DGQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 164
•2 March 2021
FEDERAL COURT OF AUSTRALIA
DGQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 164
Appeal from: DGQ16 v Minister for Immigration & Anor [2019] FCCA 2170 File number: NSD 1450 of 2019 Judgment of: STEWART J Date of judgment: 2 March 2021 Catchwords: MIGRATION – appeal from the Federal Circuit Court of Australia which dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal – where the Tribunal had affirmed a decision of a delegate of the Minister to refuse to grant the appellant a Protection (Class XA) visa – where appellant had applied for protection under s 36(2)(aa) of the Migration Act 1958 (Cth) – where appellant claimed to fear harm because of his political activities, perceived wealth and the security situation in Nepal – where the Tribunal made adverse findings of credibility against the appellant – whether jurisdictional error was established – appeal dismissed with costs Legislation: Migration Act 1958 (Cth) ss 36(2)(a)-(aa), 36(2A), 36(2B)(c), 422B, 424A, 425, 438 Cases cited: Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337
Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17, 205 CLR 507
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 33 Date of hearing: 2 March 2021 Counsel for the Appellant: The appellant appeared in person Counsel for the First Respondent: N Laing Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS
NSD 1450 of 2019 BETWEEN: DGQ16
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
STEWART J
DATE OF ORDER:
2 MARCH 2021
THE COURT ORDERS THAT:
1.The appeal is dismissed with costs.
2.The name of the first respondent be amended to be Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(revised from the transcript)STEWART J:
Introduction
This is an appeal from a decision of the Federal Circuit Court, which dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent (the Minister) to refuse to grant the appellant a Protection (Class XA) visa. The Circuit Court found that the appellant had not established any jurisdictional error in the Tribunal’s decision.
For the reasons that follow, I have concluded that the appeal to this Court ought to be dismissed.
The appellant appeared in the Circuit Court and in this Court unrepresented by a lawyer. Mindful of the disadvantage that that puts him in and the importance of the case to him, I have done my best to properly understand his case.
Background
The appellant is a citizen of Nepal who first applied for protection on 19 October 2011. On 21 March 2012, the Department of Immigration and Border Protection (as it was) refused the application, and on 4 March 2013 the Refugee Review Tribunal (as it was) affirmed that decision. A subsequent application for judicial review and a request for Ministerial intervention were unsuccessful.
The appellant’s first application for protection was made under s 36(2)(a) of the Migration Act 1958 (Cth), which required the appellant to establish that he was a refugee. Paragraph (aa) was subsequently inserted into the subsection. It provides:
36 Protection visas—criteria provided for by this Act
(2) A criterion for a protection visa is that the applicant for the visa is:
…
(aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; …
Significant harm is defined in s 36(2A) as follows:
(2A) 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.
Section 36(2)(aa) as a basis for a protection visa is known as complementary protection.
On 23 May 2014, the appellant made a further application for protection, relying on complementary protection and SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235 which held that such an application is valid even if a refugee application has previously been made and failed.
The appellant claimed to fear harm from Maoists and anti-monarchists because of his political background, views and activities. He also claimed to fear harm because of his perceived wealth, activities in Australia, and the security situation in Nepal.
On 4 March 2015, the delegate refused the appellant’s application.
The Tribunal’s decision
On 5 October 2016, the Tribunal affirmed the delegate’s decision. The Tribunal found that the appellant was not a credible witness, reasoning that his evidence was “often times general or vague, unforthcoming, and seemingly rehearsed.” The Tribunal considered that the appellant’s inability to recall the timing of significant events further undermined his credibility.
The Tribunal accepted that the appellant was a supporter of the monarchy and now supports the restoration of the monarchy and a Hindu state in Nepal. It accepted that he became a member of the Rastriya Prajatantra Party–Nepal (RPP-N) and that he continues to support the RPP-N. The Tribunal did not, however, accept that the appellant had a leading political role in the RPP-N, nor did the Tribunal accept that the appellant continued to be in contact with a political leader, continued to be a member of the RPP-N or speak out against the Maoists after leaving Nepal. Although the Tribunal accepted that Maoists may have approached the appellant’s family home for money and other support during the civil war, it did not accept that the appellant was specifically targeted or harmed by Maoists, the Youth Communist League, anti-monarchists or any other person in Nepal due to his political views, political activity or membership of the RPP-N. The Tribunal further rejected the appellant’s claims to have been kidnapped, assaulted and subjected to threats or extortion.
The Tribunal found it plausible and accepted that if the appellant returned to Nepal, he would express his support for restoration of the monarchy and a Hindu state, join and/or express support for the RPP-N, and express his views about and in opposition to the Maoists. However, independent country information indicated that the situation in the country had changed dramatically since the civil war. Based on the information before the Tribunal, it did not accept that the appellant would face a real risk of significant harm due to his past or current political opinions, profile or activities or his father’s political profile, opinions or activities.
After considering available country information, the Tribunal did not accept that the appellant would be extorted in Nepal due to his perceived wealth following his time in Australia. The appellant’s claim that Maoists would perceive the appellant as a threat due to his studies in Australia was considered “fanciful” and a “fabrication”. Whilst the Tribunal accepted that some of his father’s land was seized by Maoists, it did not accept that there was a real risk of this occurring again in the future. Nor did the Tribunal accept that the appellant would face a real risk of the relevant harm on this basis.
The Tribunal rejected, based on available country information, that the appellant would face a real risk of the relevant harm due to the security situation in Nepal. Whilst the Tribunal accepted there was a real risk the appellant may suffer some harm due to corruption, this was found to be faced by the population generally and to fall within the exception under s 36(2B)(c) of the Act.
Ultimately, the Tribunal was not satisfied that the appellant was a person to whom protection obligations were owed. Accordingly, it affirmed the delegate’s decision.
The Circuit Court’s decision
The appellant relied on six grounds before the Circuit Court. Ground 1 was found by the primary judge to be a “bare assertion of a denial of procedural fairness”. Whilst no particulars were provided, the appellant’s complaint appeared to be with the Tribunal’s adverse credibility finding. In this regard, the primary judge found that the Tribunal gave “extensive and comprehensive reasons” to explain its adverse finding. Those reasons were found to be probative of the material and reasonably open to the Tribunal.
Ground 2 asserted that the Tribunal had failed to give the appellant the benefit of the doubt and had taken “a rigid and arbitrary view” of his claims to have a well-founded fear of persecution. The Court observed that the language of the ground related to the criterion set out in s 36(2)(a) of the Act, however, the appellant had had his claims pursuant to that subsection considered, reviewed and determined and was therefore barred from making any subsequent application relying on that criterion. In any event, there was no obligation upon the Tribunal to give the appellant the benefit of the doubt. This was not a case in which the Tribunal expressed doubt where it would have been required to apply the colloquially known “what if I am wrong?” approach to the test of a real chance of harm. To the extent that bias was asserted, such a contention was found to be neither distinctly made nor clearly proven.
Grounds 3, 4 and 5 were also unparticularised. Whilst ground 3 complained that the appellant was denied “common law natural justice”, s 422B of the Act provides that the matters set out in Div 4 of Pt 7 constitute an exhaustive statement of the natural justice hearing rule. The assertion in ground 5 that the appellant had been deprived of procedural fairness was found not to advance the bare assertions in ground 3. Whilst ground 4 complained of a failure to put the appellant on notice of the Tribunal’s concerns, the evidence before the Court indicated that the Tribunal had complied with its obligations under s 425 of the Act. There was nothing in the materials to indicate that the requirements of s 424A(1) had been enlivened.
Ground 6 simply asserted that the Tribunal’s decision was “infected with jurisdictional error”. This ground was found to be meaningless in the absence of any particularisation. The primary judge observed that the appellant had been given the opportunities to further particularise these grounds through written and oral submissions, which he had chosen not to do.
The primary judge held that none of the appellant’s grounds revealed jurisdictional error and his application was dismissed.
Grounds of appeal
The appellant relies upon four grounds on appeal in this Court. They are as follows:
1.His Honour Federal Circuit Court Judge erred by failing to find that the second Respondent committed a legal error by depriving me of natural justice and procedural fairness in its decision in my case.
2.It is argued that the Second respondent’s findings that I lacked credibility and the rejection of my claims and evidence was actually an irrelevant finding because it has applied an arbitrary view and it was based on a clearly erroneous fact.
3.I argue that the Second Respondent failed to disclose to me the existence of a certificate issued pursuant to section 438 of the Migration Act 1958 (Cth) by the delegate of the first respondent, so I believe that the Second Respondent failed to accord me procedural fairness.
4.It is argued that the Second Respondent made its mind not to believe me and failed to give proper consideration to my claims and evidence and my answers were directly dismissive in which I believe my case was taken in breach of the rules of natural justice.
By ground 1, the appellant submits that the Circuit Court ought to have found that he was deprived of natural justice and procedural fairness before the Tribunal. This ground is partly reiterated in ground 4. As before the primary judge, the ground is unparticularised. The appellant did not, in his submissions – either in writing or orally, and despite enquiry by me – identify the basis for the complaint of procedural fairness; he was unable to identify any respects on which the process is said by him to be unfair.
Section 422B of the Act confines the Tribunal’s natural justice obligations by reference to those set out in Pt 7 of the Act. As was found by the primary judge, there is nothing on the material to indicate that the Tribunal failed to comply with s 425 of the Act in the manner required by such cases as SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152, nor is there anything to indicate that s 424A of the Act was enlivened. The appellant does not say that he was not given the opportunity to address the Tribunal, nor how the review is said to have been procedurally unfair.
Accordingly, ground 1 must fail.
In his written submissions, the appellant submitted that the Tribunal “did not expressly address the corroborative evidence tendered by [him].” This might be seen to be a particularisation of ground 1. However, the appellant was unable to assist the Court in identifying what corroborative evidence the written submissions referred to or what corroborative evidence was adduced by him but overlooked by the Tribunal. My review of the appeal book found no such evidence.
Ground 2 contends that the Tribunal’s credibility findings were irrelevant, arbitrary and based on a “clearly erroneous” fact, as was previously found by the primary judge. However, the Tribunal’s reasons given at paragraphs 26 to 34 of its decision were based upon a reasonable and probative evaluation of the material that was before it. The appellant has not demonstrated how those findings could be said to have been logically closed to the Tribunal. Rather, the appellant asks this Court to come to a different factual conclusion. As I explained to the appellant during the hearing, the role of the Court is not to engage in merits review. This ground must accordingly fail.
Ground 3 raises a new ground not raised before the Circuit Court which contends that the Tribunal failed to disclose a certificate issued pursuant to s 438 of the Act. However, it is not established on the materials that any such certificate was issued. The appellant was not able to assist the Court in identifying any certificate or satisfy the Court that any such a certificate had been issued. If there was no certificate, the Tribunal was obviously under no obligation to disclose one. This ground must also fail.
Ground 4 complains that the Tribunal “made its mind not to believe” the appellant and was “dismissive” of his evidence and claims. This appears to raise a contention of bias in the sense of the Tribunal having a closed mind or a predetermined decision. However, as was observed by the primary judge, such a ground must be “distinctly made and clearly proved.” See Minister for Immigration and Multicultural Affairs v Jia[2001] HCA 17, 205 CLR 507 at [69] per Gleeson CJ and Gummow J.
The appellant does not say how the Tribunal member could be said to have prejudged the application in a manner so committed to a conclusion that it was “incapable of alteration, regardless of arguments or evidence”: see Jia at [72]. Nor does the appellant say how a “fair-minded lay-observer may reasonably apprehend that the Tribunal might not have brought an impartial mind to determination of the matter”: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337 at [33] per Gleeson CJ, McHugh, Gummow and Hayne JJ. It is therefore not apparent how the test for actual or apprehended bias may be met on the material before the Court. It follows that ground 4 must also fail.
The appellant’s short written submissions in support of his appeal could on one reading be understood to raise new grounds of criticism of the Tribunal’s decision. I have considered each of these and I am unable to find any merit in them such as to justify leave being granted for them to be raised at this stage.
Conclusion
For the above reasons, the appeal must be dismissed with costs.
An order was also sought that the name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. That should also be ordered.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart. Associate:
Dated: 4 March 2021
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