FEDERAL COURT OF AUSTRALIA

DMF16 v Minister for Immigration and Border Protection [2019] FCA 1953

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia made on 31 May 2019 dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 20 October 2016. The Tribunal affirmed a decision of a delegate of the Minister made on 3 July 2015 under s 65 of the Migration Act 1958 (Cth) (Act) refusing to grant the appellants protection visas.

2    The appellants are husband and wife and citizens of Nepal. As explained in more detail below, the first appellant (the husband) applied for a protection visa claiming to fear extortion if he were to return to Nepal. The second appellant (the wife) applied for a protection visa as a member of the first appellant’s family unit.

3    The appellants commenced these proceedings by an application to extend time filed on 25 June 2019. The appellants did not require an extension of time. On 19 August 2019, a Registrar of this Court directed that the draft notice of appeal received by the Court on 25 June 2019 be treated as instituting an appeal. The Registrar also gave directions for the filing of written submissions by the appellants and the Minister.

4    A written outline of submissions was filed and served on behalf of the Minister prior to the hearing of the appeal. No written submissions were filed and served on behalf of the appellants.

5    The appellants were not legally represented at the appeal. The first appellant appeared at the hearing of the appeal and, with the assistance of an interpreter, asked the Court to reconsider the decision below. The first appellant explained that he was not a lawyer and therefore was unable to identify the legal error in the decision of the Tribunal, but he believed the decision was affected by legal error.

6    As the appellants are not legally represented, I have given careful consideration to the decision of the Tribunal and the decision of the Federal Circuit Court in light of the grounds of appeal. For the reasons that follow, I cannot sustain any of the grounds of appeal and, accordingly, I will dismiss the appeal with costs.

Background

7    The primary judge summarised the background to the appellants’ claims as follows:

Background

[2] The first applicant (applicant) arrived in Australia on 30 November 2013. He departed Australia on 8 December 2013 and on 27 September 2014 he returned to Australia. The second applicant arrived in Australia on 16 October 2014. The applicants applied for Protection visas on 27 October 2014. The second applicant applied as a member of the first applicant’s family unit.

Claims for Protection

[3] The applicant provided a written statement of his claims dated 15 April 2015, where he stated as follows:

a)     The applicant was born on 31 December 1968 into a Hindu family of good repute. He is of Hindu faith and Magar ethnicity. His father was a politician, businessman, and “hard core [sic]” monarchist. His family has always supported the King and his officials. The applicant’s wife and son reside in Australia. The applicant’s son is a university student in Australia.

b)    On 15 June 1988 the applicant enlisted in the Singapore Police Force. His goal was to work hard to support his family. He served in the force for 26 years and retired at the age of 45.

c)    When the applicant first enlisted in the Singapore Police Force, Nepal was safe and peaceful during the rule of the King. The applicant had hoped for Nepal to “be much better with time” after 26 years, and he intended to retire and spend the rest of his life there.

d)    The applicant retired in December 2013 and he returned to Nepal. He commenced operating a fitness business in Kathmandu in January 2014 with the aim of helping society’s wellbeing and fitness.

e)    The applicant is opposed to the Maoists and anti-monarchists. He holds strong views in favour of the constitutional monarchy. The applicant met Kamal Thapa, the central leader of the Rastriya Prajatantra Party Nepal at a family get-together in December 2013. The applicant’s political involvement is based on a genuinely held belief in democracy and the monarchy being a positive force for the good of the Nepalese people.

f)    As the applicant is a “hard core” monarchist, he became a member of the Rastriya Prajatantra Party Nepal (RPP Nepal), assisted the party financially, and supported the party in his capacity as a member. The applicant’s enemies, who include the Maoists, do not want him involved in the politics of Nepal because they see him as aligned with the West. His political opponents, including the Maoists, mistreated the applicant. The Maoists threatened to kill the applicant because of his involvement with the RPP Nepal. The applicant continued to be threatened by members of different criminal gangs “for extortion”.

g)    On 15 August 2014 a group of Maoists went to the applicant’s house and attacked him. He was physically and mentally tortured. He was asked not to be involved in politics. The Maoists did not kill the applicant on the condition that he would give up his involvement in politics. The Maoists made the applicant enter into an agreement to pay them 250,000 rupees, and to agree to give up political activities. h)    The applicant paid the money. The Maoists said that this was a warning about what the applicant would face if he continued to participate in politics. The applicant was extremely frightened, and the applicant ceased his involvement in politics.

h)    On 22 September 2014 around five criminals approached the applicant, demanded 1,500,000 rupees, and threatened that if the applicant refused to pay them the money they would kill him. The applicant paid them 500,000 rupees and promised he would pay the rest within a week.

i)    The applicant faced a severe financial crisis or death. He assessed his situation and focused on his safety. He did not see any prospect of being protected against the Maoists and the criminals either by himself or from the government. His fear was so great that he could not remain in Nepal. He left the country for his personal security. He was lucky that he had a valid Australian visa, and was able to come to Australia for the sake of his safety, where he has since stayed for his “safety”.

j)    The applicant cannot return to Nepal because he opposes the Maoists and cannot satisfy the criminals’ demands for money. The applicant would support the monarchy and follow the politics of the RPP Nepal. These political stances would lead the applicant’s political opponents and criminals to persecute him.

k)    The new constitution has not been formulated yet in Nepal. Politics is in turmoil, and criminals are growing in number. The law of Nepal is feeble and has been unable to reign in crime. Human rights are trampled upon.

l)    The applicant fears he will face extortion if he returns to Nepal because, in the minds of criminals he must have made money while employed by the Singapore Police Force. The applicant further fears that the Maoist criminals are determined to kill him as he has attracted their attention. He is unable to obtain protection from the authorities because they lack basic resources and are corrupt. Nepalese police do not respond to most incidents of violence, particularly events involving Maoists and armed groups in Nepal.

Tribunal Proceedings

8    On 27 July 2015, the appellant applied to the Tribunal for review of the delegate’s decision.

9    On 13 October 2016, the appellant attended a hearing before the Tribunal to give evidence and to present arguments.

10    On 20 October 2016, the Tribunal delivered its statement of decision and reasons, affirming the delegate’s decision not to grant protection visas.

11    The Tribunal accepted many aspects of the appellants’ evidence, making the following findings (at [48] and [49]):

[48] On the evidence before me, I make the following findings about the background of the primary applicant:

a.    I accept that the primary applicant is a citizen of Nepal of the Hindu faith and the Magar ethnicity who was born in Okhaldhunga in Nepal.

b.    I accept that the applicant's family were monarchists and supported the King and that his family was wealthy;

c.    I accept that on 15 June 1988 the applicant enlisted in the Singaporean Police Force and that he retired from the Singaporean Police Force in December 2013 and he now has a pension from the police force;

d.    I accept that the applicant was robbed in a taxi in Nepal before he first travelled to Australia in 2004 and that this incident was not related to the two attacks he claimed occurred in 2014.

e.    I accept that the applicant has previously travelled to Australia in 2004 and in November 2013 and that his son is studying at university in Australia.

f.    I accept the applicant's evidence to the Tribunal that when he departed Australia in 2013 he did not have any concerns about returning to Nepal.

g.    I accept that the applicant opened a business named Niraamayae Fitness Studio and Academy in Kathmandu in January 2014 and that this business is still open and is operated by the applicant's business partner.

h.    I accept that the applicant continues to have a financial state in the fitness studio, that the business is profitable and that his business partner has not experienced any problems operating the business since the applicant left Nepal.

i.    I accept that the applicant supports the RPP-N and the restoration of the monarchy.

[49] I accept that the applicant has investment properties in Kathmandu and Okhaldhunga and that friends and family in Nepal owe him money and pay interest on these loans.

12    However, the Tribunal did not accept the first appellant’s evidence concerning why he left Nepal and the reasons that he does not want to return to Nepal now. In that respect, the Tribunal made the following findings in respect of each of the first appellant’s claims.

13    First, the Tribunal did not accept that the first appellant’s claims that he was attacked in Nepal in 2014 were credible (at [50]). That was for a number of reasons (at [50] – [60]. In overview, the Tribunal found that his evidence about the claimed attacks on 15 August 2014 and 22 September 2014 was vague and, in significant respects, improbable. While the first appellant provided consistent evidence about when and where the attacks occurred, the Tribunal considered that his evidence about who was responsible for each attack and whether the attacks were related was improbable and speculative. The Tribunal also concluded that while the appellant claimed the criminal group who attacked him in September 2014 was still looking for him, his evidence about their efforts to find him or threaten him lacked any meaningful detail. Further, the claim that the criminal group who attacked him was still looking for him was difficult to reconcile with his evidence that his business (the fitness studio) has continued to operate smoothly since he left Nepal and has not experienced any problems. The Tribunal concluded (at [62]):

On the evidence before me and having regard to my cumulative concerns about the credibility of the applicant's claims, I do not accept that the applicant was attacked on two occasions in 2014 as claimed. I do not accept that the applicant was attacked in August 2014 Okhaldhunga because of his involvement with/support for/membership of the RPP-N and/or because he is a businessman and/or perceived to be wealthy/ and/or from a wealthy family of pro-monarchists or for any reason. I do not accept that the applicant was attacked in September 2014 in Kathmandu by a criminal gang and/or a criminal gang associated with Chakre Milan, and/or a criminal gang associated with the Maoists and/or the police. Because I do not accept that the attacks occurred, I reject the suggestion that the attacks were linked in any way. Because I do not accept that the attacks occurred, I do not accept that the applicant was ever threatened by his attackers as claimed or that his attackers have looked for him since he left Nepal or that the applicant was, at the time he left Nepal, or is now of any adverse interest to members or supports of the Maoists and/or any criminal individuals and/or criminal groups or and/or political groups in Nepal. I do not accept that, at the time the applicant left Nepal, he was of any adverse interest to any person or group in Nepal for any reasons.

14    Second, the Tribunal considered whether there is a real chance that the first appellant would face serious harm or significant harm because of his political opinion if he returns to Nepal, by reason that he claims to be a supporter and member of the RPP-N and supports the restoration of Nepal as a constitutional monarchy and a Hindu state (at [63]). In that respect, the Tribunal accepted (although with some considerable doubt) that the first appellant supports the RPP-N and that he is from a pro-monarchist family; that he may have made financial donations to the RPP-N in 2014; and that he may have met the leader of the RPP-N at a family gathering (at [65]). However, the Tribunal noted that the first appellant had not claimed, and there was no evidence, that he attended protests or rallies. The Tribunal concluded that, even if it is accepted that the first appellant was a member and supporter of the RPP-N and that, if he returned to Nepal, he would continue to be a member and supporter of the RPP-N, make donations to the RPP-N, and speak publicly about his belief in the RPP-N and, more broadly, the monarchy, the Tribunal was not satisfied that there is a real chance that he will face harm of any type as a result of doing so (at [65]). The Tribunal found, based on the available country information and evidence, that (at [71]):

Looking forward, having considered the country information about the current political environment in Nepal, I find that there is no real chance that the applicant will suffer serious harm or significant harm because of his father's political profile or because he is from a wealthy family of pro-monarchists or because the applicant himself supports the monarchy/RPP-N and is considered to be wealthy.

15    Third, the Tribunal considered whether there is a real chance that the first appellant would face serious harm or significant harm from extortion threats because of his perceived wealth. In that respect, the Tribunal concluded (at [76]):

After carefully considering the available country information and what I have accepted of the applicant's claims and circumstances, I am not satisfied that there is a real chance that he will be subject to serious harm or significant harm by criminals because he is a businessman and/or a wealthy businessman and/or because he is perceived to be wealthy and/or because he supports the monarchy and the RPP-N and/or because he speaks out against criminal activity. While I have considered the country information about businesses facing demands for forced donations, on the evidence before me, I am not satisfied that being asked to pay or payment itself, would be such that it would cause significant economic hardship threatening the applicant's capacity to subsist, or denial of any capacity to earn a livelihood or any similar kind of serious harm, or significant harm for the purpose of complementary protection criteria. In any event, having regard to the applicant's evidence that his business in Nepal has operated since January 2014 and has not experienced any problems in the two years since he left Nepal, I am not satisfied that, if the applicant returns to Nepal, and continues to operate this business, that there is a real chance (as opposed to one which is remote) that he will be subject to extortion or serious harm or significant harm because he is a businessman and/or because he is perceived as being wealthy and/or because he is monarchist who supports the RPP-N and/or because he speaks out against criminal activity.

16    Fourth, in relation to the first appellant’s claims about crime and corruption in Nepal, the Tribunal concluded that it is mere speculation that the first appellant would suffer serious harm or significant harm as a result of crime and/or corruption in Nepal and the Tribunal did not accept that there is a real chance (as opposed to a remote chance) that this would occur (at [77]). Further (and in any event), the Tribunal concluded that corruption and crime in Nepal appeared to be problems faced by the population in Nepal generally and not the first appellant personally (at [78]).

17    Finally, the Tribunal concluded that the available country information indicated that the general security situation in Nepal had improved greatly since the war and the possibility that the first appellant would be harmed by reason of the general security situation was remote (at [79]).

Proceedings in the Federal Circuit Court

18    On 17 November 2016, the appellants lodged an application in the Federal Circuit Court, seeking judicial review of the Tribunal’s decision under s 476 of the Act. Subject to various exceptions (which are not presently applicable), s 476 grants the Federal Circuit Court the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. As such, review by the Federal Circuit Court was confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

19    To constitute jurisdictional error, the error must comprise a failure to comply with a statutory precondition which must exist in order for the decision-maker to embark on the decision-making process or a failure to comply with a condition which the statute expressly or impliedly requires to be observed in the decision-making process, and the error must ordinarily be material in the sense that compliance with the condition could have resulted in the making of a different decision: Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 at 6-9 per Kiefel CJ and Gageler and Keane JJ; [2018] HCA 34; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45] per Bell, Gageler and Keane JJ. Such errors can include identifying a wrong issue, asking the wrong question, ignoring relevant material, relying on irrelevant material, failing to observe an applicable requirement of procedural fairness or, in certain circumstances, making an erroneous factual finding: Craig v South Australia (1995) 184 CLR 163 at 179; Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [67]; Hossain v Minister for Immigration and Border Protection (2018) ALR 1 at 19; [2018] HCA 34.

20    The grounds of review stated in the application were as follows (I have also included numbers that were not in the original but were added by the primary judge as a convenient means of identifying discrete issues raised by the appellants before the Federal Circuit Court):

[1] The Tribunal Member's conclusion in most parts of my claims had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly.

[2] The Tribunal Member based the finding of lack of credibility was based on a clearly erroneous fact and its arbitrary views towards my claims but it was not based on the facts and evidence.

[3] The Tribunal's findings that I am not a credible witness because the Tribunal Member is of the view that I have not suffered any harm in the past because of my actual or perceived political opinion and the Tribunal is of the view that it is mere speculation that I will suffer serious harm or significant harm as a result of crime and corruption in Nepal. My peculiar background in respect of my employment as a police officer, the special place I have in the esteem of the Nepalese community and the fact that my employment with Singapore Police Force for many years clearly placed me into a category that be best described under the Convention as a particular social group which is set apart and readily identifiable from the community at large. Although I did not specifically argue this particular group at the hearing, the issue was raised squarely before the Tribunal on the facts presented to it.

[4] Tribunal Member undermined my claims of fear of serious harm on return to Nepal and it is unfair that the Tribunal member had taken a rigid and arbitrary view towards my claims and evidence. The Tribunal Member made a cursory conclusion in every part of my claims of fear on return to Nepal and it committed a jurisdictional error in failing to address every part of my claims of persecution upon return to Nepal.

[5] The Tribunal erred when addressing Art 1C(5) of the Refugees Convention in that it failed to consider whether the change in circumstances in Nepal was durable and substantial and failed to consider whether I might nevertheless be at risk from the Maoists or other opponents including criminal gang and [6] whether the Nepalese authorities had taken reasonable measures to protect me.

[7] The Tribunal's decision was affected by jurisdictional error by reason of a failure to follow the mandatory procedure required by s 424A(1).

[8] The Tribunal Member failed to put me on notice of some of its concerns and perception in my evidence and claims and also failed to give me an opportunity to rebut the relevance of that material to my circumstances in writing.

21    The primary judge rejected each of those grounds of review for the following reasons.

22    In respect of the ground numbered [1], the primary judge found that the Tribunal considered each of the first appellant’s claims and there was nothing on the face of its reasons that could suggest the Tribunal did not approach its tasks with an open mind (at [15]).

23    In respect of the ground numbered [2], the primary judge found the first appellant was unable to identify, at the hearing, the allegedly erroneous fact relied on by the Tribunal and otherwise found that the Tribunal’s findings were not arbitrary but based on reasoning that was open to the Tribunal (at [16]).

24    In respect of the ground numbered [3], the primary judge found (as admitted in the ground) that the first appellant did not claim he feared harm by reason of being a member of a particular group (being a former member of the Singaporean Police Force), and also found that such a claim did not arise from the evidence before the Tribunal such that the Tribunal erred in failing to consider it (relying on NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15]) (at [17]).

25    In respect of the ground numbered [4], the primary judge found that the Tribunal’s reasons could not be characterised as cursory and that the Tribunal had properly considered the first appellant’s claims (at [18]).

26    In respect of the ground numbered [5], the primary judge considered that the ground should be understood as a contention that, when the Tribunal assessed the risk of harm the first appellant may face in the future, the Tribunal did not consider the correct period into the future for which it had to assess whether the applicant faced a real chance of harm. The primary judge rejected the contention because the Tribunal expressly considered the risk of harm “now or in the reasonably foreseeable future”, which is the test posited by Art.1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (at [19]).

27    In respect of the ground numbered [6], the primary judge found that the question whether the Nepalese authorities had taken reasonable measures to protect the first appellant did not arise because the Tribunal was not satisfied the first appellant suffered the attacks and other harms he claimed he suffered (at [20]).

28    In respect of the ground numbered [7], the primary judge found that the first appellant had not identified any information falling within the requirements of s 424A of the Act (specifically, information that the Tribunal considered would be the reason or part of the reason for affirming the decision that is under review) and accordingly did not accept the ground (at [21]).

29    In respect of the ground numbered [8], the primary judge found that concerns the Tribunal may have had with the applicant’s evidence is not “information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under the review”, as those words appear in s 424A of the Act, because “information” for the purposes of s 424A of the Act “does not encompass the tribunal’s subjective appraisals, thought processes or determinations” (relying on SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, at [18], quoting from the judgment of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at pages 476-477). The primary judge also observed that a “decision-maker would not be otherwise obliged to expose his or her mental processes or provisional views to comment before making the decision in question” (relying on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [24] quoting from the judgment of Northrop, Miles and French JJ in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576. The primary judge also concluded that the Tribunal’s reasons showed that the Tribunal had raised with the first appellant concerns it had with aspects of his claims (at [23]).

Appeal to the Federal Court

30    The appellants appeal from the judgment of the Federal Circuit Court. The appeal is by way of rehearing under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). Accordingly, the Court must determine whether the Federal Circuit Court was correct to find that the decision of the Tribunal was not affected by jurisdictional error: Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408.

31    The draft notice of appeal (which, as noted earlier, stands as the notice of appeal) raises the following grounds of appeal (where the ground of appeal replicates ground of review before the Federal Circuit Court, I have included a cross-reference in parenthesis which was not in the original):

1.    I am not satisfied with the judgment of the Federal Circuit Court Judge because his Honour failed to give me justice.

2.    It is argued that the Tribunal did not disclose the certificate issued by the delegate of the first respondent pursuant to section 438 of the Migration Act 1958 (Cth) and it failed to accord me procedural fairness.

3.    I argue that the Tribunal Member’s conclusion in most parts of my claims had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly [Ground 1].

4.    The Tribunal Member’s purported the finding of lack of credibility was based on a clearly its arbitrary views towards my claims and I argue that I am a victim of the Tribunal Member’s arbitrary views [Ground 2].

5.    I strongly argue that the Tribunal’s findings that I am not a credible witness because the Tribunal Member is of the view that I have not suffered any harm in the past because of my actual or perceived political opinion and the Tribunal is of the view that it is mere speculation that I will suffer serious harm or significant harm as a result of crime and corruption in Nepal [Ground 3a].

6.    It is argued that my peculiar background in respect of my employment as a police officer, the special place I have in the esteem of the Nepalese community and the fact that my employment with Singapore Police Force for many years clearly placed me into a category that be best described under the Convention as a particular social group which is set apart and readily identifiable from the community at large. Although I did not specifically argue this particular group at the hearing, the issue was raised squarely before the Tribunal on the facts presented to it but the Tribunal Member ignored or undermined me on this issue [Ground 3b].

7.    It is argued that the Tribunal Member undermined my claims of fear of serious harm on return to Nepal and it is unfair that the Tribunal member had taken a rigid and arbitrary view towards my claims and evidence [Ground 4a].

8.    It is argued that the Tribunal Member made a cursory conclusion in every part of my claims of fear on return to Nepal and it committed a jurisdictional error in failing or ignoring to address every part of my claims of persecution upon return to Nepal [Ground 4b].

9.    It is argued that the Tribunal erred when addressed Art 1C(5) of the Refugees Convention in that it failed to consider whether the change in circumstances in Nepal was durable and substantial and failed to consider whether I might nevertheless be at risk from the Maoists or other opponents including criminal gang [Ground 5] and whether the Nepalese authorities had taken reasonable measures to protect me [Ground 6].

10.    It is argued that the Tribunal’s decision was affected by jurisdictional error by reason of a failure to follow the mandatory procedure required by s 424A(1) [Ground 7].

32    As already noted, the task of this Court on appeal is to determine whether there was any error made in the decision of the primary judge, and not merely to conduct a fresh review of the Tribunal’s decision. None of the appellants' grounds of appeal allege error by the primary judge. Nevertheless, I will proceed on the basis that each ground of review is intended to allege that the primary judge erred in failing to find that the Tribunal committed jurisdictional error in the way identified by each ground.

33    As can be seen from the cross-references inserted into the grounds of appeal, most of the grounds of appeal replicate grounds of review raised before the Federal Circuit Court. However, grounds 1 and 2 were not raised before the Federal Circuit Court. For the reasons explained below, both grounds should be rejected. As to the other grounds of appeal, for the reasons explained below I reject them for largely the same reasons as they were rejected by the primary judge.

34    Ground one expresses the dissatisfaction of the appellants with the judgment of the primary judge, 'because his Honour failed to give me justice'. This ground of review does not articulate appellable error by the primary judge or jurisdictional error by the Tribunal.

35    Ground two, which is not a ground of review that was raised below, is misconceived because there is no evidence that a certificate pursuant to s 438 of the Act was issued. Leave to raise the ground is therefore refused (VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46]).

36    Ground three replicates ground one before the primary judge. It is a complaint of actual or apprehended bias. An administrative decision-maker will be found to have given rise to an apprehension of bias if a fair-minded lay person might think that the decision-maker might not bring a fair and impartial mind to the making of the decision: Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 at [37] per Rares and Jagot JJ. The hypothetical lay person is an objective observer of the proceedings and will be assumed to be properly informed as to their nature, the matters in issue and the conduct complained of: Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 at [28]-[29]. An apprehension of bias will arise if a fair-minded lay person might think that the administrative decision-maker was 'so committed to conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented': Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [72]. This ground of review is wholly unparticularised. There is no evidence whatsoever to substantiate a complaint of actual or apprehended bias. The primary judge was correct to reject it (at [15]).

37    Ground four replicates ground two below. It is a complaint that the Tribunal's adverse credibility findings were based on the Tribunal's arbitrary views. To the extent this is an allegation of bias, it is rejected for the same reason as ground three. To the extent this is a contention that the Tribunal’s adverse credibility findings were legally unreasonable, in my view the primary judge was correct to reject this ground for the reasons given at [16]. The principles which guide judicial review of findings concerning credibility have been discussed by the Full Federal Court in a number of recent decisions, including CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at 507-512; [2016] FCAFC 146; DAO16 v Minister for Immigration and Border Protection (2018) 353 ALR 641 at 649-650 [30]; [2018] FCAFC 2; and AVQ15 v Minister for Immigration and Border Protection (2018) 361 ALR 227 at 239-240; [2018] FCAFC 133 at [41]. While credibility findings are not immune from review, considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review. As set out earlier, the Tribunal provided detailed reasons for its adverse credibility findings and, in my view, those findings cannot be said to be legally unreasonable.

38    Ground five replicates the first part of ground three below. The primary judge did not separately address the first part of ground three, no doubt seeing the central issue in ground three as the contention that the Tribunal failed to consider a claim based on the first appellant's membership of a particular social group (see ground six below). In my view, ground five does not articulate any jurisdictional error by the Tribunal. Rather, it merely expresses disagreement with the Tribunal's factual conclusions.

39    Ground six replicates the second part of ground three below, which was addressed by the primary judge. It is a complaint that the Tribunal failed to consider a claim based on the first appellant's membership of a particular social group (being a former member of the Singaporean Police Force). In my view, the primary judge was correct to reject this ground (being ground three below) for the reasons given at [17]. Where a decision-maker fails to make a finding upon a substantial, clearly articulated argument relying upon established facts, such failure can amount to a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95]. That principle extends to claims that are not expressly made by the applicant but which nevertheless clearly or squarely arise (in the sense of being apparent) from the nature of the evidence before the decision-maker: NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1 at [55]-[63]; NABE at [68]. The first appellant acknowledges that he did not claim to fear harm in Nepal by reason of being a member of a group comprising former officers in the Singapore Police Force. Further, such a claim did not clearly arise from the evidence before the Tribunal. Rather, the evidence shows that the first appellant based his claim principally on his political views and his relative wealth, allegedly making him a target of extortion threats.

40    Ground seven replicates the first part of ground four below. The primary judge did not separately address the first part of ground four and focussed on the contention that the Tribunal’s reasoning was cursory (see ground eight below). By ground seven, the appellants repeat the contention in ground four that the Tribunal adopted an arbitrary view towards the first appellant’s claims and evidence. The contention should be rejected for the same reasons as given above in respect of ground four.

41    Ground eight replicates the second part of ground four below, which was addressed by the primary judge. It is a complaint that the Tribunal made a cursory conclusion with respect to the first appellant's claims and committed jurisdictional error in failing to address all parts of the first appellant's claims. The appellants do not identify the claim or claims that the Tribunal is said not to have considered. The Tribunal identified and made findings with respect to the integers of the first appellant's claims. In my view, the primary judge was correct at [18] to find that the Tribunal's reasons cannot be characterised as cursory.

42    Ground nine replicates the ground five and six below. It is a complaint that the Tribunal erred in addressing Article 1C(5) of the Refugees Convention in that it failed to consider whether the change in circumstances in Nepal was durable and substantial, and failed to consider whether the first appellant might nevertheless be at risk from Maoists or other opponents, and whether the Nepalese authorities had taken reasonable measures to protect the first appellant. In my view, the primary judge was correct to reject these contentions. Article 1C(5) was irrelevant because it concerns the cessation of previously accepted refugee status. The question of effective state protection did not arise given the Tribunal's findings of fact. Further, the Tribunal’s reasons show that the Tribunal did consider the first appellant’s claims to fear harm from Maoists and others, but rejected those claims.

43    Ground ten replicates ground 7 below. It alleges a breach of s 424A of the Act. In my view, there is no error in the primary judge’s rejection of that ground in circumstances where the appellants had not identified any specific information said to have given rise to the Tribunal's obligations under s 424A.

Conclusion

44    In my view, the grounds of appeal do not identify any error on the part of the primary judge, nor jurisdictional error on the part of the Tribunal. The appeal should be dismissed with costs.

Associate:

Dated:    21 November 2019