DYQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Background 1 The applicant seeks an order for the extension of time within which to appeal against a judgment of the Federal Circuit Court of Australia (the "FCCA"). The judgment in question (the "FCCA Judgment") concerned an application (the "Judicial Review Application") for judicial review of - that is to say, for prerogative relief directed at - a decision of the second respondent (the "Tribunal") that affirmed an earlier decision, made by a delegate of the first respondent (the "Minister"), to refuse an application that the applicant made under the Migration Act 1958 (Cth) (the "Act") for a protection visa (the "Visa Application"). 2 Subsections 36(2)(a) and (2)(aa) of the Act collectively prescribe two alternative criteria (amongst others) that an applicant must satisfy in order to qualify for a protection visa. The first, for which s 36(2)(a) provides, is that the applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations (as defined) because the person is a refugee (as defined). The second, to which s 36(2)(aa) gives voice, is that the applicant is a non-citizen in Australia who, although not a refugee, is nonetheless a person in respect of whom the Minister is satisfied that Australia has protection obligations on account of there existing substantial grounds for believing that, if removed from Australia, there is a real risk that they will suffer significant harm. The latter are typically referred to as obligations of "complementary protection". "Significant harm" is defined to include arbitrary deprivation of life, subjection to torture, and subjection to cruel or inhuman treatment. 3 The applicant is a citizen of Nepal. He arrived in Australia more than ten years ago on a student visa. He made his Visa Application on 3 September 2014. A delegate of the Minister dismissed it on 14 April 2015 (the "Delegate's Decision"). On 1 May 2015, the applicant applied to the Tribunal for a review of that decision. He gave evidence and presented submissions at a hearing before the Tribunal on 23 September 2016. On 18 November 2016, the Tribunal affirmed the Delegate's Decision (that affirmation is referred to, hereafter as the "Tribunal's Decision"). 4 In support of his Visa Application (both at first instance and before the Tribunal), the applicant advanced a number of reasons why he could not safely return to Nepal. He explained that he was a supporter of the monarchy and was opposed to Nepal's Maoist political forces. The Maoists, he said, subjected him to extortion, which forced him to relocate from his home village of Ballachu, in the Okhaldhunga District, to the country's capital, Kathmandu. There, he continued to experience a degree of extortion, which ultimately led him to flee the country. He said that, if returned to Nepal, he would be subjected to harm or persecution in the following forms, namely: (1) he would be extorted or killed by Maoists because of his support for the monarchy; (2) he would be prevented from practicing Christianity, to which he had converted whilst in Australia (or, perhaps, shortly before leaving Nepal); (3) as a member of the Tamang ethnic group, he would be subjected to suppression by higher castes and, thereby, would not be able to live peacefully or freely; and (4) his ex-wife's mother would arrange to have his hands cut off because he had divorced her daughter. 5 In rejecting the applicant's Visa Application, the Tribunal made a number of relevant findings, including (references omitted): 16. I did not find the applicant to be a credible witness. He was at times evasive, he made a number of significant claims at the hearing which were not mentioned in his statutory declaration, and there were some substantial inconsistencies between his testimony and statutory declaration. Further, the credibility of his claims is undermined by his significant delay in applying for the protection visa. I elaborate below. 17. The applicant testified at the hearing that even though he, his parents and siblings were all supporters of the monarchy, it was only he who was targeted for that reason because, unlike his parents and siblings, he spoke out about his support for the monarchy. Specifically, he said that while his parents and siblings quietly voted for the king he encouraged others to vote for the monarchy at elections. He claimed that because of his outspoken support from the monarchy, he would have problems with Maoists as well as his cousins in the village (who supported the Maoists) if he returned to Nepal. He said he would be killed if he was caught. Yet the claim that he would [be] targeted by his cousins in the village and the Maoists because he spoke out in support of the monarchy particularly at election time, was not included in his statutory declaration. What he did indicate in his statutory declaration was that he and his family had believed in the monarchy for generations, they opposed what the Maoists wanted to do and so the Maoists were against them. If it were true that the applicant was, as he said at the hearing, the 'main target' of the Maoists because of his outspoken support for the monarchy…then I expect the applicant would have made that claim in his statutory declaration. 18. In relation to why the claim was not made in his statutory declaration if it were true, the applicant indicated that the migration agent who assisted him only included the main points in the statutory declaration because the agent had limited time and it would have cost more for the agent to do more. I do not accept this explanation. Firstly, the claim was not a minor one. The applicant claimed that he faces being specifically targeted and killed if he returns to Nepal because he spoke out in support of the monarchy. If the migration agent could only include the applicant's main claims, then I expect a claim that the applicant would be targeted for the applicant's particular conduct in the past and could be killed for that reason in the future would be included in the statutory declaration. Secondly, the applicant only made the claim that he was and would be a particular target because he spoke up in support of the monarchy at elections, when I questioned why he would be killed for supporting the monarchy given his parents and siblings had continued to live in the village since his departure from Nepal which suggested they did not face harm for their pro-monarchy views. It was only in response to that potentially adverse inference being drawn that the applicant made the claim to explain why he and not his family were targets. This suggests that the applicant invented the claim at the hearing to overcome an adverse conclusion being drawn from the fact that his family had not been harmed for their support for the monarchy since the applicant left Nepal about 7 years ago. 19. After dealing with the applicant's claims about the Maoists, I asked whether anyone else would harm him for any reasons other than his pro-monarchy opinion if he returned to Nepal. He replied that while the Maoists were his main problem another big issue was that his ex-wife's mother, who was also his paternal aunt, would literally have his hands cut off because he divorced her daughter. This claim was not made in his statutory declaration. Once again, his explanation for not making the claim in his statutory declaration was that his agent told him to only tell him the main points and the cost. He also added that the agent did not have a lot of time and so he did not mention the claim to the agent. I do not accept the applicant's explanation. His statutory declaration included claims of less serious harm such as discrimination due to his ethnicity. Thus, I do not find it credible that if the applicant genuinely believed that his aunt would arrange to have an act as brutal as having his hands cut off, that he would not consider that important enough to mention to his agent. 20. When asked about other harm he would face on return, the applicant made no mention of the other harm he did mention in his statutory declaration such as those related to the religion and ethnicity. If the claims made in the statutory declaration concerning his religion and ethnicity were true then I expect he would have mentioned those particularly as he testified that he only told his agent the main points he wanted included in his statutory declaration. When I queried his failure to mention those claims at hearing, the applicant said he did not mention them because he thought I would ask about those claims. I do not accept that explanation because he made the claim that his hands would be cut off without me specifically asking about any such claim. It seemed to me that he invented the explanation to avoid an adverse inference being drawn about his failure to mention the claims about his religion and ethnicity. 21. The applicant's testimony about his religious claims was evasive and contradicted his statutory declaration. According to his statutory declaration he attended a church in Strathfield and hoped to be baptised soon. He said he was 'fully in to (sic) Christianity and will not be able to live without Christianity' and that 'being a Christian and living in Nepal is just not possible'. At the hearing I noted that he claimed to be a Christian and could not live as a Christian in Nepal and asked him to be specific about the future serious or significant harm he would face as a Christian. His reply was very general. For example, he spoke about society looking at those who converted to Christianity with a different eye and of the Maoists being aware that he had converted which would create problems for him. He said he read about bomb blasts in churches and referred to making a comment online about religious freedom in which he referred to his conversion to Christianity. The rather rambling and general reply left the impression that…the applicant was being intentionally evasive. When I questioned him about the newspaper comment he referred to, his response seemed rehearsed. Further, it took much questioning to elicit when he became a Christian. His initial response was that he became interested in Christianity in Nepal but it was not clear that he became a Christian in Nepal. Asked again, he said he was not baptised due to language difficulties and mentioned attending a church in Darlinghurst. Further attempts to elicit a clear answer, resulted in a long and convoluted response which did not clearly indicate when the applicant became a Christian. Eventually he indicated that he had believed in Christianity in Nepal. The question was a simple one yet I felt that the applicant avoided giving a clear and direct response. 22. More significantly, there were substantial discrepancies between the applicant's testimony and written claims about his religious activity in Australia. He testified that he attended a Nepali church in Strathfield in 2014 but only on three occasions because no one talked to him or explained the Bible to him and the people cried and praye[d]; he believed religion was not about crying but peace. He said that since Easter 2015 he had regularly attended a church in Darlinghurst even though the services there were conducted in English and it was difficult for him to understand. He had stopped attending that church's Bible studies because they were in English. In contrast to this testimony, the applicant stated in his statutory declaration that he had been attending church in Strathfield since he had arrived in Australia and had started Bible study as well. He said that he hoped to be baptised soon and that the church was making arrangements for it. In response to these inconsistencies, the applicant told me that what was in the statutory declaration was what he had told his agent based on what he expected would happen. He said that at the time he made the statutory declaration he had attended the Strathfield church and thought he would continue. I do not accept that explanation. While the written statement that he hoped to be baptised soon is an expression of a future hope, the statements that he had…been attending the Strathfield church since he had arrived in Australia which was in 2009, had started Bible study and that the church was making arrangements for his baptism were not statements which indicated his future expectations. 23. Finally, the applicant applied for the protection visa application more than 5 years after he arrived in Australia. If the applicant genuinely feared being seriously or significantly harmed in Nepal as he claims, then I expect he would have applied for protection much sooner. I expect he would have applied at least three years ago when he and his ex-wife divorced and thus, as he was no longer her dependent spouse, he faced return to Nepal. In relation to the delay, the applicant gave a rambling reply. He indicated that when he returned from a trip to Nepal in either 2010 or 2011, he discovered that his ex-wife had had an affair. He said she had all the documents they had from Nepal. He mentioned realising he was not in Australia legally and crying [sic] for six to seven months before meeting a friend who suggested that he apply for protection. He then asked that his wife return his passport and began the process when he received his passport. I do not find it credible that the applicant would not have made inquiries about seeking protection or would not have requested his passport from his ex-wife sooner if he genuinely feared serious or significant harm in Nepal. Country of reference 24. The applicant has consistently claimed that he is a national of Nepal and no other country. I sighted his Nepalese passport at the hearing and he testified in the Nepali language. There is no evidence before me to suggest that the applicant is a national of any country other than Nepal. I thus find that the applicant is a national of Nepal and have assessed his claims in relation to Nepal. Pro-monarchy, Maoist and extortion claims 25. The applicant has consistently claimed that he and his immediate family are supporters of the monarchy in Nepal. He testified that he will always support the monarchy in Nepal. Even though there is no longer a ruling monarchy in Nepal there is still support for the restoration of the monarchy. I thus accept that the applicant and his family were and are supporters of the monarchy and that he will continue to be a supporter of the monarchy in the future. 26. At the hearing the applicant stated that he was never a member of any political party but that at election time he supported whatever party supported the monarchy. However, he said he would not support any such party in the future because the king is no longer in authority in Nepal. It is plausible and thus I accept that as a supporter of the monarchy he supported a pro-monarchy party or parties at election time in the past. I do not however accept that he was outspoken about his support for the monarchy at the time of elections and thus came to the particular attention of Maoists as he claimed at the hearing. For the reasons I have given above I believe that claim was invented by the applicant at the hearing. 27. During the civil war one of the ultimate goals of the Maoists was the establishment of a republic and a main source of funds for the Maoists during the civil war was extortion. Thus, it is plausible and I accept that the applicant and his family experienced some opposition from the Maoists in the past and that the applicant was subject to some extortion by the Maoists in the past particularly during the civil war. 28. However, as I put to the applicant at the hearing, the information in the sources I have consulted indicates that the situation has changed significantly in Nepal since the end of the civil war. As a result, Nepal's political environment is one in which there are many diverse political parties and views, and generally individuals can be members of a party, be politically active and express political opinions. Maoist parties are now involved in the political process and pro-monarchy parties hold seats in the constituent assembly. The information indicates to me that the targeting of individuals or members of political parties who are not supporters of the Maoists including pro-monarchists has dramatically decreased since the end of the civil war and since the first constituent assembly was elected in 2008. I put to the applicant that there thus did not seem to be a real chance that he would be seriously harmed or significantly harmed by Maoists or anyone for reasons of his pro-monarchy political opinion, his opposition to Maoists or his prior support for any pro-monarchy party. In response, the applicant stated that the written information before me did not reflect reality. He indicated that the Maoists continued to do what they did in the past and as they were now in authority they were more powerful than they were before. 29. I also put to the applicant that the information in the sources I consulted indicated that extortion by Maoists had significantly declined since the civil war, and that the targets of extortion were now mainly business people and for the purpose of financial gain rather than to intimidate political opponents. I put to the applicant that there thus did not seem to be a real chance that he would be extorted by Maoists in the future. The applicant replied that he had seen Maoists threaten, extort and rape people and this had continued in his village. 30. I prefer the evidence in the sources I have consulted to the applicant's evidence about the situation in Nepal since the end of the civil war. On the basis of the information in the sources I have consulted, I find that even though the applicant was extorted and had problems with Maoists in the past, there is not a real chance that he will be extorted or subjected to harm amounting to serious harm or significant harm in the reasonably foreseeable future by Maoists, his cousins or anyone else for any reason. Religious claims 31. In response to the question on the protection visa application which asked about the applicant's religion, the applicant said he was Hindu. I queried this at the hearing given his claimed conversion to Christianity. He said he believed the question related to his previous religion. I then noted that according to sources I had consulted the Tamang people tended to be Buddhists rather than Hindu. The applicant said they were said to be Buddhist but as there was no monk in his village they used the priest in the temple to perform their rituals. He said that whilst they used the 'Hindu tag', he did not really know about Hinduism and did not perform any of its rituals. I suggested that the applicant had not actively practised his previous religion. He replied, 'not in a real sense' and that he sometimes went to temple and worshipped. It is plausible and thus I accept that the applicant engaged in some religious practice in the past as he has claimed. He has not claimed nor does the evidence before me indicate that there is a real chance that he will face serious or significant harm for that past religious practice or if he resumes that religious practice in the future in Nepal. 32. Regarding the applicant's claims about Christianity, his overall lack of credibility and the particularly flawed nature of his evidence about his Christian claims had led me to reject those claims. Specifically, I do not accept that the applicant developed an interest in Christianity, read any Christian publications, attended a church or engaged in any other Christian related activity in Nepal. Nor do I accept that he has attended any church or Bible study in Australia, or that he wrote an online comment about religious freedom in which he indicated he had converted to Christianity. I do not accept that the applicant became a Christian either in Nepal or in Australia, or that he has ever had any genuine interest in Christianity. I thus find that the applicant will not nor does he want to engage in any kind of Christian religious practice or activity if he returns to Nepal. I therefore find that the applicant will not be subjected to or suffer any harm in Nepal because he has or would be perceived to have converted to Christianity, or for any religious practice, conduct or activity related to Christianity. Claims relating to Tamang ethnicity 33. From my experience with other Nepali applicants it is not uncommon for Nepali surnames to reflect the ethnic group the person belongs to. Given the applicant's surname, I accept he belongs to the Tamang ethnic group. 34. The claims made by the applicant in his statutory declaration about his Tamang ethnicity and caste included that the Tamang have been suppressed by the higher caste people who run the country for several hundred years. He said the Tamang were limited to farming work and the job of a porter, and that the social structure was such that they were suppressed in all aspects of 'life, freedom, opportunity, wealth and education'. He said he was like [a] slave and that ending his schooling at [y]ear 8 was an indication of that. Yet when I questioned the applicant about this claim at the hearing, he indicated that his education ceased in year 8 because his local school only provided education up to that year and his family, unlike higher caste families, could not afford to send him to the city to continue his education. This indicates that he was not denied an education beyond year 8 because he was Tamang but due to economic constraints. He mentioned being 'tortured' but did [not] specify how he was tortured. When I asked him specifically what serious or significant harm he had personally experienced because of his Tamang ethnicity or caste, he referred to instances of harm which did not seem to rise to the level of serious harm or significant harm. For example, he stated that higher caste people would not allow lower caste people to come close during ceremonies, higher caste people would go ahead of others queuing up for water in the village, and higher caste people would mock the clothes of lower caste people who could not afford good clothes. When I questioned whether the situation was different in Kathmandu compared to his village, the applicant stated it was worse in Kathmandu. 35. At the hearing I told the applicant that the information in the sources I had consulted indicated that the law provides that each ethnic community has the right to preserve and promote its language, script and culture, and this right is generally upheld by the government. And that even though discrimination against some ethnic groups occurred; it was people belonging to the lower castes such as Dalits or so-called untouchables who tended to face serious harm or significant harm. Further, that the situation was better in the city of Kathmandu. I put to the applicant that this information, along with his past experiences and particular circumstances such [as] being able to have 8 years of education, to work, and his ability to adapt to life in Kathmandu and then Australia - indicated that there was not a real chance that he would face serious harm or significant harm due to his ethnicity and/or caste. The applicant did not agree. He indicated that he was managing in Australia with a little money from Centrelink and was not managing inwardly as well as it may appear outwardly. Regarding discrimination in Nepal, he said that the reality was different to what the government or constitution said. He said he would be dead if he was in Nepal because the Nepalese government did not care about people like him. He would have to return to his village because he has no one in Kathmandu and there is no law or government for people like him. He mentioned people dying because they could not afford treatment, the earthquake and children being taken to other countries. 36. Given the information in the sources I have consulted about the societal discrimination against certain ethnic and caste groups; it is plausible that the applicant has in [the] past and will in the future face some such discrimination. However, I find the claims he made in his statutory declaration and at the hearing were exaggerated or of a general nature. I do not accept that they reflect the applicant's [particular] circumstances. The applicant had 8 years of education, was able to move to Kathmandu and work there for several years in a job that was not farming or that of a porter. This does not indicate that he was like a slave or that he was supressed in all aspects of life, or that he could not live peacefully or freely. On the evidence before me and based on the applicant's particular circumstances, I find that there is not a real chance that he will suffer discrimination or harm in the reasonably foreseeable future for reasons of his ethnicity and/or caste which amounts to serious harm or significant harm. Harm due to divorce 37. Given the applicant's lack of credibility and his failure to make the claim in his statutory declaration that he fears his ex-wife's mother will have his hands cut off, I do not accept that he has that fear or that it will happen. 6 Having made those findings, the Tribunal concluded that the applicant did not satisfy either of the criteria for which ss 36(2)(a) and (aa) of the Act provide, and, on that basis, declined to grant the Visa Application. 7 By his Judicial Review Application before the FCCA, the applicant contended that the Tribunal's Decision was the product of jurisdictional error and, as such, was liable to be set aside by a grant of prerogative relief. In the reasons published in support of the FCCA Judgment, the primary judge identified (FCCA Judgment, [10]) the two bases upon which the applicant made that contention, namely: "1. The tribunal erred in law in its jurisdiction when it drew an adverse inference from the applicant being unable to pinpoint the date when he considered himself to be a Christian as if the specific date of a specific event were critical, the tribunal saying the question 'was a simple one' when clearly the adoption of another faith may be more realistically seen as one of evolution. 2. The tribunal erred in law in its jurisdiction when it accepted that although the applicant was a member of the Tamang minority ethnic community and had suffered discrimination thereby, he was not entitled to receive complementary protection provided for in the Migration Act 1958." 8 In the absence of having been taken to the Judicial Review Application itself, I take the above as an accurate summary (if not a verbatim record, as it purports to be) of the grounds that the applicant sought to agitate in favour of his claim for prerogative relief. The Minister, by his written submissions, accepts that they were, in fact, the grounds advanced below. 9 The primary judge rejected both contentions. By the appeal that he hopes to initiate in this court, the applicant contends that his Honour erred by not accepting that the Tribunal's Decision was affected by either or both of the jurisdictional errors identified in his Judicial Review Application. Whether such an error occurred requires analysis of the Tribunal's Decision: if it was affected by jurisdictional error as the applicant contended, then it will follow that the primary judge erred in concluding otherwise; if it was not so affected, then the primary judge will have been correct to conclude as he did. 10 I should note, at this juncture, that that is the appeal that it appears that the applicant hopes to initiate. At the time of the hearing of this application, he had yet to lodge a draft notice of appeal upon which he would rely if an extension of time were granted (as r 36.05(3)(d) of the Federal Court Rules 2011 (Cth) requires). Ms Lahoud, who appeared pro bono for the applicant, indicated that there might be additional grounds pursued (or some tinkering of the two that appeared to be extant) were the application to succeed. Pressed to identify what those amendments or new grounds might be, she indicated that she had only recently taken on her brief and could not be specific. Helpfully, she was able to indicate that she hoped to be able to argue that the Tribunal's Decision was tainted by jurisdictional error because insufficient care had been taken in eliciting from the applicant the evidence that he gave before the Tribunal. By way of elaboration, she explained that the applicant was very poorly educated and had a poor grasp of language, which placed him at a level of vulnerability that the Tribunal was obliged to recognise and address via a level of sensitivity to the possibility that his evidence was truthful that was greater than what the applicant was, in fact, afforded. 11 By operation of r 36.03(a)(i) of the Federal Court Rules 2011 (Cth) (as it stood at the time of the FCCA Judgment), the applicant had 21 days from the date of the FCCA Judgment - or until 21 February 2019 - to file an appeal. That deadline came and went. The present application was lodged on 5 March 2019, 12 days after that deadline passed. 12 In support of his application, the applicant read an affidavit sworn by his former solicitor, Mr Melvin Newman, on 4 March 2019. By that affidavit, Mr Newman deposed that he was labouring under ill health in the form of a "major illness for which [he was taking] prescription analgesics…[which had] an enervative effect upon [him]". Mr Newman requested that the court permit the applicant's appeal to be filed two weeks out of time. That affidavit was lodged in the court's New South Wales registry on 5 March 2019. 13 The applicant also sought to lead evidence in the form of a statutory declaration that he affirmed on 20 November 2019 (to which were attached a number of documents, including one containing information about Nepal). That statutory declaration addressed only some circumstances upon the basis of which the applicant felt that his Visa Application should have succeeded. None of its content was relevant to the present application. The Minister opposed its receipt into evidence and the applicant did not thereafter press that course. I accept the Minister's submission on that score. For the purposes of the present application, no regard shall be had to the statutory declaration.

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Judgment (9 paragraphs)

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Legislation Cited (2)

Cases Cited (8)