FEDERAL COURT OF AUSTRALIA

BVH18 v Minister for Home Affairs [2020] FCA 228

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

STEWART J:

1    The appellant appeals from the judgment of the Federal Circuit Court in BVH18 v Minister for Home Affairs [2019] FCCA 2094.

2    The primary judge dismissed the appellant’s application for review of a decision of the Immigration Assessment Authority made on 19 March 2018 affirming a decision of a delegate of the first respondent (the Minister) refusing the appellant a Safe Haven Enterprise Visa (SHEV).

Background

3    The appellant, a male citizen of Nepal, arrived in Australia (Christmas Island) from Indonesia in December 2012 as an “unauthorised maritime arrival” (Migration Act 1958 (Cth), s 5AA). Shortly thereafter he was the subject of an entry interview in which he explained, at least in part, his grounds for seeking asylum in Australia.

4    On 10 June 2016, the appellant applied for a SHEV.

5    Annexed to his application, the appellant provided a statement in which he outlined his claims for protection. Between his statement and his entry interview, he claimed that his father had been killed by Maoist insurgents in Nepal when the bus on which he was travelling was the target of a Maoist bomb attack. The appellant further claimed that in April 2005 he began to work at a radio station as a news reporter. He said that as a news reporter he broadcast and helped to produce stories about Maoist crimes. When the Maoists found out about the broadcasts they started to threaten him.

6    The appellant claimed that in March 2007, Maoists attacked him in connection with his broadcasts. He complained to Nepalese authorities and some of the Maoists were arrested and sent to jail. However, after a few months they were freed and began to threaten him and his relatives. The appellant claimed that due to the threats to his life he moved to India where he stayed for four years.

7    The appellant claimed that he returned to Kathmandu, Nepal in 2011. In Kathmandu he obtained a Malaysian visa and travelled to Malaysia where he worked for some time. He subsequently became an unlawful non-citizen in Malaysia and fled by boat to Australia. He claimed to have done this because he was very concerned the Malaysian government would deport him to Nepal where he feared for his safety.

8    The appellant’s application for a SHEV was based on his claimed status as a refugee (i.e. s 36(2)(a) of the Migration Act) and his claimed entitlement to complementary protection (s 36(2)(aa) of the Migration Act).

9    On 6 June 2017, the appellant attended a SHEV interview.

10    On 19 June 2017, the Minister’s delegate refused the appellant’s SHEV application.

11    The delegate did not accept the appellant was at risk of harm at the hands of Maoists in Nepal. In addition to the negative findings in relation to the risk of harm faced by the appellant, the delegate found that he did not satisfy s 36(3) of the Migration Act. This was because the delegate was satisfied that the appellant had a current right to enter and reside in India. The delegate found that the appellant had not taken all possible steps to exercise this right and did not accept that the Maoists would or could harm the appellant if he chose to live in India.

Authority’s decision

12    The appellant’s SHEV application was then referred to the Authority for review. The appellant provided a submission dated 10 July 2017 which he requested the Authority to consider in its review. The submission reiterated claims made by the appellant previously, and sought to respond to some of the delegate’s findings. The Authority found that the submission was not “new information” and therefore took the submission into account.

13    On 19 March 2018, the Authority affirmed the delegate’s decision.

14    The Authority accepted that the appellant’s father was killed in a bomb blast for which the Maoists claimed responsibility, but rejected the balance of the claims made regarding the appellant’s fear of harm in Nepal. Specifically, the Authority rejected that:

(1)    the appellant ever worked for the radio station as claimed by him or any other media outlet in Nepal as a news reporter/reader or in any other capacity, or that he had any actual or imputed profile as a person broadcasting news against the Maoists;

(2)    the appellant was attacked by Maoists or anyone else in March 2007 or on any other occasion;

(3)    the appellant had ever been of specific adverse interest to anyone in Nepal, including Maoists;

(4)    the appellant had or has any adverse profile in Nepal for any reason.

15    The Authority did not accept the appellant’s contentions on the basis of adverse credibility findings. It treated inconsistencies in the appellant’s claims in his entry interview, statement and SHEV interview as significant to his credibility.

16    Accordingly, the Authority found that the appellant did not face a real chance or real risk of significant or serious harm in Nepal and found that he did not satisfy the requirements of s 36(2)(a) or s 36(2)(aa) of the Migration Act.

Federal Circuit Court judgment

17    Before the primary judge, the appellant relied on the following four grounds of review:

1.    The Immigration Assessment Authority erred in its decision that even after accepting that the Applicant father was killed in a bomb blast in June for which Maoists claimed responsibility and Applicant fear for his life.

2.    The Immigration Assessment Authority erred in its decision by not giving enough consideration that if Applicant return to Nepal will face real harm from Maoist who is in power.

3.    The Immigration Assessment Authority denied the applicant procedural fairness by not providing country information which has been taken into account or opportunity to comment on that information.

4.    The Immigration Assessment Authority made legal mistake in not applying s 36(2A) of complementary protection assessment criteria as defined under the rules.

(sic.)

18    The primary judge dismissed all these grounds on 31 July 2019.

Appeal to this Court

19    The present appeal was commenced on 14 August 2019 and raises the following four grounds:

1.    The Hon. Federal Circuit Court judge erred in dismissing an application for judicial review without giving consideration of unreasonableness and material fact presented to the IAA.

2.    The Hon. Federal Circuit Court Judge made legal error in his judgment by not properly Applying provision of s 36(2) and s 36(2A) of the Migration Act 1958.

3.    The Immigration Assessment Authority (IAA) erred in its judgment by not applying s 424 of the Migration Act 1958. The IAA has not considered harm faced by the Appellant.

4.    Substantial injustice would be caused if leave is refused as the judgment:

(a)    has denied a natural justice hearing without considering legal mistakes by the IAA;

(b)    The IAA committed jurisdictional error by failing to take into account relevant information about appellant circumstances of harm in Nepal.

    (sic.)

Ground one

20    This ground alleges that the primary judge dismissed the application for review without considering questions of unreasonableness (presumably on the part of the Authority) and evidence presented to the Authority. This ground may be taken to re-agitate the first ground raised in the court below, namely that given that the Authority accepted that the appellant’s father was killed by Maoists in a bomb attack, the Authority erred by finding that the appellant did not face a real chance of serious harm in Nepal in the reasonably foreseeable future.

21    On the hearing of the appeal, I asked the appellant to particularise the unreasonableness and the material facts referred to in ground one of his notice of appeal but he was not able to assist.

22    There is no error in the primary judge’s finding that the Authority’s assessment of the evidence before it was reasonable, and the Authority’s many adverse credibility findings made against the appellant do not reveal an error of law. There is no inconsistency between the Authority’s finding that the appellant’s father was killed by Maoists in a bomb attack and its finding that the appellant did not face a real chance of serious harm in Nepal. That is because the Authority found that the appellant’s father was not specifically targeted and that the appellant had no adverse profile with Maoists or anyone else in Nepal.

23    Ground one must accordingly fail.

Ground two

24    This ground, although not particularised, can be taken to re-agitate ground two before the primary judge. That is because ground two in the present appeal complains that s 36(2) of the Migration Act – which covers both the refugee claim and the complementary protection claim – was not properly applied and ground two in the review in the court below complained that the Authority did not give enough consideration to the harm that the appellant would face from the Maoists in power in Nepal if he was to return there. That complaint by its nature covers both the refugee and the complementary protection claims.

25    The Authority rejected the appellant’s key claims for protection on the basis of adverse credibility findings that were open to it for the reasons it provided. Based on these findings, it was open to the Authority to find that the appellant did not satisfy the refugee criterion in s 36(2)(a) because he did not face a “real chance” of “serious harm” for any reason. It was then equally justified in finding that the appellant did not satisfy the complementary protection criterion in s 36(2)(aa) which required the appellant to satisfy the Authority that there is a “real risk” that he would suffer “significant harm” on returning to Nepal: WZARV v Minister for Immigration and Border Protection [2014] FCA 894; 144 ALD 82 at [48] (an appeal to the High Court of Australia on a different point was dismissed – [2015] HCA 22; 254 CLR 610).

26    Accordingly, no error is present in the Authority’s s 36(2) findings.

27    Insofar as the application of s 36(2A) is concerned, that was the subject of ground four in the court below. The primary judge observed that the Authority at [44] and [45] of its decision made specific reference to the criterion in s 36(2)(aa) of the Migration Act. That provision uses the phrase “significant harm” which is defined in s 36(2A). The Authority concluded, as it was entitled to, for the same reasons of fact as set out in paragraph [37] of its decision, that the appellant did not face a real risk of “significant harm” as required by s 36(2)(aa) read with s 36(2A).

28    The Authority properly stated the legal test and applied its findings of fact to that legal test. The Authority’s findings as to the appellant’s fears in relation to Maoists were dispositive as to his claims for complementary protection.

29    No jurisdictional error with respect to the Authority’s approach on this issue has been established.

30    Ground two must accordingly fail.

Ground three

31    This is a fresh ground not raised before the primary judge. Leaving aside any other considerations, I would not grant leave to raise this as a new ground because it is hopeless. That is because it relies on s 424 of the Migration Act but that section is in Pt 7 and is applicable to the review of Pt 7 reviewable decisions. The decision in this case is a Pt 7AA reviewable decision to which s 424 does not apply.

32    Ground three must accordingly fail.

Ground four

33    Particular (a) of this ground asserts that the primary judge failed to afford the appellant “natural justice” by not considering legal mistakes by the Authority. There is no discernible basis for this assertion and it was not particularised by the appellant. As counsel for the Minister pointed out, the proceeding in the Federal Circuit Court spanned a period of approximately 14 months during which the appellant had several opportunities to state his case including by way of evidence, written submissions and oral submissions. I am not able to discern any procedural unfairness in the manner in which the case is conducted.

34    In oral submissions, the appellant suggested in relation to this ground that the Authority had shown bias in its decision. However, the only suggested basis for that was that the Authority had not accepted the appellant’s claims. That on its own is insufficient to establish bias. The complaint of denial of natural justice must accordingly fail.

35    In relation to particular (b), the appellant did not identify which information the Authority failed to consider. I am unable to identify such information and the appellant was unable to assist in this regard.

36    Ground four must accordingly fail.

Conclusion

37    For those reasons, the appeal must be dismissed and the appellant should pay the Minister’s costs.

Associate:

Dated:    28 February 2020