FAR17 v Minister for Immigration

[2018] FCCA 1567

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAR17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1567

Catchwords:
MIGRATION – Administrative Appeals Tribunal application for a Protection (Class XA) visa ­– whether the Tribunal failed to exercise procedural fairness in contravention of s 424AA and s 425 of the Migration Act 1958 (Cth) – whether the Tribunal made a decision which was unreasonable – whether the Tribunal made a decision which was based on bias ­– no jurisdictional error made out ­– application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r. 44.12

Migration Act 1958 (Cth), ss.36, 424AA, 425, 476

Applicant: FAR17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3529 of 2017

Judgment of: Judge Street

Hearing date: 9 May 2018

Date of Last Submission: 9 May 2018

Delivered at: Sydney

Delivered on: 9 May 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr C Robertson
DLA Piper

ORDERS

1. The oral application for an adjournment is refused.

2. The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant pay the first respondent’s costs fixed in the amount of $3,667.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3529 of 2017

FAR17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 25 October 2017 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of Nepal and his claims were assessed against that country. The applicant was granted a Visitor Class (FA-600) Business Stream visa on 13 September 2013. The applicant arrived in Australia on 6 October 2013. On 26 November 2013, the applicant applied for a Protection Class (XA-866) visa. On 29 November 2013, the applicant was granted a Bridging visa A.

3. The applicant claimed to fear harm from Maoists and alleged that Maoists had burnt down his restaurant in Kathmandu and that he and his family had been targeted by Maoists and that there is no secure environment in Nepal to do work and business. The applicant alleged that Maoists made demands for money from him and alleged they would abduct and murder him if he did not make a political donation, and that it was in those circumstances the applicant alleged he had to flee Nepal.

4. On 20 November 2015, the delegate found the applicant failed to meet the criteria for a grant of a protection visa. The delegate did not accept the applicant’s father’s death was as a result of Maoists. The delegate did not accept the applicant was pursued by Maoists during the civil war. The delegate did not accept the applicant was kidnapped as claimed, or that Maoists burnt down his restaurant and that it was not an accident. The delegate did not accept the applicant’s reasons for coming to Australia were was claimed and did not accept the applicant was extorted in Nepal.

The Tribunal

1. The applicant applied for review to the Tribunal on 17 December 2015. By letter dated 24 August 2017, the applicant was invited to attend a hearing on 19 October 2017. The applicant’s migration agent provided submissions to the Tribunal dated 20 September 2017, referring to the applicant’s claim to fear harm from the Communist Party of Nepal Maoists (CPNM).

2. The applicant appeared before the Tribunal on 19 October 2017 to give evidence and present arguments. The Tribunal identified the background to the application for review and set out the relevant law in relation to the applicant’s claims. The Tribunal summarised the applicant’s claims. The Tribunal referred to country information in relation to Nepal.

3. The Tribunal found there were credibility concerns in relation to the applicant’s claims. Firstly, the Tribunal referred to the applicant’s account of his restaurant being set on fire by Maoists and found that to be inconsistent with media reports indicating the cause of the fire. In that regard, those reports suggested the fire started in other premises in circumstances where there was a leaking cooking gas cylinder that caught fire. The delegate put these reports to the applicant that the fire was simply an accident and the delegate noted that when this was raised with the applicant the applicant did not provide any explanation. At the Tribunal hearing, the applicant did provide an explanation which was different to what had occurred before the delegate. The applicant, in that regard, suggested the media were intimidated, and when it was suggested it seems unlikely that the Maoists would set the fire in another building the applicant indicated that this was a tactic to make it less obvious they were targeting him. It was in those circumstances the Tribunal was not persuaded by the applicant’s explanation and the Tribunal found it very unlikely that Maoists would have conducted such an uncertain and extreme plan to target the applicant.

4. The Tribunal found the path of the fire would be outside the control of those setting the fire and that destroying many premises would be an extreme attempt to exact revenge on the applicant. It was in those circumstances that the Tribunal was not persuaded that the media would have failed to report the involvement of Maoists in the fire had they been involved. The Tribunal was of the view that the destruction of the restaurant was an accident. The Tribunal was not satisfied the fire was caused by Maoists seeking to harm the applicant and the restaurant.

5. The Tribunal found the applicant had been untruthful in seeking to claim the fire was the responsibility of Maoists seeking to harm him. The Tribunal was of the view the applicant manufactured the explanation in relation to the fire having been given the opportunity to reflect on the independent information put to him at the interview. The Tribunal found this adversely impacted on the applicant’s credibility.

6. Secondly, the Tribunal referred to the applicant’s account of allegedly being kidnapped by Maoists in 2011 and found it is inconsistent, vague and implausible. The Tribunal referred to the different vehicles that the applicant described at the delegate interview and in contrast before the Tribunal, and when the inconsistency was raised with the applicant the Tribunal was not satisfied with the applicant’s explanation. The Tribunal found the applicant was simply inventing different accounts in the interview and then in the Tribunal hearing.

7. The Tribunal also found the applicant’s explanation for him being abducted did not make sense given what happened in the kidnapping and its timing. The Tribunal raised with the applicant that it would have expected Maoists would have used kidnapping to intimidate and make arrangements for further payments or donations being sought and the applicant confirmed that did not happen. The Tribunal did not consider it plausible that the applicant would be kidnapped on the basis that Maoists wanted more money and that there would be no arrangements to extract further money. The Tribunal noted no evidence was provided by the applicant that Maoists sought to extract further money from the applicant in the few months following the alleged kidnapping.

8. The Tribunal found the applicant’s explanation as to how he was rescued to be vague and implausible. The Tribunal found the applicant’s account of the kidnapping was vague and general and did not convey to the Tribunal that the applicant was recounting an event that had actually occurred. These issues impacted on the assessment of the truthfulness of the applicant’s claims that he was kidnapped.

9. Thirdly, the Tribunal referred to the applicant’s claim of the Maoists seeking from him Rp 2 million in the lead up to the applicant coming to Australia and found that was not plausible. The Tribunal referred to discussing with the applicant the country information concerning enforced donations in Nepal. The Tribunal found there was no evidence that donations are requested of such extreme amounts that they would drive businesses to the wall. The Tribunal took into account that those seeking donations would have an incentive that the business continue. The Tribunal did not consider it plausible that the Maoists would request a donation of as much as Rp 2 million rupiah, an amount that the applicant would find very difficult to pay.

10. The Tribunal found that its doubts were reinforced by the applicant’s evidence that he was not aware of any similar donation requests made to the Maoists to his friend. The Tribunal identified having difficulty accepting that if the applicant had been extorted for a significant amount of money, in part because of operating a business, he would not have been concerned to find out from his friend who took over the business whether he had similar concerns. The Tribunal noted during the hearing that the applicant indicated that he was more specifically targeted for a large donation because of past issues. The Tribunal did not find that explanation satisfactory.

11. Fourthly, the Tribunal referred to the myriad of inconsistencies as to the time period in which the applicant operated the guesthouse. The Tribunal found that these credibility concerns seriously undermined the applicant’s credibility. The Tribunal was not satisfied as to key aspects of the applicant’s claim. The Tribunal was not satisfied the applicant was targeted by Maoists because he did not pay sufficient donations or because he had not fought with them during the insurgency. The Tribunal was not satisfied the applicant was kidnapped by Maoists in April 2011 as claimed and the Tribunal was not satisfied that the guesthouse was sold because of the problem with the Maoists due to excessive donations being sought from him. The Tribunal was not satisfied that the restaurant was burnt down by Maoists in May 2013 as claimed. The Tribunal was not satisfied that Maoists subsequently sought to extort 2 million rupiah or any significant sum of money with associated threats causing the applicant to decide to flee to Australia.

12. The Tribunal was not satisfied the applicant had been specifically targeted by Maoists for reasons claimed or was subject to a large donation request which he did not pay such as to result in the real chance of the applicant facing serious or significant harm when he returns to Nepal. The Tribunal did accept that the applicant paid donations to Maoists and other political parties when operating the business. The Tribunal found the amounts paid were relatively small and did not affect the viability of the business. The Tribunal was not persuaded that any such requests or payments constitute serious or significant harm or that any similar payments that would be made by the applicant in the future, should he re-establish a business in Nepal, would constitute serious or significant harm.

13. The Tribunal referred to the position where Maoists may have sought free food but was not persuaded such requests seriously affected the operation of the business or constitute serious or significant harm or suggest the applicant faces a real chance of serious or significant harm for similar reasons should he return to Nepal.

14. The Tribunal was not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed, or for any other reasons. The Tribunal was not satisfied the applicant has a well‑founded fear of persecution for a Convention reason for any of the reasons claimed or any other reason. The Tribunal was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that the applicant would suffer significant harm for any of the reasons claimed or any other reasons.

15. The Tribunal found the applicant failed to meet the criteria under s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 17 November 2017. On 18 December 2017, a Registrar of the Court made orders fixing the matter for a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) and giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed by the applicant in accordance with the opportunity provided.

2. At the commencement of the hearing, the Court explained to the applicant that this was a hearing under r 44.12 of the Rules to determine whether the Tribunal’s reasons were the subject of a reasonable argument or if they were affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness. The Court explained in that regard that it was considering whether the grounds in the applicant’s application identified a reasonable argument that the Tribunal’s reasons were unlawful or unfair. The Court explained that if satisfied the applicant had a reasonable argument that the Tribunal’s decision was unlawful or unfair the matter would be fixed for hearing on another occasion. The Court explained that if not satisfied the applicant had a reasonable argument that the Tribunal’s decision was unlawful or unfair the application would be dismissed with costs.

3. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed he understood the nature of the hearing as explained by the Court.

Oral applicant for an adjournment

1. At the commencement of the hearing the applicant indicated that he had been to a number of different entities seeking to obtain legal representation, all of which had been unsuccessful. The applicant indicated that he wanted to obtain representation. Nothing said by the applicant identified any basis upon which the applicant would be able to pay for representation. The absence of representation is not a ground on which an adjournment should be granted. The adjournment application was opposed by the first respondent.

2. Nothing said by the applicant in support of an adjournment identified any basis upon which the Court could be satisfied that the applicant would be able to obtain representation by granting the adjournment. Further, the Court is not satisfied that the merits of the substantive application have a sufficient prospect of success to warrant the grant of an adjournment. The Court is not satisfied an adjournment is warranted in the interests of administration of justice and declined to grant an adjournment.

Applicant’s submissions from the bar table

1. The applicant, from the bar table, maintained that what he had said about the Maoists was true and correct, as was what he had said about his restaurant and attempted extortion. The applicant’s submissions from the bar table invited the Court to engage in merits review. This Court does not have power to revisit the merits.

2. The Tribunal provided logical and cogent reasons for the adverse credibility findings in relation to the applicant’s claimed fear of harm from Maoists and the burning down of his restaurant, which the Tribunal found to be an accident, and for the adverse findings in relation to rejecting the applicant’s claims of extortion and the claim concerning kidnapping. Those reasons were eminently open for the reasons given by the Tribunal as summarised above.

3. Nothing said by the applicant from the bar table identified any arguable case of jurisdictional error. The Tribunal clearly took into account the applicant’s claims to fear harm from the Maoists and made dispositive findings in relation to those claims that were open to the Tribunal for the reasons given by the Tribunal. The Tribunal also took into account the applicant’s claim to have been kidnapped and the burning down of the restaurant and made dispositive findings in respect of those claims.

4. It was a matter for the Tribunal to determine the applicant’s credibility and the adverse credibility findings cannot be said to reflect trivial or insignificant matters. For the reasons summarised above by the Tribunal, the adverse credibility findings were open on the material before the Tribunal. Nothing said by the applicant from the bar table identified any arguable jurisdictional error.

5. The grounds in the application are as follows:

   1. The Second Respondent made jurisdictional error and/or failed to exercise jurisdiction and/by denying procedural fairness in contravention of ss.424AA and 425 of the Migration Act 1958.

   Particular

   (a) The Second Respondent at [44] and [45] made a finding on credibility as to the time period in which the applicant operated the guesthouse in Kathmandu but failed to provide an opportunity to respond on that.

   2. The Second Respondent made jurisdictional error by making a decision which was irrational, inconsiderate and unreasonable.

   Particulars

   (a) The Second Respondent at [32] acknowledged inconsistencies of colour and type of the vehicle in which the applicant was abducted, however at the same time accepting that the applicant did not have a clear recollection of the type of vehicle he was abducted in, thereby making a self-contradictory statement.

   (b) The Second Respondent at [28] predicted that setting fire that destroyed many premises would be an extreme attempt to extract revenge, but failed justify what makes the Second Respondent to determine or predict the acts of the Maoists.

   (c) The Second Respondent at [16, 17 and 18] made jurisdictional error by relying solely on the independent country information at its face value without taking into account the actual circumstances of the applicant and the country.

   (d) The Second Respondent at [50] accepted that the Maoists at times might sought free food at applicant’s guesthouse as an adjunct or form of a donation. The Second Respondent failed to provide what parameters made it believe that such activities may cause some annoyance to the applicant’s business but may not cause serious effect to the business or constitute serious or significant harm.

   (e) The Second Respondent at [42] by treating all past claims of persecution as indicating that those claims were false and fabricated, failure to consider the past claims, undermine the Applicants’ claims of past harm and future fears in Nepal.

   (f) At [19] the Second Respondent noted that the threats such as coercion, extortion and forced donations, as well as kidnappings or coercion to join political parties, have been identified as the most common forms of mistreatment in Nepal but made no reference to the DFAT Country Report of 2016.

   (g) See particular (a) to Ground 1.

   3. The Second Respondent made jurisdictional error by making a decision which is based on personal beliefs and assumptions rather than the actual circumstances presented before it. Therefore, the approach adopted to the assessment of the Applicant’s claims was not undertaken in fair manner pursuant to the notion of substantial justice as required by the Act.

Ground 1

1. In relation to ground 1, this alleges that the Tribunal breached s 424AA and s 425 of the Act because the applicant was not afforded an opportunity to respond to concerns by the Tribunal about the applicant’s credibility in relation to the guesthouse to which the Tribunal referred in paragraph 44 and 45 of its reasons. The Tribunal noted that the protection visa application forms indicated the guesthouse was operated from April 1993 until the applicant left for Australia and that in the delegate’s interview the applicant indicated the guesthouse was open in 2005 to 2006 and sold in 2010 to 2011. At the Tribunal hearing, the applicant indicated the guesthouse was sold some months after the kidnapping in 2012. The Tribunal noted the written claim suggested the guesthouse was opened in approximately 2010.

1. The Tribunal referred to the inconsistencies in relation to those matters and the applicant’s statement that he did not read the forms carefully and indicated that he did not say to the delegate in the interview that the guesthouse was opened in 2005-2006. The Tribunal noted that the recording of the interview was clear in the date stated by the applicant and found those inconsistencies supported the adverse credibility concerns.

2. There is no requirement upon the Tribunal to put to the applicant the credibility concerns and the credibility concerns are not information enlivening any obligation under s 424AA of the Act. There is no basis to find any breach of s 425 of the Act. On the face of the material before the Court the applicant had a real and meaningful hearing. Further, on the face of the Tribunal’s reasons, the Tribunal raised the inconsistencies with the applicant in the course of the hearing. On the face of the material there is no basis to find that there is an arguable case that the Tribunal contravened s 424AA or s 425 of the Act or that the applicant was denied procedural fairness in the conduct of the hearing.

3. Ground 1 identifies a number of adverse findings by the Tribunal and asserts that they were irrational, inconsiderate and unreasonable. Each of the adverse findings by the Tribunal, as summarised above, were eminently open for the reasons given by the Tribunal and cannot be said to lack an evident and intelligible justification. In substance, ground 1 in this regard reflects a disagreement into the adverse findings and seeks merits review. This Court cannot review the merits. The adverse findings by the Tribunal summarised above were logical and reasonable. Ground 1 fails to identify any arguable case of jurisdictional error.

Ground 2

1. In relation to ground 2(a), to the extent that it is suggested that there was some inconsistent or contradictory statement in paragraph 32 of the Tribunal’s reasons that cannot be sustained at a factual level. The Tribunal made a finding that although the applicant was unable to recall the type of vehicle in which he was abducted, the issue is not that he had been unable to remember this detail but that he had given contradictory evidence about the detail over time. The Tribunal’s reasoning in that regard was entirely reasonable and logical.

2. In relation to ground 2(b), the applicant took issue with the finding at paragraph 28 of the Tribunal’s reasons that the Maoists did not set fire to the building. The Tribunal provided logical and rational reasons in support of those findings including the source of the fire in a different building and the identified media reports. Ground 2(b) fails to identify any arguable case of jurisdictional error.

3. In relation to ground 2(c), the Tribunal’s reasons correctly identified the applicant’s claims and made dispositive findings in respect of those claims. The Tribunal summarised the country information in paragraphs 16 to 19 of the Tribunal’s reasons, and it was a matter for the Tribunal as to what country information it took into account. There is no failure by the Tribunal to take into account the applicant’s circumstances. Nothing in ground 2(c) identifies any reasonable argument that the Tribunal’s findings were irrational or unreasonable.

4. In relation to ground 2(d), the applicant takes issue with the findings that Maoists demanded free food and that that did not amount to serious or significant harm. The ground rises no higher than seeking impermissible merits review. No arguable jurisdictional error is identified by ground 2(d).

5. Ground 2(e) reflects a disagreement with the adverse credibility findings by the Tribunal in relation to the applicant’s feared future harm. The adverse findings were open to the Tribunal for the reasons given by the Tribunal summarised above and cannot be said to lack an evident and intelligible justification. The Tribunal’s reasons in relation to the applicant’s credit cannot be said to be unreasonable or illogical. No arguable case of jurisdictional error is made out by ground 2(e).

6. In relation to ground 2(f), it is alleged that the Tribunal erred by not citing the DFAT country report of 2016. It is clear from paragraph 19 of the Tribunal’s reasons that the DFAT report of 2016 was cited by the Tribunal and taken into account in its adverse determinations. No arguable case of jurisdictional error is made out by ground 2(f).

7. Ground 2(g) repeats the particulars in relation to ground 1(a) and for the reasons already given, the adverse credibility findings in relation to the guesthouse were open to the Tribunal for the reasons given by the Tribunal and cannot be said to be irrational or unreasonable. No arguable case of jurisdictional error is made out ground 2(g).

Ground 3

1. In relation to ground 3, the applicant asserted that the Tribunal determined the matter with personal beliefs and assumptions rather than the actual circumstances. The Tribunal’s reasons reflect an orthodox approach to the determination of the applicant’s claims and evidence on rational logical grounds that do not reflect the application of personal beliefs or personal assumptions by the Tribunal. The Tribunal considered the applicant’s claims and evidence in detail and gave clear reasons for its findings. On the basis of the material before the Court, the Tribunal conducted the review with an open mind reasonably capable of persuasion as to the merits.

2. Insofar as ground 3 seeks to advance an allegation of bias that is an allegation that must be clearly particularised and properly proved. The adverse findings by the Tribunal 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. Ground 3 fails to make out any arguable case of jurisdictional error.

Conclusion

1. I am not satisfied that the application discloses any reasonably arguable case of jurisdictional error and that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Rules. Accordingly, the application is dismissed under r 44.12 of the Rules.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 14 June 2018