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[2019] FCA 119
Federal Court of Australia
2019-02-13
Robertson J
Original judgment source is linked above.
Introduction 1 The appellant was found by the Administrative Appeals Tribunal to be a citizen of Nepal. By its decision dated 22 December 2017, the Tribunal affirmed the decision not to grant the appellant a protection visa. 2 The appellant arrived in Australia on 15 July 2008 as the holder of a student (subclass 572) visa valid until 20 September 2010. He was subsequently granted a student (subclass 573) visa. His application for a further student (subclass 573) visa was refused on 5 June 2013. His most recent visa was a bridging visa granted on 13 May 2015. The appellant then applied for a protection visa.
The Tribunal's decision 3 For reasons given by the Tribunal at [29]-[45], the Tribunal concluded at [46] that the appellant was not a witness of truth and that the appellant had fabricated accounts of events and claimed fears, upon which he had based his protection claims. The Tribunal then considered the appellant's claims and made findings about them under the following headings: The applicant's home area Past harm for the applicant and his family while the applicant was still residing there (until 2008), ongoing harm in Nepal for his family since he left (2008 to date, apart from the earthquake) Security, political situation, supplies, Maoists, business, employment, education
Proceedings in the Federal Circuit Court 4 This appeal is from orders made by a judge of the Federal Circuit Court of Australia on 6 July 2018 as follows: 1. The oral application for an adjournment is refused. 2. The application is dismissed. 3. The applicant pay the first respondent's costs fixed in the amount of $4,500.00. 5 At the conclusion of the evidence before the primary judge, as recorded at [15] of the reasons for judgment, the appellant indicated that he wished to seek an adjournment because he had not been able to find a lawyer. No earlier notice of an adjournment had been given to the first respondent. The appellant indicated that he only commenced trying to find a lawyer after the orders were made by the Registrar in February 2018 and the appellant alleged he had been to different places, including Legal Aid, and had been unable to obtain representation. The adjournment application was opposed by the first respondent. 6 At [16]-[17], the primary judge said: The Court sought to explore with the applicant why the Court should have any confidence that if his application was adjourned he would be able to obtain legal representation. The applicant indicated that he would try his best, however there is nothing said by the applicant to identify any proper basis upon which the Court could be satisfied that the applicant would be likely to obtain representation if the matter was adjourned. Further, the merits of the application, for the reasons below, do not warrant the Court granting an adjournment. In all the circumstances, the Court is not satisfied that an adjournment is warranted in the interest of the administration of justice. It is for these reasons the Court refused the oral application for an adjournment. 7 The appellant's grounds of review before the Federal Circuit Court were as follows: 1. The Second Respondent made jurisdictional error by making self-contradicting/inconsistent findings. Particulars a) The Second Respondent at [36] accepted that the living conditions and opportunities in Nepal may not be the same as Australia, and there may be corruption, yet concluding that the Applicant is very resourceful and an intelligent person. b) The Second Respondent at [47] was prepared to accept that the village home was adversely affected, yet, the Second respondent is not prepared to accept that the Applicant faces a real chance of serious harm as a result of the earthquake. 2. The Second Respondent made jurisdictional error by making a biased decision. Particulars a) The Second Respondent at [10] was bias in concluding that an intelligent person such as the Applicant would face no difficulty and is expected to know right from wrong, even though the Applicant made the Second Respondent aware that Nepali authorities cannot provide protection. b) The Second Respondent at [43] decided that if the Applicant genuinely faced harm from Maoists in Nepal, he would made enquiries on safety, including researching online via the Department's website. Thus, the Second Respondent intentionally conclude that the Applicant's intention was to study and reside in Australia unlawfully, in addition to have no genuine fear of harm. 3. The Second Respondent made jurisdictional error and/or failed to exercise jurisdiction and/by denying procedural fairness in contravention of ss.424AA and 425 of the Migration Act 1958. Particulars a) The Second Respondent at [46], [51] and [54] gave no opportunity to the Applicant to respond in regards to the threats encountered by him and his family and only relied upon information within the application form, therefore, the Second Respondent assumes that the Applicant was prepared to refer to any negative aspect regarding the history of future of Nepal to support a protection visa application. b) Further particulars will be provided on the receipt of hearing transcript. 4. The Second Respondent at [8] made jurisdictional error by failing to make proper consideration of the fact that political issues and insecurity, would make it difficult for the Applicant to retrieve opportunities for a bright future. 8 The primary judge considered these grounds in turn. 9 At [19], the primary judge said that ground 1 particular (a) did not correctly identify what was said by the Tribunal. 10 At [20], the primary judge said that in relation to ground 1 particular (b), the finding by the Tribunal at [47] was that the Tribunal was prepared to accept that the village was adversely affected by the earthquake in 2015. However, the primary judge said, the Tribunal did not accept that the home had not been rebuilt. The conclusion that the appellant did not face harm as a result of the earthquake was based on its finding that the appellant did not live in the home and that he could live with his parents. The primary judge concluded that there was no inconsistency in the findings made by the Tribunal and no illogicality in the Tribunal's findings. 11 At [21]-[22], the primary judge considered and rejected ground 2 and concluded that the adverse findings by the Tribunal, in relation to the appellant's credibility and the taking into account of what the appellant said at the interview, were not conduct by reason of which a fair-minded lay-observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the merits of the application. The primary judge said it was a relevant and reasonable matter for the Tribunal to take into account the delay by the appellant in seeking protection and that the appellant was prepared to continue studying and working while unlawfully present without pursuing a claim for protection. It was open to the Tribunal to take into account that the appellant could have made enquiries if he genuinely faced harm. That reasoning, the primary judge said, was proper, logical and rational. On the face of the material before the Court, the primary judge said, the Tribunal approached the review with an open mind reasonably capable of persuasion as to the merits. 12 At [23]-[24], the primary judge considered and rejected ground 3. The primary judge said that nothing in the appellant's particulars identified any information enlivening the Tribunal's obligation under s 424A of the Migration Act 1958 (Cth). The adverse credibility findings were not information that were reliant on an obligation under s 424A. This was a case where the delegate had made adverse findings in relation to the appellant not providing a satisfactory, acceptable explanation for the delay lodging his application and did not accept that the appellant would be extorted by Maoists or other criminals if he wished to open a business. The Tribunal's reasons, the primary judge said, reflected raising the credibility issues with the appellant in the course of the hearing. On the face of the material before the Court, the appellant had a real and meaningful hearing. 13 The primary judge accepted the first respondent's submission that nothing had been identified enlivening any obligation under s 424A of the Migration Act. The primary judge said that in the absence of a hearing transcript, the appellant could not, in any event, establish noncompliance with s 424AA of the Migration Act. On the face of the material before the Court, the Tribunal complied with its obligation under s 425 of the Migration Act and there was no obligation engaged under s 424A. 14 At [25]-[26], the primary judge considered and rejected ground 4. The primary judge said that the reference to the political issues and security and bright future of the appellant appeared to be nothing more than an invitation to the primary judge to engage in impermissible merits review. The Tribunal clearly took into account the appellant's claims concerning Maoists and insecurity as raised in the appellant's claims. There was no express reference to the appellant fearing harm by reason of any perceived political opinion and no such claim arose in the material before the Tribunal. 15 The primary judge found that the Tribunal also took into account the political situation generally in relation to the appellant's claims and country information that it provided. The Tribunal referred to the new Constitution having been approved and tensions having been resolved. The Tribunal referred to putting to the appellant country information that it did not appear that he would face a real chance or be at risk of significant harm by being asked for donations, land or contributions from the Maoists, nor in relation to the upcoming elections or political situation. It was in that context the Tribunal found the appellant did not have any subjective fear or real chance or real risk of any harm for the reasons claimed. The primary judge accepted the first respondent's submission that no jurisdictional error was made out by ground 4 and that ground 4, in substance, invited the Court to engage in impermissible merits review.
The appeal to this Court 16 The grounds of appeal to this Court are in the following terms: 1. His Honour failed to consider the oral application for adjournment. 2. His Honour deprived the Appellant of procedural fairness. 3. His Honour made error in not providing reasons for his decision, this restricts the Applicants' right to appeal. Particulars a) His Honour did not publish his order, decision or reasons online. b) His Honour did not publish his order, decision or reasons on the Commonwealth Courts Portal. 4. His Honour appeared to have come to a decision to dismiss the application before hearing, without taking into consideration the Appellant's desire to adjourn the matter. This creates bias.
The submissions of the parties 17 No written submissions have been filed by or on behalf of the appellant, apart from written submissions by the appellant's then counsel filed in support of an adjournment application which I earlier refused for reasons I then gave: see AGI18 v Minister for Home Affairs (No 2) [2019] FCA 127. The appellant made no oral submissions in support of the appeal. 18 In relation to ground 1, the Minister submitted that the primary judge did in fact consider the appellant's oral application for an adjournment. The Minister submitted that the considerations of the primary judge at [15]-[17] were capable of reasonably supporting the primary judge's view that he was not satisfied that an adjournment would be in the interests of the administration of justice and that it was open in the circumstances to refuse the application for an adjournment. The Minister referred to ANC18 v Minister for Home Affairs [2018] FCA 1878, particularly at [21]. 19 In relation to ground 2, the Minister submitted that it was an allegation with no substance. The Minister submitted that in circumstances where there was no appellable error by the primary judge in refusing the adjournment application, the appellant was not denied procedural fairness. 20 In relation to ground 3, the Minister submitted that the appellant filed his notice of appeal within the 21 day period and that written reasons of the primary judge's judgment were published on 31 August 2018, after the date on which the appellant was able to amend his notice of appeal without leave. The appellant had not sought to amend his grounds. 21 However, the Minister submitted, the primary judge provided his judgment in court at the conclusion of the hearing by way of ex tempore reasons in the presence of the appellant who was assisted by an interpreter. Further, the appellant had made no effort to amend his notice of appeal in the five months since receiving the written reasons of the primary judge's judgment. In those circumstances, the Minister submitted that the appellant had had them for a reasonable time and that the fact that the Federal Circuit Court did not publish written reasons shortly after the conclusion of the hearing did not give rise to any error in the decision. The Minister referred to ANC18 at [30] and to FQH17 v Minister for Immigration and Border Protection [2018] FCA 1771 at [26]. 22 In relation to ground 4, the Minister submitted that the primary judge considered the merits of the substantive application in refusing the request for an adjournment. His Honour was entitled to form preliminary views about the matter. Simply because those views were adverse to the appellant did not give rise to a reasonable apprehension that the primary judge did not bring an unprejudiced mind to the adjudication of the application upon hearing any full argument. The Minister submitted that ground 4 was another bare allegation with no factual basis and that for the reasons provided in response to ground 1, the ground should be dismissed.
Consideration 23 In my opinion, none of the grounds in the notice of appeal has any substance. 24 Ground 1 fails because the primary judge did consider the oral application for an adjournment and rejected it. Further there is no appellable error in the basis on which the primary judge rejected that application. 25 Ground 2 contains no specifics and it is not at all apparent that the primary judge denied the appellant procedural fairness. 26 Ground 3, in relation to the alleged error of failing to provide reasons, is not made out since the primary judge gave oral reasons and no prejudice to the appellant is shown by reason of the written reasons being given later. The reasons were published on 31 August 2018, now many months ago. 27 Ground 4 fails as it has no factual basis. Not only did the primary judge consider the appellant's application for an adjournment but also there is no factual basis for the contention that the primary judge "appeared to have come to a decision to dismiss the application before hearing". The ground of apprehended bias is not made out.
Conclusion and orders 28 For these reasons, the appeal should be dismissed, with costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.
AGI18
Minister for Home Affairs