as part of its fact-finding function.[34]
[33] CB 146
[34] NAHI v Minister for Immigration [2004] FCAFC 10
Ground 4
The fourth ground of review makes a general assertion of a breach of procedural fairness and natural justice.
Contrary to this allegation, the Tribunal complied with its procedural fairness obligations under Division 4 of Part 7 of the Migration Act, which is an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with.[35] The applicant was invited to attend a hearing pursuant to s.425 of the Migration Act, which he attended with the assistance of a Nepali interpreter, and the Tribunal’s decision record (which is the only evidence before the Court of what transpired at the hearing) indicates that the applicant was given a meaningful opportunity to give evidence and present arguments in relation to the issues arising in relation to the decision under review, including the issue of credibility.[36]
[35] Section 422B of the Migration Act
[36] SZBEL v Minister for Immigration (2006) 228 CLR 152; [2006] HCA 63 at [47], per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ
Furthermore there was no “information” before the Tribunal that engaged its obligations under s.424A(1) of the Migration Act.
Ground 5
The fifth ground of review takes issue with the Tribunal’s finding that the applicant does not face a real chance of harm on account of his business affairs in Nepal. This issue was extensively dealt with by the Tribunal at [39]–[44] of the decision record,[37] and this ground appears to be nothing more than an expression of disagreement with the findings reached by the Tribunal, and as such is an attempt to engage the Court in impermissible merits review.
[37] CB 150–151
Ground 6
The sixth ground of review asserts that the Tribunal failed to consider the totality of the applicant’s claims concerning his membership of a particular social group. The ground is unparticularised and fails to identify the specific social group to which the applicant allegedly belongs. This ground is a further expression of the applicant’s disagreement with the Tribunal’s findings and seeks to engage the Court in impermissible merits review.
Ground 7
The seventh ground of review cannot succeed as it claims that the Tribunal failed to disclose the adverse country information on which it relied. The Tribunal does not have an obligation to put adverse country information to an applicant before relying on it.[38]
[38] Section 424A(3)(a) of the Migration Act; SZMCD v Minister for Immigration (2009) 174 FCR 415; [2009] FCAFC 46 at [82]–[83] per Tracey and Foster JJ; and, more recently, SZUFQ v Minister for Immigration [2017] FCA 15 at [63] per Siopis J
Conclusion
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant made no submissions on the question of costs.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,737 in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 20 May 2019
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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Jurisdiction
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Procedural Fairness
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Natural Justice
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