MZZVL v Minister for Immigration

[2014] FCCA 1603

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZVL & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1603

Catchwords:
MIGRATION – Application for Protection (Class XA) visa – where tribunal determined that the applicant did not have a well-founded fear of persecution for convention reason – where tribunal did not accept claims made by the applicant – no jurisdictional error revealed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

First Applicant: MZZVL

Second Applicant: MZZVM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1892 of 2013

Judgment of: Judge Jarrett

Hearing date: 23 July 2014

Date of Last Submission: 23 July 2014

Delivered at: Melbourne

Delivered on: 24 July 2014

REPRESENTATION

The Applicants appeared in person.

Counsel for the Respondents: Mr Brown

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application filed on 8 November, 2013 is dismissed.

2. The applicants pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1892 of 2013

MZZVL

First Applicant

MZZVM

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants seek judicial review of a decision of a refugee review tribunal made on 11 October, 2013 which affirmed a decision of a delegate of the first respondent not to grant each of the applicants a Protection (Class XA) visa.

2. The applicants are husband and wife.  The husband was the primary applicant for a protection visa.  His wife relied upon her membership of the same family unit as the primary applicant to support her application.  She advanced no separate grounds on her own behalf.  At the hearing before me, both the primary visa applicant, that is to say the husband and his wife each made submissions on behalf of both applicants.

3. I have been assisted in preparing these reasons for judgment by the fulsome written submissions of all parties, but in particular those of the first respondent.  Those written submissions summarise the background to this application, as it appears from the reasons of the tribunal and the documents in the Court Book filed on 23 January, 2014, in my view, accurately.  I have drawn upon the written submissions of both parties for the preparation of these reasons.

Background

1. The primary applicant for the protection visa is a 38 year old citizen of Nepal, who arrived in Australia as the holder of a Class DC Subclass 457 (Business (long stay)) visa on 19 February, 2008.  This visa was cancelled on 14 May, 2008 after the primary applicant ceased employment with his sponsoring employer. He commenced employment with another employer and was granted a further 457 visa. On 14 May, 2009 however, the second 457 visa was cancelled because he ceased to be employed by a sponsoring employer.

2. Prior to the cancellation of the second 457 visa, on 6 January, 2009 the primary applicant lodged a third application for a 457 visa. This was refused and an application for review of that decision by a migration review tribunal was unsuccessful.

3. The secondary applicant is a 35 year old citizen of Nepal and is the wife of the primary applicant.  She arrived in Australia on 27 October, 2008 dependent upon the primary applicant’s second 457 visa. The applicants have two children, who are not included in the present application, who arrived in Australia on 14 May, 2008 and departed from Australia on 21 November, 2008.

4. On 20 April, 2012 the primary applicant lodged an application with the first respondent for a protection visa. The secondary applicant applied for a protection visa as a member of the same family unit as the primary applicant.

5. The primary applicant’s visa application was supported by a written statement dated 19 April, 2012 in which he set out the basis for his claim to protection.  He asserted:

   a)There was political turmoil in Nepal between 1990 and 2006, involving the Nepalese Congress party and the Maoist party.

   b)He and his wife lived in a village in a remote part of Nepal, where there was a lot of political instability.

   c)He and all his family were members of the Nepali Congress party, which was anti-communist, and there were problems between supporters of the Maoist party and the Nepali Congress party.

   d)He was a very active supporter of the Nepali Congress party, attending all their rallies and meetings, handing out pamphlets, hanging up posters, supporting their candidates and contributing financially to the party.

   e)As a result of this work, he received threats, assaults and harassment from supporters of the Maoist party; this included an assault when canvassing, death threats, and his house being attacked one night.

   f)He became well known in the area because of his support for and frequent association with, the local Nepali Congress party candidate, Mr Hari Narayan.

   g)He left Nepal before the elections in April, 2008.

   h)Since leaving Nepal, the Maoists have seized the applicants’ property and forced the primary applicant’s parents and the applicants’ two children to flee the village and move to Kathmandu.

   i)He is well known as a strong supporter of the Nepali Congress party and, if returned, members of the Maoist party will persecute him because of his political opinion.

6. On 21 June, 2012 the primary applicant attended for an interview with the delegate.   On 25 July 2012, the delegate refused to grant the visas because she did not accept the primary applicant’s claims about his political profile and involvement. This was because of his poor understanding of the Nepali Congress party including its personnel and policies, inconsistencies in aspects of his story, and general vagueness in the claims that were made. The primary applicant also acknowledged that he had never suffered physical harm in Nepal, and that there was an unexplained delay in his making the application for a protection visa.

7. On 13 August, 2012 the applicants applied to a tribunal for a review of the delegate’s decision.  By a letter sent to their representative, the applicants were invited to attend a hearing before the tribunal so that they might give evidence and present arguments in support of their claims for protection.

8. That hearing took place on 22 May, 2013.  The primary applicant gave evidence and presented arguments in support of his claims for protection at an oral hearing before the tribunal.  At this oral hearing, the primary applicant said that:

   a)He was studying in his village in Nepal between 1981 and 1991, was working on the family land until 1996, and that during this time, his father had unsuccessfully stood for the position of Vice President of the Village Development Committee.

   b)He was the President of the Nepal Student Association which was the student organisation of the Nepali Congress party in 1990. He travelled to various places to campaign, canvass, disseminate pamphlets, promote the party and raise funds. He also campaigned for the Nepali Congress Party including at the 1994 elections, and organised gatherings and meetings in his village. However, when asked by the tribunal, he could not remember the opposition candidate at the 1994 elections, and he did not know about the 1999 elections.

   c)He lived and worked in India between 1996 and 2002, returning regularly to his village to attend meetings of the Village Development Committee and other meetings.

   d)He lived in Kathmandu between 2002 and 2008. Whilst living in Kathmandu, Maoists asked him for money and he would sometimes say no and sometimes give them money. When he said no, they would threaten to kidnap him. Since 2006, the Maoists had increased their kidnappings and had engaged in looting. He had never been kidnapped or the victim of looting.

   e)Whilst living in Kathmandu, he continued to have some involvement with the Nepali Congress party, although he had told the delegate that once he had moved to Kathmandu he was never again involved with the Nepali Congress party.

   f)After moving to Kathmandu, he returned occasionally to his village, although he had told the delegate that since moving to Kathmandu he had not returned to his village.

   g)He had never been physically harmed by Maoists. However, he had been affected mentally, and as a result, left his village. He was afraid of the Maoists, including by reason of their threats to kidnap or kill him, or to take away his children.

   h)He had a fight with a person from his village whilst at school about their studies and personal issues. This person still lives in the village and is now an officer in the Maoist party. This person has threatened to seek revenge and to kidnap the primary applicant and impose the death sentence on him. This threat remains real.

   i)The threat is especially likely to be carried out if the primary applicant were returned because he would be known as a person who has returned from overseas and such people were specially targeted, although he had not told the delegate about this matter.

9. The primary applicant’s cousin also gave evidence to the tribunal that he had recently returned to the primary applicant’s home village in Nepal.  He stated that there was still a danger from Maoists in the area and that he had himself been asked for money both in the village and in Kathmandu.  Thereafter he went into hiding in his hotel before returning to Australia.

10. At the conclusion of the oral hearing, the tribunal invited the primary applicant to submit a written comment within 10 days of the oral hearing in relation to six questions raised by the tribunal, namely:

    (1) You never told the delegate you were present at student meetings or that you organised them?

    (2) You told the Delegate that once you went to Kathmandu, you did not attend Nepalese Congress Party meetings?

    (3) You told the Delegate, you never returned to [the village], but you told me that you did?

    (4) You did not tell the Delegate about your fight with the Maoist leader and that he is still making threats against you?

    (5) You never told the Delegate that you were giving the Maoists money, because they were asking for it?

    (6) You have not been consistent with what you are claiming, as you are exaggerating your claim and raising new things, which amounts to new information?

11. By a letter dated 31 May, 2013 the primary applicant responded to the tribunal’s questions.  He said that he:

    a)had never stated to the delegate that he did not attend meetings in Kathmandu, merely that he was less active than he was in his village.

    b)had made a mistake by not telling the delegate about his fight with the Maoist leader.

    c)had never stated to the delegate that he had never given money to the Maoists.

    d)did not state he had never returned to his village after having moved to Kathmandu, and that he would return for 2-3 days at a time to inspect his property.

12. On 11 October, 2013 the tribunal affirmed the decision of the delegate to refuse the applicant a protection visa.

13. The tribunal referred to country information regarding Nepal.  In particular, the tribunal considered:

    a)The Communist Party of Nepal (Maoist) initiated a violent campaign in Nepal that lasted around 10 years, ending in 2008 and resulting in the abolition of the monarchy. This party merged with the Community Party of Nepal (Unity Center-Masal) to form the Unified Communist Party of Nepal (Maoist).

    b)The Maoists have formally abandoned the revolutionary path in favour of a mainstream path, but some are known to demand donations, and associates were known to be involved in forceful protests, strikes, extortion, kidnapping, and killings.

    c)Violence and intimidation remain a part of Nepal’s political landscape, but less so than during the 10 years of fighting. Political activists and journalists are the main victims of violence in the present conditions.

14. The tribunal found that:

    a)The primary applicant is from a village in Nepal, lived and worked in India between 1996 and 2002 and lived and worked in Kathmandu between 2002 and 2008.

    b)The primary applicant was a supporter of the Nepali Congress party, having low-level involvement with the party by attending some meetings and rallies.

    c)The primary applicant has been asked for money by the Maoists, and on the occasions when he did not give them money, he was threatened in the manner claimed.

    d)The primary applicant’s cousin was recently in Nepal and had been asked for money by Maoists in the village and in Kathmandu.

15. However, the tribunal did not accept many of the primary applicant’s other claims. There were significant inconsistencies between the primary applicant’s written statement in the initial application, what he said in the interview with the delegate and at the oral hearing before the tribunal. In the tribunal’s view, those inconsistencies were not satisfactorily answered. The tribunal found:

    a)The primary applicant was never the President of the Nepal Student Association, and had not campaigned, canvassed, disseminated pamphlets, promoted the Nepali Congress party and raised funds for the party, nor had he campaigned for the Nepali Congress Party at the 1994 elections, nor organised gatherings and meetings in his village in connection with that election.

    b)The primary applicant was not an active member, nor an activist, of the Nepali Congress party (having embellished his claims to try and convince the tribunal that he was an activist).

    c)The primary applicant had not attended meetings of the Village Development Committee in his village.

    d)The primary applicant had not had a fight with a Maoist officer from his village, who had threatened to kill him and was still threatening to do so. The tribunal thought it was implausible to believe that this person would now carry out this threat, given that he had the opportunity to do so in the past but did not do so between 2002 and 2008, when the primary applicant lived in Kathmandu.  Further, the primary applicant had not made the claim to the delegate at first instance.

16. The tribunal further found:

    a)The primary applicant’s low level of involvement with the Nepali Congress party ceased in 1996.

    b)The primary applicant would not become an activist if returned to Nepal.

    c)The primary applicant’s house had not been attacked (noting that he resiled from this claim).

    d)The primary applicant had never been physically harmed in Nepal.

    e)When the primary applicant had refused to give money to the Maoists in the past, no harm had come to him.

    f)The primary applicant had allowed his children to return to Nepal in 2008, despite them having further time on their Australian visas, and (implicitly) would not have allowed this if the threats against him and his children were genuine.

    g)The primary applicant would not be imputed with an adverse political opinion because he has lived in a foreign country. The primary applicant would not be at risk of suffering serious or significant harm as a result of being a member of a particular social group – people who have lived overseas.

17. At the oral hearing, the tribunal specifically put to the primary applicant for comment that:

    a)He had not told the delegate that he was the President of the Nepal Student Association. The primary applicant responded that he had told the delegate about such matters. The tribunal did not accept this explanation.

    b)He had told the delegate that once he had moved to Kathmandu he was never again involved with the Nepali Congress party, but he told the tribunal he had continued his involvement with the party whilst living in Kathmandu. The primary applicant stated that he was not as active as he had been when living in the village, but had attended meetings in Kathmandu. The tribunal did not accept this explanation for the discrepancy.

    c)He had told the delegate that after moving to Kathmandu he had never returned to his village, but he told the tribunal that he did occasionally return to his village. The primary applicant stated that he had not been asked this question by the delegate. The tribunal did not accept this explanation.

    d)He had not told the delegate about the fight with the Maoist party member in his village. The primary applicant acknowledged that he had not told this to the delegate, and that it was his mistake in not doing so. The tribunal did not accept this explanation.

18. Because the tribunal did not accept the majority of the primary applicant’s claims, the claim for protection under the Convention was assessed by reference to – essentially, the finding that the primary applicant had been asked for money in the past by Maoists and would be asked for money if returned, but had not been harmed for refusing to give money in the past. In these circumstances, the tribunal concluded that the primary applicant would not be exposed to a real chance of suffering serious harm if returned to Nepal because being asked for money did not amount to serious harm. Therefore, the tribunal concluded that the applicants are not owed protection obligations under s.36(2)(a) of the Act.

19. In respect of the claims to complementary protection, the tribunal applied the same factual findings to the assessment of the claims for protection under the Convention, and concluded that there was no substantial grounds for believing that as a necessary and foreseeable consequence of being returned to Nepal, the primary applicant would suffer significant harm; being asked for money did not amount to significant harm. Therefore, the tribunal concluded that the applicants are not owed protection obligations under s.36(2)(aa) of the Act.

The grounds of review

1. In their Application for review, the applicants set out their grounds as follows:

   1. The decision of the tribunal was made without jurisdiction or is affected by an error of jurisdiction.

   PARTICULARS

   (a) The tribunal has erred by concluding that just because he was not harmed in Kathmandu between 2002 and 2008 by this Maoist official, it does not mean that he will not suffer harm in the future.

   (b) The tribunal is wrong to conclude that because the applicant did not mention the Maoist official in his protection visa application, then he must not be telling the truth. There are occasions when particular facts are omitted and the tribunal has failed to take into account circumstances that persons who are making protection visa applications are faced with.

   (c) The tribunal has failed to properly take into account the circumstances that face returning asylum seekers, although it makes a short note of Country information that was available to the tribunal.

   (d) The tribunal has failed to take into account the fact that such political parties/ organisations main tactic is to instil fear and it does so making threats and for the tribunal to conclude they have never carried out these threats and that nothing has happened to his children, vindicates that they pose no problem.

   (e) The tribunal has erred by concluding that there is no real chance that the applicant will be seriously harmed by the Maoists in the reasonably foreseeable future, as that is based on the conclusion that the applicant was not an active member or that he was a well known and strong supporter of the NC.

   (f) The tribunal has erred in its assessment of the Complimentary protection criteria by not finding that there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Nepal there was a real risk that the applicant will suffer significant harm from Maoists.

Consideration

1. The applicants’ contentions of fact and law do not grapple with what they need to demonstrate to succeed in this application.  Primarily, the complaint is that some of the tribunal’s findings of fact and the conclusion that it reached were wrong.  In that sense, it is clear from the applicants’ contentions of fact and law that what is sought is merits review of the tribunal’s decision.  That is something that this Court cannot undertake in these proceedings.  That the applicants were really seeking merits review of the tribunal’s decision became more apparent during their oral submissions to me.

2. Ground (1)(a) asserts that the tribunal erred by concluding that just because the primary applicant was not harmed in Kathmandu between 2002 and 2008 by the Maoist official nominated by him, it does not mean that the primary applicant will not suffer harm in the future.  In that respect, at paragraphs 40, 41 and 42 of the reasons for decision, the tribunal recorded the primary applicant’s claim and evidence relevant to this ground as follows:

   40. The applicant told the tribunal said that they are specifically targeting him because when he was still living in the village he had a fight with a particular Maoist whilst he was still at school.  That person said he would seek revenge and would threaten to kidnap him and impose the death sentence.  He began to issue the threats when he became a Maoist and had a weapon.  The applicant’s parents had told him that he was still making these threats.  The fight had been about their studies and personal issues the Maoist was a person from the lower caste and it was about that.  This person is still living in the village.  His parents are aware that he is making threats because news travels between the village and Kathmandu where they are now living.

   41.  At the hearing it was put to the applicant that he lived in Kathmandu between 2002 and 2008 and he had not been harmed by this particular person why would he be harmed him now.  He said because of the past threats and they approached people who returned from overseas.  He was worried not only for his own sake but the sake of his children if something happened to him.  They are focusing on people overseas because they believe that they have got lots of money.  When they asked the applicant’s father for money he tells them that he does not have it.  The Maoists know that the applicant is in Australia because people in his village know he is here and they have contacts with people in Kathmandu.  He said that the person who has a personal vendetta against him is the chief of the Maoist party.

   42.  The discrepancies between what the applicant told the delegate and what he told the tribunal were discussed with him and he was invited to comment pursuant to s424AA of the Act.  The applicant conceded that he did not tell the delegate that there was a particular Maoist leader who had a personal vendetta against and him in hindsight he realised that this was a mistake.  It was put to him that he had not told the delegate that the Maoists were demanding money in Kathmandu.  In his written comments provided pursuant to s424AA of the Act the applicant said that he had a fight with the Maoist leader when he was at school.  When they finished high school this person joined the Maoists party and became a district leader he was in charge of all the Maoists in the area and started to target the applicant and others.

3. The tribunal’s finding about this matter is set out at paragraph 44 of the reasons as follows:

   44.  The tribunal does not accept that there is a particular person in the Maoist party with whom the applicant had a personal dispute and that this person then targeted him.  The applicant only made this claim in his evidence to the tribunal and did not mention it in his protection visa application or when interviewed by the delegate.  Further the applicant’s evidence was that he had not been harmed by this person.  The tribunal finds it implausible that the applicant could be targeted over many years by a Maoist leader but not encounter any difficulties from him, particularly when they were living in the same village.  The tribunal finds that the applicant’s claims regarding being targeted by a particular Maoist leader was an embellishment.

4. The approach adopted by the tribunal was open to it and reveals no error.  It was a matter for the tribunal to decide the veracity of this claim by the primary applicant.  In any event, even if the finding was wrong and the primary applicant was at a real risk of harm from the person he identified, that risk was not for a convention reason.  It was a risk that arose from an interpersonal dispute between the primary applicant and the person identified by him.

5. This ground has no merit.

6. Ground 1(b) asserts that the tribunal was wrong to conclude that because the applicant did not mention the Maoist official in his protection visa application, then he must not be telling the truth.  Two things might be said about this assertion.  First, the tribunal was entitled to use the fact that the applicant did not mention the Maoist official in his protection visa application to assess the primary applicant’s credibility on this issue.  Secondly, as paragraph 44 of the tribunal’s reasons demonstrate (extracted above), that was not the only matter to which the tribunal referred when it concluded that the applicant’s claims in respect of this matter were an embellishment.  This ground has no merit.

7. Ground (1)(c) asserts that the tribunal failed to consider the circumstances that are faced by returning asylum seekers.  Although not articulated by the applicants in this way, this appears to be a reference to either:

   a)the claim made by the primary applicant to the benefit of complementary protection pursuant to s.36(2)(aa) of the Migration Act 1958; or

   b)a claim that by reason of their membership of a particular social group, namely failed asylum seekers returning to Nepal, they would suffer persecution.

8. The applicants made express claims in terms just set out.  The tribunal dealt with them.  As to the first, under the heading “Harm feared as a result of living outside of Nepal for a period”, the tribunal considered the primary applicant’s claim that he would be imputed with a political opinion by reason of his absence from Nepal.  Of that claim, the tribunal said at paragraph 53:

   … Based on the evidence before it the tribunal does not accept that the applicant would be imputed with a political opinion as a result of living in a foreign country and that any fear of persecution on this basis is not well-founded.  For the same reasons the tribunal is satisfied that there is no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Nepal there is a real risk that he will suffer significant harm as a result of being imputed with political opinion.

9. As to the second category of claim (membership of a particular social group), the tribunal said:

   54.  It was submitted that the applicant feared persecution for reasons of his membership of a particular social group as there was more focus on him because he had been living overseas.

   55.  The tribunal asked the applicant whether the fact he had been in Australia would cause problems when he went back to Nepal.  He said he thought there would be a big problem as he did not have money and had not worked much in Australia.  At other times in his evidence he said that he believed that he would be targeted for extortion because he would be regarded as having money because having lived overseas he would be perceived to be wealthy.

   56.  The applicant lived in Kathmandu before he came to Australia.  The tribunal does not accept that he would be known in the Kathmandu as having been living overseas.  The country information set out in Annexure A indicates that person and organisation are asked for money by the Maoists.  The groups listed could be perceived as people who have money.  Although the tribunal accepts that the applicant may be asked for money he has been asked for money in the past and this has not lead to serious to significant harm.

   57.  The tribunal finds that there is no real chance that the applicant would be harmed in the reasonably foreseeable future because he has returned from a foreign country.  For the same reasons the tribunal finds that there are no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Nepal there is a real risk that he will suffer significant harm for this or any other reason.

10. It is clear that the tribunal examined all of the claims and evidence advanced by the applicants insofar as they related to their claim for protection arising from their absence from Nepal for a number of years.  In my view, this ground raises no reviewable error.

11. Ground (1)(d) asserts that the tribunal has failed to take into account the fact that the main tactic of political parties or organisations such as the Maoists is to instil fear and they do so by making threats.  The ground asserts that for the tribunal to conclude they pose no problem because they have never carried out these threats and that nothing has happened to the applicants’ children was wrong.

12. This ground, however, takes issue with a finding or conclusion of fact made by the tribunal.  As the first respondent argues, it appears to seek to impugn the reasoning of the tribunal that the primary applicant is unlikely to be harmed in the future because he has not suffered serious or significant harm in the past.  Paragraph 51 of the tribunal’s reasons demonstrates that the tribunal’s conclusion about the risk of future harm to the primary applicant was based on its findings about his political activities, his past experiences and country information accepted by the tribunal.  The tribunal said:

    The tribunal must consider whether there is a real chance that the applicant would be seriously harmed by the Maoists in the reasonably foreseeable future.  The country information set out in annexure A does indicate that NC activists have been targeted for violence by the Maoists.  The tribunal has not accepted that the applicant is an active member or that he is a well-known strong supporter of the NC.  Any involvement he had with the party was according to his evidence prior to 1996 and the tribunal has found that he was only a low level supporter and not an activist.  The applicant’s lack of political knowledge indicates to the tribunal that he does not have an interest in politics and that he would not become a NC activist on return to Nepal.  In these circumstances, coupled with the fact that he had not been harmed in the past, the tribunal does not accept that there is real chance that the applicant would be seriously harmed by the Maoists in the reasonably foreseeable future.  It does not accept that he would be persecuted including being kidnapped or that his children would be kidnapped and his fear of persecution on this basis is not well-founded.

13. Whilst the tribunal did not expressly refer to the primary applicant’s claim that the main tactic of political parties or organisations such as the Maoists is to instil fear and they do so by making threats in that paragraph, the tribunal certainly considered that matter as it considered all of the claims made by the primary applicant.

14. I accept the first respondent’s submission that the primary applicant’s criticism of the findings and reasoning of the tribunal in this regard does not allege any jurisdictional error and merely takes issue with the fact finding of the tribunal.  I agree that it is an impermissible attempt to impugn the merits of the tribunal’s decision.  No jurisdictional error is demonstrated by this ground.

15. Ground (1)(e) asserts that the tribunal has erred by concluding that there is no real chance that the applicant will be seriously harmed by the Maoists in the reasonably foreseeable future, as that is based on the conclusion that the applicant was not an active member, or that he was a well-known and strong supporter of, the Nepalese Congress.

16. This ground too, seeks to take issue with the findings of fact underpinning the conclusion reached by the tribunal about the future risk of harm to the primary applicant.  The tribunal explains its findings on these matters in paragraphs 48 – 52 of the reasons, and especially at paragraph 51 (extracted above).  No jurisdictional error is revealed by this ground.

17. Ground (1)(f) asserts that the tribunal has erred in its assessment of the complimentary protection criteria by not finding that there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Nepal there was a real risk that the applicant will suffer significant harm from Maoists.

18. Again, this ground seeks to impermissibly impugn the merits of the tribunal’s findings. The tribunal considered the applicant’s claims in this regard in paragraph 52 of its reasons.  The conclusion arrived at by the tribunal in that paragraph was open to the tribunal in light of the evidence and its other findings.  No error is demonstrated by this ground.

Conclusion

1. The applicants have not established that the tribunal’s decision was attended by any error, let alone any jurisdictional error on its part.  Accordingly, the application must be dismissed with costs.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 24 July, 2014.

Associate: 

Date:         24 July 2014