DXF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 259
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DXF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 259
File number(s): SYG 2730 of 2017 Judgment of: JUDGE OBRADOVIC Date of judgment: 14 April 2022 Catchwords: MIGRATION – Application to review decision of the Administrative Appeals Tribunal – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) s.425 Cases cited: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 [2021] FCAFC 24
Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1Division: Division 2 General Federal Law Number of paragraphs: 32 Date of hearing: 6 April 2022 Place: Parramatta Appearing for the First and Second Applicants: In person with the assistance of an interpreter Appearing for the Third and Fourth Applicants: The First Applicant as litigation guardian Appearing for the First Respondent: Ms Zinn Solicitor for the First Respondent: Mills Oakley ORDERS
SYG 2730 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DXF17
First Applicant
DXI17
Second Applicant
DXK17 (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
14 APRIL 2022
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2.The Application for Judicial Review filed 31 August 2017 is dismissed.
3.The first and second applicants are to pay the first respondent’s costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
The first applicant is the primary applicant for a protection visa. The second applicant is his wife, and the third and fourth applicants are their children.
All four applicants are citizens of Nepal.
The first applicant entered Australia on 23 November 2012 as a holder of a short stay temporary business (short stay) (subclass 456) visa, and departed on 15 December 2012. He again travelled to Australia with his wife and children on 13 December 2014, on a tourist visa with all four departing on 16 December 2014. The applicants returned to Australia on 2 March 2015.
On 29 April 2015, the first applicant lodged an application for protection visas, including his wife and two children as dependent members of his family unit, with no independent claims for protection being made by the second, third or fourth applicants.
On 25 September 2015, a delegate of the first respondent refused the applicants’ application for protection visas. The Administrative Appeals Tribunal affirmed the delegate’s decision on 2 August 2017. This was done following a hearing before the Tribunal on 19 July 2017, where both the first and the second applicant appeared to give evidence and present arguments.
On 31 August 2017, the applicant commenced proceedings before this Court for judicial review of the Tribunal’s decision. Despite having almost four and half years since proceedings were commenced, and orders for the filing of an amended application and evidence, as well as submissions, the applicants have never filed any further documents in support of their case.
All that is before the Court in support of the applicants’ claim is an application filed 31 August 2017 together with an affidavit of the first applicant which simply annexes the Tribunal’s reasons for decision and states that the applicant is the “victim of the Tribunal Member’s purported decision” and that he seeks “justice”.
On 30 March 2022, the first respondent filed an outline of submissions.
At the hearing on 6 April 2022 before this Court, the applicants were granted the opportunity to make oral submissions and did so. Those submissions however did little to address the grounds of review.
The first applicant submitted to the Court:
a.That he was not really satisfied with what the Tribunal did and that he did not have much else to say;
b.That he felt that whatever he had put forward to the Tribunal was not taken seriously, and that the Tribunal had already made up its mind;
c.That none of his claims were taken seriously nor were they looked at properly by the Tribunal.
When asked by the Court to specifically address what it was that the Tribunal had done (or not done) to make the first applicant feel that he had not been taken seriously nor that his claims had been taken seriously, the first applicant was not able to point to any specifics or indeed anything at all.
It is understandable that the applicant(s) struggled in addressing the Court on aspects of jurisdictional error which were asserted in the Application as none of the applicants were legally represented at the hearing. These are, difficult legal concepts. The Court explained to the applicants that it did not have the power to conduct a merits review nor to grant any visas.
Background and Protection Claims
The applicant’s claims for protection were set out in his visa application and a typed statement accompanying the application. He attended a protection visa interview on 21 September 2015. At the hearing before the Tribunal, no documents were provided in support of the first applicant’s protection claims.
The first applicant raised the following claims in support of his application for protection visas:
a.In 1996 when the Nepalese civil war began, the first applicant was approached by Maoists and asked to join their cause. The first applicant claimed that although he refused their request to join their militia he was otherwise detained by them for two hours and threatened.
b.In 1997, the first applicant left Nepal and began employment as a police officer in Singapore. He retired from the Singaporean police force and returned to Nepal in early 2015 with the intention of residing their again permanently.
c.In or about October 2003, the first and second applicants married in Nepal.
d.The first applicant’s father was a Monarchist who was vocal in his support for the Monarchy in his local area. He was eventually killed by Maoists in September 2007 for not complying “with their demands”.
e.After his return to Nepal in 2015, the first applicant began to participate in Rastriya Prajatantra Party (“RPP”) activities and made financial donations to the organisation, following in his father’s footsteps. The first applicant claims that he began to develop a profile in his local community because of this.
f.On 15 February 2015, the first applicant was contacted by Maoists who threatened to kill him and demanded a “large sum of money”. The first applicant claims that this related to his political views and that he was wealthy and western-aligned by reason of his employment with the Singaporean police force.
g.The first applicant was unable to fulfil the amount demanded upon, however was able to pay the Maoists 5 million Nepalese Rupees. He had also requested more time to pay.
h.The first applicant claims that he is unable to return to anywhere in Nepal without being “persuaded” by the Maoists, that police in Nepal are ineffective and that he fears that any future police reports would cause the situation with the Maoists to become worse.
The Grounds of Judicial Review
The first applicant raises three grounds of judicial review. They are as follows:
1.I am not satisfied with the Tribunal Member’s purported decision because I am a victim of the Tribunal Member’s strong arbitrary views and premature mind towards my claims and evidence. The Tribunal Member’s decision has been affected by apprehended bias and strong arbitrary view.
2.It is contended that the Tribunal’s decision is affected by a jurisdictional error because the Tribunal Member deprived me of natural justice and procedural fairness.
3.It is contended that the Tribunal Member erred by overlooking my claims on the issue of my suffering from Maoists in concluding that I had no political interest or opinion and the Maoists had not harmed or did not try to harm having regard to the material upon which it relied that reliance being irrational or unreasonable.
Determination
Ground 1
Despite being invited to do so, the applicants did not expand upon or particularise what “arbitrary views” and/or “premature mind” the Tribunal bore in respect of the claims and evidence brought by the applicants. The applicants likewise did not expand upon or particularise how the alleged apprehended bias manifested itself. To say, as the applicants do, that there was in effect a pre-determined rejection by the Tribunal of the first applicant’s claims and evidence, is far from sufficient.
In order to succeed on the apprehended bias ground, the applicants must demonstrate that a fair minded lay observer properly informed as to the nature of the procedure governing the Tribunal’s decision making under Part 7 of the Migration Act 1958 (Cth) (“the Act”), might reasonably apprehend that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the factual and legal questions that arise for its decision in the conduct of a review. [1]
[1] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50 (“CNY17”) at [17]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 [2021] FCAFC 24 (“CQZ15”) at [90]-[91]
There are at least two steps which are involved in a case involving a claim of apprehended bias: first, it is necessary to identify “what it is that might lead a decision-maker to decide a case other than on its legal and factual merits”[2] and secondly, there must be an articulation of the logical connection between the identified thing and the feared deviation from the course of deciding a case on its merits.[3]
[2] CNY17 at [57]; CQZ15 at [90]
[3] CNY17 at [57]; CQZ15 at [90]
In all of the circumstances, the applicants made no real attempt to substantiate their allegation of apprehended bias nor did they demonstrate any of the requisite matters referred to above.
It would be a fallacious argument that because the applicants were not successful in their application to the Tribunal that the Tribunal was biased.[4]
[4] Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48 at [67]
On the material before the Court, there is no substance to the allegation of apprehended bias or that of the Tribunal having a “strong arbitrary view” of anything put forward by the first applicant. The decision of the Tribunal is comprehensive, and on the face of it, the Tribunal dealt with the applicants’ case, it raised credibility concerns it had with the first applicant and gave him an opportunity to comment and respond to those concerns. The Tribunal must give reasons for its decision, which it did, but the Tribunal is not obliged to give a sub-set of reasons as to why it accepted or rejected individual pieces of evidence.[5]
[5] Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67]
On its face the decision of the Tribunal does not show any indication of strong arbitrary views (or indeed any arbitrary views), of a premature mind nor of apprehended bias.
Ground 1 is not made out.
Ground 2
Ground 2 is an ambit claim that the Tribunal deprived the applicant “natural justice and procedural fairness”. The applicants did not particularise any matters which might have supported this ground, nor did they identify how it is alleged that they were deprived natural justice and procedural fairness.
As noted at [21] above, the Tribunal dealt with the first applicant’s evidence and claims, it raised its concerns regarding credibility of the first applicant and gave him an opportunity to address those concerns. The Tribunal was open to persuasion, by for example inviting the first applicant to address the inconsistencies it had identified in his accounts.[6]
[6] Eg: CB:258 at [11]; CB:259 at [17], [19]; CB:260 at [25]; CB:261 [27]
On the material before the Court, the Tribunal complied with its obligations for procedural fairness pursuant to Division 4 of Part 7 of the Act. The Tribunal complied with s.425 in giving the applicants a meaningful opportunity to give evidence and present arguments, which the applicants took up.
The Tribunal found that the first applicant had given unconvincing and inconsistent evidence, and that the discrepancies identified by the Tribunal were not satisfactorily explained by the first applicant. The material before the Court, on its face, does not show any denial of natural justice on procedural fairness.
Ground 2 is not made out.
Ground 3
Ground 3 contends that the Tribunal’s findings that the first applicant had not been harmed or would not be harmed by Maoists were irrational or unreasonable, as the Tribunal had overlooked the first applicant’s claims on the issue of his suffering from Maoists.
The Tribunal did consider the first applicant’s claim that he was approached, threatened and detained by Maoists[7] but did not believe him for reasons which were set out in its decision. The Tribunal found that the first applicant was not a witness of truth. It provided cogent bases for such finding, as is clear from what it said at paragraphs [9] to [26] of its reasons where it went through, in some detail, the various inconsistencies it had identified in the applicant’s material and evidence, and explained why it disbelieved the first applicant in respect of the identified matters. These matters were also put to the first applicant, but the explanations that were provided were not found to be satisfactory. Such findings were open to the Tribunal and were not irrational or unreasonable.
[7] CB:261 at [28]
Ground 3 is not made out.
Conclusion
In all of the circumstances in considering the applicants’ oral submissions and the grounds set out in the Application, the applicants have not identified any jurisdictional error. All three grounds fail and therefore the application for judicial review is dismissed.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 14 April 2022
SCHEDULE OF PARTIES
SYG 2730 of 2017 Applicants
Fourth Applicant:
DXN17
0
3
0