AFC15 v Minister for Immigration and Border Protection

1. The application filed on 10 May 2016 for leave to appeal, is dismissed.
2. The applicant is to pay the first respondent's costs of and incidental to the application which I fix in the sum of $1756. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WHITE J: 1 The applicant arrived in Australia on 10 July 2013 on a Tourist Visa and, on 23 July 2013, applied for a Protection Visa. The Minister's delegate refused that application, and the decision was affirmed by the former Refugee Review Tribunal (the RRT) on 2 March 2015. 2 The applicant's application for judicial review pursuant to s 476 of the Migration Act 1958 (Cth) was, on remittal following an appeal to this Court, dismissed by the Federal Circuit Court (the FC Court). In doing so, the FC Court acted pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules), which authorises that Court to dismiss an application if satisfied that the application does not raise an arguable case for relief. 3 The applicant wishes to appeal against the FC Court judgment. 4 A decision that an application does not raise reasonable grounds for relief is, effectively, a finding that the jurisdiction of the FC Court was not invoked. A judgment of that kind is interlocutory in nature: SZAJB v Minister for Immigration and Citizenship [2008] FCAFC 75; (2008) 168 FCR 410 at [23]. Accordingly, the applicant needs leave to appeal to this Court: s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). 5 On applications for leave to appeal of the present kind, the Court has regard to two broad considerations. The first is whether, in all the circumstances, the decision at first instance is attended with sufficient doubt to warrant it being reconsidered on appeal; and the second is whether substantial injustice would result if leave is refused, supposing the decision to be wrong. Generally speaking, leave to appeal is granted when the applicant has a reasonably arguable case that the decision is effected by appealable error, and a grant of leave is necessary to remedy a substantial injustice: CSR Limited, in the matter of CSR Limited [2010] FCAFC 34 at [5]; (2010) 183 FCR 358 citing Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, at 399; [1991] FCA 655. 6 In the present case, I accept that the applicant would suffer substantial injustice if leave is refused and the FC Court judgment be wrong. This means that the critical factor bearing upon the grant of leave is whether the decision of the FC Court is attended with sufficient doubt to warrant it being reconsidered on appeal. 7 The applicant was unrepresented on the present hearing as she was in the proceedings in the Circuit Court. 8 The application for leave to appeal indicates that the applicant does not appreciate that, on an application of the present kind, it is necessary for her to show error by the FC Court Judge or at least that it is reasonably arguable that there was error. That misunderstanding by the applicant was also apparent in the oral submissions which she has made today, as many of her submissions were directed to the correctness, or otherwise, of the decision of the RRT concerning the harm she will suffer if returned to Nepal. 9 The grounds upon which the applicant wishes to appeal are apparent in the application, the draft notice of appeal and in her supporting affidavit. The grounds in the application for leave are as follows: (1) Administrative Appeals Tribunal didn't seriously consider my evidence; (2) Tribunal failed to prove that I will be safe in Biratnagar Nepal if I return back to Nepal; (3) Tribunal didn't investigate the current situation about violence between Madhesi and Pahade people in Nepal. 10 The second and third of these grounds were repeated in the applicant's affidavit. 11 As can be seen, the applicant did not assert expressly any error by the FC Court in dismissing her application pursuant to r 44.12(1)(a) of the FCC Rules. 12 Nevertheless, I have thought it appropriate to consider the decision of the FC Court by reference to the grounds of judicial review raised before it. In that application to the FC Court, the applicant raised two grounds: (1) DIBP failed to take [into account] my personal circumstances when Minister['s] delegate made his decision. (2) RRT decision was based on wrong assumption[s]. 13 At the hearing in the FC Court and in his ex tempore reasons, the FC Court Judge explained to the applicant the nature of that Court's role on an application for judicial review. As outlined by Allsop J in SZAYG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 90 at [6], the Court's function on an application for judicial review is not to evaluate afresh the evidence before the RRT and to make its own decision in accordance with that evaluation. Instead the Court is to consider whether the RRT acted lawfully and, in particular, within the legal framework required by the Migration Act. 14 The FC Court Judge considered that the two grounds in the applicant's application did not identify errors of this kind. I respectfully agree. 15 The FC Court Judge considered that it could not be said, in any event, that the RRT had failed to take the applicant's personal circumstances into account in reaching its decision. On the contrary, the Judge considered that the RRT's reasons indicated careful attention to the applicant's personal circumstances. Again, I respectfully agree. 16 As to the second ground of the application in the FC Court, the Judge noted that the applicant had not particularised the errors she alleged. He noted, however, that the RRT decision had not been based on "assumptions" but on a close examination of the evidence and of inferences which could be drawn from that evidence. For those reasons, the FC Court Judge considered that the applicant had not shown a reasonably arguable claim of error by the RRT. 17 On the application for leave to appeal to this Court, the applicant again wished to argue the matters bearing upon the merits of the RRT decision and whether, having regard to the evidence, it had been correct to refuse her application for a protection visa. She did not attempt to show that the FC Court Judge had overlooked a ground of judicial review. 18 Despite that, I have reviewed the reasons of the RRT. I consider that they indicate that the RRT member directed herself appropriately to the criteria for the grant of a protection visa and to the provisions in s 36 and in ss 91R and 91S of the Migration Act which were in force at the relevant time. 19 I have not been able to identify any error in the way in which the RRT went about its task. The applicant's application for a protection visa failed because the RRT considered that she was not a credible witness and had not faced in Nepal the difficulties which she claimed. The RRT member also concluded that the applicant would not experience difficulties of the claimed kind if she returns to Nepal. In particular, for reasons which the RRT member set out in some detail, the RRT did not accept that the applicant had been politically active so as to attract adverse attention in Nepal, and did not believe the applicant's account of the conduct said to give rise to a well-founded fear of persecution. 20 I repeat that it was not for the FC Court Judge to consider whether or not the RRT was right or wrong about those matters. The FC Court Judge's task was only to consider whether the RRT had gone about making its decision in the way required by the law. 21 Contrary to the assumption which is implicit in ground 2 of the application to this Court, the RRT was not under any obligation to prove the applicant's safety in Nepal. 22 As to ground 3 of the application in this Court, the reasons of the RRT indicate that it did consider closely the applicant's claims concerning the violence between the Madhesi and the Pahade people in Nepal. I do not consider that it can be said that the RRT failed to consider the clearly articulated argument which the applicant made on that topic. 23 In these circumstances, I am not satisfied that the applicant has shown a reasonably arguable case of error by the FC Court judge. That means that the application for leave to appeal to this Court must be refused and, accordingly, I dismiss the application. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.