FQH17 v Minister for Immigration

[2018] FCCA 1837

FEDERAL CIRCUIT COURT OF AUSTRALIA

FQH17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1837

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether migration agent fraud amounts to jurisdictional error on part of the Authority – whether the Authority failed to consider the reliability and accuracy of the arrival interview – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 476

Applicant: FQH17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3970 of 2017

Judgment of: Judge Street

Hearing date: 4 July 2018

Date of Last Submission: 4 July 2018

Delivered at: Sydney

Delivered on: 4 July 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr J Pinder
MinterEllison

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3970 of 2017

FQH17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

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 Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 22 November 2017 affirming a decision of the delegate not the grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Nepal and his claims were assessed against that country. The applicant arrived in Australia on 20 December 2012 as an unauthorised maritime arrival. The applicant applied for the Safe Haven Enterprise visa on 9 May 2016.

3. The applicant claimed to fear harm from Maoists, as well as making claims about a demand for a donation and that the Young Communist League (“YCL”) threatened to kill him. The applicant initially told the Australian authorities he lived in India and alleged that the YCL was still looking for him and he feared being killed by the YCL for not meeting their demand for payment.

4. On 7 June 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

The Authority

1. By letter dated 14 June 2017, the Authority wrote to the applicant informing the applicant that the application for the visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions. No submissions or new information were provided to the Authority prior to its decision by the applicant.

2. The Authority identified having regard to the information referred by the Secretary under s 473CB of the Act and summarised the applicant’s claims. The Authority rejected the applicant’s claims on the basis of comprehensive adverse credibility findings. The Authority referred to the applicant’s evidence having changed significantly over time, particularly in respect of whether he had lived his India, his education and his employment history.

3. The Authority found the applicant’s explanation at the protection visa interview as to why he had initially claimed to live in India to be unconvincing. The Authority did not accept the applicant was kidnapped by the Maoists as his account of what he did during the period he was detained and when he escaped from them was vague and not supported by country information. The Authority did not accept the applicant had been the owner or operator of a shop in Nepal or that he had been extorted or that he was an actual or perceived businessman.

4. The Authority did not accept that the applicant was kidnapped in 1998/1999 by Maoists or anyone else. The Authority did not accept the applicant was an actual or perceived businessman in Nepal or that he will be in the reasonably foreseeable future. The Authority did not accept the applicant was targeted or asked to pay donations to the YCL/Maoists under threat of harm. The Authority did not accept that the applicant was the subject of an attempted extortion and/or demand by YCL or anyone else to pay money.

5. The Authority did not accept the applicant faces a real chance of harm of any kind at the hands of the YCL or Maoists in Nepal. The Authority did not accept the applicant will be an actual or perceived businessman in Nepal or on his return there or in the reasonably foreseeable future. The Authority was not satisfied the applicant faces a real chance of persecution in Nepal for any of the reasons claimed or arising on the evidence. The Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and 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. On 1 February 2018, a Registrar made orders giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing the Court explained to the applicant the nature of the hearing. The applicant indicated he wished the Court to speak more slowly and the Court repeated the explanation and the applicant confirmed that he understood the explanation as given by the Court.

Applicant’s submissions from the bar table

1. From the bar table, the applicant maintained that what he had said about Maoists had not been looked at and that he was not happy to go back to Nepal and feared for his life. The applicant was not satisfied with the Authority’s decision and he was not satisfied that the decision had been well considered and maintained that his life would be at risk if he went back to Nepal. The Authority did consider the applicant’s claims to fear harm from Maoists but made adverse credibility findings, taking into account the inconsistencies in the applicant’s evidence and also taking into account country information and the lack of detail by the applicant in that regard and the failure by the applicant to mention particular events at the time of his arrival.

2. The Authority provided detailed reasons why the Authority found that the applicant was not a truthful witness and that included the false information that the applicant had initially given in relation to living in India. The Authority did not accept the applicant’s explanation as to why he gave that false information. Those findings by the Authority, as summarised above, cannot be said to be illogical or irrational and were open on the material before the Authority for the reasons given by the Authority.

3. The Authority found the applicant did not have a well-founded fear of persecution in the reasonably foreseeable future and did not face a real chance of significant harm in the reasonably foreseeable future. Those findings were open for the reasons given by the Authority. The applicant’s disagreement with the adverse findings does not identify any jurisdictional error.

4. Further, the detailed reasons of the Authority are inconsistent with the applicant’s contention that the Authority had not considered properly the applicant’s claims and evidence. The applicant’s submissions from the bar table complaining that he was not happy and did not want to go back to Nepal, in substance, invite this Court to engage an impermissible merits review. This Court does not have power to revisit the merits. This Court cannot decide the applicant’s application on discretionary or compassionate grounds. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   1. The Second Respondent made jurisdictional error by failing to consider the possible application of SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; in relation to a comeback of a migration agent concerning the arrival interview.

   2. The second Respondent made jurisdictional error by failing to consider a relevant consideration namely the reliability and accuracy of the arrival interview.

Ground 1

1. In relation to ground 1, there is no evidence of any fraud perpetrated by an agent upon the Authority or the delegate. There is reference to the applicant claiming to have lived in India and proffering an explanation as to why he gave that false information which the Authority did not accept. Whether the advice the applicant received was false or not does not give rise to any fraud on the Authority by a third party.

2. The Authority considered the applicant’s explanation for the false information. The Authority found it was the applicant who provided the information to the Department that was not true. It was also in those circumstances open to the Authority to reject the applicant’s explanation and to find that it did not explain the inconsistencies in the applicant’s evidence and to make the adverse credibility findings for the reasons given by the Authority. No fraud of any agent is made out. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, it is apparent that the Authority did take into account the information provided by the applicant at the arrival interview. It was logical and rational for the Authority to do so. It was reasonable for the Authority to take into account the false information provided by the applicant. It is apparent that the Authority assessed the applicant’s credibility by reference to what the Authority found to be material and significant inconsistencies, contradicted by country information as well as omissions from the applicant’s arrival interview and the false information provided by the applicant.

2. There is no error by the Authority in taking into account the content or omissions from the arrival interview. The exercise of the Authority’s power to make findings in respect of the applicant’s credit cannot be said to lack an evident and intelligible justification. No jurisdictional error as alleged in ground 2 is made out.  

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 16 August 2018