EYS17 v Minister for Immigration

[2020] FCCA 1391

FEDERAL CIRCUIT COURT OF AUSTRALIA

EYS17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1391

Catchwords:
MIGRATION – Visa – whether Tribunal erred in application of law with respect to right of entry to country other than Australia – whether findings of Tribunal unreasonable, illogical or irrational – whether failure to consider integer of applicant’s claims – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2) & (3), 65

Cases cited:

Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263
Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437

Applicant: EYS17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 451 of 2017

Judgment of: Judge Heffernan

Hearing date: 4 June 2019

Date of Last Submission: 28 June 2019

Delivered at: Adelaide

Delivered on: 3 June 2020

REPRESENTATION

Counsel for the Applicant: Mr W. Philopos

Solicitors for the Applicant: Shamser Thapa & Associates

Counsel for the Respondents: Mr T. Ellison

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicant do pay the first respondent’s costs as agreed or taxed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 451 of 2017

EYS17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review in relation to a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 19 October 2017 affirming a decision of a delegate of the first respondent (‘the Minister’) not to grant a Class XA protection visa to the applicant on 8 October 2015 under s 65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The applicant was represented by counsel and the matter proceeded on the basis of 3 amended grounds, numbered as grounds 2, 3 and 4.  The relevant grounds are as follows:

   “2.The Respondents made jurisdictional error by relying that the applicant may avail protection of India under the Treaty of Peace and friendship.

   Particulars

   a)At [38] ad [61] the right that the delegate refers to has not arisen and is not expressed in the Treaty and hence it cannot be relied on to establish that the applicant has statutory effective protection in India; MIMAC v SZRHU [2013] FCAFC. Therefore, s36 (3) is not satisfied and does not apply in relation to the applicant.

   3.The Second Respondent made jurisdictional error in that it made a decision which was unfair or legally unreasonable.

   Particulars

   a)The Second Respondent at [31][1] and [43] made an unreasonable finding of important inconsistency between the Applicant stating that at the time he left he held property there and his statement at the end of the hearing that he and his wife were getting old and would have difficulty finding work in Nepal.

   [1]     It was apparent from the applicant’s Outline of Submissions and oral argument that this was meant to be a reference to [36] of the decision record.

   b)The AAT found that the Applicant could have mentioned his problems with Maoists with friends who helped him obtain work and had he done so, they would have helped him bring his problems to the attention of Australian authorities without undue delay.

   4.The Second Respondents made jurisdictional error by failing to consider claims or integers of claims made by the Applicant.

   Particulars

   a)The Applicant claimed to fear persecution on the grounds of social group, this included claims that his family would be targeted for donations by the Maoists.  The AAT at [39] dismissed the claim in realtion [sic] to particular social group having any relevance to an incident relating to the lending of a bus to the Maoists for their campaign, thus the particular claims issue was not considered in relation to the Applicant’s status as a business man if he was forced to return to Nepal.”

   (re-produced verbatim)

Background

1. The applicant is a citizen of Nepal.  He arrived in Australia without his wife and children on 9 July 2008 on a tourist visa which expired in October 2008, and applied for a protection visa on 5 May 2015.  The Minister refused the application on 8 October 2015 and the decision was reviewed and affirmed by the Tribunal on 19 October 2017.

Submissions of the applicant

Ground 2 – the Tribunal erred in its application of section 36(3)

1. Counsel for the applicant submitted that the Tribunal erred in its finding that s 36(3) of the Act applied to the applicant. The relevant provision states:

   “(3)Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.”

2. In support of this submission the applicant argued that the Tribunal could not have made a finding that s 36(3) applied as it failed to consider the issue in accordance with the appropriate legal tests, and the fact that the Tribunal, in its decision record, did not consider the meaning of the term ‘right’ within the context of s 36(3) of the Act. The applicant further relied on the case of Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU,[2] where Buchanan J stated that “… no rights of entry appear to arise from the terms of the Treaty itself.”  Further stating:

   “… If the administrative arrangements for entry … do not satisfy the test in V856/00A, then the composite test in s 36(3) will not be satisfied either. … The possibility is one which requires evaluation.”[3]

   [2] [2013] FCAFC 91 (‘SZRHU’).

   [3] Ibid, [88].

3. On the applicant’s case, the respondent failed to evaluate whether or not the applicant had protection under the treaty as evidenced by paragraph 61 of the decision record where it refers to the issue of s 36(3) as being “moot”. For these reasons, the applicant claims that the respondent cannot rely its’ finding that s 36(3) applied to the applicant.

Ground 3 (a) – Unreasonable inconsistency findings

1. The applicant sought to challenge the inconsistency finding made by the Tribunal as unfair or legally unreasonable.  The purported ‘inconsistencies’ which were the focus of the applicant’s oral submissions were as follows:

   a)The applicant and his wife held property in Nepal and were well off enough to remain there but remained in Australia only for fear of persecution by the Maoists;[4]

   b)The applicant stated he “had nothing in Nepal”;[5]and

   c)The applicant and his wife would struggle to find work in Nepal due to their older age.[6]

   [4]     Court Book (‘CB’), 168 [36], [43].

   [5] Ibid, 168 [36].

   [6] Ibid, 168 [36], [43].

2. In oral submissions, counsel for the applicant argued that the respondent misinterpreted the statements and took them out of context by misinterpreting the words used by the applicant and making the unreasonable assumption that owning property was somehow related to the applicant’s age and inability to work.  On the applicant’s case, the statements were not inconsistent as they were individually relevant to the applicant’s circumstances and no inconsistency could reasonably be drawn from them. 

3. On the applicant’s case, the finding of inconsistency was significant as it produced an adverse credibility finding which weighted heavily upon the Tribunal’s decision.

Ground 3 (b) - Unreasonableness in relation to reasons for delayed visa application

1. The applicant submitted that it was legally unreasonable for the Tribunal to make a finding based on an assumption that the applicant’s ability to find work despite his language barriers, equates to an ability to make enquiries and be provided with appropriate assistance regarding immigration options.  Further, on the applicant’s case, the Tribunal made its assumption without providing the basis for its reasoning.  For these reasons it was submitted that the finding was legally unreasonable as it was made without basis of fact or logic and “assumes knowledge of protection visas and notions of persecution which cannot be justified …”

Ground 4 – failure to consider claims or integers of claims

1. It was argued that the Tribunal erred in dismissing the applicant’s claims that he belonged to a particular social group, namely that he was a business man and hence at risk of harm due to being a target for onerous donations demanded by the Maoists.  

2. The applicant claimed the Tribunal failed to deal with a claim which raised the issue of future harm based upon membership of a particular social group and that this made for clear jurisdictional error in accordance with NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2)[7] and Dranichnikov v Minister for Immigration, Multicultural & Indigenous Affairs.[8]  Specifically, on the applicant’s case, the Tribunal took too narrow a view of an incident involving the applicant’s refusal to lend a bus to the Maoists for their political campaign and the ongoing demands for donations over a 10 year period and as recently as 2015.

Submissions of the first respondent

[7] [2004] FCAFC 263.

[8] [2003] HCA 26; Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802.

Response to Ground 2

1. In its response to ground 2, counsel for the Minister stated that even if the Tribunal had erred in a finding that s 36(3) applied, that finding was not material to the decision and could not equate to jurisdictional error because the Tribunal had not been satisfied that the applicant met the requirements under s 36(2) and (aa) of the Act.

2. Further, to the extent that it did consider s 36(3), the finding was that the evidence before it lead to a conclusion that the provision applied in respect of the applicant.

Response to Ground 3 (a)

1. The first respondent relied on cases such as Minister for Immigration & Citizenship v SZMDS,[9] and submitted that the applicant could not demonstrate the requisite illogicality or irrationality in order to succeed on grounds of unreasonableness.

   [9] (2010) 240 CLR 611 [128]-[130].

2. The first respondent indicated that an examination of the inconsistent statements at paragraphs 36 and 42 of the decision record demonstrated a clear inconsistency which justified the findings.  The first respondent’s case was that the inconsistency was clear in that the applicant claimed, on the one hand, to be so fearful of returning to Nepal that he was prepared to forgo financial security in the form property ownership, yet on the other hand, he mentioned alternative reasons for not wanting to return such as unemployment.

3. On the first respondent’s case, the findings of the Tribunal were clearly not illogical and, “were plainly open to be made on the material before the Tribunal.”

Response to Ground 3 (b)

1. In its response to the applicant’s unreasonableness claims under ground 3(b), counsel for the first respondent referred to the lapse of time between the applicant’s arrival in Australia in 2008 and his visa application in 2015 as an “extraordinary delay”. 

2. In the first respondent’s submission, the Tribunal drew the logical conclusion that the applicant had sufficient English to enquire about immigration options.  Relying on the cases of Lee[10] and Wu Shan Liang,[11] the first respondent submitted that the finding was one which was open to the Tribunal on the information before it as part of its fact-finding function.

   [10]   Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 [27].

   [11]   Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 281-282.

3. In making the determination, the Tribunal took into account that the applicant had travelled interstate and found work and that he had been assisted by a Nepalese parliamentarian in coming to Australia to seek protection.  On the first respondent’s submission, the Tribunal made the finding only after giving proper, genuine, and realistic consideration to evidence before it.

Response to Ground 4

1. In response to the submission that the applicant faced a real chance of persecution or significant harm as a result of him being a member of a particular social group, namely a business man or a person perceived to have money, the first respondent contended that the applicant had limited his claim to being a businessman who simply owned a bus and that no claim to being perceived as a person with money had been clearly articulated.

2. The respondent submitted that there was no evidence the applicant was a business man or that he was being persecuted on the basis of being in a rival political party.  On this basis the Tribunal concluded, as was open to it, that the claimed threat appeared isolated to a 2008 election.

3. The first respondent further pointed out that inconsistencies arose in the applicant’s statements about being a business man.  For example, there was inconsistency in his answers as to whether he owned the bus or whether it belonged to the political party to which he was a member. 

4. In the first respondent’s submission, the Tribunal had appropriately found that there was no evidence to suggest that the applicant was at risk by virtue of being a businessman and clearly did not accept that the Maosits had made onerous demands for donations.  

5. The first respondent relied to paragraphs 31 and 46 of the decision record to demonstrate that the applicant’s claims in this regard had been appropriately considered before being rejected by the Tribunal, as was open to it.

Consideration

1. I accept the submission of the first respondent that ground 2 is misconceived. As the Tribunal itself noted in the final paragraph of its reasons, the question of whether the applicant had a right of entry to India that would allow him to relocate there if he genuinely held the claimed fears in relation to persecution at the hands of Maoists was a moot point. The Tribunal rejected his claims and found that he did not satisfy the refugee criterion. That finding was dispositive of the applicant’s claim for a protection visa. The potential application of s 36(3) of the Act did not arise. Whether or not the observations of the Tribunal to the effect that the applicant had a right of entry to India were correct or not, they played no role in the decision with respect to the foundational question as to whether he had successfully engaged protection obligations in this country. Had the Tribunal been satisfied of that matter it would then have been necessary to consider the impact on that finding of s 36(3). It was not so satisfied and for that reason nothing it said on that matter caused it to fall into jurisdictional error.

2. I dismiss ground 2.

3. As to ground 3, the question of unreasonableness, irrationality or illogicality must be assessed in light of the findings actually made by the Tribunal.  The error was said to have arisen in the inconsistency found by the Tribunal between the claim made by the applicant to having been comparatively well off in Nepal (and hence only remaining in Australia by reason of his fear of persecution) and his concern that both he and his wife were too old to work in Nepal.  The matter was dealt with and considered in light of the length of time the applicant had remained illegally in this country, over a number of passages in the decision record:

   “36.Mr X went on to say that he still holds title to property in Nepal and that, given this, he has no reason to be in Australia but for the fear of persecution that he has raised in his protection visa application.  Later in the hearing, however, he became emotional and said that he is old, has nothing in Nepal and cannot work there, and that his wife is also old and cannot work there either.  He said that he would have returned to Nepal to see his mother but for his fear of persecution. …

   41.Mr X says that he delayed applying for protection for seven years partly because he was hoping things would improve for him.  He referred to a recent threat, made around 2015 in relation to a demand for an onerous donation, as the factor that finally moved him to apply to stay here permanently.  However, whereas he implies that conditions and prospects for him continued to be negative for several years, he has been very vague as to the basis of his assessment that conditions at home remained so.  Meanwhile, he left his family there the whole time.  Having reviewed the evidence before me in its entirety, I am not satisfied that Mr X’s act of leaving his wife and children behind to reside in his home village for so long is consistent with a genuine fear of the Maoists maintaining a revenge campaign against him.

   42.On the evidence before me, I am not satisfied with Mr X’s explanation as to his delay in applying for a protection visa.  I find that he was well able to move around Australia and locate work in different locations with the help of a friend or friends in spite of the language barrier that he says prevented him from enquiring about migration options for so long.  I am not satisfied that he could not have mentioned his problems about the Maoists with his friends and asked for their help in bringing these problems to the attention of Australian authorities without undue delay. …

   46.Mr X claims that Maoists have made onerous demands for donations but in light of his consistency and credibility problems in this matter, I do not accept this to be true.  I give much more weight to his claim to the effect that the Maoists are disorganised in his home region and to the claim about their being afraid to put pressure on the people in the NCP stronghold where he lives.”[12]

   (Applicant’s name omitted)

   [12]   CB, 168-169 [36], [41], [42], [46].

4. There was a potential dichotomy in the position articulated by the applicant.  Was he here only because of his fear of persecution or was he here for financial reasons, or was there no dichotomy and was it possibly both? It was open to the Tribunal to approach the evidence by considering those matters.  It found that the applicant had been inconsistent.  As a result, it factored that matter into its assessment of his credibility.  That was not the only matter of credibility on which it found against him.  It may be that another decision maker may have made less of the inconsistency or found that none existed.  That is not the test for unreasonableness.[13]  I do not accept the submission of the applicant that no reasonable person could have found an inconsistency between those two claims.  It is well established that a Tribunal is not bound to accept uncritically any or all claims made by an applicant.  It was open to the Tribunal as part of engaging with the claims in an active intellectual process to test them for either consistency, inconsistency or a combination of both.

   [13]   Op cit, SZMDS [130], [135].

5. It could not be said that the finding of the Tribunal in this regard lacked an evident and intelligible justification.[14]  Where the reasons disclose an evident justification for the exercise of a statutory power, a court will only rarely intervene to find that an exercise of a discretionary power was unreasonable.[15]  As the first respondent submitted, the manner in which the unreasonableness argument was put by the applicant on this ground could properly be characterised as a submission that it was illogical or irrational.  The interplay between those concepts and traditional principles of unreasonableness was discussed in SZMDS:

   “In the context of the tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case”.[16]

   [14]   BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54.

   [15]   Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 [84].

   [16]   Op cit, SZMDS, [130].

1. The finding as to the inconsistency between being a property holder and being unable to return to Nepal because of an inability to find work could not be said to meet the above standard.  It was a finding at least open to the Tribunal.

2. Similarly, it was not unreasonable, illogical or irrational for the Tribunal to find, given the length of time in which the applicant had been illegally in this country and his history whilst here, that it rejected his claim that language barriers had prevented him from ascertaining his migration options.  It was open for the Tribunal to find that he could have sought assistance from friends at an earlier stage.  The basis for that finding was the history to which I have referred and which the Tribunal clearly relied on.  The length of the delay in applying for the visa was a matter of significance to the Tribunal and had an obvious relevance given the claim of the applicant to have been assisted by a Nepalese politician in coming to Australia.[17]  The Tribunal appears to have been making the observation that notwithstanding any language problems he had, the applicant had been resourceful since his arrival.  That was a logical matter to have regard to given the length of the delay.

   [17] CB, 167 [34].

3. I dismiss ground 3.

4. Ground 4 must also be dismissed.  There was no separate and distinct claim made by the applicant to have been a member of a social group namely businessmen who are perceived to have money.  The reference in his materials to having been a member of a social group of businessman was in the context of his having refused to make his bus available for the use of the Maoists.[18]  That matter was specifically referred to by the Tribunal which noted:

   “24.A separate submission to the Department from Mr X’s adviser states that Mr X was a businessman, arguing that this factor be considered as a “particular social group” factor in the present case.  However, Mr X’s own evidence argues that the alleged threat from the Maoists did not exist but for his refusal to lend them his or his party’s bus for a third time.”[19]

   (applicant’s name omitted)

   [18]   CB, 11.

   [19] CB, 166 [24].

5. Implicit in that passage is that the Tribunal did not accept that there was evidence before it that could establish membership of a recognisable social group.  Further, the Tribunal rejected that Maoists had ever made onerous demands for donations from him.[20]  I am not satisfied that it has been demonstrated that the Tribunal failed to consider an integer of the applicant’s claims.

   [20] CB, 169 [46].

6. I make the orders to be found the beginning of these reasons.

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

Associate:

Date: 3 June 2020