FEDERAL COURT OF AUSTRALIA

DCZ16 v Minister for Home Affairs [2018] FCA 1738

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time is refused.

2.    The applicant 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.

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    The applicant is a citizen of Nepal who entered Australia in 2007 as the holder of a student visa.

2    The matter before the Court is an application for an extension of time to file an appeal in this Court from the judgment and orders of the Federal Circuit Court of Australia, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the Minister to refuse to grant the applicant a Protection (Class XA) visa.

3    That application was filed on 6 August 2018. It was accompanied by an affidavit sworn by the applicant, deposing as follows (as written):

1.    I am the applicant and representing myself.

2.    I am living in Australia with my New Zealander wife and Australian born Child.

3.    His Honor erred in finding that the Tribunal had afforded procedural fairness to the Appellant, and/or erred in finding that the Tribunal had complied the procedures it was required to follow under the Migration Act 1958 (“the Act”). His Honor should have found that the Tribunal failed to accord procedural fairness, and/or failed to comply with section 424 of the Act by not disclosing sudden adverse Information’s before them. (Veal v MIMIA (2005) 225 CLR 88, paragraphs 20-24).

4.    The tribunal made denial of natural justice by not considering applicants as a Genuine refugee under the convention. Tribunal fail to consider the different culture and social status of the people in Nepal.

5.    The judgment made by the Federal Circuit court of Australia was affected by error of law, procedural fairness. The Federal court and the Federal circuit court failed to establish that the tribunal made jurisdictional error by not considering whether the Australia had protection obligations to the applicant under section 36(2)(2)(aa) of the migration act.

4    Paragraphs 3 to 5 reproduce the proposed grounds of appeal. I shall refer to those paragraphs as proposed ground 1, proposed ground 2 and proposed ground 3 respectively.

5    The decision of the Tribunal was made on 20 September 2016. The delegate’s decision not to grant the applicant a protection visa was made on 6 March 2013.

6    The decision of the Federal Circuit Court was delivered on 10 July 2018. The proceeding commenced in that Court by way of application filed on 21 October 2016 was dismissed.

The Tribunal’s decision

7    The Tribunal said the applicant, a citizen of Nepal, claimed to fear return as he had converted to Christianity and as he proselytised by handing out pamphlets and as he promoted Christianity to his family and community. He claimed his father, a former police officer, had had an arrest warrant issued against him, due to his conversion and as he spoke to others about Christianity.

8    As to the applicant’s credibility, the Tribunal said it had significant concerns regarding aspects of the applicant’s claims and evidence, particularly the difficulties he claimed he faced from his father on return to Nepal in 2012, which the Tribunal did not accept as true. There were other aspects of the applicant’s claimed basic circumstances which had remained consistent over time and which the Tribunal was satisfied were true.

9    Specifically, the Tribunal accepted, because of his consistent evidence as to attending St Luke’s Church in Sydney and being able to name one of the Nepalese Church leaders at that church consistent with independent information, that the applicant was a Christian. While it had some doubts, the Tribunal was prepared to accept that the applicant converted to Christianity from Hinduism after his arrival in Australia. It also accepted as true that he did not want to be separated from his wife and child, who reside in Australia, were he to return to Nepal.

10    The Tribunal did not accept that the applicant was a credible witness as to the difficulties he claimed he faced from his father, family, the police and the community when he returned to Nepal in 2012 for the reasons he claimed, including his claimed conversion to Christianity and proselytising, and because of his marriage to his former wife.

11    The Tribunal did not accept the applicant was a credible witness in regard to his claim that his father had the police issue an arrest warrant against him near the end of his stay in Nepal in 2012 and that as a result he fled his home town on 14 October 2012, and that he had heard the police came to his home on 15 October 2012 with an arrest warrant and were searching for him all around Nepal.

12    The Tribunal did not accept as true that the applicant had ever proselytised to his family in Nepal or the local community in Nepal, or had done so in Australia. It followed it did not accept he faced any of the difficulties he claimed in Nepal as he tried to proselytise or talk about Christianity or criticise animal sacrifice and Hinduism when he was in Nepal. It followed the Tribunal did not accept he handed out pamphlets on the streets and spoke to others in Australia to convince them to become a Christian. It followed were he to return to Nepal the Tribunal did not accept he would proselytise, evangelise or try to convince others to become Christian, or criticise Hinduism and Hindu practice as he had not done so in Nepal previously or ever in Australia.

13    The Tribunal made the following findings, at [67]:

•    The applicant attended church when exploring Christianity in his home village at the age of 16.

•    The applicant is a Christian and converted to Christianity from Hinduism by being baptised in Australia.

•    He attends the Nepalese service, a Nepalese Church at St Luke’s Anglican Church but not to the extent he claims. He sings in the choir and plays music for the church.

•    He did not face any of the difficulties he claimed when he returned to Nepal in 2012 from his father, the community, the police or anyone else including being threatened by his father and the community, his father with his uncle making an application to the police, an arrest warrant being issued by the police against him, the police coming to his home for any of the reasons he claimed including as he is a Christian, as he converted to Christianity or as he proselytised or talked to anyone about Christianity, as he is a Newar and married a Thai woman or a woman of a different caste.

•    He did not in Nepal when he returned in 2012 proselytise, speak of Christianity, criticise animal sacrifice or Hinduism or try to convince others to become Christian including his family, neighbours, friends and locals or anyone else in Nepal.

•    He had not in Australia proselytised or tried to convince others to become Christian or handed out pamphlets or visited the poor.

•    He does not have a desire were he to return to Nepal to convince others to become a Christian, to proselytise, to hand out pamphlets or would take any action to convince non-Christians to believe in Christianity.

•    He did not flee his home area or Nepal in fear because he heard his father had gone to the police or as he heard an arrest warrant had been issued against him or as he heard the police had visited his home for the reasons he claimed.

•    He is a member of the Newar caste who divorced his former wife, who was Thai. He did not face any difficulties on return to Nepal in 2012 from his father or anyone else by reason of being a Newar married to a girl from a different country and caste.

•    He has remarried in Australia to a New Zealand citizen and has a child who is two months old. He does not want to separate from them.

14    While the Tribunal accepted there was a history of personal animosity with his father prior to 2012, the Tribunal did not accept that the applicant feared serious harm on the basis that it did not accept he faced any of the difficulties he claimed when he returned with his former wife, that he had now divorced her and that he had indicated he did not fear return on that basis. The Tribunal was not satisfied the applicant faced a real chance of persecution involving serious harm for a Convention reason because he had married a Thai woman, married outside his caste and disobeyed the Newari rules, or that he faced a real risk of significant harm on his return on that basis.

15    The Tribunal also considered whether the applicant was eligible for complementary protection. It relied on its earlier findings in this regard.

16    The Tribunal considered whether the combination of each of the individual claims raised by the applicant would together create a real risk of him being subjected to significant harm on return to Nepal. It said that having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there was a real risk that he would suffer significant harm as defined in s 36(2A).

17    The Tribunal said, at [43], it had considered the certificate regarding the disclosure of certain information under s 438 at folio 129 of the Department file. The Tribunal said, at [92], it raised with the applicant the existence of the certificate and the substance of the information, and the Tribunal was of the view that the information referred to in the certificate had nothing to do with his claims and was irrelevant to its assessment of his claims for protection.

The judgment of the Federal Circuit Court

18    Before the Federal Circuit Court the applicant relied on the following grounds, as written:

1.    Tribunal fail to address the problems faced by Christian convert in Nepal.

2.    The decision was not made in good faith.

3.    The tribunal fail to provide the opportunity to provide evidence to support my case.

4.    AAT failed to address the Nepali culture & tradition is lot different than Australia.

19    The primary judge noted that the grounds were unsupported by particulars, evidence or written submissions. Orally, the applicant submitted that his family had given him a bad time, that he had converted from Hinduism to Christianity in Australia, that Hindus in Nepal were totally against Christians, that Nepal did not accept all religions and that his claims were true.

20    As to grounds 1 and 4, the primary judge said that the Tribunal’s decision record did not support the assertion that it failed to address the problems faced by Christian converts in Nepal. The Tribunal’s decision record noted with specificity independent information that referred to the prosecution of some of those proselytising in Nepal. The Tribunal also identified information that the 20 September 2015 Nepalese Constitution prohibits converting other people from one religion to another or disturbing the religion of others, and notes that violations are punishable by law.

21    In the circumstances the primary judge said, the applicant’s assertions in grounds 1 and 4 that the Tribunal failed to address the problems faced by a Christian convert in Nepal and failed to address the differences in Nepali and Australian culture and tradition were not made out and did not demonstrate any jurisdictional error on the part of the Tribunal.

22    The primary judge concluded that the applicant’s complaints in grounds 1 and 4 appeared more to be a disagreement with the findings and conclusions of the Tribunal. As such, they invited merits review which the Federal Circuit Court could not undertake.

23    The primary judge held that grounds 1 and 4 were not made out.

24    The primary judge rejected ground 2 as there was no evidence and nothing on the face of the Tribunal’s decision record or the conduct of its review to suggest that the Tribunal did not conduct its review or make its decision in good faith.

25    Ground 3 was rejected by the primary judge for similar reasons. The applicant had not provided any evidence to suggest that he requested any additional time to provide further information to the Tribunal. It was well established that the Tribunal was not required to accept uncritically any and all claims made by an applicant.

26    Although not pleaded, the primary judge also considered, at [64]-[70], whether any issue arose under s 438 of the Migration Act. The primary judge noted that the respondent Minister accepted the certificate was invalid. The primary judge said the Tribunal’s reasons made clear that the existence of the s 438 certificate was disclosed to the applicant and particulars of the material the subject of the certificate given to him for comment. Further, the Tribunal’s reasons made clear that it did not act on the certificate or any of the documents to which it related and found that they were irrelevant to its assessment of the applicant’s claims for protection.

27    The primary judge held the documents lacked any connection to the applicant’s claims and were of no, or only passing, contextual relevance to the review.

28    In the circumstances, the primary judge held, the Tribunal did not act on the certificate and the applicant did not lose any opportunity to advance his case as a result of any technical breach of the disclosure obligations arising under the Migration Act. The applicant had not experienced any practical injustice or detriment and did not assert otherwise.

The parties’ submissions

29    The applicant filed no written submissions. In oral submissions the applicant said he thought he had 28 days to appeal. On the substance of the proposed appeal, the applicant made submissions that went largely, if not entirely, to the merits: he said there was a bad situation in Nepal and he would be without his wife and small child and he reasserted what he had said to the Department and to the Tribunal. He also referred to what he said an earlier Tribunal, the Refugee Review Tribunal, had said to him in November 2013, that he should consider lodging a spouse visa, a matter perhaps reflected in [39] of the present Tribunal’s reasons.

30    The Minister submitted that in the Federal Circuit Court the applicant advanced four grounds of review, none of which, the primary judge found, identified a jurisdictional error that would support the grant of relief.

31    The Minister submitted that in considering whether to extend the time limit for filing a notice of appeal, the main factors for the Court to consider were: the reasons for the delay; any prejudice to the respondent in defending the proceedings that might be occasioned by allowing the appeal after the delay; and the merits of the proposed appeal. Other than indicating that he was representing himself, the applicant had not (at that time) provided any reason for the delay. The Minister submitted that the fact that an applicant was unrepresented did not justify an extension of time being granted. The Minister accepted that there was no prejudice to him if the Court were to grant an extension of time, beyond the cost of responding to an unmeritorious application and the public interest in the finality of decision making. However, critically, the applicant’s draft grounds of appeal did not establish that the decision of the primary judge was attended by sufficient doubt to warrant an extension of time being granted.

32    The Minister submitted that although an appeal to the Federal Court was an appeal by way of rehearing, it remained necessary to demonstrate an error in the judgment appealed from. As the Full Court has explained, “an appeal by way of rehearing … does not mean it is an opportunity to revisit the decision of the Tribunal. Save for exceptional cases, the task of a court on an appeal by way of rehearing is to correct error on the part of the primary judge”: Rawsthorne v Minister for Immigration and Citizenship [2013] FCAFC 39; 140 ALD 524 at [27].

33    Further, the applicant also required leave to rely on the proposed grounds of appeal for the reason that they were not raised in the Court below. The Minister submitted that leave should be refused.

34    The Minister submitted the grounds sought to engage the Court in an impermissible merits review and failed to grapple with the role of the primary judge and the reasons given for the decision. The primary judge clearly engaged with the material before the Court and addressed and determined the applicant’s application for review. No error was revealed in the decision of the primary judge.

35    In respect of the Tribunal’s decision, the Tribunal properly considered the applicant’s claims to fear harm. It was not obliged to uncritically accept the applicant’s claims and the weight to be given to those claims and the evidence was a matter for the Tribunal to assess as part of its fact-finding function.

36    These submissions covered proposed ground 2. The Minister referred to [39] of the judgment of the primary judge, referring to [66] of the Tribunal’s reasons, and to [44]-[45] of the judgment.

37    The Minister submitted that if proposed ground 1 was a complaint in relation to how the primary judge dealt with the certificate then it did not have sufficient merit to justify an extension of time. The primary judge observed that the Tribunal’s reasons made clear that the existence of the certificate was disclosed to the applicant, particulars of the material were given to the applicant for comment and the Tribunal found that the documents were irrelevant to its assessment of the applicant’s protection claims. The primary judge held the Tribunal did not act on the certificate and the applicant did not lose any opportunity to advance his case as a result of any technical breach of the statutory disclosure obligations, nor had he experienced any practical injustice or detriment.

38    By proposed ground 3, the Minister submitted the applicant contended that the primary judge failed to find the Tribunal had erred in failing to consider the applicant’s claims pursuant to the complementary protection criterion. The Tribunal’s reasons made clear that it had specifically considered whether the applicant met the criterion for complementary protection. In making its assessment, the Tribunal relied on its findings under the Convention criterion and also considered the cumulative effect of the applicant’s claims and attributes. It was open to the Tribunal to rely on its anterior findings in considering the complementary protection criterion: SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; 138 ALD 26 at [32].

39    The Minister submitted that the applicant had not identified any jurisdictional error on the part of the Tribunal, nor any appellable error on the part of the primary judge. The proposed grounds of review were not sufficiently arguable to warrant an extension of time and accordingly, the application for leave to appeal ought to be dismissed with costs.

Consideration

40    The time for filing a notice of appeal under r 36.03 of the Federal Court Rules 2011 (Cth) is 21 days. The application is therefore six days out of time.

41    The explanation given from the bar table by the applicant is that he thought he had 28 days to file a notice of appeal. If there were anything of substance in the proposed grounds of appeal I would be minded to extend time.

42    An added consideration is that one or perhaps two of the three proposed grounds do not reflect the grounds of judicial review which were before the Federal Circuit Court so that the applicant would need leave to rely on those grounds. Proposed ground 1 may reflect ground 2 below. Proposed ground 2 probably reflects ground 4 below. Otherwise the applicant would have to establish that it was in the interests of justice for him to be permitted to change his case on appeal.

43    Turning to consider the three proposed grounds, I find that proposed ground 1 is of no substance. There is nothing to suggest that the Tribunal did not afford procedural fairness to the applicant nor that the Tribunal had not complied with the procedures it was required to follow under the Migration Act. On the assumption that this ground refers, at least in part, to s 438, I see no error in the consideration by the primary judge of this issue at [64]-[70] of her Honour’s reasons, analysing what the Tribunal said at [43] and [92], in particular, of its reasons. There is no basis for the proposed ground that the primary judge erred in any of these respects.

44    Proposed ground 2 is, at least in part, a ground that was articulated before the primary judge. For the reasons the primary judge gave there is no substance in the proposition that the Tribunal failed to consider the different culture and social status of the people in Nepal. Neither is the generalised claim of the Tribunal denying the applicant natural justice made out. Merely because the applicant disagrees with the Tribunal’s conclusion that he is not a refugee does not begin to establish that the Tribunal denied him procedural fairness.

45    Proposed ground 3 identifies no error of law or denial of procedural fairness in the judgment of the Federal Circuit Court. None is apparent. Neither is there any basis for concluding that the Tribunal did not consider whether Australia had protection obligations to the applicant by reference to the complementary protection provisions. I refer to [95]-[96], where the Tribunal referred back in particular to [80], [84] and [87] of its reasons. Self-evidently therefore the Tribunal did consider the applicability of the complementary protection provisions. There is no basis for concluding that the Federal Circuit Court “failed to establish” that the Tribunal made such error.

46    I consider finally what the applicant said in his oral submissions in this Court. As I have said, what the applicant submitted went largely, if not entirely, to the merits of the matter, that is, that it was a very bad situation in Nepal and that he reasserted what he had said to the Tribunal and to the Federal Circuit Court. These are not matters that show or suggest error on the part of the Federal Circuit Court or the Tribunal.

47    The applicant also made submissions referable to his now being married to a New Zealand citizen and having a young daughter with her. This submission does not suggest any relevant error. It was a matter adverted to by the Tribunal at [8] and [88]-[91], in the context of the applicant’s claims that he did not want to depart Australia as he would be removed from his wife and daughter. The Tribunal reasoned that this did not give rise to difficulties for a Convention reason and did not establish a complimentary protection claim. I would not extend time to rely on a claim that was not part of the case before the primary judge; which does not arise from the proposed grounds of appeal; and which is of no apparent merit.

Conclusion and orders

48    The application for an extension of time is refused. The applicant is to pay the costs of the first respondent, as agreed or assessed.

Associate:

Dated:    12 November 2018