SZRBT v Minister for Immigration

[2019] FCCA 1439

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRBT v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1439

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal brought an independent and impartial mind to the determination of the review – whether the adverse findings of the Tribunal were open on the material – whether the Tribunal complied with its statutory requirements – whether the Tribunal denied the applicant natural justice – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AAA, 36, 424AA, 476

Applicant: SZRBT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3503 of 2015

Judgment of: Judge Street

Hearing date: 28 May 2019

Date of Last Submission: 28 May 2019

Delivered at: Sydney

Delivered on: 28 May 2019

REPRESENTATION

The Applicant appeared in person via video link.

Solicitors for the Respondents: Mr L Dennis
Minter Ellison

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $5,600.00.

DATE OF ORDERS: 28 May 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3503 of 2015

SZRBT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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 27 November 2015 affirming the 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 her claims were assessed against that country. On 12 December 2008, the applicant arrived in Australia holding a Vocational Education Sector (subclass 572) visa which expired on 18 April 2011. It was not until 8 April 2011 that, shortly before the expiry of that visa, the applicant applied for a protection visa.

3. On 24 June 2011, the applicant’s application for a protection visa was refused by the delegate. The applicant applied for review of that decision with the Refugee Review Tribunal. On 16 December 2011, the Refugee Review Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa. Thereafter, the applicant applied to the Federal Magistrates Court and then the Full Court of the Federal Court for review and both applications were unsuccessful. On 5 July 2013, the applicant then sought ministerial review. On 17 February 2014, the Minister refused to consider or accept the application. On 14 March 2014, the applicant applied a second time for a protection visa on the grounds of complementary protection that had not been assessed.

4. The applicant, in summary, claimed to fear harm by reason of being a widow and to being afraid of criminals, the Nepalese authorities and Nepalese society generally. The applicant also claimed to fear harm from Maoists who the applicant alleged had previously harmed her. The applicant also claimed to fear harm because she alleged that she had converted from Hinduism to Christianity.

5. On 18 September 2014, the delegate found that the applicant did not meet the criteria for the grant of a protection visa on the grounds of complementary protection.

6. The applicant applied for review in October 2014. By letter dated 27 October 2015, the applicant was invited to a hearing and appeared before the Tribunal to give evidence and present arguments on 20 November 2015.

7. The Tribunal summarised the background to the applicant’s application for a protection visa and the applicant’s claims. The Tribunal identified the process giving rise to the current review by the Tribunal and the requirement to assess the applicant’s claims under the complementary protection provisions in s 36(2)(aa) of the Act. The Tribunal referred to the principles in relation to assessing credibility and it being for the applicant to provide sufficient evidence pursuant to s 5AAA of the Act to establish her claims.

8. The Tribunal identified having significant concerns about the credibility of the applicant, both in relation to her evidence as to past events and what she feared upon return to Nepal. The Tribunal did not find the applicant to be a credible, truthful or reliable witness in relation to matters central and related to her claims.

9. The Tribunal was concerned about the applicant’s delay in claiming asylum and her preparedness to continue to make false representations to the Department about herself.

10. Secondly, the Tribunal referred to the applicant’s claims that she was born in a particular location, lived a poor life there with her parents and had to run away with her boyfriend to escape a marriage. The Tribunal identified that these claims were undermined by the applicant’s conflicting evidence throughout the course of the proceedings about where her parents were living. The Tribunal considered that the applicant’s inconsistent evidence about where the parents were living undermined the credibility of the applicant. The Tribunal referred to the applicant’s evidence that her parents had never moved and referred to the address given by the applicant for her father as being the same place that the applicant had run away to. The Tribunal did not accept the applicant’s explanation for the recording of that address and found it undermined the applicant’s credibility.

11. The Tribunal also had concerns about the applicant’s marriage claims in Nepal and noted that the applicant claimed that her claim to have been married in Nepal to the man she came to Australia with was untrue. The Tribunal also had concerns in respect of the applicant’s evidence about her parents’ intentions and behaviour and them forcing her to marry a man.

12. The Tribunal also identified that the applicant claimed she was a supporter of the Maoists before her marriage and later became a member of the Maoists due to discussions with her husband, who was an activist, and she attended protests. The Tribunal raised with the applicant that her evidence had indicated to the Refugee Review Tribunal that she did not have any real knowledge about the Maoists and that her claims of supporting them were untrue.

13. The Tribunal also identified other concerns in respect of the applicant’s claim to have been sexually assaulted in December 2007 and being fearful of a Maoist leader who assaulted her thereafter. The Tribunal explored with the applicant why she did not move away and get another job and raised with the applicant concerns in respect of the plausibility of the applicant’s evidence. The Tribunal found that the applicant did not properly engage with its concerns and did not accept that the applicant, as a young girl, would be sent to a foreign country with a stranger in respect of whom she had to pretend she had been married and in circumstances where she had been sexually assaulted.

14. The Tribunal also identified concerns in respect of the applicant’s new claim that, after nine years, the person who assaulted her now wants to harm her. The Tribunal found that the applicant had made up this new claim in her submissions dated 12 January 2015, which further undermined the applicant’s credibility.

15. It was on these bases that the Tribunal did not accept the applicant to be a credible witness. The Tribunal took into account that the applicant may have been nervous in the hearing before it. The Tribunal also took into account the failure of the applicant in the course of the interview to answer questions. The Tribunal noted that the applicant was educated, able to speak in an eloquent and articulate manner and understood and responded to the Tribunal’s concerns in respect of information put to the applicant under s 424AA of the Act. The Tribunal did not accept that the applicant is a simple person. The Tribunal was not satisfied as to the explanation advanced by the applicant for the difficulties with her evidence. The Tribunal was not satisfied that the events the applicant alleged had occurred overcame the Tribunal’s concerns in respect of credibility.

16. The Tribunal noted that the applicant did not seek to rely on any new documents in the current review. The Tribunal referred to documents produced in the previous review being the marriage certificate and the death certificate of her claimed husband. The Tribunal noted the applicant’s admission that she was responsible for producing fraudulent documents in order to secure her vocational education visa. The Tribunal also took into account the availability of fraudulent documents in Nepal, which was an issue raised with the applicant.

17. The Tribunal concluded that the applicant is not a witness of truth. The Tribunal found that the applicant has fabricated the accounts of events in Nepal, as well as her future fears and circumstances.

18. The Tribunal did not accept that the applicant was threatened or forced into a marriage against her will, that she ran away to be with her boyfriend of a lower caste who she subsequently married, that she was disowned by her parents and has no relation with her family other than her sister, or that she has any relation to a Maoist activist. The Tribunal did not accept that the applicant was connected to the Maoists in any way, whether as a member, married to an activist, or attending activities on their behalf. The Tribunal did not accept that the applicant had been arrested and detained because she was involved in a Maoist protest, nor that she was harmed by the police while in detention. The Tribunal did not accept that Maoists or anyone have asked about the applicant’s whereabouts since she left Nepal, or have ever held an adverse interest in her.

19. The Tribunal found that the applicant does have relationships with her family members in Nepal and did not accept the applicant’s assertion as to the last time she had contact with her parents. The Tribunal was not satisfied that the applicant faces a real risk of significant harm or real chance of serious harm due to any tribal attitudes.

20. The Tribunal referred to the applicant’s gender, vulnerability and status as a widow, and took into account country information. The Tribunal was not satisfied that the applicant faces a real risk of harm or a real chance of serious harm from Maoists, nor that she faces a real risk or real chance of serious or significant harm in the form of being killed, or harmed, in Nepal from anyone, including police or authorities, or for any other reason.

21. The Tribunal did not accept that the applicant is widowed. The Tribunal was not satisfied that the applicant faces severe discrimination, as claimed, or humiliation by conservative people and the community, nor that she faces no hope or future in Nepal. The Tribunal was not satisfied that the applicant would be subjected to significant harm or serious harm by conservative people, nor society. The Tribunal did not accept that the applicant has previously suffered violence as a woman in Nepal, having spent nearly 20 years of her life there.

22. The Tribunal was not satisfied that the applicant, in her individual circumstances and returning to her home area where she has always lived, faces a real chance or real risk of being vulnerable to and facing significant or serious harm as a woman from Maoists, criminals, society or the authorities. The Tribunal did not accept the applicant’s claims in her submission to the Tribunal that if she returns she will live a life in horror, mental strain and fear.

23. The Tribunal was not satisfied on the basis of the evidence before it that the applicant faces a real risk or real chance of significant or serious harm in the form of being killed, harmed or taken advantage of or any other harm in Nepal from anyone or for any reason. The Tribunal did not accept that the applicant faces a real risk or real chance of discrimination or humiliation from conservative people, the community or the police amounting to serious or significant harm. The Tribunal did not accept that the applicant faces a real risk or real chance of harm or that the applicant will need state protection.

24. The Tribunal referred to the economic state in Nepal and found the applicant to be a very resourceful person who is able to survive and accumulate savings in a foreign country. The Tribunal was not satisfied that the applicant would be unable to survive in her home country, nor that she faces a real risk of significant harm or a real chance of serious harm for economic, accommodation or financial reasons.

25. The Tribunal referred to the applicant’s claim in relation to having become a Christian when she was formerly a Hindu. The Tribunal found that it was not satisfied the applicant has converted to Christianity. The Tribunal was not satisfied on the evidence before it that the applicant faces a real risk of significant harm or a real chance of serious harm due to religion.

26. The Tribunal found that the applicant had not been truthful about her circumstances back in Nepal and was not satisfied that the applicant faces a real risk of significant harm upon her return to Nepal because she is a woman, because of the country conditions generally, or for any other reason.

27. The Tribunal, having considered the applicant’s claims individually and cumulatively, was not satisfied that the applicant faces a real risk of significant harm in Nepal. The Tribunal found that the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 23 December 2015. On 3 March 2016, a Registrar of the Court made orders giving the applicant an opportunity to file 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 and the applicant confirmed that she understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant maintained that she had told the Tribunal the truth and that they had not accepted her submissions.

4. The Tribunal gave detailed, logical and cogent reasons in support of the adverse credibility findings which, apart from the inconsistencies in the applicant’s claims and admissions in respect of fraudulent documents, included her delay in applying for protection. The adverse findings by the Tribunal were open for the reasons given by the Tribunal and cannot be said to lack an evident and intelligible justification. The applicant’s disagreement with the adverse credibility findings does not identify any jurisdictional error.

5. From the bar table, the applicant asserted that there was a submission dated 12 January 2015 that had been provided to the Tribunal which appeared in the Court Book, relevantly starting at page 105 going through to 116 and the translation of which appears at page 97 through to 104. The applicant asserted that the submissions were not taken into account by the Tribunal. It is apparent from the Tribunal’s reasons that the Tribunal expressly referred to the applicant’s submissions in its reasons.

6. On the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal. The Tribunal had a thoughtful and meaningful engagement with the applicant’s claims and submissions and made dispositive findings that were open to the Tribunal on the material before the Tribunal as summarised above.

7. The applicant asserted from the bar table that the Tribunal had conducted the hearing in a manner which suggested that it had made up its mind. The Tribunal’s reasons identified raising with the applicant issues concerning credibility in respect of the applicant’s claims. There is no evidence before the Court to support the assertion that the Tribunal approached the conduct of the review otherwise than with an open mind, reasonably capable of persuasion as to the merits. Nor do the adverse findings by the Tribunal provide any basis for an allegation of apprehended or actual bias.

8. No evidence has been adduced by the applicant in support of the assertions made from the bar table to the effect that the Tribunal did not engage with the applicant’s claims. The Tribunal’s reasons are inconsistent with that assertion. The applicant had an opportunity to put on evidence and did not do so. Nothing said by the applicant from the bar table identified any jurisdictional error.

9. The applicant’s submissions to this Court otherwise invited the Court to engage in merits review. This Court has no power to review the merits, nor can the Court decide the matter on compassionate or discretionary 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. I am not satisfied with the Tribunal Member’s decision because the decision involved an error of law.

   2. The Tribunal Member ignored to give me natural justice and the benefit of the doubt as to my claim of fear on return to Nepal.

   3. The Tribunal member has failed to deal with my complementary protection visa application according to the required or relevant definition and law.

Ground 1

1. In relation to ground 1, the unparticularised assertion of an error of law is not capable of making out any jurisdictional error. On the face of the material before the Court, the Tribunal correctly identified the relevant law in respect of complementary protection and conducted the review in accordance with the statutory provisions. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the applicant’s assertion of a denial of natural justice without proper particulars is incapable of making out any relevant error. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review.

2. There is no finding that has been identified that was the subject of doubt. The Tribunal’s findings in respect of the applicant’s claimed fears in relation to returning to Nepal were findings based on credit and were not findings the subject of doubt. The Tribunal was not required to give the applicant the benefit of the doubt where the Tribunal made clear findings based on credit which were dispositive of the applicant’s claims. Ground 2 fails to identify any jurisdictional error.

Ground 3

1. In relation to ground 3, it is apparent from the Tribunal’s reasons that the Tribunal identified the applicant’s claims in respect of complementary protection and engaged in a comprehensive analysis of those claims, correctly identifying the relevant law and, on the face of the Tribunal’s reasons, correctly applying the relevant law. The Tribunal also correctly identified the relevant law in Annexure A to the Tribunal’s reasons. There is no basis for the assertion of failing to deal with the applicant’s claims and no basis to find any misconstruction or misapplication of the relevant law. Ground 3 fails to identify any jurisdictional error.

2. As the application fails to identify any jurisdictional error, the application is dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 28 June 2019