DSA16 v Minister for Immigration
[2019] FCCA 1196
•9 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DSA16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1196 |
| Catchwords: MIGRATION – Application for review of decision of the Administrative Appeals Tribunal (AAT) – show cause hearing – factors considered –– no arguable case raised by the grounds of the application – no basis to dispense with Rule 44.13 of the Federal Circuit Court Rules 2001 (Cth) – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476 Federal Circuit Court Rules 2001 (Cth) rr.1.06, 44.12, 44.13 |
| Cases cited: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125; (1964) 38 ALJR 253; (1965) ALR 636 |
| Applicant: | DSA16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3428 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 12 April 2019 |
| Date of Last Submission: | 12 April 2019 |
| Delivered at: | Sydney |
| Delivered on: | 9 May 2019 |
REPRESENTATION
| Applicant: | In Person |
| Solicitors for the Respondents: | HWL Ebsworth Lawyers |
| Legal Representative for the Respondents: | Ms K. Pieri |
ORDERS
The application made on 5 December 2016 and as further amended, is dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs set in the amount of $3737.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3428 of 2016
| DSA16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 5 December 2016 and further amended on 10 July 2017. The application seeks review of the decision made by the Administrative Appeals Tribunal (“the Tribunal”) on 8 November 2016, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse to grant the applicant a protection visa.
In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”, “RE1”) and the applicant’s affidavit of 26 June 2017, in part annexing a transcript of the hearing before the Tribunal. The first four pages of the annexures to the affidavit were not admitted on the basis of relevance to a fact in issue. The first page was a list of grievances with factual findings made by the Tribunal, and the remainder were media reports that post-dated the Tribunal’s decision.
Background
The applicant is a citizen of Nepal (CB 14). The applicant arrived in Australia on 16 August 2014 on a “business stream Visitor visa” ([11] at CB 159). The applicant applied for a protection visa to remain in Australia on 9 September 2014 ([11] at CB 159).
The applicant’s claims to fear harm are outlined in the Minister’s written submission as follows at [1]:
“…He claimed in a statement attached to his Protection Visa Application dated 9 September 2014, to have suffered past harm by the Maoists including in the form of forced financial donations, for reason of his past political involvement and his family background. The Applicant further claimed that, whilst resident in India, he had suffered ill-treatment...”
On 14 April 2015 the delegate refused to grant the applicant a protection visa ([2] at CB 158). The delegate did not believe that the applicant was owed protection by Australia in relation to s.36 of the Act “and clause 866.221 of Schedule 2 to the Migration Regulations 1994 (Cth)” (at CB 93).
The Tribunal
In assessing the applicant’s claims under s.36(2)(a) and s.36(2)(aa) of the Act, the Tribunal considered the following:
(a)“Donation requests” and “forced donations” from Maoists ([45] at CB 167 and [75] at CB 170);
(b)The applicant’s landowning family and his political involvement ([40]-[44] at CB 166 to CB 167);
(c)Claimed difficulties incurred by the applicant while living in Kathmandu ([45]-[64] at CB 167 to CB 169);
(d)The applicant’s status as an individual returning from a western country and the potential perception that the applicant is wealthy because he came to Australia ([65] at CB 169);
(e)Security in Nepal ([66]-[67] at CB 169);
(f)Security in Kathmandu ([68] at CB 170); and
(g)The applicant’s status as a Pahadi person ([69]-[71] at CB 170).
The Tribunal found that the applicant “has two home areas” in Nepal ([44] at CB 167). It found that: “…for the purpose of this decision only, the Tribunal is prepared to accept that there is some continued adverse interest in the applicant and his family, in the area of their home village” ([43] at CB 166 – CB 167). However, in considering the situation as it related to Kathmandu, the applicant’s other home area, it found that it was not satisfied the applicant would be at risk of serious or significant harm.
As an alternative, and different, basis for its decision, the Tribunal found that the applicant had a right to enter and reside in India. In that light, it found that Australia did not owe protection to the applicant as a result of s.36(3) of the Act and that “none of the qualifications to that provision [were] met” ([105] at CB 174).
The Application to the Court
The grounds of the application to the Court are in the following terms:
“1. The Second Respondent failed to give proper weight to the evidence submitted by the Applicant and thus made a jurisdictional error by not taking relevant evidence into consideration in reaching its decision.
2. The Second Respondent’s decision is based on personal opinion and experience that the member of the tribunal spent in the Applicant home country, the findings are erroneous and based on personal opinion and bias assumption that are not verified by independent agency.
3. The Second Respondent’s decision is flawed and contradicts with its own findings and submission.”
[Errors in the original.]
Before the Court
While the applicant subsequently filed an amended application, it contained no grounds. (See further below).
By order made by a Registrar of the Court, this matter was set down for a show cause hearing pursuant to Part 44 of this The Federal Circuit CourtRules 2001 (Cth) (“the Rules”).
The issue before the Court is whether the grounds of the application raise an arguable case for the relief sought. I note in this regard that the applicant seeks orders that the Tribunal’s decision be quashed and returned to it for reconsideration.
If the Court cannot be satisfied that an arguable case is raised against the respondent, the application will be dismissed. It is the case that the Court’s power should be exercised with great caution. Given the summary nature of any such dismissal, the application should only be struck out where there is no real question to be tried, the claims are clearly untenable, and cannot succeed. (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 especially at [8] – [9], Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, Applicant A135/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 708 at [3] – [6] and Applicant A163/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 677 at [1]), the claims are groundless (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62), where there is a high degree of certainty about the outcome (Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552; (2000) 173 ALR 665; (2000) 74 ALJR 1219), or it is a hopeless case that would fail if it were to go to a final hearing (Xie v The Immigration Department [1999] FCA 365).
At the hearing the applicant appeared in person. He was assisted by an interpreter in the Nepalese language. The applicant exhibited some understanding of English, but as he told the Court, this was limited.
What became clear from the applicant’s submissions when invited to address the Court was that the applicant had obtained the assistance of someone to whom he referred as a “lawyer”.
In this light, the applicant was unable to explain why an amended application was filed containing no grounds. In any event, the hearing proceeded on the basis of the grounds of the originating application.
It is to be noted that in a hearing pursuant to Part 44 of the Rules an applicant is confined to the grounds of the application (r.44.13(1)).
However, even when asked to focus on each of the grounds separately (and as these were interpreted to him at the hearing), his submissions did not address the grounds, but raised separate complaints. (See further below).
Consideration
Ground one asserts that the Tribunal failed to give “proper weight” to the applicant’s evidence, and thereby failed to take into account a relevant consideration, that is, the applicant’s evidence.
There are no particulars to the applicant’s ground, and as set out above, the applicant was unable to assist in explaining his ground.
It is the case, as the Minister submits, that matters of weight to be assigned to information before it are for the Tribunal to determine as part of its fact finding function. (See NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]). (Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 at 558 and W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 at [64] – [69] per Tamberlin and RD Nicholson JJ, SZNNK v Minister for Immigration and Citizenship [2009] FCA 1386 at [20], NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [81] per Young J).
Further, in the absence of particulars, the ground can only properly be understood as a complaint that the Tribunal failed to accept that the applicant’s evidence meant that he should be given a favourable outcome on the review.
In the absence of any particulars whatsoever, the applicant’s ground does not raise any arguable case for the relief sought. This is particularly so when, on the evidence before the Court, the Tribunal did consider all of the applicant’s claims and evidence.
Ground two asserts bias on the part of the Tribunal member. The “particular” to the ground appears to be that the Tribunal member expressed his own “personal opinion and experience” arising from a visit to Nepal. Bias is also said to be revealed because the Tribunal’s findings were “not verified by independent agency”.
As set out above, the applicant has provided a transcript of the Tribunal hearing. (The lines on each page are not numbered as would ordinarily be found in a transcript prepared by a professional transcriptionist or translator). There are two “parts” to the transcript.
At page 24 (of part one) at about page 24.7 the following exchange begins:
"Member: Just from a personal experience, I was in Kathmandu in 2013. It is a thriving city so I do not accept your claim that the security situation affected the people on the street going about their business in a way that might have affected your business.
Interpreter: From my personal experience, I was in Kathmandu in 2013. Kathmandu is a great place and so I do not agree with what you said regarding Kathmandu's lack of security has affected the [people's lives in the city in that they cannot move around freely or run their business openly.
Member: Do you want to comment on that?
Interpreter: Do you want to say something about that?
Applicant: What I meant to say is that no one in Kathmandu can freely operate their business as they wish when they have invested in it."
[Errors in the Original.]
The Minister referred the Court to Muin v Refugee Review Tribunal (2002) 190 ALR 601 (“Muin”) at [263] – [264] per Hayne J:
“263. Unlike a court, the Tribunal was not restricted to acting only on material that was expressly referred to in the course of a particular review. It was not bound by rules of evidence and its members were obviously expected to develop and rely on knowledge of affairs in the countries from which claimants come. It may very well be, therefore, that, as individual Tribunal members heard accounts given to them by a series of applicants for protection visas who came from a particular country, and as those Tribunal members read more widely about the country concerned, they developed a body of knowledge upon which their views about the country were formed. And as they become more knowledgeable their capacity comprehensively to identify the particular sources of their knowledge would ordinarily diminish.
264. There is, therefore, a very practical reason to doubt that procedural fairness required the Tribunal to identify the source, and the general nature, of every piece of material that led the member to form a view that a particular country was willing and able to protect its citizens. So to hold would impose an obligation that could not readily be performed and in some cases would be impossible. But the difficulty in the argument advanced by Mr Muin is even more deep-seated than that.”
Of course, the current case does not involve a failure of the Tribunal to reveal the source of the information on which it sought to rely. That source was identified by the Tribunal member, as being his own observation and expertise on a trip to Kathmandu in 2013.
In Muin the expertise of the Tribunal member was said to have arisen from experience of hearing a number of applicants describe affairs in the country of claimed persecution (or significant harm).
In my view, the disposition of ground two in the current case arises with reference to the actual test for bias, or for that matter (although not apparently pleaded) the apprehension of bias.
The tests for bias and the apprehension of bias are well settled (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (“Jia Legeng”), SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 (“Ex parte H”)). In the case of actual bias, said to arise from prejudgment by the decision maker, such a complaint must be “distinctly made and clearly proved” (Jia Legeng at [69] and [127]). This is because an allegation of bias, in contrast to other assertions of legal error, is extremely serious to make because it is directed to the very integrity of the relevant decision maker.
The relevant test for apprehension of bias in cases such as this is as follows (Ex parte H at [27] – [28] per Gleeson CJ, Gaudron and Gummow JJ):
“[27] The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of “a fair-minded lay observer” when, as is the case with the Tribunal, proceedings are held in private.
[28] Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.”
No arguable case is raised by ground two in respect of each of these tests given the evidence before the Court.
The extract of the hearing set out above must be understood in context. It is to be noted that one of the applicant’s claims to fear harm was said to emanate, amongst other things, from the applicant having been forced to make “donations” to Maoists from his business, which resulted in the closure of his business.
The applicant’s evidence at the hearing was (at page 23.4 of ‘Part One’):
“No, when I was operating my business there was an ongoing problem with the donations request, and also because of the critical situation in Nepal, I couldn’t run the business and I also struggled to pay the loan.”
[Emphasis Added].
In this light, the Tribunal member asked the applicant (at page 23.6 of ‘Part One’):
“Member: How did the security situation affect your business?”
Ultimately, after the applicant sought clarification the member stated (at page 23.8 of ‘Part One’):
“Well, you said that because of the security situation in your country, it affected your business, so you seem to be saying that the unsettled political situation created problems”.
It is important to note the applicant’s response (at page 23.10 of ‘Part One’):
“Due to the political situation, the people were not able to be move around freely, let alone shop freely and openly.”
[Errors in the Original].
The Tribunal told the applicant that it was difficult to accept this claim given DFAT reports of 2013 in relation to Nepal. The Tribunal member indicated he would give the report to the applicant and summarise the relevant elements (at page 24.4 of ‘Part One’).
In essence, this was that since the Maoist insurgency ended in Nepal in 2006: “…there have been some ongoing political issue[s] however, over time they have settled down significantly. So I have information from one report that 2013 was the first year of no reported insurgency related violence.”
In short, the Tribunal member’s reference to his personal observation of whether: “…the security situation affected the people on the street going about their business in a way that might have affected your business” (page 24.8), was to confirm country information already before the Tribunal, and to which the applicant’s attention had been drawn.
In this light, there is no arguable case arising in the context of either of the test for bias or the apprehension of bias. The Tribunal did not base its findings about the security situation and the applicant’s business simply on its own observation.
Contrary to the applicant’s assertion, there was “independent verification” for the Tribunal’s consideration in this regard. That is, the DFAT reports. In any event, there is no basis to argue that bias, or the apprehension of bias, exists in circumstances where the Tribunal relied on its own observation of what had occurred in the streets of Kathmandu in relation to shopping. In context, this is no different than the Tribunal relying on country information which it had read.
Ground three is so general in its assertion, and so lacking in specificity, or explanation, that it cannot be said to raise any arguable case for the relief sought.
As set out above, the applicant made a number of other complaints about the Tribunal’s decision to the Court. Given that the applicant was not legally represented (noting that he had otherwise said he was assisted by a lawyer), I nonetheless considered whether to dispense with r.44.13, pursuant to r.1.06. In short, I considered whether there was any relevant merit in the applicant’s oral complaints that in the interests of justice should be fully heard.
The applicant’s complaints appeared to be as follows.
One, he could not settle in India. The Tribunal’s questions about this were not relevant to his situation.
As set out above, there were two separate and independent bases for the Tribunal’s decision. One basis derived from the consideration of the criteria at s.36(2). The other derived from s.36(3). Even if some legal error was involved in the consideration of s.36(3) of the Act, this would not affect the Tribunal’s finding that the applicant would not face serious or significant harm if he were to return to Kathmandu. (VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [25], Applicant S262 of 2003 v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 92 at [41], SZHBX v Minister for Immigration & Citizenship [2007] FCA 1169) at [24], and SZKNJ v Minister for Immigration and Citizenship [2007] FCA 1842 at [19]).
In any event, I cannot see any reasonably arguable point in relation to the Tribunal’s consideration of the matters relevant to s.36(3).
Two, the applicant complained that the situation in Nepal is not as found by the Tribunal, and that it should have verified this with some independent authority.
The applicant’s complaint in this regard rises no higher than an expression of grievance with the Tribunal’s findings. The Tribunal relied on various sources of country information available to it about the situation in Nepal. (See [24] – [26] at CB 161 to CB 163, [27] and [28] at CB 163 – CB 164).
It appeared, at best, that the applicant sought to take issue with the country information referred to by the Tribunal concerning “strikes” that may have affected customer numbers of the applicant’s business. (See generally [52] – [57], and in particular [58] at CB 168).
In relation to “strikes”, the Tribunal accepted that: “…on some occasions, strikes may have affected customer numbers of the applicant’s business.” The Tribunal found however, for reasons given, that these were not the cause of the applicant closing his business (at [58] CB 168).
The Tribunal therefore accepted the applicant’s claims that “strikes” had occurred. The applicant’s complaint is really with the subsequent findings concerning the closure of his business, which did not rely on country information about strikes and the like. No arguable case arises here.
Three, the applicant also complained that there were recent concerns about the conduct of the Nepalese Prime Minister. This was not a claim put before the Tribunal and, in any event, the concerns appeared to have post-dated the Tribunal’s decision. No reasonably arguable case arose from what the applicant initially told the Court in this regard.
In submissions in reply, after hearing the Minister’s submissions on this point, the applicant claimed the reference to the Prime Minister was “the same” as when he was in Nepal. Again, no such claim was made to the Tribunal.
Four, the applicant complained that the Tribunal’s findings were “not genuine” because the country information to which the Tribunal had referred did not reflect the “different” situation in Nepal.
As set out above, the choice of, and weight, to be attributed to the country information, is for the Tribunal to assess and determine. There is nothing to indicate the applicant referred the Tribunal to other country information which revealed this “different” situation. I note that the applicant’s attempt to put country information before the Court by way of annexure to his affidavit is focused on media reports that post-date the Tribunal’s decision. No arguable case arises from this complaint.
Conclusion
In all, no arguable case arises from the grounds of the application. Nor can I see any reason to dispense with r.44.13. It is therefore appropriate to dismiss the application pursuant to r.44.12(1)(a).
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 9 May 2019
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