SZTZH v Minister for Immigration - [2016] FCCA 1139

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTZH v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1139

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal made an irrational, illogical or manifestly unreasonable decision – whether the Tribunal failed to consider a claim – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Cases cited:
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59
Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50
Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99

Applicant:

SZTZH

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 582 of 2014

Judgment of:

Judge Nicholls

Hearing date:

11 February 2016

Date of Last Submission:

11 February 2016

Delivered at:

Sydney

Delivered on:

13 May 2016

REPRESENTATION

Counsel for the Applicant:

Mr J R Young

Solicitors for the Applicant:

Shamser Thapa

Counsel for the Respondents:

Mr J Kay Hoyle

Solicitors for the Respondents:

Clayton Utz

ORDERS

The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 11 March 2014 and amended on 11 February 2016 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 582 of 2014

SZTZH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 11 March 2014 and amended on 11 February 2016 seeking review of the decision of the Refugee Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”), made on 14 February 2014 affirming the decision of the Minister’s delegate to refuse a Protection (Class XA) visa to the applicant.

Background

Before the Court in evidence is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, and “AE1”). The following background can be drawn from those documents.
The applicant is a citizen of Nepal (CB 14). The applicant arrived in Australia on 8 May 2010 “on another individual’s passport”, with his photo (CB 54 to CB 55). He applied for a protection visa on 22 July 2010, with the assistance of a registered migration agent (CB 1 to CB 44, including annexures).
Included with his application was a statement as to his claims to fear harm (CB 28 to CB 29). He claimed that he had left Nepal because he feared harm from Maoists. He claimed that his father, who was a “hardliner supporter for monarchy”, had been “taken” by the Maoist party in 1998 who, before telling his father that he had to leave the village, put “black paint on his face and put a shoe garland on his neck as an insult”.
The applicant claimed that in 2003, 15-20 Maoist activists burnt his house and again threatened his father for supporting the monarchy. The applicant claimed that on this occasion the Maoists threatened to kill the “eldest sons”, so the family fled the village and went to “Bohi Bazzaar, capital city” in Nepal. One month later, the applicant was beaten by Maoist activists and “thrown in the jungle” unconscious. He was found by people grazing their animals and taken to a “health post”. After this, his family went to a nearby district “Baglung Upalla Chowar, Ward no. 11”. However, the Maoists did not stop threatening the applicant’s family, so he went to Kathmandu to find work.
The applicant claimed that while he was in Kathmandu he suffered physical injuries and sought support from the “Monarchy Group”. He became a member of this organisation. At this time he “found that Maoists were looking for” him, but started working for the Monarchy group more actively. Due to his active involvement he became a “coordinator for Dhaulagiri Zone”.
He claimed that he was abducted from the “Bag Bazaar Café” by members of the “Youth Communist League” (“YCL”), a “subsidiary” of the Maoist group. He claimed that they demanded a donation, or they would kill him. He requested a week to collect the money for the donation. Rather than provide the YCL with the donation, the applicant decided to “live somewhere else”. A friend introduced him to a “broker”, who asked if he “wanted to got (sic) Australia using other person’s passport”. He left Nepal for Australia on 7 May 2010.
The delegate refused the application on 10 January 2012. The delegate had concerns about the “significant inconsistencies” between his written statement and what he presented at the interview, that his claims were “implausible” and, that the delay between his arrival in Australia and his application for a protection visa of over one year was inconsistent with his claimed fear (CB 49 to CB 67).
The applicant applied for review to the Tribunal on 8 February 2012 (CB 68 to CB 93). He was again assisted by a registered migration agent. An earlier, and differently, constituted Tribunal affirmed the delegate’s decision on 17 May 2012. That decision was remitted by consent on 21 November 2012 (see SYG 1332/2012).
The applicant attended a hearing before the current Tribunal on 29 August 2013 ([16] at CB 196). The Tribunal affirmed the delegate’s decision to refuse a protection visa on 14 February 2014. The Tribunal accepted that the applicant’s family had moved in 2004 due to harassment from Maoist groups, and accepted “[n]ot without some doubt” that Maoists “threatened and ill treated” the applicant and his father in 2004 for the reasons that he had claimed, that is, that “they were supporters of the monarchy” ([24] at CB 198).
The Tribunal did not accept the reasons that the applicant gave for moving to Kathmandu in Nepal, or that he subsequently left Nepal because of his fears of harm from Maoists and the YCL ([26] at CB 198 to [27] at CB 199). The Tribunal found that the applicant did not give a “reasonable explanation” for why the Maoists would be looking for him Kathmandu in 2010, or how he had continued to work in Kathmandu if he had the profile that he claimed, when he had been there since 2004 ([28] at CB 199).
The Tribunal did not accept the applicant’s claims to have “worked in a pro monarchy organisation in Nepal”, or that he had been attacked in 2010 ([29] at CB 200). It considered the documents provided by the applicant to it, described as a “Work Evaluation Report from the Patriotic Committee, Central Office in Kathmandu”, but found that with the prevalence of document fraud in Nepal, which it discussed with the applicant at the hearing, that the document did not provide “reliable evidence of the facts in them” ([30] at CB 200).
Further, in relation to the applicant’s delay in making the application for the visa, the Tribunal considered that the applicant would have applied for the visa earlier if his claims were genuine. It accepted that, as the applicant had entered Australia on a false passport, he was “worried” that the Australian authorities would return him to Nepal. However it did not “accept that he feared/fears harm in that country for the reasons that he claims or that there is a real chance or real risk that he will suffer serious or significant harm” in Nepal for the reasons he claimed.
The Tribunal concluded ([36] – [37] at CB 201):
“[36] In the Tribunal’s view there is no plausible evidence before it that enables it to conclude that the applicant will suffer persecution from Maoists/those who support the Maoists/the YCL or anyone else in Nepal either now or in the reasonably foreseeable future because of his political opinion, his imputed political opinion, his membership of a particular social group, or for any other Convention reason, if he returns to his country. Having regard to the above the Tribunal is not satisfied, on the evidence presently before it, that the applicant has a well-founded fear of persecution in Nepal within the meaning of the Convention.
[37] Further in the Tribunal’s view there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this applicant’s case Nepal, there is a real risk that he will suffer significant harm for the purposes of s.36(2)(aa) (‘the complementary protection criterion’).”

Application Before the Court

The application before the Court is in the following terms:
“1. The Second Respondent made a determination which was irrational, illogical, not based on findings or inferences of fact supported by logical grounds, and/or manifestly unreasonable and constituted a jurisdictional error.
Particulars
(a) The Second respondent accepted the applicant’s claims that as a member of a particular social/political group and/or his imputed political opinion as a supporter of the Monarchy:
(i) In 2004 he was subject to persecution including harassment, threats and attacks by Maoists and the Young Communist League (YCL);
(ii) In 2004 he was forced to flee from his home which had been destroyed by Maoists and/or the YCL by fire and move to Baglung;
(iii) In October 2004, he moved from Baglung to Kathmandu; and
thereby impliedly found the applicant to be credible.
(b) The Second Respondent accepted independent country information that generally supported the applicant’s claims.
(c) Without the provision of adequate reasons, the Second Respondent made inconsistent findings in relation to the applicant’s credibility, by finding it did not accept as true that:
(i) the applicant left Nepal because he feared/fears harm from Maoists, or because there was/is a real chance or real risk that he will/would suffer serious or significant harm;
(ii) the applicant moved to Baglung to Kathmandu in 2004 because of the reasons claimed; threats to his father/family and himself, safety concerns due to his abduction, ill treatment and harassment by Maoists, and the Maoists were searching for him;
(iii) the applicant was targeted by the Maoists in Nepal because he was working for a pro monarchy group in Kathmandu in 2005;
(iv) the applicant was searched for by Maoists, attacked, or abducted by Maoists and asked for money in Kathmandu in 2010;
(v) the applicant has been accused of being a spy for the Maoists by police and would not help him; and
(vi) supporting documentary evidence of the applicant was not reliable, notwithstanding that it had no basis to determine that the evidence and claims were ingenuine.
2. In the premises, the Second Respondent failed to consider the applicant’s claims in totality.
Particulars
(a) Failed to consider whether the applicant’s cumulative claims amounted to being a member of a specific social group, that is, a monarchist returning from abroad, and the implications of such cumulative claims to Australia’s protection obligations.
3. The Second Respondent either failed to consider whether the claims of the applicant the Second Respondent accepted were capable of giving rise to complimentary protection under s36(2)(aa) of the Migration Act, or alternatively failed to provide adequate reasons why such accepted claims were insufficient to warrant the Second Respondent granting complimentary protection.
Particulars
(a) The Second Respondent accepted the applicants claims particularised in Ground 1 (a) above.
(b) The Second Respondent accepted independent country information that generally supported the applicant’s claims.
(c) The decision of the Second Respondent does not disclose how or if the accepted claims were weighed in relation to the assessment of complimentary protection.
(d) The decision of the Second Respondent does not disclose the basis on which the Second Respondent impliedly found that the applicant’s accepted claims were not sufficient to give rise to complimentary protection, or the test for complimentary protection applied.
4. The Second Respondents determination is affected by jurisdictional error in that the decision was biased.
Particulars
(a) The Second Respondent had regard to and considered the previous decision of the Second Respondent which was remitted by the then Federal Magistrate’s Court the basis of jurisdictional error.”
[Errors in original]
The applicant was represented by counsel at the final hearing. The applicant tendered a transcript of the Tribunal hearing which was marked as applicant’s exhibit two (“AE2”).
Counsel advised that the applicant did not press grounds three and four of the application. Leave was subsequently granted to the applicant to file an amended application by adding a new ground, ground 2A:
“The Second Respondent made a jurisdictional error, being a failure to consider a claim expressly advanced by or on behalf of the Applicant, by the Second Respondent:
(a) treating as abandoned; and/or
(b) treating as not having been made by the Applicant
a claim advanced by the agents for the Applicant on his behalf at [2] of the Court Book that persons returning to Nepal from overseas were more vulnerable and at risk of being targeted by the Maoist and their cadres.”
The applicant did not then press ground 2.

Consideration

Ground one asserts that the Tribunal’s decision was irrational, illogical or unreasonable. Before the Court, the Tribunal’s decision was described as unreasonable or irrational because the Tribunal rejected or disregarded evidence corroborative of the applicant’s claims, not because of the “quality” of that evidence, but on the basis of issues relating to the applicant’s credibility.
The legal basis for the applicant’s argument in ground one is said to be found in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 (“Applicant S20”) (in particular Gummow and McHugh JJ) and as subsequently explained by the Full Federal Court in Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 (“SZNSP”).
The applicant argued that Applicant S20, in part, involved the question of illogicality and irrationality in administrative decision making. He sought to draw, and press, the following propositions. To “reject” corroborative evidence on the basis of the applicant’s credibility, the Tribunal must first make a finding of adverse credibility at a “particular” level, not just to rely on a level of “non-satisfaction”. The “logic” of, or “reason” for this, was said to be that the corroborative evidence may on “independent consideration” restore the applicant’s credibility.
The applicant submitted that the Full Court in SZNSP found that it was not necessary for the Tribunal to make an “express” finding that an applicant had “lied”, but that a finding of fabrication is sufficient to reject the corroborative evidence.
The applicant’s submission was that there is a distinction between the Tribunal making a finding that it could not be satisfied that a particular claim was made out, and a finding that the applicant had fabricated his claim. The applicant argued that a finding of fabrication is a “positive finding” that he described as “akin to a finding of fraud”.
In this light, the applicant directed attention to the Tribunal’s decision record and its findings and reasons commencing at [20] (at CB 197). The argument was that the Tribunal’s analysis and findings in relation to the suite of the applicant’s claims was to either accept, or not accept, aspects of these claims. There was no “comprehensive finding” that the applicant had fabricated his claims. At its highest, the Tribunal’s findings were “couched”, or presented, as being concerns about the applicant’s credibility.
In this light, therefore, it was not open to the Tribunal to find that the corroborative documents submitted by the applicant were not reliable evidence of the facts asserted in them, simply based on its “concerns” about the applicant’s credibility, and in the absence of a finding of a fabrication of the claims ([30] at CB 200).
It must be said that the applicant’s reliance for his argument on Applicant S20, and by extension SZSNP, relied on taking some liberty with what I respectfully understand each of the cases to propose.
First, I agree with the Minister that SZNSP, with respect, stands for a proposition more limited than that submitted by the applicant. That is, that it is not a legal error for the Tribunal to make findings about an applicant’s credibility and in that light determine what weight should be given to corroborative evidence. That is, as was described by the Minister, it is a question of timing as to when the matter of weight to be assigned by the Tribunal to the corroborative evidence can be considered. In short, there is no legal error in considering credit and then assigning weight to be given to corroborative evidence in light of that finding (see also SZSNP at [33]).
Second, I do not agree with the applicant’s argument that Applicant S20 requires an emphatic finding of adverse credibility, or as was submitted a comprehensive finding of fabrication, before other corroborative evidence be independently assessed.
In Applicant S20 at [49] the High Court stated, per Gummow and McHugh JJ:
“In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant’s argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.”
[Emphasis added.]
In the current case, although not expressly argued in this way, the implication in the applicant’s submissions was that the concept of “the well has been poisoned beyond redemption” leads to the need for an emphatic adverse finding of a comprehensive rejection of an applicant’s claims before this can be used in relation to corroborative evidence.
In my view, and in any event, such a finding, or findings do exist, so as to make the current circumstances analogous with what the Full Court said in SZNSP at [32]:
“But even if it is a precondition, a finding that the first respondent’s claims were not credible and that she had fabricated her claim is tantamount to a finding of lying. It is a finding that the party making the claims has made those claims up. To make up claims is to lie about the existence of those claims.”

At its highest, the applicant’s case is that it could not be said that there was such a comprehensive finding in the current case because the Tribunal accepted some aspects of the applicant’s claims, and those claims which it rejected, it did so on the basis of “not accepting” rather than as a rejection of the credibility of the claim.
The Tribunal’s decision record must be read fairly. It is the case that the Tribunal did accept some of the applicant’s claims (see [22] at CB 197 to [23] at CB 198). However, it is to be remembered that the applicant claimed to fear harm on return to Nepal from Maoists and their supporters. The Tribunal’s reference to independent country information that was supportive of this claim “in a general way” was simply an acknowledgement that Maoists sometimes persecuted their political opponents including those who were pro-monarchy

([21] – [22] at CB 197).
As the Tribunal correctly distinguished however, the question before it was not to be resolved with general references to country information, but with specific reference to the applicant’s claims and the circumstances presented ([22] at CB 197 to CB 198).
The Tribunal accepted that the applicant was a Nepalese national and that his family had moved in 2004 to a particular village because of “general harassment and threats” from the Maoists ([24] – [25] at CB 198). The Tribunal also accepted that he moved to Kathmandu in October 2004 from the village.
However, it did not accept, based on various inconsistencies in his claim, that he moved because of threats from the Maoists ([26] at CB 198). The Tribunal then rejected the bulk of the applicant’s claims. Contrary to the applicant’s submissions now, that rejection was not dependent on a lack of satisfaction leading to non-acceptance of the claims.
The words on which the applicant now relies, “[t]he Tribunal does not accept as true” as they appear at the beginning of each of the paragraphs of its analysis at [27] (at CB 198) to [29] (at CB 199) which precede [30] (at CB 200), which considered the documents put in corroboration of his claims by the applicant, make it abundantly clear that the Tribunal did not believe that the applicant’s claims were true. That is, an emphatic finding that the central core of the applicant’s claims, from which his fear of harm was said to arise, was not true.
Although the Tribunal did not express its findings in terms that the applicant “lied” or “fabricated” his claims, it is plainly clear it stated that the claims were not true. That is, they were not credible. In this regard, I note, with respect, that the Full Court in SZNSP rejected the contention that it was “necessary to find expressly that a party has lied before concluding that a piece of evidence which might corroborate the party’s account should be rejected” (at [30]). The Tribunal’s finding that the claims were not true can only be reasonably and fairly read as findings that the applicant had made up these claims. That is, that they were a fabrication (see SZNSP at [32]).
Even on the applicant’s contention before this Court that an emphatic finding to a “particular level” is required, any fair, if not plain, reading of the Tribunal’s analysis leads to a finding that the Tribunal emphatically rejected the credibility of the applicant’s claims.
This is further reinforced with the Tribunal’s findings in relation to the applicant’s claims about the time he had lived and worked in Kathmandu for many years prior to coming to Australia ([28] at CB 199):
“The Tribunal does not consider that the applicant gave it truthful evidence about how he managed to live and work in Kathmandu for many years before he left that country to come to Australia in 2010; the Tribunal considers that he embellished his evidence to answer the Tribunal’s concerns about it. The Tribunal does not consider that it is reasonable or plausible that Maoists would continue to look for the applicant in Kathmandu given the profile he described to the Tribunal about what he did in Kathmandu.”
Even further, Tribunal decisions are to be read holistically. Although appearing in sequence after the impugned paragraph at [30] (at CB 199), the Tribunal’s references at [32] (at CB 200) and [34] (at CB 201) to not accepting as true further aspects of his claims, and in the context of its “concerns about the applicant’s credibility”, which it raised with him at the hearing, can only be read as further “emphatic” findings that the applicant was not telling the truth.
The Tribunal’s clear rejection of the applicant’s credibility formed one part of the reason for its finding that the corroborative documents were “not reliable evidence of the facts in them” (at [30] at CB 200). The other basis for that finding was the Tribunal’s finding arising from country information before it about the prevalence of document fraud in Nepal. There was, therefore, a logical, rational and reasonable basis for the Tribunal’s conclusion as to the documents. I note further, that the weight to be given to any piece of evidence is for the Tribunal to assign (Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 and Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510). In all, ground one is not made out.
Ground 2A asserts that the Tribunal fell into jurisdictional error because it failed to consider a claim expressly made on behalf of the applicant. The applicant’s submissions before the Court directed attention to the following.
The applicant was represented by a registered migration agent (“the agent”) in making his application for a protection visa (see CB 1). The agent made submissions on the applicant’s behalf. The basis for the applicant’s claims were summarised by the agent as follows (CB 2):
“Based on the documents and information provided to his office during our meetings, we submit that the applicant’s claim falls under the following Convention grounds:
1. Political Opinion: The applicant fears from persecution by Communist Party of Nepal (Maoists) and their cadres as he is a supporter of King and Nepal Patriotic Organisation. He was kidnapped and tortured on several occasions by member of Communist Party of Nepal (Maoists).
2. Member of particular social group: We are instructed that he has fear from Maoists if he returns to Nepal as he will be asked for more donations. Foreign returned people are more vulnerable and in risk as they are targeted by the Maoists and their cadres.”
[Emphasis added.]
The applicant’s submission before the Court was that the applicant’s claims, ultimately before the Tribunal, were expressly put as having three bases. First, the applicant feared harm because of his political opinion. That is, his support for the monarchy. Second, he feared harm because “Foreign returned people” are “more vulnerable”. That is, as a member of a particular social group. Third, the fact that the persecutor in relation to both of these was the same, that is the Maoists, meant that the claim to fear harm was put on a “cumulative” basis.
The applicant drew attention to [33] of the Tribunal’s decision record (at CB 200):
“The Tribunal finds that the applicant does not fear harm in his country as a returnee from an overseas country for the reasons raised in submissions by the applicant’s advisers, namely because Maoists will ask him for more donations and returnees from foreign countries are more vulnerable and at risk in this regard and are targeted by Maoists and their cadres. He specifically told the present Tribunal that he did not make this claim. The Tribunal finds that there is not a real chance or real risk that this applicant will face serious or significant harm in his country for this reason if he returns to Nepal.”
[Emphasis added.]
The applicant submitted that the Tribunal’s reasoning can be understood in one of two ways. First, that the applicant’s evidence at the hearing was that his agent put forward a claim that he himself did not make. Second, that he abandoned a claim made by his agent. On whatever reading, the applicant’s submission was that the Tribunal stated that at the time of the Tribunal hearing the applicant did not make a claim of being at risk in Nepal as a returnee.
The applicant also directed attention to the transcript of the Tribunal hearing (at T27, lines 9 to 35):
“[Tribunal]:   Okay. All right. Well, what I have to do now, Mr [applicant], is have a think about all the things you’ve told me. I have to make a decision and decide whether I accept what you’re saying’s true on the basis of all the information I have and I’ll do that over the next couple of weeks. So I can’t give you a decision today.
[Applicant]:   Okay.
[Tribunal]:    So, just to be clear, it’s just for now is your fears for the reasons you’ve said. There’s no other reason you fear to return to Nepal?
[Applicant]: Yes. I fear them very much, the Maoists, and whenever I return, if I return whatever time, whenever, they will kill me.
[Tribunal]: Somewhere in these papers I remember reading, I think, that you feared harm in your country, which you haven’t talked about today, because you’ve been in Australia. Is that right or did I get that wrong?
[Applicant]:    I didn’t understand.
[Tribunal]: Well, I think somewhere in here, I think I’ve understood correctly, it said that - I thought there was a claim that you feared harm because you’d be perceived as maybe wealthy or something like that because you’ve been in Australia but you haven’t mentioned that claim or that fear today.
[Applicant]: I don’t think I have said anything like that.
[Tribunal]: Okay. I might’ve misunderstood it or it might’ve been part of a submission that wasn’t pressed. Is it the situation that your leg is - the treatment on your leg’s finished?...”
The applicant submitted to the Court that this exchange occurred towards the end of the Tribunal hearing. There had been no mention made prior to that point of the matter of returnees. In that light, the applicant submitted that it was disingenuous of the Tribunal to ask whether there was anything further that he feared if he were to return to Nepal. The applicant also submitted that his subsequent answer to the Tribunal that he had not said “anything like that” was true given he had not discussed the matter of harm as a returnee at the hearing up to that point.
There is no doubt that a failure by the Tribunal to consider a claim expressly made or clearly arising from the circumstances, is revelatory of jurisdictional error (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1, WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244, Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389). The issue for resolution, therefore, in relation to ground 2A is whether the Tribunal fell into such error.
A number of preliminary points need to be made clear. First, the applicant sought leave to amend his application with ground 2A some considerable way into the hearing before the Court. While the matter was not initially clear, the applicant’s counsel, when pressed, stated that ground two was not pressed. I understood that ground 2A was the more concise statement of the applicant’s relevant assertion of jurisdictional error.
Second, in this light, the applicant’s submissions concerning the “cumulative basis” of the claim to fear harm (see the third base at [44] above), which were plainly directed to formerly pressed ground two, and are a diversion from the central thrust of the more concise articulation of the complaint in ground 2A. Ground 2A asserts jurisdictional error on the Tribunal’s part because it failed to consider a claim expressly made. That is, that the applicant, as a person returning to Nepal from overseas, was more vulnerable to the risk of being targeted by Maoists.
Third, there is no doubt that this claim was expressly made by the applicant’s agent in the submissions made at the time of the protection visa application (see the emphasis at [43] above).
The resolution of the applicant’s complaint turns on what is a fair reading of [33] (at CB 200) of the Tribunal’s decision record (see [45] above), and in light of the exchange at the Tribunal hearing (see above at [47]).
One immediate difficulty in seeking to discern meaning from [33] (at CB 200) of the Tribunal’s decision record is that, even on a fair reading, there is a seeming tension between the penultimate and last sentences.
The penultimate sentence stands, fairly read, as a statement that the applicant did not make a claim to fear harm as a returnee to Nepal from the Maoists (whether it was reasonably open to the Tribunal to make this finding is dealt with below).
Whether the Tribunal meant that the applicant disavowed a claim made on his behalf by his agent, or he abandoned the claim, is not a distinction of consequence at this point of the analysis. That is because on either basis, the Tribunal reports that the applicant “specifically” told it that he “did not make this claim”.
In light of that finding, it is difficult to understand why in the very next sentence the Tribunal made a finding addressing a claim which it had just stated was not made.
The Minister submitted that the seeming “anomaly” between the two sentences only appears to arise when the two sentences are “balanced” against each other. The Minister’s submission was that on a fair reading the entirety of the paragraph supports the view that the Tribunal did deal with the claim to fear harm from Maoists as a returnee and rejected that claim in its conclusion in the last sentence of [33] (at CB 200).
There is strength in the Minister’s submission which is derived from the entirety of the paragraph, save the penultimate sentence. That is, the Tribunal identified the claim as being a fear of harm as a returnee to Nepal from overseas and made specific reference to the claimed reasons for this as raised in submissions by the applicant’s agent.
The Tribunal identified those reasons in terms greatly similar to what the applicant’s agent stated in the written submissions referred to above (at CB 2, see [43] above). Further, earlier at [12] of its decision record (at CB 190), the Tribunal accurately recorded the claim as made by the applicant’s agent in submissions.
In this context, the Minister submitted that the use of the penultimate sentence by the Tribunal was “odd”. However, he sought to explain the fair reading of the Tribunal’s decision record at [33] (at CB 200) as follows.
First, if the reading of the paragraph urged by the applicant is preferred then this would make, not only the last sentence, but the entire paragraph otiose. The Minister’s argument was that the Court should not rush to focus only on one sentence that renders the entire paragraph otiose.
Second, the Minister agreed that the use of the penultimate sentence and its expression was “unfortunate”. However, notwithstanding the “inelegant formulation”, the Tribunal was simply noting that at the hearing the applicant seemed to have abandoned the claim. That is, given that the Tribunal considered the claim as initially made and rejected it, nothing turns on whether the applicant abandoned the claim or not.
In all, therefore, the Minister’s response to the applicant’s ground was first, although not dispositive of the issue, the Tribunal was aware of the claim as made. Second, that over the course of its reasoning, in particular from [26] (at CB 198) to [32] (at CB 200), the Tribunal addressed the applicant’s claim to fear harm from the Maoists, and rejected it. Paragraph 33, therefore, should be fairly read as a rejection of the applicant’s claim that he would be targeted on return to Nepal by the Maoists.
In my view, even if accepted, that still leaves open the matter of the penultimate sentence at [33] (at CB 200) and the exchange at the Tribunal hearing relied on now by the applicant.
However, I do not accept the applicant’s submission that the Tribunal’s question beginning at T27, at lines 16 to 17, was “disingenuous” given that the issue of returnees was not discussed earlier at the hearing (see [47] above).
The applicant’s submission was that the Tribunal hearing was inquisitorial, and was therefore “shaped” by the Tribunal. That is, it asked questions and the applicant answered. It was disingenuous to say, in that context, that the applicant had not made a claim to fear harm as a returnee at the hearing. That is, that the applicant’s answer to the Tribunal that “I don’t think I have said anything like that” (T27, line 33) should not be understood as a statement that he had not made the claim concerning his fear as a returnee. Rather, that he had not said “anything like that” earlier in the hearing.
It is to be remembered that, as was made clear from the beginning of the process of the application for the protection visa and throughout the review by the Tribunal, the applicant’s claims to protection were based on his claimed fear of harm from the Maoists. It is also to be remembered that the task for the Tribunal was to assess the real risk of harm within the context of reasonable foreseeability (Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 and Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559).
I do not agree with the applicant that he was not given a proper opportunity at the hearing to “confirm” the claim that he feared harm from the Maoists on return to Nepal, that is, specifically, harm because he was a returnee.
For example, prior to the part of the transcript relied on by the applicant (see above at [47]), the Tribunal asked the applicant (T15, lines 41 to 45):
“[Tribunal]: …Given that the Maoists - I mean, given this political situation now in Nepal, the Maoists are now an integrated political party and the monarchy is over - or ceased, I think it was 2008, I find it difficult to accept they were interested in you before but why would they be interested in you now if you go back? The Maoists are now a major political entity - force in Nepal as far as I understand.”
[Emphasis added.]
This was an open ended question which, contrary to the applicant’s complaint now, gave him a reasonable opportunity to have raised the matter of harm from the Maoists as a returnee. He did not do so. He relied entirely on claims of past harm.
Again at T17, the Tribunal sought to focus the applicant on the situation as it was at the time of the hearing, and by clear implication the reasonably foreseeable future (T17, lines 27 to 28):
“[Tribunal]: You’re claiming the Maoists are actually targeting you, why do you think - why would they be targeting you now in 2013?”
The applicant’s response was again focussed on the past and not what would happen to him as a returnee.
Yet again some little time later at the hearing, the Tribunal sought to elicit the full extent of the applicant’s claimed fear of harm from the Maoists (T19, lines 26 to 29):
“[Tribunal]: Apart from this fear of the Maoists that you’re talking about, do you have any other fear? Well, first of all, you don’t seem to be able to pinpoint why the Maoists would really be interested in you, apart from saying you wouldn’t join them. Is that correct?”
As the Tribunal made clear, the applicant’s answers to what were open ended questions made no reference to the Maoists “pinpointing” him for “donations”, or that he would be “more vulnerable” as stated initially by his agents.
Later in the hearing the Tribunal gave the applicant a short adjournment (T20, lines 39 to 41):
“[Tribunal]: Okay. Well, we’ll just adjourn now for - we’ll come back at 3 o’clock and it probably then be about another half an hour or so. So you have a think if there’s anything else you want to tell me.”
Subsequently, after discussing various documents provided by the applicant in corroboration of his claims, and some other matters, the Tribunal, yet again, gave the applicant the opportunity to fully explain his fear of harm from the Maoists (T24, lines 32 to 34):
“[Tribunal]: Apart from being afraid of harm because of the Maoists, because you say you’ve been targeted by them because you didn’t join them and because of your father to some extent, I think you said, is there any other reason you fear the Maoists if you were to go back?
[Applicant]: I don’t think I have done anything else besides those things that they said they came after me for. They have been attacking me from time to time and they have been after me from time to time, so I really do not know what their intentions are, what they are making me pay for. So I cannot say anything about their intentions.”

It is clear that the applicant’s claims as explained to the Tribunal at the hearing was because of his claimed political (pro-monarchy) beliefs, and his refusal to join the Maoists, including by being their “spy” (see also generally T26, lines 4 to 9).
The exchange at T27, relied on by the applicant now, must be understood and considered in the entirety of the Tribunal hearing. The Tribunal had given the applicant reasonable opportunities to explain his claims, including the central claim of fear of harm from the Maoists. The applicant made no reference to, or claim to fear harm as a returnee or that he would be more vulnerable to harm from the Maoists for that reason.
The exchange relied on by the applicant now, and when read in context of what precedes it, is to be understood as follows. Having covered all of the aspects of the applicant’s claims as advanced by the applicant himself at the hearing, and given him the opportunity to state the extent of those claims, the Tribunal still had in mind that it recalled a statement “in these papers” that he feared harm because he had been in Australia. That is, he feared harm as a returnee.
I do not comprehend the Tribunal’s conduct here to be disingenuous in asking “there’s no other reason you fear to return to Nepal?”. While the Tribunal is obliged to deal with claims made as, or in, submissions by an agent, as being claims made by an applicant (Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 and Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99), it is not unreasonable for the Tribunal to ask an open ended question in the expectation that the applicant would know the extent of his claims to fear harm, including claims made on his behalf.
The Tribunal then explained the reason for its question with the reference to a fear of harm because he had been in Australia, and that he would be perceived as being wealthy. This is reasonably, and acceptably for current purposes, similar to the agent’s submission that people returning from overseas (“foreign returned people”) to Nepal would be targeted and would be asked for “more donations” (“perceived as maybe wealthy” see T27, line 30).
As stated above, the applicant’s transcribed answer at the hearing was “I don’t think I have said anything like that” (T27, line 33). Before the Court, the applicant submitted that what was meant by saying he had not said anything “like that” was that he had not said anything about fear as a returnee at the hearing, because he had not been given an opportunity to previously say it.
I agree with the Minister that there was a lack of evidence before the Court about the applicant’s state of mind at the relevant time, and the lack of evidence now as to what he meant, or intended to say. In the circumstances, the transcript, as the relevant evidence, must speak for itself.
In that light, and contrary to what the applicant now submitted is the preferred reading of the transcript, it is a reasonable view, given the opportunities given by the Tribunal to the applicant to raise “the returnee matter”, to understand the applicant’s answer as further to his not having said anything at the hearing, that he never said “anything like that” at all, that is, at any time.
It is the case that the law does not distinguish between claims made by way of submissions, or direct oral or written evidence given by the applicant to the delegate or the Tribunal. However, that is not to the point in the current case. In my view, by its reference, in the absence of anything from the applicant to the agent’s submissions, or what those submissions stated, that the Tribunal understood that the claims of the applicant could arise from submissions, and further submissions made by the applicant’s agent.
The Tribunal tested the situation with the applicant as to whether he had made such a claim, or more particularly, whether it was “put as a submission”, and if that were the case, whether the claim was pressed. In the context of the entire hearing, and the opportunities given to the applicant to explain his claims, it was reasonably open to the Tribunal, in the circumstances, to find that, based on his answer that he had not said “anything like that”, that the applicant was saying that he had not made such a claim.
When fairly read, the Tribunal’s reasoning at [33] (at CB 200), is that a claim had been made in submissions by the applicant’s agent that the applicant feared harm as a returnee. The references in the Tribunal’s analysis to “donations” and “more vulnerable” make it clear that it referred to what is set out in the letter with the initial application for the visa from the agent (see CB 2).
In the penultimate sentence of [33] (at CB 200), the Tribunal noted the applicant’s evidence that he had not made this claim. Nonetheless, properly in my view, the Tribunal felt compelled to go on and make a finding about the claim as made by the agent on the applicant’s behalf, even though the applicant himself, both by his statement to the Tribunal and his failure to otherwise raise it despite opportunity to do so, appeared not to know anything about this claim.
The Tribunal did not fail to deal with an express claim. It dealt with, and considered that claim, as it was put to it in submissions. It addressed the applicant’s evidence in relation to that claim. Ground 2A is not made out.

Conclusion

In all, the grounds of the application to the Court are not made out. It is appropriate to dismiss the application. I will make that order as sought by the Minister.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate:

Date: 13 May 2016