CFE17 v Minister for Immigration & Border Protection

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

(Revised from transcript) 1 The appellant is a Nepalese national and a Hindu. She arrived in Australia in January 2009 as a dependent spouse on a student visa. Nearly six years later she applied for a protection visa. In her application, she claimed she would be killed by Maoists if she returned to Nepal and that the police would not protect her. At her interview with a delegate of the Minister for Immigration and Border Protection, she claimed that she faced harm because she had married a man from a different caste, from whom she is now divorced. 2 The delegate was not persuaded that the appellant satisfied the criteria for the grant of the visa prescribed by the Migration Act 1958 (Cth) and neither was the Administrative Appeals Tribunal on review. Accordingly, the delegate decided not to grant the visa and the Tribunal affirmed the delegate's decision. At the hearing before the Tribunal the appellant abandoned her claim to fear harm from Maoists. The abandonment of that claim was one of several matters that caused the Tribunal to doubt her credibility. The cumulative effect of those concerns was such that the Tribunal was not satisfied that the appellant had a well-founded fear of persecution for any of the reasons claimed or, for that matter, for any reason. 3 The appellant filed an application in the court below seeking an order that the decision of the Tribunal be quashed and a writ of mandamus requiring it to determine her application according to law. The primary judge dismissed her application for want of jurisdictional error. This is an appeal from that judgment. 4 The jurisdiction of the Federal Circuit Court to review a decision of the kind made by the Tribunal in this case is a narrow one. The effect of Pt 8 Div 2 of the Migration Act is that the court may only quash a decision of the Tribunal if it is affected by jurisdictional error. 5 The application in the Federal Circuit Court was based on the following grounds: (1) that the Tribunal did not seriously consider the appellant's evidence; (2) that the Tribunal failed to prove that she would be safe in Nepal if she returned; and (3) that the Minister's Department did not carry out a sufficient investigation about honour killings in Nepal. 6 With respect to the first ground, his Honour held that the Tribunal properly considered all the appellant's evidence. He stated that the Tribunal turned its mind to the evidence and that it considered whether it should be accepted and whether the facts as found would satisfy the criteria for a protection visa. 7 As for the second ground, his Honour said that the implication that the Tribunal carried an onus of proving that she would be safe if she were to return to Nepal was misconceived. 8 As for the third ground, his Honour noted that the court had no jurisdiction to review a decision of the Department or the delegate. Consequently, he took the reference to the Department to be a reference to the Tribunal. His Honour held that the Tribunal did obtain information concerning inter-caste marriage and its impact, referring to [14]-[15] of the Tribunal's decision record, in which the Tribunal extracted at some length passages from a report of the Department of Foreign Affairs and Trade and other country information relating to inter-caste marriages 9 His Honour said that there was "nothing to support the contention that what [the Tribunal] did was insufficient to properly conduct its review". He observed that there was no suggestion of any obvious inquiry the Tribunal could have made which might have revealed critical information, citing Minister for Immigration & Citizenship v SZIAI [2009] HCA 30; 259 ALR 429. 10 The notice of appeal contains three grounds in the following terms (without alteration): 1. DHA rejected my application without investigating properly about my current situation. They totally ignored the fact that my life would be in danger if I return back to Nepal 2. Administrative Appeal Tribunal did not investigate properly. They just made negative decision without asking me questions 3. Federal Circuit Court of Australia did not examine the evidence carefully. 11 On the face of things, the appeal seeks to have the Court revisit the factual findings made by the delegate and the Tribunal on review and to urge the court to come to a different conclusion. For the reasons given by the primary judge, that course was not open to him. Nor is it open to me. This is an appeal by way of re-hearing. The task of a court in an appeal by way of rehearing is the correction of error: Branir v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [21]-[22] (Allsop J, Drummond and Mansfield JJ agreeing). As Allsop J put it at [30], the views and conclusions of the primary judge should not be laid to one side and the case reargued. It is incumbent on the appellant to persuade the Court that there was error in the primary judge's findings or conclusions. 12 The appellant, who was unrepresented both in this Court and in the court below, filed no submissions in support of the appeal. At the hearing, she was invited to speak to the three grounds of the appeal. 13 In the course of the ensuing exchange, it became readily apparent that her concern was not with the judgment of the Federal Circuit Court judge, but with the adverse factual findings and conclusions reached by the Tribunal, and that her grievance related to factual findings alone. 14 With respect to the first of appeal ground, the appellant merely submitted "I just can't go back". 15 With respect to the second, the appellant initially maintained that the Tribunal did not ask her any questions. But after being taken to passages in the Tribunal's reasons, she conceded otherwise. It is apparent from the Tribunal's decision record that the Tribunal did question the applicant about her claims and there is nothing to indicate that the Tribunal did not investigate her case properly in accordance with its obligations under the Act. As the primary judge observed at [10] of his reasons: [T]he Tribunal's statement of reasons set out in some detail the evidence actually given by the applicant at the hearing. Further, during the course of its exposition of that evidence, the Tribunal reveals that it had raised with the applicant at the hearing some of the issues that it had with that evidence. It also reveals that the Tribunal discussed with the applicant certain country information about inter-caste marriages: see [31] to [34]. 16 With respect to the third ground of appeal, the appellant merely reiterated the point she made at the outset of oral argument - that she cannot go back to Nepal. 17 I have carefully read the judgment of the primary judge. I have also carefully read the reasons of the Tribunal. I am not satisfied that the decision of the primary judge was affected by appealable error. Indeed, I am satisfied that it was correct. None of the grounds has any merit. It follows that the appeal must be dismissed. 18 Costs should follow the event. 19 There will be orders accordingly. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.