EVG19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 678
•15 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EVG19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 678
File number(s): SYG 3187 of 2019 Judgment of: JUDGE CLEARY Date of judgment: 15 May 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa - whether Tribunal erred in finding applicant was not credible - no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) Cases cited: AIZ19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 715
ASB17 v Minister for Immigration and Border Protection (2018) 266 FCR 83
AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
CQO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 97
Craig v South Australia (1995) 184 CLR 163
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259
Minister for Immigration andMulticultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404
SZTFR v Minister for Immigration and Border Protection [2015] FCA 545
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344
Division: Division 2 General Federal Law Number of paragraphs: 81 Date of hearing: 6 May 2025 Place: Parramatta Applicant: In Person Counsel for the Respondents: Ms Y. Wong Solicitor for the Respondents: Clayton Utz ORDERS
SYG 3187 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EVG19
First Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CLEARY
DATE OF ORDER:
15 MAY 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs fixed in the amount $7,467.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CLEARY
INTRODUCTION
The applicant has made an application for judicial review under s 476 of the Migration Act 1958 (Cth) (Act). He seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 19 July 2022, which affirmed a decision of a delegate of the First Respondent (the delegate) who refused to grant the applicant a Protection (Permanent) (XA-866) visa (protection visa) under s 65 of the Act.
FACTUAL BACKGROUND
On 16 February 2015, the applicant, a citizen of Nepal, first arrived in Australia on a Visitor (FA-600) visa.
On 12 January 2016, the applicant applied for a protection visa on the basis that he will be harmed by members of Maoist political parties due to his political opinion.
On 24 June 2016, the delegate refused to grant the applicant a protection visa.
On 15 July 2016, the applicant lodged an application to the Tribunal for review of the delegate’s decision.
On 14 November 2019, the applicant appeared before the Tribunal to give evidence and present arguments.
On 18 November 2019, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
TRIBUNAL’S DECISION
After considering the department and Tribunal files before it, the Tribunal identified the issue in this case as whether the applicant was a refugee or a person who met the criteria for complementary protection.
The Tribunal accepted that the applicant was a citizen of Nepal and that he was married at the time of the protection visa application. The Tribunal accepted that his wife passed away in July 2019 of an illness and that the applicant is the father of one son and three daughters who remain in Nepal.
The Tribunal considered the applicant’s written claims contained in his protection visa application. The applicant claimed he left Nepal because of the Maoist threat and if he returned his life would be at risk. In Nepal the applicant contended that he experienced threats to kill his family, and he claimed he did not seek help in Nepal because Maoists threatened to kill his family if he made a report to the police. The applicant did not think the authorities could or would protect him because there was no control or government authority in the area he was from and that he could not relocate within Nepal as he had family ties in that place.
The applicant also claimed he met a person in his village who was a member of the Nepali Congress political party, and that this person had done much welfare for the village. The applicant admired this person’s social contributions and wished to become a member of the Nepali Congress political party.
The applicant claimed that after four years of working for the welfare of the village and district, he claimed that he received a letter from Maoists, warning him to stop working for the Nepali Congress Party. The applicant claimed that he ignored their instructions and continued working for the Nepali Congress political party. He then received a second letter from the Maoists to abandon the Nepali Congress political party and join the Maoists. The applicant was threatened that he would be killed if he did not leave the Nepali Congress political party and join the Maoists party. The applicant wrote that he was forced to leave his village and left his country to migrate to Australia and then a migration broker helped him to interest rate you after paying 2.2 million Nepalese rupees.
The Tribunal found the applicant to not be a credible witness and therefore did not accept that the applicant had been harmed in Nepal as he had claimed that he and his family had relocated within Nepal, that he had any political profile or role within the Nepali Congress political party, or that he left Nepal because of the reasons he claimed.
The Tribunal found the applicant was not a credible witness for a number of reasons. It found there were inconsistencies between the applicant’s written claims given in his oral evidence given to the Tribunal about a number of matters, including his residential history, where his children were born, and his employment in Nepal. The applicant was also unable to provide copies of threatening letters he claimed to have received from the Maoists, and the Tribunal found that the oral and written evidence he gave about these letters were inconsistent. The Court discusses the Tribunal’s credibility finding in further detail below when considering grounds 5 of the amended application.
The Tribunal also found, in the alternative and putting all of its concerns about the applicant’s evidence to one side, that it did not accept that the applicant would face a real chance or risk of serious harm or a real risk of significant harm now or in the reasonably foreseeable future if he returned to Nepal. This finding was based on country information which showed the situation in Nepal was markedly different than the situation during the civil war. It found circumstances in Nepal had "changed dramatically" and were "markedly different" since the Nepalese Civil War ended in 2006.
On 18 November 2019, the Tribunal affirmed the decision not to grant the applicant a protection visa.
PROCEEDINGS IN THIS COURT
Judicial review application and procedural orders
On 4 December 2019, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision dated 18 November 2019.
On 6 March 2020, the applicant filed an amended application (Amended Application). The Amended Application contains 10 grounds of review. They are as follows:
1.I rely on my claim that I left Nepal because of the Maoists threat and that my life would be at risk if I return back.
2.I continue to rely on my statement which appears in Court Book p.43-44 and I admit that the statement was originally written in my own language and translated but that was the basis for my application.
3.I was not requested to attend a Departmental interview in relation to my protection visa and the Case Officer on p.56 stated that she was not able to comment on the subjective nature of my fear of return to Nepal which may be genuine. (Court Book p.56) and on p.57 the Case Officer accepted that Nepal was wracked by a violent Maoists insurgency.
4.When I obtained my visa I paid 2.2 million Nepalese rupees and I left Nepal because I feared Maoists.
5.During my interview with the Tribunal I gave evidence under oath and to the best of my ability I was credible in my claim and admitted that I was never physically assaulted but was talked to.
6.The Tribunal had evidence that almost 18,000 people were killed and over 1300 people disappeared before a peace accord was struck in 2006 following an agreement between the Maoists and political parties.
7.The Tribunal view that I remained at the same location can be disputed and I do not accept that I was not a credible witness because if I was not a credible witness I would have exaggerated my claim and as a matter of fact I did not and I was targeted by the Maoists and left Nepal to avoid such harm continuing.
8.The Tribunal has no basis to deny my harassment and threats made by Maoists and the genuine letters of threats and I do not agree the Tribunal conclusion that I travelled to Australia and lodged a protection visa application for reasons other than those connected to Australia's protection obligations.
9.Even though the circumstances in Nepal have changed dramatically I continue to have a subjective fear of harm to return to Nepal.
10.The Tribunal does not have probative evidence to reject my claims as a person who has a genuine fear to return to Nepal.
On 19 March 2025, a Registrar of this Court made an Order for both the applicant and first respondent to file an Amended Application (if applicable), written submissions and any further evidence in respect to the hearing. The applicant did not file any documents in accordance with this Order. The first respondent lodged their written submissions as required by the Order.
On 8 April 2025, the proceedings were docketed to me and were set down for hearing before me on 6 May 2025.
Hearing on 6 May 2025
At the hearing on 6 May 2025 before this Court the applicant was unrepresented and was assisted by a Nepalese interpreter. Yvonne Wong of counsel appeared on behalf of the first respondent, instructed by Clayton Utz.
Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the Court Book and the first respondent’s outline of submissions. The Court also ensured that the interpreter had interpreted the first respondent’s outline of submissions for the applicant prior to the hearing commencing.
At the commencement of the hearing, I explained to the parties that the Court’s role in deciding the case was limited to considering whether the Tribunal had committed a jurisdictional error. I described jurisdictional error as a serious legal error or mistake made by the Tribunal. I also explained the procedure by which the hearing would be undertaken. I then allowed the Court Book and the applicant’s affidavit in support of her application to be admitted as evidence.
The Court then invited the parties to make final oral submissions. I took the applicant to each of the of the 10 grounds of review in his Amended Application seriatim and asked him if he wanted to make any submissions about each of them. I also asked the applicant to tell the Court what he considered was wrong with the Tribunal’s decision. The applicant made brief oral submissions on most of the grounds, essentially challenging the factual findings of the Tribunal. In particular he told the Court he disagreed with the credit finding made by the Tribunal. Ms Wong made some short submissions in reply.
CONSIDERATION
The Court can only grant relief if it is established that the decision of the Tribunal is affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Craig v South Australia (1995) 184 CLR 163. To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 at [32].
In undertaking its role in judicial review applications, it is not the role of the Court to review the merits or factual findings of the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259.
Below I deal with each of the 10 grounds of review as set out in the Amended Application.
Ground 1
Ground 1 does not plead an arguable particularised ground of jurisdictional error. It merely asserts the general claim of persecution made by the applicant in the Tribunal. When asked by the Court at the hearing what he meant by this ground the applicant said his home in Nepal was in a rural remote area, and if he went back to Nepal he would be harassed by Maoists and he feared harm from them.
The applicant was unable to articulate this ground any further during the course of the hearing. Neither the ground as written or the matters raised orally by the applicant at the hearing on this ground identify any arguable jurisdictional error committed by the Tribunal. The failure to particularise a ground of review is a sufficient basis to dismiss it: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37]; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35], per Gilmour J, and in this Court, AIZ19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 715 at [26]. Ground 1 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 2
Like ground 1, ground 2 does not plead an arguable particularised ground of jurisdictional error. It merely makes an assertion that the applicant relies upon his statement contained in the Court Book. When asked by the Court what the applicant meant by this ground, the applicant said he had nothing to say.
Ground 2 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 3
Under Ground 3, the applicant complains that he was not requested to attend an interview by the delegate of the first respondent prior to the delegate making the decision not to grant a protection visa.
When asked by the Court at the hearing if he wanted to say anything further about this ground, the applicant said that he wanted to repeat what he had already said about ground 1.
Under the Act, a delegate of the first respondent is not obliged or required to interview an applicant prior to making a decision in relation to a visa application: see for example s 56 of the Act. By electing not to interview the applicant the delegate has not acted in breach of any statutory obligation under the Act.
Further, the Court agrees with the first respondent’s submission that the delegate electing not to interview the applicant is not capable of exposing jurisdictional error in the Tribunal's decision as the Tribunal's review function is de novo in nature: Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495, 515-6; Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344, 354; Minister for Immigration andMulticultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314.
In any event, the applicant was invited and did attend a hearing before the Tribunal.
No jurisdictional error is identified in ground 3.
Ground 4
Like ground 1, ground 4 does not plead an arguable particularised ground of jurisdictional error. It merely asserts a statement the applicant made to the Tribunal in his evidence, that when he obtained his visa, he paid 2.2 million Nepalese rupees and left Nepal because he feared the Maoists. That evidence was considered by the Tribunal in its reasons.
At the hearing the applicant told the Court he had nothing to say about this ground. For the same reasons given in relation ground 1 above (and based on the same authorities cited therein), ground 4 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 5
In ground 5 the applicant asserts he "gave evidence under oath and to the best of [his] ability [and] was credible in [his] claim and admitted that [he] was never physically assaulted but was talked to". This evidence was accepted as having been given by the applicant to the Tribunal at [37] of the decision. At the hearing the applicant told the Court what he meant was that during the incident referred to in [37] he was “grabbed” by the Maoists, but not physically assaulted by them.
This ground, as well grounds 7, 8 and 10, appear to contain a challenge to the adverse credibility finding made by the Tribunal at [55] of its decision. The first respondent’s written submissions have treated ground 5 (and grounds 7, 8 and 10) as containing a challenge to the Tribunal’s credibility finding. Below I examine the Tribunal’s decision to determine if there was any material jurisdictional error committed by the Tribunal in relation to its adverse credibility finding.
Credibility finding made by Tribunal
The principles applicable to judicial review of adverse credibility findings are well-established. Recently, Needham J in CQO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 97 set out the applicable legal principles at [32]-[38] as follows:
[32]Adverse credibility findings are amenable to judicial review where the findings can be shown to be legally unreasonable, such as by being based on illogical or irrational findings or inferences of fact (BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [50] per Yates, Wheelahan and O’Bryan JJ).
[33]In addition, credibility findings must be rationally made and based upon facts having logical and probative weight, and be articulated properly; minor inconsistencies and trivial errors do not constitute a valid ground upon which an adverse credibility finding may be made (EVI19 at [36] per Stewart J, citing SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] per Flick J; SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [25] per Gordon J. See also DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2 at [30] per Kenny, Kerr and Perry JJ and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [11] per Allsop CJ).
[34]The principles guiding judicial review of adverse credibility findings were outlined in BQQ15 at [51] as follows:
(a)Whether or not a credibility finding is affected by jurisdictional error is a case specific enquiry and should not be assessed by reference to fixed categories or formulae.
(b)Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reason or finding of fact was immaterial, or not critical, to the ultimate conclusion or end result (such as, for example, where it is by one of several findings that independently may have led to the ultimate decision).
(c)Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review: SZMDS at [96]. Even emphatic disagreement with the Tribunal’s reasoning is not sufficient to make out illogicality: SZMDS at [124].
[35]When identifying an inconsistency to ground a finding of adverse credibility, the decision-maker is to consider matters including “the significance of the inconsistency having regard to the person’s case as a whole and whether the inconsistency is on a matter which is central to the person’s case or is at its periphery and involves an objectively minor matter of fact” (AVQ15 v Minister for Immigration (2018) 266 FCR 83; [2018] FCAFC 133 at [28] (Kenny, Griffiths and Mortimer JJ)).
[36]The appellant referred to SAAK v Minister for Immigration (2002) 121 FCR 185; [2002] FCA 367 at [21] (North, Goldberg and Hely JJ) where the Court observed that “… there is a need for the Tribunal to exercise care in relying on an inconsistency between the first interview and later evidence as the foundation for an adverse credit finding…” due to the lived experiences of asylum seekers who have good reason to distrust authority. The appellant also referred to W375/01A v Minister for Immigration [2002] FCA 379 where Lee, Carr and Finkelstein JJ noted at [15] the “invidious” position of asylum seekers who are required to provide multiple versions of the basis for their claim and may not speak English.
[37]A finding of “implausibility”, which may also base an adverse credibility finding, was discussed in BQQ15 at [56]:
A finding that an alleged event is implausible is ordinarily a finding that it is inherently unlikely to have occurred; adopting the language of the High Court in WET040 (No 2), the event does not accord with the probabilities of ordinary human experience. It is not necessarily a finding that that event is beyond human experience of possible occurrences in the sense that it could not have occurred: that formulation tends to overstate what is ordinarily meant by “implausible”.
(Emphasis in original.)
[38]Even where a finding of fact is made in error, more is required before a jurisdictional error is established. The error needs to be material (see Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [29]–[31] per Kiefel CJ, Gageler and Keane JJ).
The Tribunal’s finding in the present case that the applicant was not a credible witness at [55] was central to its decision. The Tribunal did not accept the applicant was a credible witness, and thus did not accept the applicant's claims regarding his asserted previous harm, his purported relocation within Nepal to avoid that harm, his political profile and involvement with the Nepali Congress political party, or his reasons for leaving Nepal.
The Tribunal came to its conclusion that the applicant was not a credible witness after a detailed consideration of the evidence in [47]-[54] of its decision.
First, the Tribunal found there were inconsistencies in the applicant's evidence regarding his residential and employment history and his children's birthplaces. The Tribunal observed that in his written protection visa application, he had claimed to have lived in Ward No 2 Salija Village Committee, Parbat, a village of Okhareni in the Parbat district, from birth until the date of his protection visa application. However, in his oral evidence to the Tribunal the applicant said that he lived in the family home in Okhareni from birth but that he left Okhareni in 2004 or 2005 due to his Maoist problem and he, and 8 months later his wife, went to live in a relative’s house in the Dhulegouda village in the Tanahun district of Nepal. The Tribunal observed in his protection visa application he stated he worked in a homestay in the village of Okhareni until the date of his protection visa application. However, in the applicant’s oral evidence to the Tribunal, he said he had worked as a farmer from childhood but that he stopped working as a farmer after he left his village of Okhareni, and was unemployed from that time.
The Tribunal also queried why the applicant would put down the current address of his wife and children in Question 5 of Form B of his protection application as Okhareni when, according to his oral evidence, they had been living in Dhulegouda from around 2004 or 2005. Further, in his protection visa the applicant noted that his children were born in 2008, 2012 and 2013 in the district of Parbat. However, in his oral evidence to the Tribunal the applicant gave evidence that he and his wife left the Parbat district in 2004. The Tribunal observed it would not have given the inconsistency of birth locations much weight when assessing the applicant’s credibility on its own, but together with the other inconsistencies it found in his evidence, the Tribunal found the applicant and his family never in fact left the Okhareni village in the Parbat district.
Second, the Tribunal found the applicant was unable to provide copies of the threatening letters which he allegedly received from Maoists, and gave inconsistent evidence about the number of letters he received. The Tribunal did not accept as reasonable the applicant’s reason for not having the letters, namely, that he left them behind when he relocated to the Dhulegouda village. This was because the Tribunal rejected the claim made that he, and 8 months later his wife, left the Okhareni village in 2004 or 2005 and relocated to Dhulegouda after they had been threatened by Maoists.
In relation to the number of letters received, the Tribunal noted in his protection visa application, he said he had received two letters from the Maoists. However, in his oral evidence to the Tribunal, the applicant said he received three letters. The Tribunal struggled to accept that the applicant’s memory on this issue would improve over time and did not accept that the applicant ever received any letters from the Maoists as he claimed.
Third, the Tribunal found there were considerable differences between the applicant's written and oral evidence as to how he came to join the Nepali Congress Party. The Tribunal found there was a considerable difference between his written protection visa application and his oral evidence to the Tribunal on this matter.
Fourth, the Tribunal found it struggled to understand why the applicant would leave Nepal in November 2015 when, on his evidence, he did not experience any harm after 2004 or 2005. The Tribunal found it would be incredulous to accept that the applicant genuinely feared Maoists if for the past nine or so years before he left Nepal, he had no interactions with them at all.
Each of these findings were open to the Tribunal on the evidence before it. The Court considers there was sufficient evidence before the Tribunal to justify the adverse credibility finding. The Court accepts the first respondent’s submission that in respect of the 'inconsistencies' which the Tribunal observed in the applicant's evidence, the Tribunal had regard to both the significance of those inconsistencies and weighed them in its analysis according to its assessment of their significance: AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83, [41]; and ASB17 v Minister for Immigration and Border Protection (2018) 266 FCR 83, [39]-[45].
The Court also accepts the first respondent’s submission that none of the inconsistency findings supporting the adverse credit finding rested on false premises, or were based on objectively minor matters of fact, nor did they otherwise lack an intelligible justification. Credibility findings, like all findings, must be rationally made and based upon facts having logical and probative weight, and be articulated properly; minor inconsistencies and trivial errors do not constitute a valid ground upon which an adverse credibility finding may be made: EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518 at [36] per Stewart J; DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175, [30], and the cases cited at [30(3)]; SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] per Flick J; SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [25] per Gordon J.
All four reasons for the credibility finding concerned very significant aspects of the evidence given by the applicant in support of his claim. For example, the applicant’s failure to detail his and wife’s relocation to Dhulegouda at any time prior to the Tribunal hearing, and the fact that the applicant had put that his children and wife’s address as Okahreni at the time of the protection visa application was a significant matter going to the credibility of the applicant, particularly given his oral evidence to the Tribunal (see [27]-[28] of the Tribunal decision). Other examples are his evidence about his employment history and his evidence as to how he came to join the Nepali Congress political party.
Further, there is no basis for concluding that the Tribunal’s adverse credibility finding was legally unreasonable because it was based on illogical or irrational findings or inferences of fact. As seen above, the adverse credibility finding at [55] was rationally made, based upon four findings which each had a logical and rational evidentiary basis: cf. CQO23.
The Court considers that nothing contained in ground 5, or what was said about this ground at the hearing by the applicant identified any arguable jurisdictional error. Further, to the extent that this ground is a challenge to the Tribunal’s adverse credibility finding, the Court is satisfied no jurisdictional error was committed.
Ground 5 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 6
Ground 6 does not plead a particularised ground of jurisdictional error. It merely asserts evidence which was considered by the Tribunal in its reasons. Such an assertion alone is not capable of demonstrating error in the Tribunal’s reasons. At the hearing the applicant told the Court he had nothing to say about this ground. For the same reasons given in relation to ground 1 above (and based on the same authorities cited therein), ground 6 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 7
In ground 7, the applicant challenges the finding made by the Tribunal in [48]-[49] that the applicant and his family did not relocate to Dhulegouda as claimed. This finding was based on the Tribunals’ analysis of the applicant’s written claims contained in his visa protection application, and the evidence he gave orally to the Tribunal. To the extent that this ground is a challenge to the adverse credibility finding made by the Tribunal, the Court repeats what it has said above in its determination of ground 5.
As outlined above, the Tribunal found the applicant’s evidence on this issue was inconsistent. It found at [48] that there was no reasonable explanation for the failure to detail in the protection visa application that this relocation occurred, other than to conclude that the applicant and his family did in fact not relocate as he claimed at the Tribunal hearing. This factual finding was open on the evidence and material before the Tribunal.
At the hearing the applicant told the Court that in relation to ground 7, he did not want to go back to Nepal as he would be harmed.
Nothing contained in ground 7, or what was said about this ground at the hearing by the applicant identified any arguable jurisdictional error. Ground 7 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 8
In ground 8, the applicant asserts: (i) the Tribunal had no basis to “deny my harassment and threats made by Maoists and the genuine letters of threats”; and (ii) that he did not agree with the Tribunal’s conclusion that the applicant travelled to Australia and lodged a protection visa application for reasons other than those connected to Australia's protection obligations. At the hearing when asked about this ground, the applicant told the Court that he was threatened by the Maoists and was sent three letters.
As to 8(i), for the reasons explained above, it was open on the evidence for the Tribunal to find there was an inconsistency in the written claims contained in his visa protection application, and his oral evidence to the Tribunal, about the letters the applicant claimed to have received from the Maoists.
As to 8(ii), the Court considers it was unnecessary for the Tribunal to have made a finding or remark that the applicant travelled to Australia and lodged a protection visa application for reasons other than those connected to Australia’s protection obligations. However, such a finding does not suggest that the Tribunal has fallen into jurisdictional error. This is because, as outlined above, there was ample foundation otherwise for the Tribunal to reach the conclusion that the applicant was not a credible witness: cf. CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [66].
Ground 8, or what was said by the applicant at the hearing on ground 8, does not identify any jurisdictional error was committed by Tribunal. Further, to the extent that this ground is a challenge to the adverse credibility finding made by the Tribunal, the Court repeats what it has said above in its determination of ground 5. Ground 8 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 9
In ground 9 the applicant asserts he continues to have subjective fear of harm if returns to Nepal. It appears by this ground the applicant is challenging the Tribunal’s application and findings as to the “real chance” test within the meaning of s 5J of the Act.
When asked by the Court at the hearing what he meant by this ground the applicant told the Court that the changes that had occurred in Nepal since the end of the civil war had not reached the remote rural areas where he lived. He said his life would still be threatened if he was to return to Nepal.
A person with a nationality is considered a refugee under s 5H and s 5J of the Act if the person is outside the country of his or her nationality and, owing to a well-founded fear of persecution due to race, religion, nationality, membership of a particular social group or political opinion, is unable or unwilling to avail himself or herself of the protection of that country. Under s 5J(1) there must be a “real chance” that if the person returned to the receiving country, the person would be persecuted for one of these reasons. Under s 5J(4) the reason must be the “essential and significant reason”, must involve serious harm to the person, and must involve systematic and discriminatory conduct.
As the first respondent correctly submitted as to the “real chance” test set out in s 5J, in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 the High Court held that a subjective fear must be objectively well-founded, that is, there must be an objective basis for the applicant’s fear. In other words, a visa applicant may genuinely believe a threat and genuinely fear that threat, but the threat may not be something that, objectively, has a real chance of occurring: SZTFR v Minister for Immigration and Border Protection [2015] FCA 545.
It is therefore open to a Tribunal to accept that an applicant has a subjective fear of harm, but nevertheless consider objectively such a fear is not well-founded as there is no “real chance” that the feared persecution will occur: SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404, [47]-[50].
In its decision, the Tribunal at [9] correctly sets out the “real chance” test for establishing a well-founded fear of persecution under s 5J of the Act. It also attached a copy of this provision to its decision. After rejecting the applicant’s claim on the basis that the applicant was not a credible witness, the Tribunal considered, for the sake of completeness, and despite its adverse credibility finding, whether the information about the present situation in Nepal was supportive of the applicant facing a real chance of serious harm or real risk of significant harm now in the reasonable future.
At [56], the Tribunal found:
For the sake of completeness, even if the Tribunal were to put all of its concerns about what it considers to be fundamental problems with the applicant being a witness of truth about his previous experience in Nepal, the information about the present situation in Nepal is not supportive of the applicant facing a real chance of serious harm or a real risk of significant harm now or in the reasonably foreseeable future.
At [57] the Tribunal found:
…there is not a real chance of serious harm to the applicant or a real risk of significant harm because the Tribunal is not satisfied that the applicant has been previously harmed in the past, whether by receiving letters, verbal threats or attendances on the family home. The Tribunal is not satisfied that the applicant has been politically active in the past and is not satisfied that if he returned to Nepal, he would be politically active in the future.
No jurisdictional error was committed by the Tribunal in the way it considered and applied the law (or made findings) under s 5J of the Act, regarding the “real chance” test, in the present case.
Ground 9 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 10
Finally, in ground 10 the applicant asserts the Tribunal did not have probative evidence to reject his claims as a person who has a genuine fear to return to Nepal.
At the hearing the applicant told the Court that in relation to ground 10 he had a genuine fear he would be harmed if he returned to Nepal. As outlined above, the Tribunal weighed and assessed all the written and oral evidence of the applicant as to his claims of persecution if he returned to Nepal. It ultimately made a factual finding that the applicant was not a credible witness.
Such a finding was open to the Tribunal on the evidence, as discussed above, and no jurisdictional error was committed by the Tribunal regarding that finding. For completeness, the Court repeats what it has said above on this issue in its determination of ground 5. Ground 10 does not identify a jurisdictional error in the Tribunal’s decision.
For the reasons outlined above, the applicant has not established that the Tribunal’s decision is vitiated by jurisdictional error. Nor has the Court discerned any jurisdictional error from its own review of the decision.
The Amended Application is dismissed.
COSTS
The first respondent has sought an order that the applicant pay the first respondent’s costs in the amount of $7,467. This amount appears fair and reasonable for matters such as this, and it is below the scale amount set out in Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021. It is appropriate to make an order in this amount.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary. Associate:
Dated: 15 May 2025
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