DNL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Decision of the FCC 10 The appellant raised one unparticularised ground in his application for judicial review in the FCC: The Immigration Assessment Authority and the delegate of the Minister for Home Affairs erred in law in making his decision. 11 During the FCC hearing, the appellant did not identify any error of law. Despite this, the FCC Judge engaged in a reasonably detailed review of the IAA's decision and noted four matters: (a) that the IAA had identified correctly the elements of a well-founded fear of persecution for which s 5J of the Act provides; (b) that the IAA had engaged in a clear and cogent analysis of the appellant's claims for protection, dealing with each aspects of the claims and the evidence said to support it; (c) that the IAA had identified, correctly, the requirement that there be a risk of significant harm for the purposes of a claim for complementary protection; and (d) that the IAA's reasons included a close consideration of the matters on which the appellant had relied for the claim of complementary protection. 12 The FCC Judge then concluded that the IAA's decision-making was not affected by illogicality or irrationality, referring to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, (2010) 240 CLR 611 at [130] (Crennan and Bell JJ). In addition, the FCC Judge concluded that the IAA's decision-making could not be regarded as legally unreasonable or lacking an evident and intelligible justification, in the sense of these concepts as discussed in Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332 at [66], [76].

The appeal to this Court 13 The appellant's Notice of Appeal to this Court contains three grounds, namely: a) The Second Respondent ignored relevant material in a way that affected its exercise of power. b) There has been an apprehension of bias during the interview by the first respondent. c) The Respondent has not properly considered the alternative criterion under the Complimentary (sic) protection. 14 Each of these grounds was unparticularised. The appellant did not provide an outline of submissions and so no particulars were provided later by that means. 15 The appellant's opening submission on the appeal was that he had been denied the opportunity to make submissions in the FCC. At the time the appellant made those submissions, he appeared to suggest that he had been denied that opportunity during the course of the substantive hearing of his application. That, of course, would be a matter of surprise and the appellant did not provide any evidence to support that this had occurred. However, that is a matter of no consequence, because the appellant acknowledged in his reply submissions that, when he said he had not been given the opportunity to make submissions, he had been referring to the time after the FCC Judge had delivered the judgment. 16 There is no denial of procedural fairness by a judge not giving a litigant an opportunity to make further submissions on the substantive issues in an appeal after the judgment has been delivered. 17 In relation to Ground 1 of the Notice of Appeal, the appellant submitted, in effect, that the IAA had not dealt with his claim that he would suffer harm if returned to India. He also expressed his dissatisfaction with the way in which the IAA had dealt with this aspect of his claim. He submitted that it had not been explained to him why he would not suffer harm if returned to India and also submitted at one stage that the IAA had not addressed s 370 of the Indian Penal Code. 18 Those submissions cannot be accepted. The IAA dealt at some length with each of the bases upon which the appellant made his claims for protection, including complementary protection. 19 The IAA addressed the appellant's claims based on his participation in people smuggling in [13]-[16] of its reasons. In the course of those reasons, the IAA referred specifically to s 370 of the Indian Penal Code on three separate occasions and explained why the IAA considered that the appellant was not at risk of prosecution under s 370 by reason of his participation in people smuggling. The IAA concluded in [16] of the reasons: As a consequence, I do not accept that the applicant will be charged under section 370 of the Indian Penal Code on his return to India, as he has not claimed to have undertaken any activities that would meet the definition of trafficking of people. Therefore, I have not considered the penalties for trafficking of people in India, as I do not consider that the applicant will be charged, penalised or other subject to any harm on this basis. 20 In my view, that reasoning cannot be regarded as irrational, implausible or lacking an intelligible basis. In particular, I consider that the IAA's conclusion concerning the participation in people smuggling cannot be impugned on an application for judicial review. 21 The appellant did not point to any other material which was said to have been ignored by the IAA member, nor point to considerations which the IAA was required to consider in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-42. Nor did the appellant point to material that the IAA had failed to take into account, so that it could be said not to have discharged its statutory obligation to review the delegate's decision: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, (2018) 353 ALR 600 at [16]-[18], [85]; BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169, (2017) 253 FCR 448; BJB v Minister for Immigration and Border Protection [2018] FCAFC 49, (2018) 260 FCR 116 at [69]-[72]. 22 Accordingly Ground 1 in the Notice of Appeal is not established. 23 The claimed apprehension of bias in the second ground in the Notice of Appeal is a new claim, which the appellant would need leave to argue on the appeal. There is no basis upon which such leave could be granted. First, the complaint of bias relates to the Minister's delegate and not to the IAA member. In any event, bias by the delegate, if it did exist, could not give rise to jurisdictional error by the IAA member carrying out the independent de novo review required under Pt 7AA of the Act. 24 Secondly, the appellant did not point to any matter to support a claim of apprehended bias and none is apparent in the delegate's reasons. The appellant has not satisfied the requirement of clearly articulating, let alone proving, an allegation of apprehended bias: Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337 at [8]; Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17, (2001) 205 CLR 507 at [69]. 25 I also note that the Minister's delegate had in fact made a number of findings favourable to the appellant. 26 Apart from the matters which I have already addressed, the appellant did not articulate any basis upon which it could be said that the IAA had not considered his claim for complementary protection in an appropriate manner. It is true that the reasons of the IAA concerning the claim for complementary protection are reasonably short, but that is because the IAA had dealt, in some detail, with the very same matters on which the appellant relied in relation to the claim for protection under s 36(2)(a). Accordingly, Ground 3 in the Notice of Appeal fails.

Conclusion 27 I have also reviewed the IAA's reasons more generally and have not detected any matter which could support a claim of jurisdictional error. 28 For these reasons, none of the appellant's grounds of appeal is made out and the appeal must be dismissed. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.