FEDERAL COURT OF AUSTRALIA

DPB16 v Minister for Immigration and Border Protection [2019] FCA 121

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs in the agreed amount of $3,000.

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 appellant is a citizen of Nepal who arrived in Australia on a business visitor visa on 11 August 2014. On 10 September 2014, he lodged an application for a protection visa.

2    On 23 April 2015, the delegate refused the grant of a protection visa.

3    On 13 May 2015, the appellant applied to the Administrative Appeals Tribunal for review of the delegate’s decision and, on 13 October 2016, appeared before the Tribunal to give evidence and present arguments.

4    In summary, the appellant’s claims were that he was a successful businessman in Nepal. As such, he received threats and demands for donations from gangsters associated with political parties, including daily phone threats that he would be abducted and killed. He was at risk of being tortured and killed. The situation ruined his business. The Nepalese State would not protect him because it was weaker than the gangsters. The appellant also claimed that his factory was broken into and his records stolen; he continued to receive threats from gangsters through his wife and father and his family’s life was at risk.

The Tribunal

5    On 27 October 2016, the Tribunal affirmed the decision to refuse the grant of the protection visa.

6    The Tribunal, at [24], did not consider the appellant to be a truthful witness in relation to the extent of the donation requests and threats to the appellant and his family by gangsters, and his claim that his business was ruined as a result.

7    The Tribunal considered, at [22]-[34], that the claims indicating that donation requests and threats ruined his established business was inconsistent with his oral evidence that his business was operating and thriving.

8    The appellant’s claim that there was a real chance of serious or significant harm from gangsters as a result of the success of his business was, the Tribunal considered, at [35]-[41], inconsistent with the continued operation and growth of the appellant’s business and the absence of any significant problems or difficulties for the business since he came to Australia.

9    At [42]-[45], the Tribunal considered the claimed threats to the appellant’s wife to be implausible as it seemed more logical the gangsters would target the person running the business, referring to country information in this respect, and there was an absence of any significant difficulties faced by the appellant’s brother-in-law who was operating the business.

10    At [48]-[50], the Tribunal said that the appellant’s oral evidence about the donation requests and threats lacked clarity, was vague, and in some cases was inconsistent. The Tribunal said that the appellant spoke in general terms and provided few specifics or details.

11    At [55]-[57], the Tribunal said that neither the appellant nor his wife had made a complaint to the police, notwithstanding that they took legal action with respect to the theft from the factory.

12    At [59], the Tribunal said it was not satisfied that the appellant’s business closed prior to the appellant coming to Australia. The Tribunal found, at [59], that there was an incident of theft that was remediated and the business was being operated successfully by the appellant’s brother-in-law. At [60], the Tribunal accepted that the appellant had to pay donations to politically aligned groups, but found that the appellant had significantly embellished his evidence in this respect.

13    On the basis of its credibility findings adverse to the appellant, at [61]-[62], the Tribunal was not satisfied that the appellant had faced anything beyond routine requests for donations had been threatened with being killed, kidnapped, or with other physical harm. At [63], the Tribunal said it was not satisfied that the appellant’s family had been threatened or harmed, or that his wife had been called and threatened by gangsters demanding money and his whereabouts after his departure.

14    The Tribunal accepted, at [65]-[66], that goods and equipment were stolen from the appellant’s factory, but was not satisfied that gangsters were involved. The Tribunal found that the factory was remediated and the business continued to operate and thrive. The Tribunal found, at [67], that if returned to Nepal, the appellant would continue to be involved in the business and would pay the donations, which it considered would not threaten the viability of the business. The Tribunal said, at [69]-[70], that it was not satisfied that the requests and payment of donations constituted serious or significant harm, or led to a real chance of physical harm.

15    At [73]-[85], the Tribunal outlined an alternative basis for rejecting the appellant’s application. The Tribunal found that the appellant had a right to enter and reside in India. However, the Tribunal was not satisfied, at [86], that the appellant had taken all possible steps to avail himself of the right to enter and reside in India, nor, at [88]-[89], that gangsters would have the resources or ability to track him and his family down in India to harm them. The Tribunal was therefore not satisfied that the appellant faced a real chance of serious or significant harm in India.

16    The Tribunal found that the appellant did not meet the criteria in ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth), at [100]-[101]. In the alternative, if the appellant did satisfy the criteria, the Tribunal found that he had not taken all possible steps to avail himself of the right to enter and reside in India, pursuant to s 36(3).

17    Accordingly, the Tribunal affirmed the decision not to grant the appellant a protection visa.

Proceedings in the Federal Circuit Court

18    The grounds of the application to the Federal Circuit Court for judicial review of the decision of the Tribunal were as follows:

1.    The Second Respondent reached mistaken conclusion based on personal opinion and bias assumptions against the Appellant’s submission.

2.     The Second Respondent made a jurisdictional error by not taking into consideration relevant evidence submitted before the tribunal, therefore refusing to give weight to evidence provided by the Appellant and thereby made an erroneous findings and mistaken conclusions.

3.     The Second Respondent make a procedural error by not informing the Appellant the proper way of giving evidence at the Tribunal or failed to identify and or clarify on the proper procedure and guidelines to give evidence at the hearing, thus, made a jurisdictional error.

19    There was also an affidavit affirmed by the appellant which contained further grounds, as follows, omitting particulars:

A)    The Second Respondent made a jurisdictional error by not taking into consideration relevant evidence of the appellant and/or refusing to give weight to evidence provided by the appellant and thereby made erroneous finding and mistaken conclusion in circumstances whereby there had not been an adverse finding to the appellant’s credibility, and/or the well of credibility had not been poisoned beyond redemption. [Ground A]

2.    The Second Respondent made jurisdictional error by making a determination which was irrational, illogical, not based on findings or inferences of fact supported by logical grounds, and/or which was manifestly unreasonable. [Ground B]

3.    The Administrative Appeals tribunal gave little weight to the documentary evidence and emphasised on oral evidence that was difficult to recall. [Ground C]

20    The primary judge, at [54]-[56], concluded that the allegation of bias against the Tribunal was not made out: there was no basis disclosed on the Tribunal record, in any of the documents in the court book, in the oral submissions or in the written submissions of the appellant to any claim that the Tribunal approached the matter with a closed mind or did not conduct its review in good faith.

21    As to the contention that the Tribunal failed to consider evidence, the primary judge, at [57], with reference to her earlier summary of the evidence that the Tribunal did consider, concluded that this ground was not made out.

22    At [58] and following, the primary judge rejected the appellant’s contention that the Tribunal failed to afford the appellant procedural fairness by not informing him of the procedural guidelines for giving evidence at the hearing. The primary judge said this ground appeared to be misconceived: the Tribunal had not rejected any of the appellant’s evidence on the basis that it was not provided in the proper way or not in accordance with some sort of procedure. Rather, the Tribunal rejected the appellant’s claims on the basis of adverse credibility findings. The primary judge said there was nothing on the face of the Tribunal’s decision record to suggest that the appellant was not afforded a real and meaningful opportunity to participate in the hearing.

23    As to the claim that the Tribunal did not take into consideration relevant evidence or refused to give weight to evidence provided by the appellant and thereby made erroneous findings and mistaken conclusions, the primary judge held, at [62], that this ground essentially repeated ground 2 and could not succeed for the reasons already given. Further, the primary judge said, the ground was misconceived. The Tribunal clearly made adverse credibility findings and did so throughout the decision from [22]-[57]. The Tribunal’s adverse credibility findings were findings of fact and were reasonably open to it on the evidence before it and for the reasons it gave.

24    The primary judge rejected the ground that the Tribunal’s determination was irrational, illogical, not based on findings or inferences of fact supported by logical grounds or which were manifestly unreasonable. The primary judge said, at [63], that the particular that the Tribunal made contradictory findings was not sustainable. As to the particular that the Tribunal failed to consider the evidence submitted by the appellant that he would be harmed by Maoists if he was located by them in Nepal, the primary judge said, at [64], that the appellant had not identified what evidence he claimed the Tribunal failed to consider and there was nothing in the evidence before the Court to suggest that the appellant advanced in the Tribunal any evidence or claimed to fear harm by Maoists. If the contention was a reference to the threats of donation requests and insulin threats of harm by gangsters supported by political groups, the Tribunal did have regard to those claims on the evidence advanced by the appellant in support of those claims. At its heart, the primary judge said, this ground went no higher than a disagreement with the Tribunal’s findings.

25    The primary judge, at [65] and following, rejected the contention that the Tribunal gave little weight to the documentary evidence and emphasised oral evidence. The primary judge said that the only document that the appellant had referred to was the police report which the Tribunal considered. The Tribunal also accepted the appellant’s evidence of theft from the factory involving employees and associated legal proceedings.

The appeal to this Court

26    This appeal is from the orders made by the primary judge on 16 August 2018 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal to affirm a decision of a delegate of the first respondent to refuse to grant the appellant a Protection (Class XA) visa.

27    The grounds of appeal are:

1.    The Court below erred in finding that the Administrative Appeals Tribunal had failed to properly consider the Appellant's claims under s36 (2) (aa) of the Migration Act 1958 ("the Act").

2.    The Appellant seeks leave to raise the grounds which were not pressed in the Federal Circuit Court. The applicant was a self-represented applicant and respectfully submits that there is a merit in the ground.

Ground 1

The Tribunal failed to consider the General violence when assessing the applicant's applicant which is an integer claim.

Ground 2

The applicant noted that he would face harm from political parties and indirectly submitted that he is against the political parties seeking donation which is applicant's political opinion. However, the Tribunal failed to consider the above claim.

Ground 3

The Tribunal failed to advise whether there is any section 438 Certificate in the file and the applicant is not aware of that, if there is any.

Ground 4

The Tribunal reached mistaken conclusion based on personal opinion and bias assumptions against the applicant's submission.

Ground 5

The Tribunal made a jurisdictional error by not taking into consideration relevant evidence submitted before the Tribunal, therefore, refusing to give weight to evidence provided by the Applicant and thereby made an erroneous findings and mistaken conclusions.

Ground 6

The Tribunal made a procedural error by not informing the applicant the proper way of giving evidence at the Tribunal or failed to identify and or clarify on the proper procedure and guidelines to give evidence at the hearing, thus made a jurisdictional error.

Only the grounds identified as Ground 4, Ground 5 and Ground 6 were before the primary judge.

The submissions of the parties

28    No written submissions were filed by the appellant. In oral submissions the appellant restated the merits of his application and added no more in relation to his grounds of appeal than that the Federal Circuit Court did not consider his case properly.

29    In his written submissions the Minister opposed leave being granted to plead new grounds of appeal that were not part of the appellant’s application before the primary judge. The Minister otherwise submitted that the notice of appeal did not identify any appellable error in the primary judgment and should therefore be dismissed, with costs.

30    In relation to the ground that the Tribunal “reached mistaken conclusion based on personal opinion and bias assumptions against the applicant’s submission”, which was Ground 1 before the primary judge and numbered Ground 4 in paragraph [2] of the grounds of appeal to this Court, the Minister submitted the Tribunal’s decision record did not provide any support for the serious allegation of bias. Rather, the decision record revealed that the appellant appeared at a hearing before the Tribunal to give evidence and present arguments with the assistance of a Nepalese interpreter. The Minister submitted that the Tribunal considered the appellant’s evidence and claims, and made findings that were open to it for the reasons given. The appellant did not file any evidence in the Federal Circuit Court in support of the allegation of bias. In the absence of such evidence, the Minister submitted, the primary judge was correct to conclude, at [54]-[56], that this contention could not be made out.

31    In relation to the ground that the Tribunal “made a jurisdictional error by not taking into consideration relevant evidence submitted before the Tribunal, therefore, refusing to give weight to evidence provided by the Applicant and thereby made an erroneous findings and mistaken conclusions”, which was ground 2 before the primary judge and numbered Ground 5 in paragraph [2] of the grounds of appeal to this Court, the Minister submitted that the primary judge considered (and rejected) this contention at [45]-[48], [57]. Her Honour correctly noted, at [45]-[47], that the Tribunal considered the materials provided by the appellant, including translated court documents regarding the theft from the appellant’s factory, a police report and written submissions. The Minister submitted that the primary judge was correct to hold that, having considered that evidence, the Tribunal made findings that were open to it for the reasons it gave.

32    In relation to the ground that the Tribunal made “a procedural error by not informing the appellant the proper way of giving evidence at the Tribunal or failed to identify and or clarify on the proper procedure and guidelines to give evidence at the hearing, thus made a jurisdictional error”, which was ground 3 before the primary judge and numbered Ground 6 in paragraph [2] of the notice of appeal to this Court, the Minister submitted that this ground was misconceived. The Minister submitted that the Tribunal did not reject any of the appellant’s evidence on the basis that it was not provided in a proper way or in accordance with some sort of procedure; it rejected his claims on the basis of adverse credibility findings. The Minister submitted that the primary judge was correct to observe at [59]-[61] that there was nothing on the face of the Tribunal decision record to suggest that the appellant was not afforded a real and meaningful opportunity to participate in the hearing. Further, there was no obligation on the Tribunal pursuant to s 424A of the Act to put to the appellant its doubts about the credibility of the appellant’s claims. The Minister submitted that the Tribunal complied with its procedural fairness obligations under the Act, and the primary judge was correct to so hold.

33    The Minister’s submissions then turned to the grounds in respect of which the appellant needed leave because the grounds had not been raised before the primary judge. The Minister opposed that leave being granted. The Minister submitted that, other than a general assertion that he was unrepresented before the primary judge and that the new grounds had merit, the appellant had not provided any explanation for his failure to raise the new grounds in the court below. Crucially, the Minister submitted, none of the proposed new grounds had sufficient merit to warrant the grant of leave. The Minister’s submissions then addressed each proposed new ground in turn.

34    In relation to the proposed new ground that “[t]he Court below erred in finding that the Administrative Appeals Tribunal had failed to properly consider the Appellant’s claims under s 36(2)(aa)”, being the ground in paragraph [1] of the notice of appeal to this Court, the Minister submitted there could be no appellable error in the primary judge having omitted to consider a ground not raised. In any event, the Minister submitted, the primary judge was correct to hold that the Tribunal rejected the appellant’s claims on the basis of adverse credibility findings that were open to it on the evidence before it and for the reasons it gave at [62] and [64]. The Tribunal’s decision record revealed that it considered each of the appellant’s claims under both s 36(2)(a) and (aa) of the Act and made findings that were open to it. In substance, the Minister submitted, this proposed ground was an attack on the merits of the Tribunal’s findings of fact, and could not succeed.

35    In relation to the proposed new ground that “[t]he Tribunal failed to consider the General violence when assessing the applicant's applicant which is an integer claim”, being the ground numbered Ground 1 in paragraph [2] of the grounds of appeal to this Court, the Minister submitted the appellant made no such claim to fear harm, nor did it clearly arise on the material before the Tribunal. The Tribunal was not required to consider a claim that was not made or did not clearly arise on the material before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [60]. The Minister submitted this proposed ground lacked any reasonable prospect of success.

36    In relation to the proposed new ground that the appellant “would face harm from political parties and indirectly submitted that he is against the political parties seeking donation which is applicant’s political opinion. However, the Tribunal failed to consider the above claim”, being the ground numbered Ground 2 in paragraph [2] of the grounds of appeal to this Court, the Minister submitted that before the Tribunal, the appellant did not articulate his claim to fear harm in terms of a real or imputed political opinion by virtue of being against political parties seeking donations. However, and in any event, the Minister submitted, the Tribunal was not satisfied that: (a) the appellant had faced anything beyond routine requests for donations; (b) the appellant had been threatened with being killed, kidnapped, or with other physical harm; or, (c) the appellant’s family had been threatened or harmed, or his wife called and threatened by gangsters demanding money and his whereabouts after his departure (at [61]-[63]). These findings, the Minister submitted, were dispositive of any risk of harm faced by the appellant in relation to donations: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at 353 [91] per McHugh, Gummow and Hayne JJ; WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at 604 [47] per French, Sackville and Hely JJ.

37    In relation to the proposed new ground that “[t]he Tribunal failed to advise whether there is any section 438 Certificate in the file and the applicant is not aware of that, if there is any”, being the ground numbered Ground 3 in paragraph [2] of the grounds of appeal to this Court, the Minister submitted that no such certificate was issued in relation to the appellant. The Minister submitted that this ground did not have any prospect of success.

Consideration

38    I reject the appellant’s ground that, in effect, the primary judge erred in not concluding that the Tribunal was biased. In my opinion no basis has been shown for that contention and no error has been shown in the rejection by the primary judge of that ground at [54]-[56].

39    I reject the appellant’s ground that, in effect, the primary judge erred in not concluding that the Tribunal failed to take into consideration relevant evidence and refused to give weight to evidence provided by the appellant. Again, no basis has been shown for that contention and no error has been shown in the rejection by the primary judge of that ground at [57] by reference to the consideration by the primary judge at [45]-[47] of the documents and the evidence that the Tribunal did consider.

40    I reject the appellant’s ground that the Tribunal made a procedural error. In my opinion no error on the part of the primary judge has been made out in respect of her Honour’s conclusions at [58] and following that the ground appeared to be misconceived as the Tribunal had not rejected any of the appellant’s evidence on the basis that it was not provided in the proper way or not in accordance with some sort of procedure.

41    As to the remaining grounds, I do not regard it as being in the interests of justice to grant leave to the appellant to raise grounds of judicial review of the Tribunal’s decision in this Court which were not put to the primary judge. In this respect I refer to the decision of the Full Court in Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788; 192 ALR 71 at [23]-[25]. The fact that the appellant appeared in person before the primary judge is not of itself a sufficient reason. No explanation has been given for the failure to raise those grounds before the primary judge. Another important consideration is that this Court’s jurisdiction is to hear an appeal. In the circumstances, the most important consideration is whether or not the proposed new grounds have merit. In my opinion they do not. For the reasons articulated in the Minister’s submissions on these grounds I refuse leave to the appellant to rely on his proposed new grounds: see [34]-[37] above.

42    For completeness, I add in relation to proposed Ground 3 regarding certificates issued under s 438 that, since there is no evidence that such a certificate was issued, I did not consider it necessary for the Minister, at the hearing of this appeal, to read and rely on the affidavit of Ms Mia Donald, affirmed on 22 October 2018, in order to prove the absence of such a certificate.

43    There also remains the Tribunal’s alternative basis for decision at [73]-[89], described at [15] above, based on the Tribunal’s finding that the appellant had a right to enter and reside in India and its lack of satisfaction that the appellant had taken all possible steps to avail himself of the right to enter and reside in India, or that gangsters would have the resources or ability to track him and his family down in India to harm them. The Tribunal was therefore not satisfied that the appellant faced a real chance of serious or significant harm in India. This alternative as found by the Tribunal was not challenged in the Federal Circuit Court, although I note the Minister’s submission in this respect was accepted by the primary judge at [70]-[71]. This alternative was not challenged in the appeal to this Court.

Conclusion and orders

44    The appeal should be dismissed, with costs. The parties are agreed that the appropriate costs order is in the amount of $3,000.

Associate:

Dated:    13 February 2019