DLT18 v Minister for Home Affairs

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs.
3. The name of the first respondent be amended to "Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (formerly known as the Minister for Home Affairs)". Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

(Revised from transcript) 1 This is an appeal from a judgment of the Federal Circuit Court dismissing an application for judicial review of a decision of the Immigration Assessment Authority. 2 The appellant is a Nepali national who arrived in Australia by boat without a visa in November 2012. As an "offshore entry person", later referred to in the legislation as an "unauthorised maritime arrival" and an unlawful non-citizen within the meaning of the Migration Act 1958 (Cth), he could not lodge a valid application for a visa unless the Minister determined otherwise: Migration Act, s 46A. In April 2016 the appellant was informed that the Minister had determined to allow him to lodge a valid application for a temporary Safe Haven Enterprise Visa (SHEV). The purposes of the SHEV are to provide protection from the risk of persecution in the country of the applicant's nationality and "to encourage enterprise through earning and learning while strengthening regional Australia": Migration Act, s 35A(3B). The appellant lodged an application for a SHEV approximately three weeks after he received the advice from the Minister. The application was accompanied by a statement signed by the appellant which purported to be a summary of his claims for protection. The appellant claimed that he faced serious harm in Nepal from Maoists because he had refused to support them and from others, including the republican government, because he had supported the monarch. 3 Section 65 of the Act imposes a duty on the Minister to grant a visa to an applicant who has lodged a valid application if the Minister is satisfied that the prescribed criteria have been met and a duty to refuse to do so if those criteria have not been met. Part 7AA of the Act establishes a mechanism for automatic review by the Immigration Assessment Authority of a decision of the kind made in the present case. 4 The principal criteria for the grant of any type of protection visa are set out in s 36 (read with ss 5H and 5J). In the appellant's case, for the Minister to grant the visa, the Minister had to be satisfied that he was a non-citizen in respect of whom Australia had protection obligations for one of two reasons. One was that he satisfied the refugee criterion in that, because of his political opinions, he had a well-founded fear of being persecuted anywhere in Nepal and, because of that fear, was unable or unwilling to avail himself of the protection of Nepal. The fear of persecution must involve serious personal harm. The alternative reason, known as the complementary protection criterion, was that the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant's removal from Australia to Nepal, there was a real risk that the appellant would suffer significant harm. With certain exceptions, however, protection obligations are deemed not to arise, if the visa applicant has not taken all possible steps to avail himself of any right he may have to enter and reside in a third country. 5 The SHEV application was initially dealt with by a delegate of the Minister. After considering the application and interviewing the appellant, the delegate was not satisfied that the appellant was a person in respect of whom Australia has protection obligations. 6 The Authority reviewed the application and affirmed the delegate's decision. In short, the Authority had a number of concerns about the truth of critical parts of the appellant's account and concluded that he had embellished his account to enhance his claims for protection. In particular, the Authority concluded that the appellant had fabricated his claims to have been threatened and attacked and, consequently, did not accept that he was at risk of harm for the reasons that he gave or at all. 7 In the court below, the appellant applied for an order quashing the decision of the Authority and a writ of mandamus requiring it to determine his application according to law. The application contained two grounds. They read (without alteration): 1. The second respondent Immigration Assessment Authority (IAA) failed to give sufficient weight to the applicant claim of well-founded fear of persecution and evidence in support of protection visa and relied upon irrelevant consideration by asking questions outside of his claim to discredit him. Particulars Paragraphs 5 to 11 and 22 2. The IAA in addressing the Applicant's claim for complementary protection failed to adequately consider the risk that the applicant will suffer significant harm if returned to Nepal. Particulars Paragraphs 46-49. 8 The appellant did not file any submissions and, when the primary judge asked him what his complaint about the Authority's decision was, he was apparently unable to identify any particular error. Her Honour nevertheless proceeded to consider the two grounds of the application. 9 With respect to the first, her Honour noted that the appellant had not attended a hearing before the Authority so that it could not have asked him any questions. Her Honour said the "bare assertion" that the Authority had failed to give sufficient weight to his claim was not supported by particulars or submissions. After considering the Authority's reasons, her Honour concluded that the Authority's findings were not affected by jurisdictional error. Jurisdictional error, I interpolate, was the sole basis upon which the relief the appellant had sought could have been granted, having regard to the limits on the court's jurisdiction imposed by Pt 8 of the Migration Act. Her Honour held that the Authority's findings were available on the evidence and material that was before the Authority; were not tainted by any failure to accord the appellant procedural fairness; and its credibility findings were based on rational grounds, after a consideration of "factors that were logically probative of the issue of credibility", and were not unreasonable. 10 With respect to the second ground, her Honour said that it was clear that the Authority understood "the notion of 'significant harm'" and had referred to its rejection of the appellant's claims that he had been threatened, attacked or harmed by Maoists or other opposition groups. She observed that it was "well established" that the Authority was entitled to have regard to its previous findings in considering whether an applicant meets the criteria for complementary protection. 11 The sole ground of appeal reads: The Court did not give reasons to reject the Grounds of the Application particularly Ground 2. 12 No particulars were given and no submissions were filed in support of the appeal. At the hearing, the appellant merely asserted that the decision was wrong and maintained that he had always told the truth. 13 The appeal is without merit. 14 First, the court did give reasons to reject the grounds of the application. Reasons were given orally and then reduced to writing. There is nothing improper or unusual in that. 15 Second, as I have already observed and as the primary judge appreciated, the relief the appellant sought was only available for jurisdictional error. Without more, according insufficient weight to an applicant's claim and his evidence does not constitute jurisdictional error. The Authority was not obliged to accept the appellant's account, particularly when, for the reasons it gave, it lacked credibility. The weight to be given to the appellant's claims and evidence was a matter for the Authority and not for the court to determine: see, for example, Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33]. Having regard to the inconsistencies in the appellant's evidence detected by the Authority and the perceived vagueness of critical aspects of his account, it was not manifestly unreasonable for the Authority not to accord the appellant's claims and evidence greater weight than it did. 16 Third, a consideration would only be irrelevant for present purposes if the Authority were bound by the Act, expressly or implicitly, to disregard it: see, for example, Sachin v Minister for Immigration and Border Protection [2017] FCA 527 at [14] (Robertson J); Aerocare Flight Support Pty Ltd v Transport Workers' Union of Australia [2018] FCAFC 74 at [26]. I am unable to discern any matter to which the Authority referred in its reasons which it was bound to disregard. The reference to paragraph 22 of the Authority's decision in the particulars to ground 1 suggests that the person who drafted the application was referring to the Authority's statement that country information suggests the prevalence in Nepal of fraudulent or fraudulently obtained documents. There is no doubt that the Authority took that circumstance into account in assessing the weight to be given to documents submitted by the appellant in support of his claims. But the Authority was entitled to evaluate the appellant's claims by considering external material, particularly country information, which may have had a bearing on the veracity and reliability of his account and the reliability of the documents upon which he relied. By ss 473DC and 473DE of the Act, the Authority was permitted to obtain and rely on any documents or information it considered relevant and, in the case of country information, was not obliged to give notice to the appellant that it intended to have regard to it. 17 Finally, although the Authority gave only brief reasons for concluding that the appellant did not satisfy the complementary protection criterion, I agree with the primary judge that its consideration was adequate. 18 After summarising the relevant statutory provisions, the Authority said: 47. I have considered the applicant's circumstances whether he faces a real risk of significant harm upon return to Nepal. 48. As discussed above, I have not accepted the applicant's claims about threats or attacks or harm from Maoists or any opposition groups. I have not accepted he faces a real chance of any harm on the bases claimed or at all. For the same reasons and applying the authority in MIAC v SZQRB [2013] FCAFC 33 [scil.], I am not satisfied the applicant will face a real risk of harm of if removed to Nepal. 49. There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s.36(2)(aa). 19 While the authorities to which her Honour referred related to decisions of the Refugee Review Tribunal and the Administrative Appeals Tribunal, there is no reason why the point made in those cases would not apply equally to the Authority. A decision-maker's disbelief in an applicant's account of events in which he claimed to have suffered serious harm is plainly relevant to whether the decision-maker is satisfied that there are substantial grounds for believing that the applicant faces a real risk of significant harm: SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; 138 ALD 26 at [32]. The reasons the Authority gave for not accepting the appellant's claims about threats, attacks or other harm from Maoists or other persons or entities in Nepal were not merely relevant to his refugee claim, but were also both relevant to, and probative of, the question whether he was at a real risk of significant harm for the purposes of the complementary protection criterion. 20 For all these reasons the appeal must be dismissed with costs. There will be orders accordingly. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.