FEDERAL COURT OF AUSTRALIA

DIM16 v Minister for Immigration and Border Protection [2019] FCA 1090

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, either as agreed or assessed.

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

REASONS FOR JUDGMENT

FLICK J:

1    The Appellant in the present proceeding, identified by the pseudonym DIM16, is a citizen of China. The Appellant entered Australia in 2004 on a student visa.

2    In July 2014, he applied for a Protection visa. That application was refused by a delegate of the Minister for Immigration and Border Protection in May 2015. An application was then made to the Administrative Appeals Tribunal (the “Tribunal”) seeking review of the delegate’s decision. In October 2016, the Tribunal affirmed the decision not to grant the visa.

3    An application was then made to the Federal Circuit Court of Australia seeking review of the Tribunal’s decision. In November 2018, that Court dismissed the application: DIM16 v Minister for Immigration and Border Protection [2018] FCCA 3980.

4    A Notice of Appeal was then filed in this Court in November 2018.

5    The matter was listed for hearing on 24 May 2019 at 9.30am. There was no appearance for the Appellant at that time. The matter was adjourned and thereafter called on for hearing at 9.45am and again at 10.00 am. During the second adjournment the Appellant was contacted by mobile phone and said he had not been informed of the hearing but that he could attend at midday. He was then advised that the matter would be adjourned to that time. But the Appellant then said that he would not be attending.

6    The First Respondent contended that the Appellant had been informed by email of the hearing date and time on multiple occasions. It is accepted that the Appellant was informed of the hearing and elected not to attend. The Respondent Minister appeared by Counsel. The Second Respondent filed a Submitting Notice, save as to costs. The Appellant filed no written submissions. He did, however, file an affidavit which relevantly stated (inter alia) that he was (without alteration) “the witness of the all my experience of being persecuted in China” and that “all [his] evidence given in the AAT interview and in front of the Magistrate is true…”.

7    At the outset of the hearing the Respondent Minister made an oral application for the proceeding to be dismissed pursuant to r 36.75 of the Federal Court Rules 2011 (Cth) (the “Federal Court Rules”). Rather than dismissing the proceeding pursuant to r 36.75, the appeal proceeded in the absence of the Appellant. He had been informed of the hearing at 9.30am and was further informed that the matter could be stood down to midday to suit his convenience – but he has repeatedly shunned the opportunity to appear in person.

8    The appeal is to be dismissed with costs.

The decision of the Federal Circuit Court & the Grounds of Appeal

9    The grounds of review upon which DIM16 sought to rely before the Federal Circuit Court were characterised by the primary Judge as being in “narrative form”: [2018] FCCA 3980 at [21]. But, as the primary Judge explained, the oral “complaints” by DIM16 “did not necessarily appear to relate to the grounds of the application…”: [2018] FCCA 3980 at [25]. The primary Judge thereafter went on to address these complaints but concluded that none of the “oral complaints provided any basis to argue jurisdictional error on the part of the Tribunal”: [2018] FCCA 3980 at [26].

10    Before this Court, the Grounds of Appeal were expressed (without alteration) as follows:

1.    The Tribunal was not professional, which caused that I could not provide enough evidence.

2.    AAT denied all the evidences I provided without any consideration.

3.    The staff’s attitude was so bad, which caused me so nervous and state not to the point.

Left to one side for present purposes is the fact that none of these Grounds identify any appellable error said to have been committed by the primary Judge – each of the three Grounds appears to be directed to error said to have been committed by the Tribunal. The reference to the “staff…” in Ground 3 has been understood to be a reference to the staff of the Tribunal and not the staff of the Federal Circuit Court. But, more importantly, none of the three Grounds has in any event been made out. Also left to one side is a question raised on behalf of the Respondent Minister as to whether any of these Grounds fall outside the Grounds of Review relied upon before the primary Judge.

11    All Grounds, it is considered, are directed to the central question as to whether DIM16 was afforded a reasonable opportunity to be heard within the constraints imposed by Pt 7 Div 4 of the Migration Act 1958 (Cth) (the “Migration Act”). That Division is taken to be an exhaustive statement of the requirements of natural justice in reviews conducted by the Tribunal: s 422B(1) of the Migration Act. That section “is framed in a way that is consistent with the implication of an obligation to afford procedural fairness through the operation of a common law principle of interpretation as a condition of the performance by the Tribunal of its duty to conduct the review”: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [34], (2019) 93 ALJR 252 at 262 per Bell, Gageler and Keane JJ. Within such constraints as s 422B nevertheless imposes, the Tribunal is nevertheless required to “act in a way that is fair and just” (s 422B(3)) and must invite a claimant “to give evidence and present arguments relating to the issues arising in relation to the decision under review” (s 425(1)). The content of the requirement to act in a manner that is “fair and just” must obviously depend upon the circumstances of an individual case but it remains “a substantive requirement that is not meant merely to free the Tribunal from rules that usually govern courts”: WZAOT v Minister for Immigration and Citizenship [2013] FCA 136 at [88] to [90], (2013) 211 FCR 543 at 554 per Barker J. Within Pt 7 Div 3, s 420(b) also requires that the Tribunal “act according to the substantial justice and merits of the case”.

12    The first Ground in the present proceeding has been construed as a Ground alleging that the primary Judge erred in not concluding that DIM16 was not afforded a reasonable opportunity to be heard by reason of the Tribunal not permitting him to “provide enough evidence”. A fundamental difficulty with this Ground is that it fails to identify what further evidence DIM16 could have provided to the Tribunal. The difficulty is compounded by the fact that:

    on 1 September 2016, DIM16 was given an invitation to attend the hearing before the Tribunal “to give evidence and present arguments relating to the issues arising in your case”. He was also informed that the Tribunal would be unable to make a favourable decision on the information then before the Tribunal;

    when DIM16 attended before the Tribunal he was assisted by an interpreter; and

    the hearing before the Tribunal occupied some 1½ hours.

The reasons for decision of the Tribunal, moreover:

    record, in some considerable degree of detail, the claims being made by DIM16 and discloses him being questioned as to various aspects of his evidence including about his practice of Falun Gong being “very minimal and his understanding of Falun Gong teachings [being] very basic” and about why “he delayed applying for protection”.

There is nothing on the face of the materials available to this Court that DIM16 asked the Tribunal for – and was denied – an opportunity to provide further evidence and nothing on the face of the material to indicate any inadequacy in the resolution of the claims being made.

13    There is thus no basis to contend that DIM16 was not treated in a manner that was “fair and just” and denied any opportunity “to give evidence”.

14    Ground 1 is therefore rejected.

15    The second Ground is understood as an argument that the Tribunal failed to consider the claims being made, and the evidence before the Tribunal, and that the primary Judge erred in turn in not concluding that Tribunal had not properly considered those claims. Given the detailed account of the claims being made and the findings made by the Tribunal, there is no basis for contending that the Tribunal itself had failed to properly consider “all the evidences”. Nor is there any basis for contending that the primary Judge had not separately considered the manner in which the Tribunal had resolved the claims. That Judge’s reasons thus direct attention to one of the arguments there advanced for resolution and conclude (in part) as follows:

[52]    Ground two is a restatement of some of the applicant’s claims for protection. Of themselves, these also do not reveal jurisdictional error in the Tribunal’s decision. However, the ground also contains a number of assertions being in the nature of complaints about the Tribunal’s decision.

[53]    One, that the Tribunal failed to take into account a relevant consideration. It is the case that a Tribunal may, indeed, fall into jurisdictional error if it fails to take into account a relevant consideration …

[54]    However, in the current case, the applicant does not identify and has not identified, what that relevant, or those relevant considerations may have been. At best, drawing upon what the applicant otherwise told the Court, it would appear that the “relevant consideration” is that the Tribunal should have found positively for him. If that is the case, then there is no merit in this complaint. What the applicant’s ground fails to address, or indeed simply ignores, is that the Tribunal does not have to uncritically accept his claims or evidence…

[55]    The obligation on the Tribunal is to consider all the claims and the evidence in which claims are presented and, indeed, for that matter any submissions made to it that may contain claims to fear harm … On the evidence the Tribunal did consider all of the applicant’s claims … There is nothing to show that anything was overlooked.

[56]    In the circumstances, it would appear that the applicant’s real complaint is that the Tribunal should not have found adversely to his credit. However, the Tribunal’s comprehensive and clear findings, including its findings on credibility, were all reasonably open to it to make on what was before it. The Tribunal gave cogent reasons in explaining its findings and reasons that were probative of the material before it.

(citations omitted)

Concurrence is expressed with the conclusion at para [55] that there is “nothing to show that anything was overlooked”. Concurrence is also expressed with the primary Judge’s reasons for rejecting an argument previously advanced that the Tribunal did not “thoroughly” assess the claims made by the now-Appellant: [2018] FCCA 3980 at [36] to [37].

16    Ground 2 is therefore rejected.

17    The final Ground is to be understood as an argument that the primary Judge erred in not concluding that DIM16 was not afforded a reasonable opportunity to be heard by reason of him being “nervous” as a result of the Tribunal “staff’s attitude”.

18    The opportunity “to give evidence and present arguments” would potentially be denied if it was apparent to a Tribunal member that a claimant was so “nervous” that he could not realistically avail himself of that opportunity. Just as a claimant may be denied a meaningful opportunity to be heard in circumstances where he “does not understand questions being asked and is not given a fair opportunity to respond” (cf. BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095 at [18] per Flick J), the Tribunal may proceed in a manner that is not “fair and just” if it is known that a claimant is so nervous as to be unable to properly avail himself of the opportunity “to give evidence and make submissions”. A Tribunal may fail to “act according to the substantial justice and merits of the case” (s 420(b)) if a claimant is so “nervous” that he is unable to properly articulate the claim that he wants to make.

19    But there was nothing on the face of the materials available to the primary Judge that such was the case. Certainly the Tribunal expressed no reservation as to the ability of the now-Appellant to clearly advance his claims and there is nothing apparent from a reading of the Tribunal’s reasons to indicate any inability on the part of DIM16 to properly and adequately advance those claims.

20    Ground 3 is therefore rejected.

CONCLUSIONS

21    None of the three Grounds of Appeal have been made out.

22    The Tribunal considered all of the evidence and other materials relied upon by the present Appellant. The primary Judge was correct in concluding that the application made to that Court should be dismissed.

23    The appeal to this Court should be dismissed. There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, either as agreed or assessed.

Associate:    

Dated:    17 July 2019