BHG16 v Minister for Immigration and Border Protection

The Tribunal decision 6 The Tribunal's decision, dated 2 May 2016, is an annexure to the affidavit of Charlotte Saunders, a solicitor employed by the solicitors for the Minister, dated 15 February 2018. 7 I note the following aspects of the Tribunal's decision: (a) The Tribunal set out the relevant principles of law at [4]-[15] of the decision. These included principles relating to complementary protection. (b) The Tribunal outlined the applicant's claims at [24]-[27]. Then, at [28]-[35], the submissions of the applicant's representative were outlined. The applicant's oral evidence at the hearing was summarised at [36]-[62]. In the course of this section of the Tribunal's reasons, the Tribunal noted, at [58], that at the hearing the Tribunal had outlined that it could consider the third country protection provisions of the Migration Act 1958 (Cth) as one of the reasons to affirm the delegate's decision. As indicated by the heading before this paragraph, this was a reference to s 36(3) of the Migration Act. The Tribunal noted that it had raised with the applicant that he may be able to resettle in Nepal on the basis that the Indo-Nepal Treaty of Friendship permits Indian nationals such as the applicant to enter and reside in Nepal. The Tribunal, at [63], summarised the applicant's post-hearing submissions. (c) The Tribunal detailed relevant country information at [65]-[66]. (d) The Tribunal set out its consideration of the applicant's claims at [67]-[115]. the Tribunal identified the issue as being whether the applicant met the criteria for the grant of a protection visa pursuant to the complementary protection provisions of s 36(2)(aa) of the Migration Act. At [70]-[72], the Tribunal referred to the issue of whether the third country protection provisions might be applicable. The Tribunal said that, in light of its conclusion on other issues, it was unnecessary to make a "final determination" on this matter. I note that [72] of the Tribunal's reasons contains a double negative ("the Tribunal is not satisfied … that the applicant does not face a real risk of significant harm if he returns to India"), but it is plain from the reasons as a whole that this was a typographical error and the second "not" should not appear: compare the Tribunal's reasons at [111]. (e) The Tribunal discussed relevant principles relating to the assessment of credibility at [77]-[84]. The Tribunal accepted the applicant's evidence regarding a number of matters, as set out at [85]. However, in respect of other matters, the Tribunal considered the applicant's testimony to be "vague" ([89], [97], [98]) and expressed concerns as to his credibility ([89], [90], 94]). The Tribunal did not accept some substantive aspects of the applicant's evidence ([91], [92], [96], [98], [99]). (f) At [108], the Tribunal stated: The Tribunal has considered the totality of the above matters in assessing the applicant's claims for complementary protection. For the reasons outlined above the Tribunal finds the applicant is not a witness of truth and has provide[d] no overall credible written or oral evidence or relevant country information regarding his critical and dispositive claims. (g) The Tribunal concluded, at [111], that based on its findings, both individually and cumulatively, it was not satisfied that there was a real risk that the applicant would be killed, tortured, cruelly or inhumanely treated or punished, face economic destitution, or suffer significant harm, or harm of any kind, for any of the reasons claimed, if the applicant were to be removed from Australia to India. Accordingly, as stated at [113], the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there was a real risk that the applicant would suffer significant harm. It followed that the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Migration Act. (h) The Tribunal therefore decided to affirm the decision of the delegate not to grant the applicant a protection visa.

The decision of the Federal Circuit Court 8 The applicant applied to the Federal Circuit Court for judicial review of the Tribunal's decision. The grounds of review are set out at [78], [82], [91] and [98] of the Reasons. 9 As indicated above, the proceeding was dismissed for want of appearance. The applicant then filed an application in a case seeking reinstatement of the proceeding. 10 The primary judge set out the procedural history at [11]-[37] of the Reasons. His Honour set out the principles applicable to an application for reinstatement at [38]-[41]. After considering the adequacy of the explanation for non-attendance and whether there was any prejudice, the primary judge considered whether the applicant's appeal grounds had reasonably arguable prospects of success. His Honour considered the Tribunal's decision at [66]-[75] and each of the applicant's appeal grounds at [76]-[99]. The primary judge's conclusion, at [100], was that he was not satisfied that the applicant had raised an arguable case for relief and he was not satisfied that there were discretionary considerations that militated in favour of granting the application for reinstatement. 11 Accordingly, the primary judge dismissed the application for reinstatement.

The application to this Court 12 The applicant applies to this Court for an extension of time and for leave to appeal. 13 The principles applicable to each of these issues are well established. In relation to an application to extend time, the factors which the Court should take into account include whether there is an acceptable explanation for the delay, the length of the delay, the merits of the appeal, and any prejudice to the respondent, albeit that the mere absence of prejudice is not sufficient: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ. In relation to an application for leave to appeal, the Court must consider: (a) whether, in all the circumstances, the decision at first instance is attended with sufficient doubt to warrant its reconsideration on appeal; and (b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 per Sheppard, Burchett and Heerey JJ. 14 In relation to the application for an extension of time, I note that the applicant filed his notice of appeal only one week outside the time for filing an application for leave to appeal from the orders of the Federal Circuit Court (made on 6 October 2017). Further, the written reasons for decision of the primary judge were not provided until some time later. In these circumstances, if the application for leave to appeal has merit, there may well be reason to extend time. However, it is necessary to consider the merit of that application. 15 In relation to the leave to appeal issue, it is relevant to consider whether the decision of the primary judge is attended with sufficient doubt to warrant its reconsideration on appeal. I therefore now consider each of the grounds set out in the applicant's application for an extension of time and leave to appeal. 16 The first ground alleges that the Federal Circuit Court erred by failing to find that the applicant was genuinely unwell to attend the hearing on 2 August 2017. This ground, by implication at least, challenges the primary judge's conclusion (at [51] of the Reasons) that the applicant had not provided an adequate explanation for his non-appearance on 2 August 2017. I do not consider there to be any merit in the challenge to the primary judge's treatment of the evidence regarding the applicant's failure to appear on 2 August 2017. I do not consider there to be any arguable error in his Honour's conclusion, at [51] of the Reasons, that the applicant had not provided an adequate explanation for his failure to appear. 17 The second ground alleges that the Federal Circuit Court erred in failing to find that the Tribunal made a jurisdictional error by making adverse credibility findings without evidence. A ground in substantially the same terms was considered by the primary judge at [82]-[90] of the Reasons. The primary judge considered that it was not arguable. I do not consider there to be any merit to this ground, for the reasons given by the primary judge. I do not consider there to be any arguable error in his Honour's treatment of this ground. 18 The third ground alleges that the Federal Circuit Court erred by failing to find that the Tribunal made a jurisdictional error in that it took irrelevant matters into consideration while making the decision. The particulars to this ground allege that the Department of Immigration and Border Protection made a procedural error by drawing an adverse inference from the applicant's lack of response to its invitation to an interview. A ground in substantially the same terms was considered by the primary judge at [91]-[97]. His Honour considered the ground to be "without foundation". I agree that this ground has no merit, for the reasons given by the primary judge. I do not consider there to be any arguable error in his Honour's consideration of this ground. 19 Grounds four to seven take issue with the Tribunal's consideration of the third country protection issue. As referred to above, an issue raised by the Tribunal at the hearing was whether the applicant had a right to enter and reside in Nepal. As noted above, the Tribunal did not consider it necessary to make a determination on this matter, in light of its conclusions on other issues (specifically, its conclusion that it was not satisfied that the applicant faced a real risk of significant harm if he returned to India). To the extent that these grounds allege that the Tribunal erred by finding that the applicant had a right to enter Nepal, there is no proper basis for the grounds, as the Tribunal did not make such a finding. This is the reason that the primary judge gave for rejecting similar grounds (see the Reasons, [78]-[81]). I do not consider there to be any arguable error in his Honour's consideration of the similar grounds that were before him. To the extent that grounds four to seven contend that the Tribunal needed to determine the third country protection issue, there is no merit in this contention. It was not necessary for the Tribunal to do so in light of its other conclusions. Accordingly, I do not consider grounds four to seven to raise any arguable error in the orders made by the primary judge. 20 It follows from the above that, in my view, the decision of the primary judge is not attended with sufficient doubt to warrant a grant of leave to appeal. 21 Accordingly, the application for an extension of time and leave to appeal is to be dismissed. There is no apparent reason why costs should not follow the event. Therefore, there will also be an order that the applicant pay the Minister's costs of the application. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky.