FEDERAL COURT OF AUSTRALIA

FJA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 38

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s interlocutory application dated 16 December 2019 to set aside the orders made on 18 November 2019 be refused.

2.    The appellant pay the first respondent’s costs of the application.

3.    The name of the first respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

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    On 18 November 2019, I made an order under rule 36.75(1) of the Federal Court Rules 2011 dismissing an appeal brought by the appellant from orders made by the Federal Circuit Court of Australia on 21 May 2019. The reasons for that order are published at FJA17 v Minister for Home Affairs [2019] FCA 1936. In short, the appellant was absent when the appeal was called on for hearing.

2    Prior to that hearing, the appellant had sent a letter to the Court and the Minister by email stating that she could not attend the hearing due to her daughter’s sudden illness. The letter was not supported by any evidence and provided no information concerning the illness of the appellant’s daughter. In the circumstances, I directed the Minister to inform the appellant that she had the right under rule 36.75(2) to apply to the Court to set aside the order dismissing the appeal and for the further conduct of the hearing of the appeal, and to inform the appellant that any such application should be made promptly and that it should be supported by:

(a)    an affidavit explaining the circumstances in which the appellant failed to attend the hearing, including evidence from a medical practitioner concerning the illness of the appellant’s daughter; and

(b)    a written submission as to the basis and merits of the appeal.

3    By application dated 16 December 2019 (but which was not filed until 30 December 2019), the appellant seeks an order under rule 36.75(2) setting aside my previous order dismissing the appeal and an order that the appeal be heard. The application was supported by an affidavit affirmed by the appellant which stated:

I did not attend the hearing scheduled at 2.15pm on 18 November 2019 due to my daughter's sudden illness.

I experienced fear and anxiety and I was struggling with emotions when I heard my daughter was sick.

I cannot provide the evidence relating to my daughter's illness because she resides with my relatives in Nepal and they are unable to give me the evidence apart from oral evidence as to what happened to her.

4    The appellant also filed written submissions in support of her appeal. The submissions are relatively brief and assert error in the Tribunal’s reasons at a high level of generality.

5    Rule 36.75(2) of the Federal Court Rules 2011 provides that, if a hearing (of an appeal) proceeds in a party’s absence and an order is made, the absent party may apply to the Court for an order setting aside or varying the order and for the further conduct of the hearing. The source of the Court’s power in r 36.75(2) is found in s 25(2B)(bc) of the Federal Court of Australia Act 1976 (Cth): see SZISM v Minister for Immigration and Citizenship (2007) 158 FCR 292.

6    The power is discretionary and must be exercised judicially. As observed by Tracey J in AAI15 v Minister for Immigration and Border Protection [2018] FCA 1110 at [29], in exercising that discretion, two of the relevant considerations are whether the applicant’s failure to attend at a listed hearing was adequately explained and whether the applicant has a reasonably arguable prospect of success on the substantive application, referring to MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 at [18] (North J); MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7] (Ryan J); and Harrison v Secretary, Department of Social Services [2018] FCA 110 at [25] (Flick J).

7    As to the first factor, the appellant’s explanation of her failure to attend, I consider that the explanation provided is less than satisfactory. The following matters are absent from the appellant’s affidavit:

(a)    any information concerning the nature of the illness suffered by the appellant’s daughter at the time of the hearing of the appeal;

(b)    any evidence (such as from a medical practitioner) to support the appellant’s claim that she experienced fear and anxiety that prevented her from attending the hearing;

(c)    any explanation as to why the appellant did not reply to the Court’s communication on the day prior to the hearing, seeking to arrange an appearance by telephone; and

(d)    any explanation as to why the appellant was incapable of attending the hearing by telephone.

8    The unsatisfactory explanation weighs against the exercise of the Court’s discretion.

9    As to the second factor, to which I give greater weight, for the reasons set out below, I have formed the view that the appellant does not have a reasonably arguable prospect of success on the appeal.

10    For those reasons, I refuse the application to set aside the orders made on 18 November 2019. The remainder of these reasons explain why I consider that the appeal does not have a reasonably arguable prospect of success.

Background

11    The appeal is from orders made by the Federal Circuit Court on 21 May 2019: FJA17 v Minister for Immigration & Anor [2019] FCCA 1117. The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 8 November 2017 affirming a decision of a delegate of the Minister refusing to grant the appellant a protection visa under s 65 of the Migration Act 1958 (Cth) (Act).

12    The appellant, a citizen of Nepal, arrived in Australia on 25 April 2014 on a Sponsored Family Stream (subclass FA-600) visa. Her ex-husband (whom she married in 2005) and her daughter (born in 2008) remained in Nepal.

13    On 23 May 2014, the appellant applied for a protection visa. The appellant’s claims for protection were set out in a statement attached to her application and can be summarised as follows:

(a)    Her family disowned her after she married without their permission.

(b)    She was the victim of ongoing domestic violence by her ex-husband and his parents. She first experienced problems in 2007 after she fell pregnant with a daughter. Her ex-husband wanted a son and demanded that she terminate the pregnancy, but she refused. Following this, he was frequently violent towards her, particularly when drunk.

(c)    Her parents-in-law blamed her for the death of their grandson, accused her of being a witch, and were violent towards her. She feared her ex-husband and in-laws would seek to harm and possibly kill her if she returned to Nepal, with the aid of criminals associated with her ex-husband’s brother-in-law.

(d)    She will face hardship on return to Nepal as she has no family support.

14    On 2 June 2015, the appellant and her ex-husband divorced. On 25 August 2015, the appellant married an Australian citizen.

15    On 12 November 2015, the Minister’s delegate refused to grant the visa.

16    On 3 December 2015, the appellant applied to the Tribunal for review of the delegate’s decision. On 30 October 2017, the appellant appeared before the Tribunal with the assistance of a Nepali interpreter. On 8 November 2017, the Tribunal affirmed the delegate’s decision.

Tribunal decision

17    Having considered the material before it, the Tribunal did not find the appellant to be a credible witness and characterised her evidence as confused, inconsistent and changing (at [30]-[31]). Some of the inconsistencies in the appellant’s evidence identified by the Tribunal might be regarded as insignificant, particularly the details of when and how the appellant first met her ex-husband and which school she attended at or about the time of her first marriage. However, other matters were more significant, particularly the inconsistent evidence given by the appellant to the Department and the Tribunal concerning her employment following her marriage in Nepal and her relationship with her ex-husband in the months prior to her departure from Nepal. In relation to her employment in Nepal, the appellant stated in her visa application that she did not work following her marriage, but subsequently gave evidence to the Department and the Tribunal that she worked in the garment industry and briefly for a drug rehabilitation organisation called Saarathi (at [20] and [23]). In relation to the appellant’s relationship with her ex-husband before she left Nepal, the appellant told the Department that she had been separated from her ex-husband for about five months before leaving Nepal, but told the Tribunal that she lived with her ex-husband before the trip to Australia, that he expected her to return and live with him and that she spoke to her ex-husband daily for the first 6 months after she arrived in Australia and only raised divorce after that period ([27]-[28]).

18    On the basis of its adverse credibility findings, the Tribunal rejected the totality of the appellant’s claims and found that the appellant had concocted the claims in order to obtain protection in Australia (at [32]).

19    Having regard to the appellant’s claims individually and cumulatively, the Tribunal found that she did not have a well-founded fear of persecution for any Convention reason (at [37] and [40]) and did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Nepal, there was a real risk she would suffer significant harm for the purpose of the complementary protection criterion in s 36(2)(aa) of the Act (at [41]).

Proceedings in the Federal Circuit Court

20    On 7 December 2017, the appellant filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court under s 476 of the Act. Subject to various exceptions (which are not presently relevant), 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.

21    The grounds of review stated in the application were as follows:

1.    I am not satisfied with the Tribunal Member’s decision because the decision involved an error of law.

2.    I argue that the Tribunal Member committed a jurisdictional error by heavily relying on its arbitrary views in consideration of my evidence and claims.

3.    The Tribunal ignored to give me a benefit of the doubt and natural justice.

4.    I am a genuine refugee in fear of persecution and my fears on return to my home country Nepal remain relevant.

22    At a hearing on 16 October 2018, the appellant made an allegation of procedural unfairness by the Tribunal. In light of that allegation, the primary judge made orders for the appellant to file a transcript of the Tribunal hearing. The transcript was filed on 20 November 2018 and the matter proceeded to a final hearing on 29 April 2019.

23    The primary judge found that the transcript of the Tribunal hearing did not support the appellant’s allegation of procedural unfairness (at [17]) and that the appellant was afforded a real and meaningful opportunity to participate in the hearing and the Tribunal complied with its obligations under s 425 of the Act (at [20]).

24    In relation to grounds of review one and four, the primary judge concluded that the grounds did not articulate a basis for a finding of jurisdictional error and were, in substance, a request for the Court to undertake impermissible merits review (at [22]).

25    In relation to ground two, the primary judge considered that the ground was either an allegation of bias or an allegation of illogicality. Insofar as the ground was an allegation of bias, the primary judge concluded that the allegation could not be made out on the evidence (at [23]). Insofar as the ground raised an allegation of illogicality, the primary judge concluded that the findings of the Tribunal were open to it, and that any complaint of illogicality did not go beyond an expression of disagreement with the merits of the Tribunal’s reasons (at [24]).

26    In relation to ground three, the primary judge concluded that the Tribunal was not required to accept the appellant’s claims (at [27]) and found that there was nothing to support the allegation of a denial of procedural fairness (at [28]). In particular, the Tribunal found that the appellant was properly put on notice of the Tribunal’s credibility concerns (at [28]).

27    The primary judge concluded that the appellant had not established jurisdictional error and dismissed the application (at [29]).

The grounds of appeal

28    As referred to in my reasons published on 18 November 2019, on 14 June 2019, the appellant filed an affidavit which annexed a draft notice of appeal. On 13 August 2019, the Court made orders that the draft notice of appeal be treated as instituting a notice of appeal.

29    The notice of appeal advances five grounds of appeal as follows (errors in 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 believe and argue that the Tribunal overlooked my claims by establishing an initial disbelief of my credibility based on its arbitrary view on one matter and ignored to look at my entire evidence accusing me of being not a credible witness.

4.     It is argued that the Tribunal failed to regard to the fact that Nepal is a conservative society which operates under very traditional social norms. Thus, the Tribunal ignored or failed to consider my claims against the background of my cultural mores. The Tribunal’s findings in my claims are irrelevant and poorly justified in the circumstances in which my evidence was inferentially adversely construed against my claims and the Tribunal fell into error because it ignored or failed to carry out a review as required by the Act.

5.     It is argued that the Tribunal’s decision in my case involved an error of law which is a denial of natural justice and procedural fairness.

30    I consider each of the grounds in turn in light of the written and oral submissions made on behalf of the parties.

Ground One

31    Ground one states that the primary judge “failed to give me justice”. The ground is unsupported by particulars or evidence. It appears to be an overarching complaint that the primary judge erred in failing to find jurisdictional error in the Tribunal’s reasons. Having reviewed the Tribunal’s reasons, I have not identified jurisdictional error. I consider that the ground has no prospects of success.

Ground two

32    Ground two alleges that the Tribunal failed to disclose the existence of a certificate issued by the delegate under s 438 of the Act and thereby denied the appellant procedural fairness. The ground was not raised before the primary judge and therefore requires the leave of the Court to be relied upon. The ground fails at a factual level, as no s 438 certificate was issued in this matter. Accordingly, if the appeal were to be heard, leave to raise this ground would be refused.

Ground three

33    Ground three alleges that the Tribunal’s adverse credibility findings were arbitrary. The ground appears to re-agitate ground two before the primary judge.

34    Having reviewed the reasons of the Tribunal and the primary judge, I have not identified error of the kind alleged by the appellant. The Tribunal explained its reasons for disbelieving the appellant’s claims. Those reasons largely related to inconsistencies in evidence given by the appellant to the Department and to the Tribunal. While, as noted above, I consider that some of the identified inconsistencies are less significant than others, in my view there was a sufficient basis for the Tribunal to reach the conclusion that it did and its conclusion cannot be characterised as legally unreasonable. The appellant’s submissions on this appeal are directed to the merits of the Tribunal’s decision and they express disagreement with the findings made by the Tribunal. In my view, they do not identify jurisdictional error. I consider that this ground has no prospects of success.

Ground four

35    Ground four alleges that the Tribunal failed to have regard to the fact that Nepal is a conservative society which operates under very traditional social norms.

36    The ground was not raised before the primary judge and therefore requires the leave of the Court to be relied upon. Leave to raise a new ground of appeal is not given freely: Coulton v Holcombe (1986) 162 CLR 1 at 7. Nevertheless, this Court has recognised that special circumstances frequently arise in migration cases. The usual approach of the Court in such cases was described by the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 in the following terms (at [48]):

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

37    The applicable principles were recently discussed by the Full Court in CGA15 v Minister for Home Affairs [2019] FCAFC 46 at [35]-[38].

38    In my view, the ground has no merit and, if the appeal were to be heard, leave to raise the ground would be refused. The Tribunal’s decision was based on its disbelief of the appellant’s claims, which in turn was based on inconsistencies in the appellant’s evidence given to the Department and to the Tribunal. In those circumstances, evidence concerning social norms in Nepal was not relevant to the Tribunal’s ultimate decision.

Ground five

39    Ground five alleges that the appellant was denied natural justice and procedural fairness by the Tribunal. The ground appears to re-agitate ground three before the primary judge, and possibly the overarching complaint made by the appellant before the primary judge of a denial of procedural fairness.

40    The appellant submitted that the Tribunal member failed to give her a reasonable opportunity to deal with information at the hearing.

41    The primary judge considered those matters and reviewed the transcript of the hearing before the Tribunal. I have also reviewed the transcript. I am unable to find any error in the primary judge’s conclusion that the appellant was afforded a real and meaningful opportunity to participate in the hearing before the Tribunal. I consider that the ground has no prospects of success.

Conclusion

42    In conclusion, I consider that the appeal has no prospects of success. I therefore refuse the application to set aside my earlier order dismissing the appeal.

Associate:

Dated:    31 January 2020