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.