FEDERAL COURT OF AUSTRALIA

DNL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1404

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

EX TEMPORE REASONS FOR JUDGMENT

WHITE J:

Introduction

1    The appellant is a national of India who arrived in Australia on 18 April 2013 as an unauthorised maritime arrival. On 13 July 2016, the appellant applied for a Safe Haven Enterprise (Subclass 790) visa (SHEV). A delegate of the Minister refused the application for the SHEV on 13 February 2018. As the delegate’s decision was a “fast track reviewable decision”, it was referred to the Immigration Assessment Authority (the IAA) for review under Pt 7AA of the Migration Act 1958 (Cth) (the Act). On 12 June 2018, the IAA affirmed the decision not to grant the appellant a SHEV.

2    The appellant then sought judicial review of the IAA’s decision in the Federal Circuit Court (the FCC). He was unsuccessful: DNL18 v Minister for Home Affairs & Anor [2019] FCCA 592. The appellant now appeals to this Court against that judgment. He represented himself on the appeal, as he did in the FCC.

The IAA decision

3    On his arrival in Australia, the appellant gave Departmental officers a false name and claimed that he was from Sri Lanka. At his entry interview conducted in September 2013, some five months after his arrival, the appellant provided his real identity. He explained that he had given false information about his identity as the people smugglers had told him that he would be imprisoned if he told the truth.

4    The IAA accepted that the appellant had agreed to drive a boat containing Sri Lankan asylum seekers from Kerala in India to Australia. However, it rejected his claim that, while initially this was to be in consideration of payment, he had later agreed to do it without payment. The IAA member considered that the appellant was a member of a group of people engaged in people smuggling and that he had agreed to drive the boat in exchange for free travel to Australia.

5    In support of his application for a SHEV, the appellant claimed to be entitled to protection as a refugee under s 36(2)(a) of the Act, or to complementary protection under s 36(2)(aa). His claim had multiple bases. He claimed that if he returned to India, he would be charged under s 370 of the Indian Penal Code, which proscribes people trafficking and fixes severe maximum penalties; that he feared that he would be targeted as a failed asylum seeker in a Western country and as an illegal departee from India; and that he feared that he would be harmed by reason of his associations with Tamil groups in Australia.

6    The IAA member considered that the people smuggling activities engaged in by the appellant would not constitute a crime under s 370 of the Indian Penal Code because that provision is concerned with human trafficking, that is, trade in people. The IAA further considered that the appellant’s acts in driving the boat had not been carried out for the purpose of exploitation. The IAA member concluded that people smuggling is not a crime in India, with the consequence that it was unlikely that the appellant would be charged, penalised or subject to any harm on the basis of his engagement in people smuggling activities.

7    The IAA member also concluded that, although the appellant had been involved in a Tamil cricket team, had participated in memorial services to remember Sri Lankan war victims, and may have published posts on Facebook which could be construed as pro-Tamil during his time in Australia, it was not likely that he would be considered by Indian authorities to be a high-profile activist for Tamil rights. Accordingly, the IAA member considered that he would not face a real chance of harm on his return to India as a result of any pro-Tamil activities he had engaged in while in Australia.

8    The appellant claimed to fear an increased risk of harm because of his status as a failed asylum seeker and because he had left India illegally. However, country information indicated that returnees to India of the appellant’s kind would face difficulties on arrival only if they had been involved in a crime in India. Given that the appellant was not wanted for any crimes, the IAA member concluded that he was not likely to face harm or punishment if he returned to India.

9    The IAA member concluded, at [23]:

Overall, I am not satisfied that the applicant faces a real chance of any harm, let alone serious harm, on his return to India for any of the refugee grounds in s.5H(1) including membership of a particular social group as a driver of a people smuggling vessel or illegal departee or a failed asylum seeker or on the basis of having a pro-Tamil political opinion, or at all.

Decision of the FCC

10    The appellant raised one unparticularised ground in his application for judicial review in the FCC:

The Immigration Assessment Authority and the delegate of the Minister for Home Affairs erred in law in making his decision.

11    During the FCC hearing, the appellant did not identify any error of law. Despite this, the FCC Judge engaged in a reasonably detailed review of the IAA’s decision and noted four matters:

(a)    that the IAA had identified correctly the elements of a well-founded fear of persecution for which s 5J of the Act provides;

(b)    that the IAA had engaged in a clear and cogent analysis of the appellant’s claims for protection, dealing with each aspects of the claims and the evidence said to support it;

(c)    that the IAA had identified, correctly, the requirement that there be a risk of significant harm for the purposes of a claim for complementary protection; and

(d)    that the IAA’s reasons included a close consideration of the matters on which the appellant had relied for the claim of complementary protection.

12    The FCC Judge then concluded that the IAA’s decision-making was not affected by illogicality or irrationality, referring to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, (2010) 240 CLR 611 at [130] (Crennan and Bell JJ). In addition, the FCC Judge concluded that the IAA’s decision-making could not be regarded as legally unreasonable or lacking an evident and intelligible justification, in the sense of these concepts as discussed in Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332 at [66], [76].

The appeal to this Court

13    The appellant’s Notice of Appeal to this Court contains three grounds, namely:

a)    The Second Respondent ignored relevant material in a way that affected its exercise of power.

b)    There has been an apprehension of bias during the interview by the first respondent.

c)    The Respondent has not properly considered the alternative criterion under the Complimentary (sic) protection.

14    Each of these grounds was unparticularised. The appellant did not provide an outline of submissions and so no particulars were provided later by that means.

15    The appellant's opening submission on the appeal was that he had been denied the opportunity to make submissions in the FCC. At the time the appellant made those submissions, he appeared to suggest that he had been denied that opportunity during the course of the substantive hearing of his application. That, of course, would be a matter of surprise and the appellant did not provide any evidence to support that this had occurred. However, that is a matter of no consequence, because the appellant acknowledged in his reply submissions that, when he said he had not been given the opportunity to make submissions, he had been referring to the time after the FCC Judge had delivered the judgment.

16    There is no denial of procedural fairness by a judge not giving a litigant an opportunity to make further submissions on the substantive issues in an appeal after the judgment has been delivered.

17    In relation to Ground 1 of the Notice of Appeal, the appellant submitted, in effect, that the IAA had not dealt with his claim that he would suffer harm if returned to India. He also expressed his dissatisfaction with the way in which the IAA had dealt with this aspect of his claim. He submitted that it had not been explained to him why he would not suffer harm if returned to India and also submitted at one stage that the IAA had not addressed s 370 of the Indian Penal Code.

18    Those submissions cannot be accepted. The IAA dealt at some length with each of the bases upon which the appellant made his claims for protection, including complementary protection.

19    The IAA addressed the appellant's claims based on his participation in people smuggling in [13]-[16] of its reasons. In the course of those reasons, the IAA referred specifically to s 370 of the Indian Penal Code on three separate occasions and explained why the IAA considered that the appellant was not at risk of prosecution under s 370 by reason of his participation in people smuggling. The IAA concluded in [16] of the reasons:

As a consequence, I do not accept that the applicant will be charged under section 370 of the Indian Penal Code on his return to India, as he has not claimed to have undertaken any activities that would meet the definition of trafficking of people. Therefore, I have not considered the penalties for trafficking of people in India, as I do not consider that the applicant will be charged, penalised or other subject to any harm on this basis.

20    In my view, that reasoning cannot be regarded as irrational, implausible or lacking an intelligible basis. In particular, I consider that the IAA’s conclusion concerning the participation in people smuggling cannot be impugned on an application for judicial review.

21    The appellant did not point to any other material which was said to have been ignored by the IAA member, nor point to considerations which the IAA was required to consider in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-42. Nor did the appellant point to material that the IAA had failed to take into account, so that it could be said not to have discharged its statutory obligation to review the delegate’s decision: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, (2018) 353 ALR 600 at [16]-[18], [85]; BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169, (2017) 253 FCR 448; BJB v Minister for Immigration and Border Protection [2018] FCAFC 49, (2018) 260 FCR 116 at [69]-[72].

22    Accordingly Ground 1 in the Notice of Appeal is not established.

23    The claimed apprehension of bias in the second ground in the Notice of Appeal is a new claim, which the appellant would need leave to argue on the appeal. There is no basis upon which such leave could be granted. First, the complaint of bias relates to the Minister’s delegate and not to the IAA member. In any event, bias by the delegate, if it did exist, could not give rise to jurisdictional error by the IAA member carrying out the independent de novo review required under Pt 7AA of the Act.

24    Secondly, the appellant did not point to any matter to support a claim of apprehended bias and none is apparent in the delegate’s reasons. The appellant has not satisfied the requirement of clearly articulating, let alone proving, an allegation of apprehended bias: Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337 at [8]; Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17, (2001) 205 CLR 507 at [69].

25    I also note that the Minister’s delegate had in fact made a number of findings favourable to the appellant.

26    Apart from the matters which I have already addressed, the appellant did not articulate any basis upon which it could be said that the IAA had not considered his claim for complementary protection in an appropriate manner. It is true that the reasons of the IAA concerning the claim for complementary protection are reasonably short, but that is because the IAA had dealt, in some detail, with the very same matters on which the appellant relied in relation to the claim for protection under s 36(2)(a). Accordingly, Ground 3 in the Notice of Appeal fails.

Conclusion

27    I have also reviewed the IAA’s reasons more generally and have not detected any matter which could support a claim of jurisdictional error.

28    For these reasons, none of the appellant’s grounds of appeal is made out and the appeal must be dismissed.

Associate:

Dated:    28 August 2019