FEDERAL COURT OF AUSTRALIA

DZAEJ v Minister for Immigration and Border Protection [2016] FCA 885

ORDERS

THE COURT ORDERS THAT:

1.    Leave to raise grounds 2 to 4 and grounds 6 to 9 in the notice of appeal filed on 16 March 2016 is refused.

2.    The appeal is dismissed.

3.    The appellant is to pay the first respondent’s costs to be fixed in the sum of $6,439.00.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

REEVES J:

Introduction

1    The appellant has appealed from a decision of the Federal Circuit Court: see DZAEJ v Minister for Immigration & Anor [2016] FCCA 557 (DZAEJ).

The grounds of appeal

2    He has relied on nine grounds of appeal:

1.    The Tribunals decision dated 1st of June 2015 is affected by jurisdictional error because it was legally unreasonable

2.    The Tribunal has made its decision without any consideration of the Facts, Findings, and evidence which was put in front of the tribunal before the hearing dated 15th of may 2015,

In fact tribunal made a fresh decision without considering it was not a fresh Application. Tribunal did not took into account for the previous findings of the tribunal itself on of 24th of June 2014 on my claims for protection. The tribunal also did not considered the findings of Minister and FFC on of 2nd of March 2015 on my claims for protection. for which the Tribunal decision on of 1st June 2015 is legally unreasonable

3.    The Decision of tribunal is not based on any reality or evidence neither it is a moral or human decision rather it is totally based on narrow concept, hypothetical, irrational and baseless allegation

4.    The tribunal has misguided my claims and has misguided its own findings on of 24th of June 2014, and has made an incomplete, incorrect and negative conclusion on the Credibility grounds which does not have any legal base

5.    The decision of Tribunal is not based on my oral and written statements my arguments my protection application form which I made before the decision in various interview, rather it is totally based in the Compliance Interview on of 1st February 2014 which was held in the phone without considering the time (2 am in the morning) , the circumstance ( in the state of intoxication) and the place( inside Auburn police station)

6.    The decision of tribunal does not satisfy all the grounds and my claims for protection it is an irresponsible and incomplete decision which is not based on reality and my circumstances in the decision they have said “ Applicant fathers commercial transition went wrong” what was that commercial transaction?

“Applicant fathers property was confiscated for a reason yet unknown” does Nepal government confiscate someone’s property without a reason? “there are no individual in Nepal” who are those 12 boys in the minister and FCC decision that are from my social circle and will locate me in India?

The fact is tribunal has not consider any of the fact of my claims, any of the previous findings which was submitted by me before the time of the hearing itself

7.    The tribunal has not taken into account that on 2nd of March 2015 my claims from FCC was remitted for a specific reason the reason was “ I have a well founded fear of being located by those 12 boys in India” India is not “Safe Third Country” I have a well founded fear of being persecuted if I was located by those 12 boys in India because of which my claims was remitted and was order to make a new decision which is based on law and tribunal made a fresh irresponsible baseless decision without any knowledge in my previous process findings it was not a fresh application. tribunal should not just consider what I have not said while in was unconscious but should also consider what I have said in this long process.

8.    Tribunal has not consider that India is 27 times bigger then Nepal and if I am not safe in India from those 12 boys whom I feared will harm me, is that possible that I have not well founded fear in Nepal? Is that possible that I can live a fearless life in Nepal where those 12 boys are?

9.    The tribunal decision has not any base its made without any knowledge without considering any facts and findings it is not a moral responsible neither it is a legal or humanitarian decision therefore exceeded its Jurisdiction

(Errors in original)

The factual and procedural background

3    The appellant is a citizen of Nepal, who first arrived in Australia on 8 October 2008 on a student visa (subclass TU 572). He was granted his student visa offshore. However, when that visa expired on 29 November 2010, he remained in Australia unlawfully. About three years later, in late January 2014, he was arrested at Auburn in New South Wales after attempting to enter a property from which he had previously been evicted. He was intoxicated at the time. He was held in custody for approximately four hours. At the conclusion of that period, an officer or officers of the Department of Immigration conducted a compliance interview with him by telephone with the assistance of an interpreter. Thereafter, the appellant was detained by the police under s 189 of the Migration Act 1958 (Cth) (the Act). Approximately two weeks later, he lodged his application for a protection (class XA) visa.

4    The appellant claimed to risk harm arising out of his liability for the debts his father had incurred from a failed business venture in Nepal. His father’s business venture involved recruiting 12 year old boys who paid him money to receive visas in order to work overseas. It was this group of boys from which the appellant claimed he feared harm.

5    In late March 2014, the Minister’s delegate refused the appellant’s application for a protection visa. He then applied to the Refugee Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal), for merits review of that decision. In June 2014, the Tribunal affirmed the delegate’s decision. Soon thereafter the appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. In March 2015, the Tribunal’s decision was set aside and his application was remitted to be reconsidered by a reconstituted Tribunal.

The proceeding before the Tribunal

6    The appellant attended a hearing before the reconstituted Tribunal in May 2015. In June 2015, the reconstituted Tribunal delivered its decision to affirm the delegate’s decision.

7    The reconstituted Tribunal did not accept that the appellant was a credible witness. In its decision record, it stated that it had “a number of difficulties with the applicant’s credibility, the degree to which he holds an actual fear of harm of returning to Nepal, and the extent to which his claims are well founded”. It then outlined five such areas of difficulty. They may be summarised as follows:

(a)    his evidence regarding the threats that were made to him was vague and speculative;

(b)    he gave vague and speculative responses at the compliance interview when he was asked why he did not wish to return to Nepal;

(c)    he did not provide genuine police reports to the Tribunal;

(d)    his delayed claim for protection and the circumstances surrounding his claim were not conducive to him fearing harm if he were to return to Nepal; and

(e)    his evidence concerning his contact with his parents was implausible.

8    With respect to the compliance interview (at [7(b)] above), which became the focus of the judicial review proceedings before the Federal Circuit Court, the Tribunal made the following observations:

… the vague and speculative nature of the applicant's fear is confirmed by information contained in the record of the applicant's compliance interview which took place on 1 February 2014, after the applicant was arrested for trying to break into a property. In that interview, when the applicant was asked why business trouble of his father's means that the applicant cannot return to Nepal, the applicant responded, 'because he do something wrong I will also be in trouble. What can I say'. The Tribunal in the hearing put this information to the applicant pursuant to the procedural requirements of s. 424AA of the Act. It noted that the information was relevant because the applicant failed to indicate in response to this question that he feared harm from specific individuals to whom the applicant's father owed money. It noted that the consequence of the Tribunal relying on this information could be to question the extent to which the applicant had a fear of specific harm. The applicant, in response, said that this was a very brief interview, conducted over the phone, and that the applicant was drunk. The applicant also said that he thought the Department would understand his situation without having to provide detail. While the Tribunal notes these responses, the applicant was asked a very specific question as to why he feared harm, and the Tribunal considers that if the applicant specifically feared reprisals from individuals due to his father owning them money, then he would most likely have provided detail of this, when asked the specific question. The Tribunal draws an adverse inference from the applicant's failure to be more specific in response to this question.

9    Earlier in its reasons, the Tribunal described the circumstances of that compliance interview in the following terms:

When the applicant was detained on 1 February 2014, he undertook a Compliance Interview. There is a record of that interview on the Departmental file. That interview records the applicant being asked whether he was intending to apply for any visas in Australia. He replied that he was intending to apply for a Protection visa. When asked why he had not already applied he answered 'I was not ready'. When asked as to his address in his own country, the applicant replied 'I don't know somewhere. I previously lived with my father but he has some problems and I haven't spoken to him long time. Somewhere in Kathmandu.’ The applicant is asked if there are any reasons why he cannot return to his home country and he responded, 'yes my father do some business and his partner run away with the money'. The applicant was asked if his father was in trouble why does this mean that the applicant could not return to Nepal. The applicant responded, 'Because he do something wrong I will be in trouble. What can I say.’

10    Ultimately, the Tribunal concluded that the appellant did not satisfy the refugee criterion in s 36(2)(a) of the Act and also did not satisfy the complementary protection criterion in s 36(2)(aa) of the Act.

The decision of the Federal Circuit Court

11    By an application filed in February 2016, the appellant sought judicial review of the Tribunal's decision before the Federal Circuit Court. In that application, he raised one ground of review which contained five particulars:

The Tribunal's decision dated 1 June 2015 (the "Tribunal's decision") is affected by jurisdictional error because it was legally unreasonable.

Particulars

a.    The Tribunal rejected the applicant's protection claims on credibility grounds.

b.    One of the Tribunal's bases for drawing a negative conclusion as to the applicant's credibility was the answer the applicant provided in response to a question in a compliance interview. The Tribunal drew an adverse inference from the applicant's failure to be more specific in that answer.

c.    The Tribunal's conclusion in this regard lacked an evident and intelligible justification.

d.    Contributing to the unreasonable nature of the finding, in it's reasoning, the Tribunal made no allowance for the time the interview was conducted, the purpose of the interview, that the applicant had been arrested by police when he was intoxicated and held in police cells for the preceding four hours, and that the applicant had been homeless prior to his arrest.

e.    In the circumstances of the compliance interview, the Tribunal's conclusion as to the applicant's credibility was legally unreasonable and therefore exceeded its jurisdiction.

(Errors in original; emphasis omitted)

12    As can be seen from the particulars to this ground of review, the appellant focused on the use the Tribunal made of his statements during the compliance interview to support, at least in part, its adverse credibility findings.

13    The Federal Circuit Court Judge rejected this ground stating that the Tribunal (DZAEJ at [28]):

… relied on a variety of different circumstances, answers and approaches in concluding that the applicant was not credible. In relation to the compliance interview, it used that compliance interview, in my opinion, cautiously, consistently with the exhortation of the Full court and did so only to confirm its view of the applicant’s answers given in the Tribunal interview …

14    The Full Court decision to which the Federal Circuit Court Judge referred was MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80. Based upon this conclusion, his Honour dismissed the appellant’s application for judicial review.

The contentions

15    The appellant filed written submissions in support of his appeal. It should be noted that he was self-represented at the hearing of his appeal and, as English is his second language, he was assisted by an interpreter. He submitted that it was unreasonable for the Tribunal to make the adverse credibility findings it had made and that the Tribunal did not consider the material he had provided to it in support of his claims.

16    In his written submissions, the Minister contended that, save for grounds one and five, the grounds of appeal in this proceeding were not raised in the proceeding before the Federal Circuit Court Judge. The Minister submitted that the appellant required leave to raise those five new grounds of appeal. Although the Minister stated that he would suffer no real prejudice as a result of these new grounds being raised, he submitted that none of those grounds had any merit and therefore leave to rely upon them should be refused.

17    With respect to grounds one and five, the Minister submitted the Federal Circuit Court Judge had made no error. To the extent that the Tribunal’s adverse credibility findings were based on the appellant’s compliance interview, the Minister contended that the Tribunal had approached the appellant’s evidence “in a cautionary manner, and apportioned a level of evidentiary weight it considered appropriate for an interview conducted in a high pressure situation”.

Consideration and disposition

18    The appellant has nominated nine grounds of appeal in his notice of appeal. While the Minister is correct that seven of those grounds raise new matters that were not pursued before the Federal Circuit Court, the more fundamental problem with all the appellant’s grounds of appeal is that none of them identifies any error that was allegedly made by the Federal Circuit Court Judge. Correcting error is, of course, the central object of an appeal to this Court: see Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [23] and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 at [21]–[22] per Allsop J, with whom Drummond and Mansfield JJ agreed.

19    Instead of identifying such appealable error on the part of the Federal Circuit Court Judge, all of the appellant’s nine grounds of appeal are directed to errors allegedly made by the Tribunal. More fundamentally still, all of those grounds allege errors of fact in the Tribunal’s decision, or challenge the adverse credibility findings it made (see at [7] above). With some limited exceptions that do not apply in the circumstances of this appeal, such findings are not open to challenge in the Federal Circuit Court on judicial review, or in this Court on appeal from that Court: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at 351–352 and Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 at [67] per McHugh J.

20    Ground 5 is the only ground of appeal which appears, at least in part, to raise the same factual issue as was raised before the Federal Circuit Court. While, as I have already observed above, that ground is also directed to alleged error on the part of the Tribunal, I will assume, in the appellant’s favour, that he intended to allege the same error on the part of the Federal Circuit Court Judge. On that basis, I have examined the reasons of the Federal Circuit Court Judge and cannot identify any error in his disposal of the equivalent ground of judicial review before him. His Honour referred to relevant Full Court authority and had due regard to it and the whole of the findings made by the Tribunal in rejecting that ground of review as unmeritorious (see at [13]–[14] above).

21    To the extent that ground 1 may also raise the same issue of unreasonableness as was raised in the sole ground of judicial review before the Federal Circuit Court, and adopting the same assumption, I do not consider any error is apparent in the Federal Circuit Court Judge’s reasoning. In this context, the test for unreasonableness is: “[a] decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision-maker does not come to that conclusion, or if the decision to which the decision-maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn”: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [135] per Crennan and Bell JJ.

22    The appellant’s nine grounds of appeal are so replete with broad unparticularised allegations that it is almost impossible to discern exactly what his complaint is. Nonetheless, even on a generous reading of them and a strict reading of the Tribunal’s decision record, I am unable to detect any evidence of unreasonableness of the kind described above.

Conclusion

23    I do not therefore consider any of the appellant’s grounds of appeal has merit. For these reasons, I refuse leave for him to raise grounds 2 to 4 and 6 to 9 for the first time in this appeal and dismiss grounds 1 and 5. It follows that this appeal must be dismissed and the appellant ordered to pay the Minister’s costs fixed in the sum of $6,439.00.

Associate:    

Dated:    4 August 2016