BFC15 v Minister for Immigration and Border Protection

Federal Court of Australia|2016-06-23|Before: Gleeson J

The appeal be dismissed.
The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GLEESON J: 1 The appellant appeals from the decision of a judge of the Federal Circuit Court of Australia ("FCCA") dismissing his application for judicial review of a decision of the Refugee Review Tribunal ("RRT"): BFC15 v Minister for Immigration & Anor [2015] FCCA 3379. The RRT's decision was to affirm the decision of a delegate of the first respondent ("Minister") not to grant the appellant a Protection (Class XA) visa ("protection visa").

Background facts 2 The appellant is a citizen of Nepal. He arrived in Australia on 19 January 2009, on a student visa that was valid until 4 March 2011. 3 On 29 March 2011, the appellant lodged his first application for a protection visa. That application was refused on 1 June 2011. The RRT affirmed the decision to refuse the first application on 26 September 2011. 4 On 8 July 2013, the appellant made a second application for a protection visa. In summary, the application stated that the appellant had left Nepal because he was in fear of his life from Maoists; it described harm that the appellant had experienced at the hands of Maoists and it referred to fear of harm from Maoists if the appellant returned to Nepal. The application form did not refer to a fear of harm arising from the appellant's Christian religion, but his religion was stated in the form. However, the Departmental file contained a letter from the Senior Pastor of the Australian Nepali Christian Community Church ("Church") dated 22 July 2013 and received 16 September 2013. That letter stated that the appellant was involved actively in proselytising the Christian religion and said: [The appellant] will be facing prosecution in danger for his life if he goes back to Nepal. Nepal constitutions and Muluki Ian (Law of Nepal) do not allow proselytise Christian religion. He is proselytising Christian religion by distributing Christian tracts and broacher [sic] according to gospel of the Bible. 5 The file also contained country information referring to reports of persecution of Nepali Christians. 6 The Department of Immigration and Citizenship acknowledged the validity of the second application by letter dated 15 July 2013, in the light of the judgment of a Full Court of this Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235. In that judgment, the Court found that s 48A of the Migration Act 1958 (Cth) ("Act") did not prevent a person from making a second application for a protection visa on "complementary protection" grounds where the first application was made and refused before the commencement of complementary protection provisions in the Act, enacted by the Migration Amendment (Complementary Protection) Act 2011 (Cth). 7 On 8 April 2014, the appellant attended an interview with the Minister's delegate, conducted with the assistance of a Nepali language interpreter. On 27 May 2014, the delegate refused to grant the appellant a protection visa. The delegate found that the appellant had statutory effective protection in a third country, India, and was not owed protection obligations by Australia, in accordance with ss 36(3), (4), (5) and (5A) of the Act.

RRT proceeding 8 On 17 June 2014, the appellant applied to the RRT for a review of the delegate's 27 May 2014 decision. 9 On 29 May 2015, the appellant attended a hearing of the RRT, also conducted with the assistance of a Nepali language interpreter. The RRT's decision to affirm the delegate's 27 May 2014 decision was made on 2 June 2015. 10 The RRT noted that it had previously been determined that the appellant did not meet the refugee criterion in s 36(2)(a) of the Act and that the question for consideration was the alternative criterion in s 36(2)(aa) being, relevantly, whether the appellant is a person in respect of whom there are "substantial grounds for believing that, as a necessary and foreseeable consequence of the [appellant] being removed from Australia to a receiving country, there is a real risk that the [appellant] will suffer significant harm". 11 Concerning the meaning of "significant harm", the RRT stated: 'Significant harm' for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. 'Cruel or inhuman treatment or punishment', 'degrading treatment or punishment', and 'torture', are further defined in s.5(1) of the Act. 12 The RRT noted that the appellant said he did not know what was written in his protection visa application, which had been prepared by a third party. Nor was he aware of what documents may have been provided to the Department on his behalf. The RRT concluded that the appellant was "unaware of some of the claims being advanced as to any claimed fears on return to Nepal due to his claim of being Christian". The RRT recorded that the appellant himself made no claims to the RRT "about fearing any harm on return to Nepal on account of his claimed Christian religion." To the contrary, the RRT recorded that the appellant "said his only fear of return to Nepal was from the Maoists". 13 The RRT did not accept that there were substantial grounds for believing there was a real risk that the appellant would suffer significant harm on account of his religious beliefs if returned to Nepal. 14 Concerning the appellant's claim to fear harm from Maoists, the RRT found that the appellant "was vague and unconvincing in relation to any knowledge of any political party he claims to have belonged to". The RRT found that the appellant had "fabricated and exaggerated his claimed involvement in a political party and his claim of being sought by the YCL [Young Communist League]". The RRT did not accept that he had any involvement in any political party or that he was sought by or harmed by the YCL at any time. These conclusions were based on the following findings: 39. I have carefully considered the claims and evidence of the applicant. I have taken account of his relative poor education and his leaving school when about 12 years old. I have also taken account of his telling me at [the] hearing that in his original 2011 application he just told his story to his prior advisor, and that aspects may have been misinterpreted such as his not being a leader when it may have said so. I have also taken account that he again just told his story to Mr Laba Sarkis in this current application, and he doesn't really know what was written or what documents may have been provided to the Department. This is significant, as it was obvious from the evidence of the applicant at hearing, that he was unaware of some of the claims being advanced as to any claimed fears on return to Nepal due to his claim of being Christian. He was also vague and unconvincing in relation to any knowledge of any political party he claims to have belonged to. The applicant's evidence in relation to his claimed fears of harm was vague and lacked detail and knowledge. In particular: • The applicant claims to fear harm from Maoists, particularly their youth group the YCL, and that they attacked him and kidnapped him in 2006, and sometime later again attacked him with knives, leaving him injured in both hands and with a metal plate in his right arm. He claims he belonged to a rival political group, it isn't named in his application and at hearing couldn't name it with any degree of specificity other than "UML". The political party called UML is actually the Communist Party of Nepal (Unified Marxist-Leninist). I do not accept as reasonable to believe that anyone who claimed to have been an active member of such a party for many years from the age of about 12 years to age 26 or so, would not know its proper name, and nor do I accept as reasonable to believe that they would think the name of the party was "United Maoist Communist Party". It certainly isn't Maoist in belief, and is Marxist-Leninist. The Maoists are the group the applicant claims to fear harm from. • The applicant at first said he belonged to no particular group of this UML party and was just an "active member", though later said he belonged to the "Anura Swa" translated as "student organisation". This is not the name of the student wing of the Communist Party of Nepal (Unified Marxist-Leninist). Their student organisation is the All Nepal National Independent Students Union also referred to as the All Nepal National Free Students Union. I do not accept as reasonable to believe that anyone who claimed to have been an active member of this particular group would not know its proper name. • The applicant claimed to belong to the student organisation of the above group for many years after he was no longer a student. The All Nepal National Free Students Union, though concerned with wider political issues, is primarily concerned with student affairs and issues. I do not accept as reasonable to believe that the applicant would continue to belong to such an organisation so many years after ceasing to be a student. 40. The applicant also claimed that he was pursued by the YCL for some years prior to departing from Nepal and that they still seek him. I do not accept that this is true. In particular: • The applicant continued to live and work in Kathmandu in his usual place of residence and at his usual work until shortly before departing from Nepal. I do not accept as reasonable to believe that he was able to avoid detention and harm as he was lucky or careful and thus able to avoid harm. That he continued in these activities indicates that he was being sought by, and feared harm from, no one. • It is not reasonable to believe that even if they [sic] applicant was of adverse interest to the YCL (and I do not believe he was) several years ago, that they would still be adversely interested in him if he were to return to Nepal in the future. It is not reasonable to believe that they would come only 4 months ago to his brother seeking the whereabouts of the applicant and saying they would seek him out and kill him . 15 Concerning the impact of the earthquakes in 2015, the RRT accepted that most of the houses in the appellant's village were destroyed, including his family home, and that his aunt, uncle and cousin are living in a tent. However, the RRT did not accept, and noted that it had not been claimed, that any of the consequences of the earthquake relate to any aspect of a complementary protection claim.

FCCA 16 The appellant's application to the FCCA was filed on 30 June 2015. The application specified the following grounds for seeking review of the RRT's decision: 1. The Member did not take into account what will happen to me as Christian if I return to Nepal. 2. The Tribunal accepted that my home has been destroyed and failed to accept how I can survive if I return to Nepal. 3. I have fear that I will be suffering serious harm. 17 The FCCA addressed the appellant's grounds of review as follows: (1) As to ground 1, it was apparent that the RRT did take into account the appellant's claimed conversion to Christianity. The RRT accepted that the appellant had converted to Christianity and took into account the letter provided by his Pastor as well as the country information that was before it. The RRT considered whether the appellant feared harm on this basis and found that he did not. That finding was open on the material that was before the RRT; (2) Ground 2 was, in substance, an impermissible challenge to the RRT's adverse factual findings. The RRT considered the appellant's claim to face significant harm by reason of his home being destroyed. It accepted that rebuilding may be costly. However, it did not accept that this would amount to significant harm within the meaning of s 36(2A) of the Act. This was a matter for the RRT to determine and not the Court; (3) Ground 3 did not rise above a generalised assertion that the appellant would face serious harm. No basis for finding jurisdictional error was articulated under the ground. The FCCA gave the appellant an opportunity to illuminate the ground through filing an amended application, evidence and submissions. The appellant provided no meaningful particularisation of the ground.

Appellant's submissions 18 The appellant did not file written submissions. He appeared before this Court and made submissions through a Nepali interpreter. The submissions were: (1) The RRT should not have found that the appellant was not a credible or truthful witness, having regard to the fact that he is a true Christian and that, by their support for him, the Church can be taken to have accepted the appellant's claims for protection. The appellant does not know why he was disbelieved; (2) The RRT should not have disregarded the letter from the Senior Pastor of the Church, without contacting him or understanding anything about the appellant; (3) The FCCA judge had no right to say that the appellant was not telling the truth when he knew that the appellant was a Christian; (4) Neither the RRT nor the FCCA judge took into account that, if the appellant was required to return to Nepal, he would have no place to live and nowhere to go, having been away from Nepal since July 2009. Nobody has been able to rebuild or get help so far, and a lot of people are in tents; (5) The FCCA judge's decision was wrong because he did not understand the appellant's case properly; (6) The appellant's hand (or right arm) needs treatment, as a result of injury caused by Nepali Maoists. The Maoists are still after the appellant, and want to kill him. If they want, they can do anything.

Ground 1 of the notice of appeal 19 The first ground of this appeal is: 1. His Honour Judge Street did not provide a full judgment yet dismissed my case and failed to take into account that the Tribunal did not exercise its jurisdiction to conduct enquiries and verify the evidence before it that I will suffer as a Christian and the Tribunal denied reports [of] abuses based on religion as it appears in Court Book p. 117. This ground involves several aspects. As to the complaint that the FCCA judge did not provide a "full judgment", I do not agree. His Honour addressed each of the three grounds of review that were raised by the appellant. 20 As to the complaint that the FCCA judge "failed to take into account that the [RRT] did not exercise its jurisdiction to conduct enquiries", there was no general obligation upon the RRT to initiate enquiries or to make out an applicant's case for him or her: Minister for Immigration and Citizenship v Le [2007] FCA 1318 at [60]; (2007) 164 FCR 151 at 172-3. A failure to make an inquiry about a critical fact, the existence of which is easily ascertained, will arise only in circumstances which are 'rare and exceptional': Le at [60]; Hinton v Minister for Immigration and Border Protection [2015] FCA 408 at [66]. 21 The RRT was not required to make inquiries of the Senior Pastor in the circumstances of this case. The relevant issue is whether the RRT should have concluded that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to a receiving country, there was a real risk that he would suffer significant harm by reason of his religion as a Christian. As appears from the extracts of the RRT's decision record, the appellant did not mention any concern about his return to Nepal arising out of his religion. Apart from anything else, in the absence of any concern expressed by the appellant himself, there was no reason why the RRT should have taken the matter further than it did. Accordingly, the FCCA judge did not err in relation to this complaint. 22 The third complaint is that the RRT failed to "verify the evidence before it that [the appellant] will suffer as a Christian" if he returns to Nepal. This complaint appears to refer to the evidence apart from that given by the appellant himself. However, the RRT's decision was based upon its assessment of the appellant's evidence rather than any rejection of the other evidence presented on his behalf. In particular, the reason that the RRT discounts the letter from the Pastor as it relates to any danger the appellant would face if returned to Nepal was that the RRT did not accept that it represented the actual concerns of the appellant. The appellant did not identify any fact that was not accepted by the RRT which might have been accepted if the RRT had sought verification of the evidence. Again, it follows that this complaint discloses no error by the FCCA judge. 23 Finally, there is a complaint that the RRT denied reports of abuses based on religion in Nepal, referred to at page 117 of the Court Book. The relevant passage of the RRT's decision record states: There were, however, no reports of prosecutions or expulsions. There were reports of societal abuses or discrimination based on religious affiliation, belief, or practice. However adherents of different religious groups generally coexisted peacefully and respected places of worship. Those who chose to convert to other religions, in particular Hindu citizens who converted to Islam or Christianity, were generally unafraid to state publicly their new religious affiliation. 24 The appellant did not identify any report of abuses which was rejected by the RRT. Accordingly, this complaint appears to be misconceived.

Ground 2 of the notice of appeal 25 The second ground is: 2. The Tribunal accepted the destruction of my family home in the recent earthquake and that I have nowhere to live yet denied me protection and ignored that the harm I will suffer amounts to significant harm. 26 This ground of the appeal concerns the significance of the difficulties for the appellant of survival in post-earthquake Nepal for his application for a protection visa. The RRT concluded that these matters, including the destruction of the appellant's family home, were not "significant harm" within the meaning of s 36(2A). 27 Section 36(2A) provides that a non-citizen will suffer significant harm if: (a) the non-citizen will be arbitrarily deprived of his or her life; or (b) the death penalty will be carried out on the non-citizen; or (c) the non-citizen will be subjected to torture; or (d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or (e) the non-citizen will be subjected to degrading treatment or punishment. 28 The appellant's argument does not suggest that the RRT made any error in concluding that the problems that would be faced by the appellant on return to Nepal, by reason of the earthquake, were not "significant harm" within the meaning of s 36(2A). 29 The RRT accepted that the impact of the earthquake meant the appellant would suffer difficulties if he were to return to Nepal. However, it was open to the RRT to find that the kinds of difficulties identified by the appellant were not the kinds of matters that are "significant harm" within s 36(2A). Accordingly, the FCCA judge was correct to reject this aspect of the appellant's application for judicial review.

Other matters raised by the appellant 30 Although the appellant said that he did not understand why the RRT had disbelieved him, the decision record sets out detailed reasons. Based on the decision record, the RRT had reasons for its conclusion that the appellant was not credible or truthful. Accordingly, while the appellant maintains that he has told the truth, his submissions do not identify any jurisdictional error in connection with the RRT's assessment of the appellant's version of events. This is why the FCCA judge said the RRT "made an adverse finding of credit as to the applicant's claims and found that the [appellant] had fabricated and exaggerated his claimed involvement in the political party and the claim of being sought by the YCL". The FCCA judge was entitled to say this, based on the findings of the RRT. 31 Even if everything the appellant says is accepted about the difficulties that would face him in Nepal as a result of the earthquake, these difficulties are not matters that support a claim for a protection visa, at least in the circumstances of this case, for the reasons explained in relation to ground 2 of the notice of appeal. 32 Nothing that the appellant said supported his claim that the FCCA judge did not understand his case properly. 33 The RRT concluded that the appellant had fabricated his claims to have been injured by Nepali Maoists, and to have been at risk from the YCL. Those conclusions were based on reasons set out in the RRT's decision record. The appellant did not challenge this aspect of the RRT's decision in his application to the FCCA and it plainly does not fall within the scope of the notice of appeal. Accordingly, it is unnecessary to deal with the appellant's submissions on this point further.

Conclusion 34 The appeal must be dismissed with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.

Migration Amendment (Complementary Protection) Act 2011(Cth)

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