DFB16 v Minister for Immigration and Border Protection

Appeal to this Court 7 On 6 February 2019, the Appellant filed a Notice of Appeal in this Court containing three grounds of appeal. In March 2019, the Appellant was referred to pro bono assistance and the hearing was listed. The hearing was then adjourned to a date to be fixed pending the outcome of the High Court appeal in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 93 ALJR 1091. Following the determination of BVD17, the hearing was listed before me on 11 February 2020. 8 On 28 January 2020, the Appellant filed an Amended Notice of Appeal. The Amended Notice of Appeal raised two new grounds of appeal, neither of which was raised before the Federal Circuit Court, in the following terms: 1. The learned primary judge erred by failing to conclude that the Authority fell into jurisdictional error by acting in a way that was illogical and/or irrational in concluding that the Appellant did not satisfy the complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth). Particulars (a) At [17] of the Reasons, the Authority accepted that the Appellant's 'abduction by the Maoists in 2003 was an incident of serious harm as he was deprived his liberty for an extended period of time…' (b) At [16] of the Reasons, the Authority stated that it was 'willing to accept all of the applicant's claims as made regarding his abduction and being threatened to make donations' (c) At [13] of the Reasons, the Authority described those threats as 'The Maoists threatened to take him to a camp if he did not pay' (d) Despite these findings, the Authority concluded at [27] by stating 'I have considered too if the people claiming to be Maoists escalated their threats or carried out threats and caused harm to him if the applicant refused to pay the donation, however on the evidence before me, I am not satisfied the applicant will face a real risk of significant harm from people claiming to be Maoists if the applicant is removed to Nepal'. 2. The learned primary judged erred in failing to find that the Second Respondent fell into jurisdictional error by: (a) failing to undertake the "review" contemplated by s 473CC of the Migration Act 1958 (Cth); and/or (b) acting legally unreasonably; in rejecting the Appellant's claims to fear harm from Maoists in Nepal by reason of his actual or imputed political opinion under the Refugee Criterion. Particulars (a) The Appellant claimed to fear harm from Maoists who had threatened him because of his membership and support of the Rasriya Prajatantra Party (RPP) and the monarchy in Nepal. (b) The Authority concluded that the threats were not for a Convention reason. (c) This conclusion was based, at least in part, upon the Authority's assessment of the credibility Appellant's claims. a. The Authority's assessment of credibility included a conclusion that the Appellant had 'exaggerated' his claims. b. The Authority also assessed the Appellant's "new information" as "inconsistent" with his previous evidence. c. That conclusion was reached by focussing on objectively minor matters, such as: i. that the Appellant had said that he was threatened 'many' times (at [17]), and ii. that he had experienced 'no difficulty' while in India (at [6]). 9 During the course of the hearing, counsel for the Appellant indicated that he did not press proposed ground 2 of the Amended Notice of Appeal. Accordingly, I do not consider that issue in my reasons.

Leave to raise a new ground of appeal 10 The first issue for determination is whether this Court should consider a new ground of appeal not advanced in the Court below. In BZA16 v Minister for Immigration and Border Protection (No 2) [2019] FCA 60 at [20], Allsop CJ said: Generally, unless there are exceptional circumstances, or a new ground clearly has merit, or there will be no real prejudice to the respondent in allowing agitation of the new ground, the Court will not grant leave for the new ground to be pleaded. 11 The principles to be considered in determining whether leave should be granted were summarised by Charlesworth J in AAD16 v Minister for Immigration and Border Protection [2018] FCA 1433 at [17]-[23] (and applied in AGD15 v Minister for Home Affairs [2019] FCA 896 and BZA16): Leave to raise arguments not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff (1982) 150 CLR 310. The discretion is to be exercised having regard to the legal context in which the application is made. The present legal context is one in which this Court does not have original jurisdiction to judicially review the Tribunal's decision. That jurisdiction is vested in the FCC by s 476 of the Act. This Court's appellate jurisdiction is conferred for the purpose of correcting legal, factual or discretionary error affecting judgments from which an appeal to the Court lies; Federal Court of Australia Act 1976 (Cth) (FCA Act), s 24; MZYTT v Minister for Immigration and Citizenship (2013) 141 ALD 301 at [20]; Zaburoni v Minister for Immigration and Border Protection [2017] FCAFC 205 at [52]. Applications such as that made in the appellant's case have the effect of calling upon this Court, in its appellate jurisdiction, to judicially review an administrative decision it would otherwise have no original jurisdiction to review. In Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 the High Court said (at ALR 71): It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. See also Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480; (2002) 190 ALR 543. The phrase "exceptional circumstances" indicates that there remains a discretion in this Court to allow the introduction of the new grounds if it be "expedient in the interests of justice" to do so: Gomez at [18] (Hill, O'Loughlin and Tamberlin JJ); VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ). In VUAX the Full Court noted that the practice of raising arguments for the first time before the Full Court of this Court had become prevalent in appeals relating to migration matters. The Court continued (at [48]): … The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. See also Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172 at [82] (Gilmour and Mortimer JJ), [106] (Logan J). In that case, Logan J said: 105 The additional ground sought to be raised does not raise any issue of pervasive public importance but rather whether, in the particular circumstances of the case before the Tribunal, there was a denial of procedural fairness. The place for the determination of any such jurisdictional error issue is, in all but the most exceptional cases, in the original jurisdiction of the Federal Circuit Court, not in this Court. The 'public interest in the fairness and expedition of the administration of justice' referred to in Coulton v Holcombe at 11, is abroad in this case, too. … 108 Another consideration which looms large in modern times in relation to the allowing of on [sic] appeal of the amendment of ground of appeal so as to raise a point not taken below is the sheer volume of cases arising under the Migration Act 1958 (Cth) (Migration Act). The resources which this Court can devote to the exercise of its appellate jurisdiction are finite. That appellate jurisdiction is exercisable as never before in respect of a great breadth of original Federal jurisdictions. To allow too readily in cases arising under the Migration Act the raising of points not taken in the original jurisdiction is fraught with the risk of encouraging the overwhelming of the efficient allocation of judicial resources to the timely disposal of other appeals in fields of appellate jurisdiction. The concerns there expressed by his Honour reflect the same policy considerations underlying s 37M of the FCA Act. Relevantly, s 37M(3) provides that a procedural power such as that to be exercised in the present case must be exercised in the way that best promotes the overarching purpose identified in s 37M(1) and (2): 37M The overarching purpose of civil practice and procedure provisions (1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible. (2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives: (a) the just determination of all proceedings before the Court; (b) the efficient use of the judicial and administrative resources available for the purposes of the Court; (c) the efficient disposal of the Court's overall caseload; (d) the disposal of all proceedings in a timely manner; (e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. 12 The Appellant submitted that leave should be granted for the following reasons: (a) the proposed ground has merit; (b) the Appellant has different legal representation who have looked at the matter afresh; (c) there is no prejudice to the Minister other than as to costs; (d) the proposed ground is a question of law - there are no new facts or evidence relied upon; and (e) the nature of the case means it in the interests of justice to allow the Appellant to raise the new ground. 13 At the hearing, the Minister, without conceding there was any merit in ground one, did not oppose leave being granted. I proceeded on the basis that I would determine the application for leave to amend in the course of determining the appeal.

Ground 1 - irrationality or illogicality 14 Ground one of the appeal alleges that the primary judge erred by not finding the Authority fell into jurisdictional error by acting in an illogical and / or irrational way in concluding that the Appellant would not face a real risk of significant harm if he returned to Nepal. Counsel for the Appellant submitted, and the Minister concurred, that this ground of appeal turned on the proper construction of the Authority reasons at [27], particularly the final sentence of that paragraph: People claiming to be Maoists I accepted above the applicant in the past had been victim of an attempted crime by people claiming to be Maoists opportunistically seeking to extort money from him. I am mindful of the DFAT report noting there are credible allegations of groups associated with political parties engaging in acts of intimidation and extortion. I am mindful too of the country information quoted by the delegate regarding people claiming to be Maoists opportunistically extorting people for donations for personal gain. On the evidence before me, I am satisfied the applicant would face a real chance of being extorted by people claiming to be Maoists if he was removed to Nepal. However, the evidence before me is the applicant and his family always refused to pay and that the people claiming to be Maoists have never carried through on any threats made at the time of the attempted extortion. While I accept the experience of being extorted and threatened would cause distress, I am not satisfied the level of that level of distress would constitute significant harm as exhaustively defined under ss.36(2A) and 5 of the Act. I have considered too if the people claiming to be Maoists escalated their threats or carried out threats and caused harm to him if the applicant refused to pay the donation, however on the evidence before me, I am not satisfied the applicant will face a real risk of significant harm from people claiming to be Maoists if the applicant is removed to Nepal.

Appellant's submissions 15 The Appellant submitted that the Authority's Decision was irrational and / or illogical because "there is no logical connection between the evidence and the inferences or conclusions drawn" by the Authority: see, eg, Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [135] (Crennan and Bell JJ). The illogicality was particularised as follows: (1) the Authority accepted that the Appellant was threatened by Maoists, and would be threatened on return to Nepal, to be taken away to a camp if he did not pay donations (at [16]); (2) the Authority accepted that being taken away to a camp was an incident of serious harm (at [17]); and (3) despite this, the Authority concluded that if people claiming to be Maoists escalated or carried out their threats, the Appellant would not face a real risk of significant harm (at [27]). 16 The Appellant's submission, in substance, rests on the following two premises. First, that the Authority accepted the Appellant had been abducted by Maoists during 2003 and taken to a nearby camp, and that this was an incident of serious harm as he was deprived of his liberty for an extended period of time and endured physical pain and suffering. Second, having regard to this finding, it was not reasonably open for the Authority to conclude at [27] that if the Appellant returned to Nepal and people claiming to be Maoists carried out their threats, the Appellant would not be at risk of abduction to a camp now or in the foreseeable future. The Appellant contended the logical conclusion of the Authority would have been that if threats were carried out, then the Appellant would face a real risk of significant harm, as the threat carried out would be abduction to a camp. 17 As mentioned above, this turns on the construction of the final sentence in paragraph 27 of the Authority's Decision. If the Appellant's submission is accepted, it would involve accepting that the sentence contains an express contradiction between the first part and second part of the sentence. The Appellant submits that first part of the sentence, the premise, is what would happen if people claiming to be Maoist escalated or carried out their threats; and the second part is a conclusion that on the evidence the Appellant would not face significant harm if those threats were carried out. In other words, the threats of harm are to take the Appellant away to a camp and, if the threats are carried out, then the conclusion has to be that the Appellant would face significant harm.

Minister's submissions 18 The Minister accepted that the Authority's Reasons were "ambiguous" but submitted that the construction posited by the Appellant was "absurd" in the context of the Authority's reasons and given the existence of alternative plausible interpretations. In this respect, the Minister advanced two alternative constructions of the final sentence in [27], each of which he submitted was neither irrational nor illogical. 19 The first alternative construction posited by the Minister is that the Authority was considering the hypothesis, or contemplating a possibility, that people claiming to be Maoists might carry out threats or cause harm to the Appellant but was satisfied that there was not a real chance of that occurring. Having regard to the Authority's earlier finding (at [17]) that the threats from people claiming to be Maoists were "empty threats", that construction did not reveal any extreme illogicality in the Authority's reasons. Indeed, the Authority accepted that although the Appellant may have received threats from people claiming to be Maoists, on each occasion the Appellant or his family refused, and no threats were ever carried out against him or his family. 20 The second alternative construction of the Minister is that the Authority accepted that people claiming to be Maoists might escalate their threats or cause the Appellant harm, but that would not constitute a real risk of significant harm in the sense contemplated by s 36(2)(aa) of the Act. In this respect, the Minister submitted that there is no basis to draw equivalence between what actually happened to the Appellant in 2003, being his abduction and assault, and what might happen (but has never happened) if people claiming to be Maoists followed through with their threats. That is to say, there is nothing illogical or irrational in the Authority having contemplated the possibility that people claiming to be Maoists will carry out threats and cause harm but nevertheless concluding that it did not enliven Australia's complementary protection obligations. 21 Further, the Minister submitted that even if the Authority's reasons were in fact illogical or irrational, this did not constitute a 'material' error in the sense contemplated by the High Court in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [29]-[31] (Kiefel CJ, Gageler and Keane JJ): That a decision-maker "must proceed by reference to correct legal principles, correctly applied" is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance. Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of "the possibility of a successful outcome", or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was "so insignificant that the failure to take it into account could not have materially affected" the decision that was made. Thus, as it was put in Wei v Minister for Immigration and Border Protection, "[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act". Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision. [footnotes omitted] See also BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [59] (Yates, Wheelahan and O'Bryan JJ), where the Full Court of this Court found that the Tribunal's error was not material in the sense of depriving the applicant of a realistic possibility of a successful outcome. 22 The Minister relied, in particular, on the contention that where the impugned finding is but one of a number of findings that independently may have led to the Authority's ultimate conclusion, jurisdictional error will generally not be made out: see, eg, Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [55] (Wigney J) cited with approval in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [60] (McKerracher, Griffiths and Rangiah JJ); Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 255 FCR 81 at [35] (Charlesworth J, with whom Flick and Perry JJ agreed); AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 at [41] (Kenny, Griffiths and Mortimer JJ); and Tran v Minister for Immigration and Border Protection [2019] FCAFC 126 at [173] (Charlesworth and O'Callaghan JJ). 23 Finally, the Minister submitted that, having regard to the terms of s 65(1)(b) of the Act, the Authority is required to affirm the Minister's decision unless it is satisfied the Appellant satisfies the criteria for a protection visa. It is not necessary for the Authority to be satisfied that the Appellant does not satisfy the visa criteria: see, eg, SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] (Ryan, Jacobson and Lander JJ); Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; 151 FCR 214 at [72]-[74] (Heerey, Conti and Jacobson JJ); Minister for Immigration and Border Protection v Gill [2019] FCAFC 9; 268 FCR 575 at [15]-[16] (Moshinsky, Charlesworth and Lee JJ). The Minister submitted that this was relevant insofar as it informs whether the Authority's reasoning can be said to be illogical or irrational, in light of its statutory function.

Consideration 24 To be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, 'extreme' illogicality or irrationality in the decision must be shown, 'measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions': CQG15 at [60] (McKerracher, Griffiths and Rangiah JJ) endorsing the principles collated in SZUXN at [52], [54]-[56]; see also ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at [47] (Griffiths, Perry and Bromwich JJ); DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [30] (Kenny, Kerr and Perry JJ); and BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 263 FCR 292 (Perram, Perry and O'Callaghan JJ) at [37]. 25 The threshold for "extreme illogicality or irrationality" is not easily met. The authorities emphasise that the decision must not simply be one over which reasonable minds might differ; indeed, even emphatic disagreement with the Authority's reasons is not sufficient: CQG15 at [61] (McKerracher, Griffiths and Rangiah JJ), citing SZMDS at [124] (Crennan and Bell JJ). The Appellant must therefore establish that no rational or reasonable decision-maker could have reached the same decision that was made by the Authority. 26 Importantly, in this context it is apt to bear in mind what the High Court said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 (referring to Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280) at [30]-[31]: …a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker. The Court continued: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error." These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed… [footnotes omitted] This proposition has been applied on many occasions, including by the Full Court of this Court in Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16; ; 274 FCR 646 at [95] (Derrington and Thawley, with whom Logan J agreed), as well as in PKBV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2047; 168 ALD 235 at [6] (Jagot J) and EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681; 272 FCR 409 at [86] (Derrington J). 27 The resolution of this appeal depends on the proper construction of [27] of the Authority's reasons. I acknowledge that there is ambiguity in the impugned sentence. It is not expressed with the precision and clarity that might be desirable. However, I do not accept the Appellant's construction of the final sentence of that paragraph. To do so would be to accept an express contradiction between the first part and second part of the sentence. I do not accept this construction having regard to the plausible alternative constructions and the Authority's consideration of all the evidence before it. Indeed, it is entirely inconsistent with the conclusions expressed by the Authority in the preceding sentences; namely, that although the Appellant may have been threatened in the past, and may be in the future, those threats are unlikely to be carried out, and therefore the Authority was not satisfied the Appellant would face significant harm if he returned to Nepal. 28 In any event, even if the construction urged upon the Court by the Appellant were accepted, I do not accept that the impugned finding was material and therefore did not constitute a jurisdictional error. The Authority clearly accepted that the Appellant might be subjected to further extortion attempts by those claiming to be Maoists. However, based on previous such encounters, which indicated that such threats were not actioned, the Authority was not satisfied that there is a real risk that the Appellant would suffer significant harm if returned to Nepal. That was sufficient to determine the Appellant's complementary protection claim and it was beside the point to consider what might have been the position if "people claiming to be Maoists escalated their threats or carried out threats and caused harm to [the Appellant]." It follows that the purported error is not one which could have affected the decision made.

Disposition 29 In my view, the proposed ground of appeal has no merit. Accordingly, leave to raise a new ground of appeal is refused and the appeal is dismissed. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Anastassiou.