FEDERAL COURT OF AUSTRALIA
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Appeal from: BKT17 & Anor v Minister for Immigration & Anor [2020] FCCA 1337 File number: WAD 151 of 2020 Judgment of: FEUTRILL J Date of judgment: 28 April 2023 Catchwords: MIGRATION procedural fairness – court’s duty to ensure a fair hearing for litigants-in-person – whether sufficient steps taken to remove disadvantage of self-representation – whether appellants given a reasonable opportunity to provide particulars of grounds judicial of review – whether dismissal of application for judicial review inevitable – appeal allowed – matter remitted for rehearing Legislation: Migration Act 1958 (Cth) ss 414, 424A(1)(a) Cases cited: Boensch v Sommerville Legal [2021] FCAFC 79; (2021) 286 FCR 293
Dietrich v R [1992] HCA 57; (1992) 177 CLR 292
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; (2020) 280 FCR 479
Hamod v New South Wales [2011] NSWCA 375
MacPherson v R [1981] HCA 46; (1981) 147 CLR 512
Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 236 FCR 549
Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 45 Dates of hearing: 10 June 2022 and 27 March 2023 Counsel for the Appellants: The Appellants appeared in person on 10 June 2022
Ms CH Thompson SC (Pro Bono) on 27 March 2023Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondents: The Second Respondent submits to any order of the Court, save as to the question of costs ORDERS
WAD 151 of 2020 BETWEEN: BKT17
First Appellant
BKU17
Second Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
FEUTRILL J
DATE OF ORDER:
28 APRIL 2023
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The judgment of the Federal Circuit Court of Australia of 9 June 2020 is set aside.
3.The application dated 4 April 2017 under section 476 of the Migration Act 1958 (Cth) is remitted to the Federal Circuit and Family Court of Australia (Division 2) to be heard and determined according to law.
4.The costs of the appeal are reserved.
5.On or before 12 May 2023 the appellants are to file and serve a minute of proposed orders for the costs of…
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- AGLC
- BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
- Case
- [2023] FCA 384
- Decision Date
CaseChat Overview and Summary
In the case of BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the appellants, a married couple from Nepal, appealed against the decision of the Federal Circuit Court to dismiss their application for judicial review of the decision of the Migration Review Tribunal. The appellants, who were self-represented, sought judicial review of the Tribunal's decision to affirm the delegate's refusal of their application for protection visas. The appellants claimed that they faced harm in Nepal due to their inter-ethnic marriage and their alleged persecution by the Janatantrik Terai Mukti Morcha, a political party in Nepal.
The court was required to decide whether the appellants were given a reasonable opportunity to particularise the grounds upon which they sought judicial review of the Tribunal's decision. The court also needed to determine whether, had the appellants been given that opportunity, the outcome of the application for judicial review would inevitably have been the same.
The court found that the appellants were not given a reasonable opportunity to particularise the grounds upon which they sought judicial review of the Tribunal's decision. The court held that it had not been demonstrated that, had the appellants been given that opportunity, the outcome of the application for judicial review would inevitably have been the same. Therefore, the appeal was allowed, the judgment of the primary judge set aside and the matter remitted to the Circuit Court for rehearing. The court also noted that the parties would be heard on the question of the costs of the appeal.
In conclusion, the court found that the appellants were not accorded procedural fairness in that they were not given a reasonable opportunity to particularise the grounds upon which they sought judicial review of the Tribunal's decision. The appeal was allowed, the judgment of the primary judge set aside and the matter remitted to the Circuit Court for rehearing. The costs of the appeal were reserved and the parties were required to file and serve a minute of proposed orders for the costs of the appeal together with a written outline of submissions and any affidavit(s) in support.
The court was required to decide whether the appellants were given a reasonable opportunity to particularise the grounds upon which they sought judicial review of the Tribunal's decision. The court also needed to determine whether, had the appellants been given that opportunity, the outcome of the application for judicial review would inevitably have been the same.
The court found that the appellants were not given a reasonable opportunity to particularise the grounds upon which they sought judicial review of the Tribunal's decision. The court held that it had not been demonstrated that, had the appellants been given that opportunity, the outcome of the application for judicial review would inevitably have been the same. Therefore, the appeal was allowed, the judgment of the primary judge set aside and the matter remitted to the Circuit Court for rehearing. The court also noted that the parties would be heard on the question of the costs of the appeal.
In conclusion, the court found that the appellants were not accorded procedural fairness in that they were not given a reasonable opportunity to particularise the grounds upon which they sought judicial review of the Tribunal's decision. The appeal was allowed, the judgment of the primary judge set aside and the matter remitted to the Circuit Court for rehearing. The costs of the appeal were reserved and the parties were required to file and serve a minute of proposed orders for the costs of the appeal together with a written outline of submissions and any affidavit(s) in support.
Orders
Orders of the court
1. The appeal is allowed.
2. The judgment of the Federal Circuit Court of Australia of 9 June 2020 is set aside.
3. The application dated 4 April 2017 under section 476 of the Migration Act 1958 (Cth) is remitted to the Federal Circuit and Family Court of Australia (Division 2) to be heard and determined according to law.
4. The costs of the appeal are reserved.
5. On or before 12 May 2023 the appellants are to file and serve a minute of proposed orders for the costs of the appeal together a written outline of submissions (limited to 3 pages) and any affidavit(s) in support.
6. On or before 19 May 2023 the respondent is to file and serve any competing minute of proposed orders for the costs of the appeal together with a written outline of submissions (limited to 3 pages) and any affidavit(s) in support.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the reasons which follow, in my view, the appellants were not accorded procedural fairness in that they were not given a reasonable opportunity to particularise the grounds upon which they sought judicial review of the Tribunal’s decision. Further, it has not been demonstrated that, had the appellants been given that opportunity, the outcome of the application for judicial review would inevitably have been the same. Therefore, the appeal will be allowed, the judgment of the primary judge set aside and the matter remitted to the Circuit Court for rehearing. I will hear the parties on the question of the costs of the appeal.Background The appellants are husband and wife and are citizens of Nepal. On 16 April 2009, they arrived in Australia after they were granted student visas. On 9 September 2011, a delegate of the Minister refused an application to extend their student visas. On 26 September 2011, the appellants sought review of that decision. On 10 January 2014, the Migration Review Tribunal affirmed the delegate’s refusal decision. On 31 January 2014, the appellants applied for protection visas. The basis of the appellants' claims for those visas was an alleged fear of harm in Nepal. The appellants claimed that the first appellant was a member of the Nepal Student Union that was opposed to the Janatantrik Terai Mukti Morcha, an organisation which the first appellant claimed carries out terrorist activities in Nepal. The appellants claimed that, in January 2008, members of the JTMM kidnapped and tortured the first appellant. Further, the appellants claimed that their respective families did not accept their marriage, as the second appellant was from the Chhetris ethnic group and her family practiced Hinduism while the first appellant was from the Magar ethnic group and believed in Buddhism. The appellants claimed fear of harm from their respective communities because inter-marriage between the Magar and Chhetris ethnic groups was not accepted by each of those communities. On 19 June 2014, the appellants attended an interview with a delegate of the Minister in relation to their visa application. On 5 March 2015, the delegate found that the appellants failed to meet the criteria for the grant of a protection visa. On 30 March 2015, the appellants made an application to the Tribunal for review of the delegate’s decision. On 21 September 2016, the appellants were invited to appear before the Tribunal. On 25 November 2016, the appellants attended a hearing before the Tribunal. The appellants appeared by video conference on that date to give evidence and present submissions. On 21 March 2017, the Tribunal affirmed the decision under review. In its reasons, the Tribunal found, amongst things, that the first appellant was not credible, that there was an absence of detailed information in relation to first appellant's active role in the NSU and there were a number of inconsistencies that brought into question the accuracy of first and second appellant's accounts of their first meeting and relationship in Nepal. The Tribunal did not accept the first appellant's claims that he was a member of NSU, that he had been victimised by the JTMM and that the appellants faced serious harm because of their inter-ethnic marriage. Similar findings of credibility were made in relation to the second appellant. Further, the Tribunal found that the appellants lived in Nepal from the time of their marriage on 24 April 2008 until their departure for Australia on 16 April 2009 without suffering serious or significant harm and that circumstance was not consistent with the claimed threat of harm from the appellants’ respective families and communities due to inter-marriage between different ethnic groups.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
It follows that no party invited the appellate court to embark on a rehearing of the grounds of review, as particularised in the appeal, and, thereby, determine the substantive merits of the application for judicial review that was before the primary judge. The appellants’ notice of appeal requested that the judgment be set aside and the matter remitted. Therefore, I approach the question of futility from the standpoint of whether it has been demonstrated in the appeal that had the appellants been accorded procedural fairness it was inevitable that the primary judge would have made an order dismissing the appellants’ application for judicial review.The Tribunal’s decision The Tribunal described the first appellant's evidence and the Tribunal member's view of that evidence in the reasons for decision as follows:55Applicant One told the Tribunal the following about his work. He started working as a marketing supervisor in mid-2003 after he finished college. He travelled to different places in the country. It was a very tiring job and not well paid. He travelled up to 18 hours in a bus selling solar panels. He left that job in the middle of 2008 because the pay was not good and he had to travel a lot. He felt he needed to find a new job. 56When the Tribunal asked when he began NSU work, Applicant One told the Tribunal that he was interested from school and before he formally became a member in 2006, he used to go to different places and to schools and talk about student rights. Later, he said that he was an active member from primary school. In his visa application, he claimed that he used to participate in the various programs run by NSU when he was at primary school and became a member when he started college, 57When asked why he could not return to Nepal, Applicant One said that he used to raise his voice and talk about people's right. He used to travel to different places like Rupandehi. 58When the Tribunal asked about becoming a member of NSU in 2006 when he was working and going to remote places, Applicant One said the following. At that time he was studying part-time. That is why he got his membership of NSU. He had to work because of his family's economic circumstances. When the Tribunal commented that he had said that he finished is studies in 2003, Applicant One said that he finished high school then and then undertook a Bachelor of Commerce. He did an intermediate qualification in commerce and then joined the bachelor course which he has not completed. When the Tribunal commented that he had not mentioned that, Applicant One said that it was not necessary on a dependant visa but he could provide it. The Tribunal also did not accept the second appellant's evidence as credible and in respect of her evidence as to how she met the first appellant, the Tribunal made the following observations:107She met him when he participated in an NSU program at her school. She was 17 or 18. They first met in 2004 or 2005. So many different parties came to her school trying to convince students to join. The talks would last a couple of hours, sometimes from 1 until 4 or 5. They gave donations to schools. Political leaders would come who were related to the Congress Party. 108After school, Applicant One used to contact her on her home phone number through his friend, Rajan Karki. It was related to her studies and so her family did not have a problem. Her parents would leave her alone to speak to that person. She was doing year 11 or 12 science and needed help. There were 30 boys in her class and five girls. She used to meet Applicant One in two areas in Kathmandu. They would finish classes early and go. She had finished year 12 when he got into trouble with JTMM. She finished in March/April 2006. 109The Tribunal finds that her finishing school in March/April 2006 is inconsistent with Applicant One's NSU membership card dated 10 April 2006. They could not have met through his activities in her school if she had finished before or just after the date he joined and began undertaking those activities. If she had met Applicant One in 2004 or 2005 as she also said at the hearing, that is not consistent with meeting him while he was engaged in an NSU program in her school, based on his NSU membership card. In making those findings, the Tribunal has taken into account the various other inconsistent and unsupported versions of Applicant One's evidence about his activities but gives them no weight. 110When the Tribunal queried how Applicant One met her when he was working, according to the employer's reference, Applicant Two said that he had been studying part-time. The Tribunal notes that the break in the hearing had occurred before Applicant Two gave her evidence which provided an opportunity for the applicants to speak to each other. The explanation that Applicant One was studying part-time in 2006, is inconsistent with the documents the applicants provided about Applicant One's education and his employer reference. There is no document supporting that claim. The Tribunal finds that the part-time study explanation was given to overcome an obvious difficulty in the evidence.
Ratio Decidendi
Legal Principle Established
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