FQH17 v Minister for Immigration and Border Protection

Federal Court of Australia|2018-11-15|Before: Robertson J

The appellant's application for an adjournment is dismissed.
The appeal is dismissed.
The appellant is to pay the costs of the first respondent, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ROBERTSON J: 1 I will first deal with an application for an adjournment made by the appellant at the commencement of the hearing this morning. The application was opposed by the Minister. 2 The ground of the application was that the appellant wanted the Court to assist him to get a lawyer or if he was given time that he could look to obtain a lawyer himself. 3 The relevant circumstances are, first, that no steps have been taken by the appellant to obtain legal advice since the judgment under appeal of the Federal Circuit Court given on 4 July 2018 or the filing of the appellant's notice of appeal on 25 July 2018. On 17 August 2018 the appellant was notified by email of the directions made by the Court for the preparation of the appeal for hearing. On 3 October 2018 the appellant was notified by email that his appeal had been listed for hearing today, 15 November 2018. On 11 October 2018 the solicitors for the Minister sent to the appellant a further copy of the directions. On 8 November 2018 the solicitors for the Minister forwarded to the appellant a copy of the Minister's written submissions. Second, the appellant said that he thought he could leave the question of obtaining a lawyer to the hearing of his appeal today. 4 The appellant also submitted that he had discovered yesterday that his agent or lawyer had not forwarded to the Department in Australia one or, I understood, perhaps two documents that he, the appellant, had given to the lawyer or agent to forward. The appellant described one document as concerning his identity and he described what I understood to be another as being from a village development committee saying that he was no longer there because of risk to his life. The appellant said that he wanted to engage a lawyer to consider this material. 5 I refuse the application for an adjournment on the basis, first, that the appellant has taken no steps to obtain legal representation either in the period since July 2018 or in the period since he was notified of the hearing date of his appeal on 3 October 2018. Second, there was no basis on which, in light of the communications to him, the appellant could reasonably think that he could apply for the appointment of legal representation at the hearing of the appeal. Third, in relation to the document or documents which the appellant said he had just found out had not been supplied to the Department, taking this material at its highest it would not tend to establish jurisdictional error on the part of the Immigration Assessment Authority or appellable error on the part of the primary judge. There was no suggestion of fraud. There was nothing to suggest that the appellant would be in a different or better position if he was given more time in which to seek to secure legal representation. 6 I turn now to the appeal itself.

Introduction 7 This appeal is from the judgment and orders of the Federal Circuit Court of Australia given and made on 4 July 2018. The primary judge dismissed an application for judicial review of a decision of the Authority made on 22 November 2017 affirming the decision of a delegate of the respondent Minister dated 7 June 2017 not to grant the appellant a Safe Haven Enterprise visa. 8 The appellant is a citizen of Nepal who arrived in Australia on 20 December 2012.

The appellant's claims 9 The appellant's claims were summarised by the Authority, at [4], as follows: • he is a citizen of Nepal and of no other country • he was born in Nepal in 1979 and is of the Hindu religion • he seeks Australia's protection so that he does not have to return to Nepal • he left Nepal due to threats to his life from the Young Communist League (YCL) • in 1998/9 he was kidnapped by Maoists while he was a student in Bharatpur, Nepal. He was held for a month before he escaped. After this he left his home and moved to Bharatpur bazaar, near where he was studying • in 2003/4 he returned to Jutpani, Nepal and opened a grocery shop there • he was the owner/operator of this grocery shop from 2003 until around November 2011. In this time the YCL sought small donations from him from time-to-time. He, paid those donations which allowed him to continue his business • In November/December 2011 the YCL demanded a donation of NPR400,000 from the applicant, which he was unable to pay and refused to pay. The YCL threatened to kill him if he did not pay within a week. In that time he fled to Kathmandu • he was so furious about the YCL's threats that he did not seek help from the Nepalese authorities. He does not think the Nepalese authorities would have helped him as they fear harm from the Maoists themselves • he lived in hiding in Kathmandu until March 2012. He then went to Malaysia to work • in Malaysia he met an agent who arranged for the Applicant to come to Australia. The agent told him to say that he is from Assam, India, and that if he mentions the Maoists or YCL it will be 'difficult' and his family may be kidnapped. He initially told Australian authorities he had lived in India, but he 'could not provide my documents' and clarifies that 'actually, I had lived in Nepal…I very much apologize for this' • he is in regular contact with his wife informs him that people from the YCL are still looking for him • he fears being killed by the YCL for not meeting their demands for payment of NPR400,000 if he returns to Nepal. (footnotes omitted, errors in original.) The Authority also noted a submission that the appellant faced a real chance of persecution from Maoists in Nepal for reason of being a businessman and that he also faced a real risk of significant harm in Nepal.

The findings of the Authority 10 The Authority summarised its findings of fact at [33] as follows: Based on the totality of the evidence advanced, the considerations and reasoning above, I do not accept that: a. the applicant was kidnapped in 1998/9 by Maoists or anyone else b. the applicant was the owner/operator of a shop in Nepal c. the applicant was an actual or perceived businessman in Nepal or that he will be in the reasonably foreseeable future d. the applicant was targeted for or asked to pay donations to the YCL/Maoists under threat of harm e. the applicant was the subject an attempted extortion and/or a demand by the YCL or anyone else to pay NPR400,000 11 Based on those findings of fact, the Authority did not accept that the appellant faced a real chance of harm of any kind at the hands of the YCL or Maoists in Nepal. The Authority also did not accept that the appellant would be an actual or perceived businessman in Nepal on his return there or in the reasonably foreseeable future. On the evidence before the Authority and its findings of fact, the Authority was not satisfied that the appellant faced a real chance of persecution in Nepal for any of the reasons claimed or arising on the evidence. 12 The Authority found the appellant did not meet the requirements of the definition of "refugee". In relation to complementary protection, the Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that the appellant would suffer significant harm.

Application for judicial review 13 The appellant's judicial review application to the Federal Circuit Court was in the following terms: 1. The Second Respondent made jurisdictional error by failing to consider the possible application of SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; in relation to a comeback of a migration agent concerning the arrival interview. 2. The second Respondent made jurisdictional error by failing to consider a relevant consideration namely the reliability and accuracy of the arrival interview. 14 In relation to ground one, the primary judge found there was no evidence of any fraud perpetrated by an agent upon the Authority or the delegate. There was reference to the appellant claiming to have lived in India and proffering an explanation as to why he gave that false information which the Authority did not accept. Whether the advice the appellant received was false or not did not give rise to any fraud on the Authority by a third party. The primary judge found that the Authority considered the appellant's explanation for the false information. The Authority found it was the appellant who provided the information to the Department that was not true. It was also in those circumstances open to the Authority to reject the appellant's explanation and to find that it did not explain the inconsistencies in the appellant's evidence and to make the adverse credibility findings for the reasons given by the Authority. No fraud of any agent was made out. No jurisdictional error as alleged in ground 1 was made out. 15 In relation to ground two, the primary judge said it was apparent that the Authority did take into account the information provided by the appellant at the arrival interview. It was logical and rational for the Authority to do so. It was reasonable for the Authority to take into account the false information provided by the appellant. It was apparent that the Authority assessed the appellant's credibility by reference to what the Authority found to be material and significant inconsistencies, contradicted by country information as well as omissions from the appellant's arrival interview and the false information provided by the appellant. There was no error by the Authority in taking into account the content or omissions from the arrival interview. The exercise of the Authority's power to make findings in respect of the appellant's credit could not be said to lack an evident and intelligible justification. No jurisdictional error as alleged in ground two was made out.

The appeal to this Court 16 The written grounds of appeal to this Court were as follows. 1. The Appellant's request to allow additional time to find representation was denied by his Honour. 2. His Honour made error by not providing the Appellant with reasons for his decision to dismiss the application. Particulars a) His Honour did not publish his judgment online. b) His Honour did not publish his judgment on the Commonwealth Courts Portal. 3. The Appellant was refused procedural fairness. 4. His Honour appeared to have acted with bias in forming an intention to dismiss the application before hearing the Appellant's wish to adjourn the matter.

The parties' submissions 17 The appellant filed no affidavit of substance and no written submissions. In oral submissions, the appellant submitted that the Federal Circuit Court did not consider his case properly. He also said that his agent or lawyer did not send to the Department all the documents he was supposed to. He described in his submissions one or perhaps two documents. As I have said above, one document related to his identity. I understood another to be from his village development committee relating to his absence because of a risk to his life. 18 The respondent Minister submitted as follows in relation to the four formal grounds of appeal to this Court. 19 With respect to ground one, there was no evidence that the appellant sought additional time or an adjournment of the proceedings before the Federal Circuit Court to find legal representation, or that such a request was denied by the primary judge. According to the judgment of the primary judge, the Court explained to the appellant the nature of the hearing (at [11]), and the appellant made oral submissions from the bar table (at [12]). There was no general entitlement to legal representation before the Court: SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702. 20 With respect to ground two, the Minister submitted there was no appellable error in his Honour delivering ex tempore reasons for judgment. There was nothing in the nature or content of the reasons of the primary judge which could form the basis for a conclusion that the Court did not consider any ground of review relied on by the appellant. The reasons of the primary judge, the Minister submitted, dealt adequately and succinctly with the appellant's two grounds of review and the matters he advanced orally. 21 The Minister submitted that no appellable error could be demonstrated by virtue of the timing of publication of written reasons online. 22 With respect to ground three, the Minister submitted, no particulars of any alleged denial of procedural fairness by the primary judge were provided and no such denial was demonstrated. In so far as this was an allegation of jurisdictional error by the Authority, this ground of review was not raised in the Court below and lacked sufficient prospects of success to warrant it being raised for the first time on appeal: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [48] per Kiefel, Weinberg and Stone JJ. In any event, the Minister submitted, the Authority complied with its statutory obligations, which were an exhaustive code of the requirements of the common law natural justice hearing rule applicable to reviews by the Authority: s 473DA of the Migration Act 1958 (Cth). 23 With respect to ground four, the Minister referred to and repeated his submissions concerning ground one. Neither actual nor apprehended bias on the part of the primary judge was demonstrated. 24 As to the appellant's oral submission that the Federal Circuit Court did not consider his case properly, the Minister submitted that broad claim did not show or suggest appellable error on the part of the primary judge. In relation to the document or documents which the appellant described in his oral submissions, the Minister repeated his submission in relation to the adjournment application, to the effect that, taken at its highest, this material did not tend to establish jurisdictional error on the part of the Authority or appellable error on the part of the primary judge.

Consideration 25 In relation to ground one, there is no evidence that the appellant made a request to be allowed additional time to find representation or that such a request was denied by the primary judge. The appellant has not sought to file an affidavit to this effect. There is no trace of such a request in the reasons of the primary judge. I reject ground one. 26 Ground two goes nowhere as the appellant has the reasons for judgment of the primary judge and has had them for a reasonable time. There is no suggestion that the appellant is unable to deal with those reasons. There is no evidence as to when the appellant first received a copy of those reasons but they are contained in the Appeal Book which has long been available to the appellant. In my opinion, there is no point in inquiring into the circumstances in which the reasons for judgment were received by the appellant. I reject ground two. 27 Ground three is a bare allegation of denial of procedural fairness and is of no substance. No particulars are provided of any alleged denial of procedural fairness and none is evident on the material before the Court. As this ground was not raised before the primary judge, leave would be required to raise it on appeal. I would refuse leave on the basis that the ground has no prospects of success. I reject ground three. 28 Ground four is another bare allegation. There is no factual basis for considering that the primary judge appeared to have acted with bias in forming an intention to dismiss the application before hearing the appellant's wish to adjourn the matter. As I said there is no material to suggest that an application for an adjournment was made or denied. I reject ground four. 29 As to the oral submission by the appellant that the Federal Circuit Court did not consider his case properly, no appellable error on the part of the Federal Circuit Court is suggested or established by this broad and unparticularised submission. I reject it. 30 As to the submission in relation to the material that was not before the Authority or the primary judge, that material, taken at its highest, would not establish or tend to establish jurisdictional error on the part of the Authority or error on the part of the primary judge. There was no issue as to the appellant's identity, and there is nothing to suggest fraud going to the Authority's jurisdiction or to the proceedings before the Federal Circuit Court. I reject that submission.

Conclusion and orders 31 I reject, therefore, each of the four grounds of appeal and the submissions of the appellant in so far as those submissions propound other grounds. The appeal is dismissed, with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

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