CBZ17 v Minister for Immigration and Border Protection

[2018] FCA 1762

FEDERAL COURT OF AUSTRALIA

CBZ17 v Minister for Immigration and Border Protection [2018] FCA 1762

Appeal from:	Application for leave to appeal: CBZ17 v Minister for Immigration & Anor [2018] FCCA 1325
File number:	NSD 965 of 2018
Judge:	ROBERTSON J
Date of judgment:	14 November 2018
Catchwords:	MIGRATION – application for leave to appeal from judgment and orders of the Federal Circuit Court of Australia, summarily dismissing an application for judicial review of decision of the Administrative Appeals Tribunal refusing a protection visa – where certificates under s 438 of the Migration Act 1958 (Cth)
Legislation:	Migration Act 1958 (Cth) s 438
Cases cited:	Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; 33 FCR 397
Date of hearing:	14 November 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	36
Counsel for the Applicant:	The Applicant appeared in person with the aid of an interpreter
Solicitor for the First Respondent:	Mr S Valliappan of DLA Piper Australia
Counsel for the Second Respondent:	The Second Respondent submitted save as to costs

ORDERS

NSD 965 of 2018

BETWEEN:

CBZ17

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	ROBERTSON J
DATE OF ORDER:	14 NOVEMBER 2018

THE COURT ORDERS THAT:

1.The application for leave to appeal is refused.

2.The applicant is to pay the first respondent’s costs, as agreed or assessed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1. Before the Court is an application for leave to appeal from the judgment and orders of the Federal Circuit Court of Australia given and made on 23 May 2018. 

2. That Court, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), dismissed an application for judicial review of the decision of the Administrative Appeals Tribunal made on 10 April 2017 on the basis that the applicant was unable to demonstrate an arguable case of jurisdictional error by the Tribunal. The Tribunal affirmed a decision of a delegate of the Minister made on 28 July 2014 not to grant the applicant a protection visa.

3. The applicant is a citizen of Nepal.  She arrived in Australia as the holder of a subclass 676 (visitor) visa on 28 November 2005.

   Short chronology

4. The applicant made the current application, her second protection visa application, on 25 February 2014.

5. The applicant appeared at a hearing before the Tribunal on 28 February 2017.  This was in circumstances where the Federal Circuit Court had, by consent, remitted the matter to the Tribunal on the basis that, contrary to the finding of the then Refugee Review Tribunal, the applicant was not barred from having her claims for protection assessed under the Refugees Convention criterion set out in s 36(2)(a) of the Migration Act 1956 (Cth).

6. Following the hearing on 28 February 2017, the Tribunal sent a letter to the applicant pursuant to s 424A inviting her to comment on or to respond to information.  On 28 March 2017, the applicant provided a written response to that letter.

7. The Tribunal’s letter invited the applicant to comment or respond on several inconsistencies in relation to her claims to have converted to Christianity; problems relating to her claimed separation from her husband and her migration history.  The applicant was advised of the relevance of the different aspects of the information and that the totality of the information may lead the Tribunal to find that her claims to have separated from her husband in January 2008, and her claims relating to Christian conversion, had both been fabricated.

8. The applicant’s response was received by the Tribunal on 29 March 2017.  In that response, the applicant stated amongst other matters that she told the Tribunal whatever she could recall of her experiences in Nepal.  She stated that the recollection of the events had been painful and she had tried to block them from her memory. She stated that she was sorry she had been unable to give consistent evidence regarding her separation from her husband and her Christianity claims due to her poor memory as a result of depression.  The applicant stated that she attended the Hope Church in Singapore but she was not baptised although “I became a Christian by my heart”.  The applicant stated that it was true that she and her husband were accused of spreading Christianity while they were in Nepal.  The applicant stated that she said she became a Christian in 2006 because she was baptised here in Australia.

   The present Tribunal

9. The Tribunal found, at [29], that the applicant was not a truthful witness.  The Tribunal, at [29], [35]-[37] and [48], did not accept that the applicant had any ongoing commitment to Christianity, nor would the applicant be involved in Christianity on her return to Nepal, nor would she be shunned by her family or the Nepalese community for this reason.  The Tribunal, at [29] and [44]-[45], did not accept that the applicant had been the victim of domestic violence from her husband while she was in Australia, nor that she would be the victim of domestic violence from her husband upon her return to Nepal.  The Tribunal found, at [47], that there was not a real chance or real risk that the applicant would be harmed by her husband upon her return to Nepal, even if they were separated and even if the applicant sought to contact her daughter.  The Tribunal found, at [48], that any difficulties the applicant would have resettling and reintegrating into her community in Nepal did not amount to serious harm for a Refugees Convention reason, or significant harm within the meaning of the complementary protection criterion.

10. At [51]-[52], the Tribunal found that there was not a real chance that the applicant would suffer serious harm, nor that she had a well-founded fear of persecution, if returned to Nepal.   Similarly, the Tribunal found that there was not a real risk that the applicant would suffer significant harm as a consequence of being returned to Nepal.

    Application for judicial review

11. The three grounds in the proceedings before the Federal Circuit Court were, as written, as follows:

    1.I believe the Tribunal Member failed to give me natural justice and procedural fairness although I had not done myself justice in circumstances where I had a lot of innocent mistakes because in the stress of the moment and given my background I had not been able fully to communicate appropriate answers to the questions asked by the Tribunal Member.

    2.Tribunal Member’s findings are irrational and illogical because it did not properly or genuinely engage with my claims and evidence.  The Tribunal Member failed or ignored to give genuine and realistic considerations in my claims and evidence by ignoring relevant material or relying on irrelevant matters.

    3.My claims and evidence were overlooked by the Tribunal Member's arbitrary views given the fact that I am a victim of domestic violence.

12. The primary judge also heard oral submissions from the solicitor for the Minister in relation to the issues concerning several s 438 certificates issued by the Minister’s Department.

    The decision of the primary judge

13. As to the s 438 certificates, the primary judge said, at [20]-[21] and [27]-[28], it was plain that the four purported certificates were all invalid. It was also plain that the Tribunal treated the certificates as invalid at [56] of its reasons. The Tribunal was correct to do so. There was nothing to indicate that the Tribunal acted in any way on the invalid certificates. The primary judge examined the documents purportedly covered by the certificates and found they had only passing contextual relevance, if any, to the review conducted by the Tribunal. There was nothing in them enlivening an obligation of disclosure by the Tribunal. The Tribunal’s decision record revealed that the Tribunal discussed the certificates and covered documents with the applicant during the hearing. The primary judge accepted that it was apparent from [56] of the Tribunal’s reasons that the certificates were not “acted upon” by the Tribunal, were discussed with the applicant during the hearing, and that the applicant therefore had not been denied procedural fairness in relation to the certificates and the documents covered by them.

14. In relation to ground 1, the primary judge said it was a broad and unparticularised allegation that the Tribunal failed to afford the applicant natural justice and procedural fairness.  Absent further particulars this ground did not disclose any arguable case of jurisdictional error on the part of the Tribunal.

15. In relation to ground 2, the primary judge said that absent further particulars this ground did not disclose any arguable case of jurisdictional error on the part of the Tribunal.  Moreover, it was plain from the Tribunal’s decision record that the Tribunal considered all of the applicant’s claims and evidence.  The Tribunal considered and rejected the applicant’s claims concerning: her purported conversion to Christianity; domestic violence and separation from her husband;  harm by her husband upon her return to Nepal; difficulties reintegrating upon her return to Nepal; and difficulties posed by the community, due to the applicant’s purported conversion to Christianity, upon her return to Nepal.

16. In relation to ground 3, the primary judge said it repeated the allegation that the applicant’s claims and evidence were overlooked by the Tribunal.  Absent any particulars, this ground did not disclose any jurisdictional error on the part of the Tribunal.  It was noted that the Tribunal plainly considered and rejected the applicant’s claims to have been the victim of domestic violence.

    Leave to appeal to this Court

17. The application for leave to appeal to this Court contained two grounds, in the following terms:

    1.The Federal Circuit Court Judge erred by failing to find that the Tribunal Member deprived me of natural justice and procedural fairness because the Tribunal Member did not disclose me the existence certificate and notification in relation to the disclosure of certain information made to the Tribunal by the first respondent’s department in the course of the review by the Tribunal that this constituted a jurisdictional error found in MZAFZ -v- Minister for Immigration and Border Protection (2016) 243 FCR 1, Minister for Immigration and Border Protection -v- Singh (2016) 244 FCR305 and BEG15 -v- Minister for Immigration and Border Protection in circumstances where the delegate of the First Respondent issued certificate pursuant to section 438 of the Migration Act 1958 (Cth).

    2.It is contended that the Tribunal Member erred by ignoring or undermining my claims on the issue of my suffering as result of domestic violence and my conversion to Christianity as I believe that the Tribunal Member made its mind not to believe me and my answers were squarely dismissive in which my case was taken in breach of the rules of procedural fairness and natural justice.

18. The draft notice of appeal also contained the following ground, as written:

    I argue that the second respondent failed to comply with the procedural fairness rule.  I have been denied of procedural fairness. 

    The parties’ submissions

19. The applicant filed no written submissions. In her brief oral submissions the applicant said she had nothing much to say, just that she wanted justice.

20. The respondent Minister submitted that pursuant to s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth), the Federal Court relevantly had jurisdiction to hear and determine appeals from judgments of the Federal Circuit Court exercising original jurisdiction under a law of the Commonwealth such as the Migration Act. Pursuant to s 24(1A) of the Federal Court of Australia Act, an appeal shall not be brought from such a judgment that is an interlocutory judgment unless the Federal Court gives leave to appeal.

21. The Minister submitted that the judgment of the primary judge was an interlocutory judgment for the purposes of s 24(1A) of the Federal Court of Australia Act. Rule 44.12(2) of the Federal Circuit Court Rules expressly provides that, “to avoid doubt, a dismissal under paragraph (1)(a) is interlocutory”.  Therefore, the Minister submitted, the applicant required leave to appeal.

22. The Minister submitted that in Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; 33 FCR 397, the Full Court held that leave to appeal from an interlocutory judgment required the applicant to show that there was sufficient doubt as to the correctness of the judgment below to warrant review and, further, that if the judgment below was assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused.

23. In the present application for leave, the Minister submitted, the applicant had failed to show any doubt as to the correctness of the judgment below, and failed to show that substantial injustice would be suffered by the applicant if leave to appeal were refused.

24. Ground 1 alleged that the primary judge erred in failing to find that the Tribunal did not disclose the existence of the certificates to the applicant, thus denying the applicant procedural fairness. The Minister submitted that this ground failed at a factual level, as clearly set out at [27] of the reasons of the primary judge, where the Tribunal’s discussion about the certificates during the hearing was set out.  The ground also failed to grapple with [28] of the reasons of the primary judge where his Honour found that the applicant had not been denied procedural fairness as the certificates were not acted upon by the Tribunal. 

25. Ground 2 alleged that the Tribunal erred in ignoring or undermining the applicant’s claims on the issue of domestic violence and her conversion to Christianity.  It further alleged the Tribunal “made [up] its mind not to believe me and my answers were squarely [dismissed]”.  The Minister submitted that this ground did not identify any appellable error in the decision of the primary judge.  The Minister submitted that, as found by the primary judge at [24], the Tribunal considered all of the applicant’s claims and evidence and specifically considered the applicant’s claims concerning her conversion to Christianity (at [30]-[37] of the Tribunal’s decision) and domestic violence (at [38]-[45] of the Tribunal’s decision). 

26. Further, the Minister submitted, in regard to the Tribunal allegedly undermining the applicant’s claims, the Tribunal was not required to uncritically accept any or all of the applicant’s claims, rather, it had a duty to test the claims and to assess the plausibility and credibility of the applicant’s account.

27. The Minister submitted that the reference in ground 2 to the Tribunal having made up their mind may be construed as an allegation of bias or prejudgement.  This was not ventilated before the primary judge and the applicant would require leave to raise it on appeal.  An allegation of bias needed to be sufficiently particularised and supported by evidence.  The Minister submitted that there was nothing to suggest that the Tribunal engaged in any form of prejudgment. 

28. Turning to the draft notice of appeal, the Minister submitted the sole ground pleaded was that the Tribunal denied the applicant procedural fairness. It did not identify any error in the decision of the primary judge. 

29. As found by the primary judge at [23] in relation to a similar allegation dismissed by the Court below, the applicant’s first ground in that Court was a broad and unparticularised allegation that the Tribunal failed to afford procedural fairness that, absent further particulars, did not disclose an arguable case of jurisdictional error. 

30. The Minister submitted that, to the extent that this ground was a reference to denial of procedural fairness based on the Tribunal’s treatment of the certificates, his submissions regarding the first ground of the application for leave to appeal applied. 

    Consideration

31. In my opinion, the judgment of the Federal Circuit Court was an interlocutory judgment, and the appellant therefore needs leave to appeal.

32. As to ground 1, concerning the s 438 certificates, there is no reason to go behind or question what the Tribunal said at [56] as follows:

    As discussed during the Tribunal hearing, some of the documents on the Department files are subject to s.438 certificates. The certificates refer to internal working documents and business affairs and the Tribunal considers that they are invalid.

33. Neither is there any reason to doubt the correctness of the treatment of this issue by the primary judge: see Decor Corporation.  It is not arguable that the primary judge erred by failing to find that the Tribunal deprived the applicant of natural justice and procedural fairness because the Tribunal did not disclose to her the existence of the certificates and notification in relation to the disclosure of certain information made to the Tribunal by the Department.  I would refuse leave to appeal in relation to ground 1.

34. Ground 2 also has no substance.  It does not suggest any reason to doubt the correctness of the primary judge’s judgment in this respect.  There is no basis either articulated or at all for the contention that the Tribunal had prejudged the applicant’s domestic violence or conversion to Christianity claims.  Certainly the Tribunal did not ignore those claims and dealt with them at substantial length.  As found by the primary judge at [24], the Tribunal considered all of the applicant’s claims and evidence and specifically considered the applicant’s claims concerning her conversion to Christianity (at [30]-[37] of the Tribunal’s decision) and domestic violence (at [38]-[45] of the Tribunal’s decision).  I would refuse leave to appeal in relation to ground 2. 

35. As to the ground in the Draft Notice of Appeal, insofar as it relies on the s 438 certificate point that is the basis of ground 1 of the application for leave to appeal, I have already considered it and found it to be not arguable. Insofar as it is an unparticularised allegation that the Tribunal failed to afford procedural fairness, absent further substance, it does not disclose an arguable ground of jurisdictional error. I would refuse leave to appeal in relation to this ground.

    Conclusion and orders

36. The application for leave to appeal is refused.  The applicant is to pay the first respondent’s costs, as agreed or assessed.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

Associate:

Dated:       14 November 2018