FEDERAL COURT OF AUSTRALIA
SZSRR v Minister for Immigration and Border Protection [2017] FCA 328
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
2. The appellant 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.
GLEESON J:
1 The appellant appeals from the judgment of a judge of the Federal Circuit Court of Australia (“FCCA”), refusing leave to the appellant to amend his application to the FCCA and dismissing the application: SZSRR v Minister for Immigration & Anor [2016] FCCA 2463. The application sought judicial review of the decision of the Refugee Review Tribunal (“Tribunal”) made on 19 August 2014 to affirm the decision of a delegate of the first respondent (“Minister”) to refuse to grant the appellant a protection (Class XA) visa.
2 The notice of appeal contains the following single ground of appeal:
His Honour erred in failing to consider the grounds.
Particulars
a. His Honour considered case management issues at length and failed to give due consideration to the merits of the grounds
3 The appellant’s essential contention on the appeal was that, had the FCCA judge acted lawfully, his Honour would have allowed the appellant to amend his application to include two grounds of review and would then have considered those grounds of review.
Background facts
4 The appellant is a male citizen of Sri Lanka, of Sinhalese origin. After the appellant arrived in Australia as an irregular maritime arrival, the Minister exercised his discretion pursuant to s 46A(2) of the Migration Act 1958 (Cth) to permit the appellant to apply for a visa.
5 On 30 June 2012, the appellant made an application for a protection visa. The appellant was assisted in making his application by a registered migration agent.
6 The bases of the appellant’s claim for protection are his political opinion and his position as a failed asylum seeker. The claims were summarised by the FCCA judge at [6] to [10] of his Honour’s reasons.
7 On 1 October 2012, the Minister’s delegate refused the protection visa application.
8 On 17 October 2012, the appellant applied to the Tribunal for review of the delegate’s decision. The Tribunal conducted a hearing on 30 November 2012.
9 On 22 February 2013, the Tribunal affirmed the delegate’s decision. The appellant successfully applied to the FCCA for review of the 22 February 2013 decision and the appellant’s application to the Tribunal was remitted to the Tribunal for reconsideration.
10 A differently constituted Tribunal heard the appellant’s application on 31 January 2014 and 12 February 2014. The Tribunal hearing records show that the appellant was represented by Ms Michaela Byers and Ms Judy McLallen on these two occasions.
11 The transcript of the 31 January 2014 hearing shows that the hearing was adjourned after the Tribunal member had said “we might need to get a different interpreter who is perhaps a bit more familiar with the names of the political parties”.
12 The transcript of the 12 February 2014 hearing records that, on the previous occasion, the Tribunal member had been concerned about the quality of the interpreting. After satisfying herself that the appellant had no difficulty understanding the interpreter on this occasion, the Tribunal member said:
Now look I’m just going to run through what I understood you said to me last time. Just correct me if there is any misunderstanding.
13 The Tribunal member then put a series of propositions to the appellant that sought his confirmation of things that the member understood had been part of the appellant’s evidence at the 31 January 2014 hearing.
14 No objection was taken by or on behalf of the appellant to the process adopted by the Tribunal member at the 12 February 2014 hearing.
15 On 19 August 2014, the Tribunal again affirmed the delegate’s decision not to grant the appellant a protection visa. The Tribunal’s assessment of the appellant’s claims to protection is summarised at [11] to [21] of the FCCA judge’s reasons.
FCCA proceeding
16 On 17 September 2014, the appellant applied to the FCCA for judicial review of the Tribunal’s 19 August 2014 decision. The application was prepared by Ms Byers. The application stated four grounds of review.
17 At the hearing on 21 July 2016, counsel for the appellant, Mr Bodisco, abandoned all of the grounds contained in the application. Instead, Mr Bodisco sought leave to proceed with two grounds set out in a draft amended application. The two grounds had been addressed in written submissions filed on 12 July 2016.
18 The application for leave to proceed on the new grounds was made by reference to an affidavit of Ms Byers made on 20 July 2016. At [55] of his Honour’s reasons, the FCCA judge concluded that the affidavit did not provide a satisfactory explanation for why the appellant had not sought to amend his application earlier, or even to have applied for the leave sought at the hearing in a more timely manner.
19 Despite the absence of a satisfactory explanation for the appellant’s delay, the FCCA judge considered whether the proposed grounds had sufficient merit to warrant a grant of leave to proceed.
20 The FCCA judge concluded (at [63]) that leave should be refused because neither ground had “such merit, or reasonable prospects of success such that the interests of justice call for the leave to be granted”.
First proposed ground of review
21 The first proposed ground of review, set out at [62] of the FCCA judge’s reasons, was that the Tribunal breached s 425 and/or s 424A of the Migration Act. The particulars of the proposed ground were:
a. By putting to the Applicant evidence given during an earlier hearing which was aborted due to translation difficulties, the Tribunal failed to apply the statutory procedural fairness obligations imposed by section 424A or section 424AA of the Act, including the provision of clear particulars of information relevant to the Review; and
b. The Applicant was therefore denied the opportunity of gaining favourable credit inferences on his evidence which may have occurred had the proper statutory procedures been followed.
22 Sections 424AA, 424A and 425 are set out at [57], [58] and [59] respectively below.
23 At [67] of his Honour’s reasons, the FCCA judge noted that neither the appellant nor his representative had complained of interpretation difficulties at the 31 January 2014 hearing. At [68], his Honour recorded the appellant’s complaint as being that the hearing “went off the rails” on 12 February 2014 because the Tribunal member “sought to ‘bring into evidence’ the ‘flawed’ material from the hearing on the first occasion”.
24 The FCCA judge noted, at [70] of his Honour’s reasons, that the submissions to the FCCA focussed on s 424A of the Act and that the appellant did not appear to press the reference to s 425 in the proposed ground of review. At [75], the FCCA judge concluded that there was no merit in the ground of review insofar as it referred to s 425.
25 At [72], the FCCA judge said:
On a fair reading of the material before the Court, the issue dispositive of the review before the Tribunal was whether the applicant’s claim to fear harm from the Sri Lankan authorities, and the UPFA, as this fear was said to arise from claimed instances of past harm, would likely lead to serious or significant harm on return to Sri Lanka.
26 The appellant did not dispute the correctness of [72] of the FCCA judge’s reasons.
27 At [74], the FCCA judge concluded that the 12 February 2014 hearing proceeded with an adequate level of interpretation and there was nothing to say that the issues dispositive of the review were not discussed, and that the hearing was not a meaningful, relevant opportunity for the appellant.
28 At [76], the FCCA judge summarised the appellant’s contention as being that the “information” caught by s 424A(1) was information that the appellant gave about the United Peoples Freedom Alliance (“UPFA”) at the 31 January 2014 hearing. That information related to the appellant’s claimed involvement with the UPFA and the People’s Alliance.
29 At [77], the FCCA judge referred to SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 (“SZBYR”) at [17].
30 In SZBYR, the plurality noted, at [15], that s 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. Rather, the Tribunal’s obligation is limited to the written provision of “particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”.
31 At [17], the plurality said:
Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration “would be the reason, or a part of the reason, for affirming the decision that is under review”. The statutory criterion does not, for example, turn on “the reasoning process of the Tribunal”, or “the Tribunal’s published reasons”. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.
32 Apparently applying the reasoning set out in SZBYR at [17], the FCCA judge noted (at [78]) that the appellant’s evidence about the UPFA and the People’s Alliance was not the subject of any subsequent contradiction by any other information or evidence before the Tribunal. That evidence, the FCCA judge found, was “simply part of his claims, which in its terms, and on its own terms, did not reject or undermine” the appellant’s claims.
33 At [79], the FCCA judge noted that there was no evidence of interpretation errors during the 31 January 2014 hearing.
34 Consequently, at [80], the FCCA judge concluded that even if the evidence given by the appellant at the 31 January 2014 hearing was to be characterised as “information” for the purposes of s 424A(1) of the Act, that “information” was caught by the exception in s 424A(3)(b).
35 At [81] and following, the FCCA judge gave further consideration to whether the appellant was denied procedural fairness pursuant to s 425 of the Act. At [84], the FCCA judge said that, at the 12 February 2014 hearing, the appellant “was given the opportunity to respond, explain, amend and even expand” on his evidence given at the 31 January 2014 hearing. At [85], the primary judge concluded that the Tribunal hearing was fair. At [86], his Honour concluded that the proposed ground of review did not have reasonable prospects of success, and lacked merit such that it could be said that it called for the grant of leave in the interests of justice.
36 Finally, at [87], the FCCA judge noted that, as the obligation under s 424A(1) was not enlivened, the Tribunal was not required to put any information to the appellant pursuant to s 424AA of the Act.
Second proposed ground of review
37 The second proposed ground of review was that the Tribunal made a legal error by asking itself the wrong question. The particulars given for this proposed ground of review were:
By focussing on the:
a. ‘significance’ of a claim regarding the shooting of the Applicant at [136];
b. actions of those who attempted to shoot the Applicant at [137];
c. failure of those members of the UPFA ‘who I accept bore the applicant ill will for transferring his support to the opposition party’ to harm the Applicant ‘or to have him arrested’ at [141]; and
d. why members or supporters of the UPFA never came to Matara at [143];
the Tribunal failed to ask itself the correct question, namely whether there was a real chance the Applicant could face serious or significant harm as opposed to a balance of probabilities formulation of the question.
38 The FCCA judge’s reasons on the second proposed ground of review are set out at [88] to [96] of his Honour’s reasons.
39 At [88] to [91], the FCCA judge analysed the ground of review and the supporting submissions. At [91], his Honour concluded that the appellant appeared to have “confused and conflated certain elements of the relevant task of the Tribunal”.
40 At [92] to [93], the FCCA judge summarised the task of the Tribunal. On the question of findings of fact, his Honour said:
92. The task for the Tribunal in drafting its decision record is to make findings of fact on the evidence, submissions and arguments raised (see s.430 of the Act). For example, the Tribunal can either accept, or not accept, that a particular claimed event occurred. If it has doubts then it should proceed to consider whether the applicant should be given the benefit of the doubt. The findings of fact must be reasonably open to it on what was before it.
93. Having made those findings of fact, the Tribunal is then required to consider whether the applicant satisfies, first the criterion at s.36(2)(a), and if not, then the criterion at s.36(2)(aa) of the Act (see s.430 of the Act). It is in relation to that consideration that the Tribunal must apply the real chance test and not a balance of probabilities test.
41 In support of his Honour’s description of the Tribunal’s task, the FCCA judge quoted from Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 (“Guo Wei Rong”) at 575-576. At [95], the FCCA judge concluded:
The Tribunal in the current case made a large number of factual findings about the applicant’s claims and circumstances. These findings were absent doubt. It then proceeded to determine whether on those facts it could reach the requisite level of satisfaction, mandated by s.65 of the Act, that the applicant met either of the criteria at s.36(2) of the Act for the grant of the protection visa. The Tribunal’s relevant conclusions were reasonably open to it on what was before it.
42 The appellant noted that the approach described in these two paragraphs is not contained in the Act. He asserted that Guo Wei Rong “does not stand for such a proposition of bifurcation of the statutory task”.
43 For the reasons set out above, the FCCA judge concluded that the second proposed ground of review was lacking in sufficient merit to justify the grant of leave.
Appeal to this Court
44 The appellant sought “leave to proceed” with grounds set out in a draft amended application. In doing so, the appellant was seeking an indulgence from the FCCA which required an exercise of discretion.
45 An appeal from a decision involving the exercise of discretion by a trial judge is governed by established principles: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505. As Gordon J explained in Sudan v Minister for Immigration and Border Protection [2015] FCA 90 at [28]:
It is not enough if the appellate court considers that if it had been in the position of the primary judge, it would have taken a different course. It must appear that some error has been made in exercising the discretion – if the primary judge acted upon a wrong principle, took into account extraneous or irrelevant matters, mistook the facts or failed to take into account some material consideration – before the determination should be reviewed. Only then can the appellate court exercise its own discretion in substitution for that of the primary judge, if the materials before it permit it doing so. Also, if it is not possible to ascertain how the primary judge reached the result embodied in the order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion. Although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
46 The appellant argued that the FCCA judge erred in finding that the two proposed grounds of review had no reasonable prospects of success.
Relevant legal principles
47 At the outset, it is relevant to note that the question of prospects of success is not the only relevant consideration on an application of the kind made to the FCCA judge. The application was analogous to an application for leave to amend a document. Rule 7.01 of the Federal Circuit Court Rules 2001 (Cth) (“Circuit Court Rules”) empowers the FCCA to allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions that the Court thinks fit. Rule 1.06 of the Circuit Court Rules provides that the Court may in the interests of justice dispense with compliance with any of the Rules at any time. Thus, the FCCA has broad powers to permit a party to amend an application for review and even to permit a party to conduct its case without filing an amended document.
48 Generally speaking, the exercise of the FCCA’s powers requires that parties are given a proper opportunity to conduct their case. Leave to amend will be refused if it is obviously futile: cf. Medich v Bentley-Smythe Pty Ltd [2010] FCA 494 at [8]. In particular, leave to amend will be refused in respect of a pleading that was liable to be struck out: Research in Motion Ltd v Samsung Electronics Australia Pty Limited [2009] FCA 320; (2009) 176 FCR 66 (“Research in Motion”) at [21] to [22]; Wotton v State of Queensland [2015] FCA 910 at [59]. However, a just resolution of proceedings does not require that a party be permitted to raise any arguable case at any point in the proceeding: cf. Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (“Aon”) at [98].
49 The appellant accepted that it was relevant for the FCCA judge to consider whether the amendments had “no merit” and “no reasonable prospects of success”.
50 Section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) provides for the FCCA to give judgment summarily if the Court is satisfied that a party “has no reasonable prospect” of successfully prosecuting a proceeding or part of a proceeding. Section 17A(3) provides relevantly that a proceeding or part of a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success.
51 The parties accepted that, if the FCCA is satisfied that a ground of review has “no reasonable prospect of success” within the meaning of s 17A, then that would provide a basis for refusing an application to rely on that ground of review. However, the appellant argued that the FCCA judge had failed to identify what is required to demonstrate that a case has “no reasonable prospects of success”.
52 Section 17A is analogous to s 31A of the Federal Court of Australia Act 1976 (Cth). In Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2008] FCA 1257; (2008) 78 IPR 586 at [28], Emmett J said:
Section 31A requires the Court to consider the question of whether there is a real issue of law or fact to be decided. The Court must conduct an enquiry into the merits of the issues of law. While the enquiry should not necessarily be for the purpose of resolving the legal questions, that can be done. The object is not simply to determine whether the argument is hopeless, but whether the argument is sufficiently strong to warrant the matter going to trial. If the Court can resolve contested legal issues at a summary hearing, without undue delay, it may be preferable to do so in the interests of saving costs and time. Where there is a real issue of law, the Court can hear and decide it without the need for a trial or evidence. Once the issues of law are resolved, it may be clear, one way or the other whether the matter should be allowed to go to .trial (see Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60 at [23] and [131]).
53 As set out in paras [23] to [36] and [38] to [43] above, the FCCA judge adopted the approach explained by Emmett J in the passage above. That is, the FCCA judge conducted an enquiry into the merits of the issues of law raised by the proposed grounds of review and considered whether they were sufficiently strong to warrant their consideration on the application for review.
54 The question on this appeal is whether the FCCA judge erred in concluding, in substance, that there was no real issue of law raised by either of the proposed grounds of review.
First proposed ground of review
55 The appellant contended that “information” obtained at the 31 January 2014 hearing was used to affirm the decision under review by the Tribunal. This contention was put as part of a submission that the Tribunal breached both s 424A and s 425. The contention was not developed to explain how it was said that the information was used to affirm the decision.
56 The appellant also contended that the transcript of the 12 February 2014 hearing demonstrated that the Tribunal thought that “a number of responses by the interpreter in the first hearing would be part of the reason for affirming the decision under review”. He argued that the Tribunal put those matters to the appellant at the 12 February 2014 hearing “because it had a concern that those responses would undermine the appellant’s claim”.
(1) If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
58 Section 424A provides relevantly:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
….
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
60 As the FCCA judge found, the material that was said to comprise the “information” concerned aspects of the appellant’s claim, for example, what the Tribunal member understood the appellant to have said about the symbol of the UPFA party and about when the UPFA party was formed. It also included responses to questions relevant to the appellant’s credit, concerning an affidavit in which the appellant had said that, during the 30 November 2012 Tribunal hearing, the appellant was not given advice by the Tribunal member about the confidentiality of his spoken evidence.
61 As in the case of SZBYR, the material did not contain any “rejection, denial or undermining of” the appellant’s claims to be a person to whom Australia owed protection obligations. To the contrary, it was material that, if accepted, would be supportive of the appellant’s claims. At the hearing of the appeal, counsel for the appellant, Mr Prince, accepted that the information that the symbol of the UPFA was a betel leaf was not information that would be part of a reason for the Tribunal’s decision.
62 Accordingly, I do not accept that there was any basis for the FCCA judge to conclude that the material obtained at the 31 January 2014 hearing was used by the Tribunal to affirm the decision under review. Nor do I accept that the FCCA judge should have inferred from the transcript that the Tribunal considered that the material would be the reason, or a part of the reason, for affirming the decision that is under review. It was open to the FCCA judge to conclude that the transcript revealed nothing more than that the Tribunal member engaged in an exercise of testing whether she understood what the appellant had said to her on 31 January 2014, and providing the appellant with an opportunity to correct any possible misunderstanding. Accordingly, there was no merit in the argument that s 424A was engaged.
63 The appellant also argued that the FCCA judge made an erroneous assumption that “what was conveyed at the first hearing by the incompetent interpreter was, in fact, the evidence of the [appellant]”. That erroneous assumption was said to underpin the primary judge’s finding (at [84]), that, at the 12 February 2014 hearing, the appellant was given the opportunity to “respond, explain, amend, and even expand on” the evidence he had given at the 31 January 2014 hearing. The appellant contended that he was deprived of a meaningful opportunity to present his case, contrary to s 425, because the Tribunal “held against him” statements attributed to him at the 31 January 2014 hearing “which were clearly tainted by a failure of the interpreter ... acknowledged by the Tribunal to be so bad that it did not permit a fair hearing”.
64 Orally, Mr Prince sought to address s 424A(3)(b) which exempts information that the appellant gave for the purpose of the application for review from the application of s 424A. Mr Prince submitted that the answers given by the appellant at the 31 January 2014 ought not to have been used at all, given that the interpreter at that hearing was not of an adequate standard. He also contended that, in the circumstances, the material obtained at the 31 January 2014 hearing should be characterised as information given by the interpreter and not information given by the appellant.
65 I accept that the FCCA judge proceeded upon the basis that the appellant had given evidence at the 31 January 2014 hearing and that, at the 12 February 2014 hearing, the appellant was given an opportunity to confirm or correct the Tribunal member’s understanding of the evidence given. The FCCA judge was correct to proceed upon that basis. As it turned out, the appellant did not suggest (to the Tribunal, the FCCA judge or to this Court) that there was any relevant error in the interpreter’s interpretation of what the appellant said at the 31 January 2014 hearing, or that the Tribunal member had any relevant misapprehension of the appellant’s claims as a result of the 31 January 2014 hearing. There was no reason to characterise what the appellant said at the 31 January 2014 hearing as anything other than the evidence of the appellant.
66 It follows that there was no error in the FCCA judge’s conclusion that the appellant was given a meaningful opportunity to give his evidence and present his arguments at the 12 February 2014 hearing. Nor was the FCCA judge required to conclude that the information gleaned by the Tribunal at the 31 January 2014 hearing was given by the interpreter rather than the appellant. Nor was the FCCA judge required to conclude that the Tribunal hearing was not fair.
67 The appellant put an additional argument to support a conclusion that the material obtained at the 31 January 2014 hearing was “information” in respect of which the Tribunal was required to comply with s 424A. He argued that the information was “acquired knowledge concerning a particular circumstance or event”: cf VAF v Minister for Immigration & Multicultural Affairs [2003] FCA 18 at [17]. As set out above, I consider that the FCCA judge’s decision to proceed on the basis that the appellant had given evidence at the 31 January 2014 was correct. Even if the appellant’s argument is correct, it does not affect the FCCA judge’s conclusion that s 424A was not engaged because any “information” was caught by the exception in s 424A(3)(b) of the Act as information “that the applicant gave for the purpose of the application for review”.
68 For these reasons, the FCCA judge did not make any error in concluding that the first proposed ground of appeal did not have reasonable prospects of success. Accordingly, I reject the appeal in relation to the first proposed ground of review.
Second proposed ground of review
Appellant’s written submissions
69 The written submissions did not develop an argument that the Tribunal had incorrectly made findings on the balance of probabilities and the appellant’s submission that the FCCA judge misunderstood Guo Wei Rong as standing for a “bifurcation of the statutory task”. At the hearing of the appeal, Mr Prince suggested that the last sentence of [93] of the FCCA judge’s reasons introduced a balance of probabilities test in relation to findings of fact.
70 There is no legal burden of proof in administrative proceedings (Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220 at [95]) and the Tribunal was not bound by the rules of evidence. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, the plurality explained the nature of administrative decision-making (at 282 to 283) and expressed the view (at 283) that the term “balance of probabilities” is apt to mislead in the context of an application for refugee status (then under s 22A of the Act) even if used in reference to past events.
71 However, Mr Prince did not identify any finding in relation to which the FCCA judge should have concluded that it was arguable that the Tribunal had erred by applying a balance of probabilities test. In those circumstances, the submission went nowhere.
72 In his written submissions, the appellant complained about the FCCA judge’s finding that the Tribunal’s findings were “absent doubt” (at [95]) but did not go so far as to suggest that the finding was not open to the FCCA judge on the evidence. In the light of the FCCA judge’s reference to Guo Wei Rong, the finding must be read as a reference to an absence of doubt expressed by the Tribunal in relation to its findings of fact.
73 The appellant also complained that the Tribunal made a finding that did not involve a genuine evaluation of the appellant’s claims. The finding concerned an incident in which the appellant claimed he was targeted for harm. The Tribunal found that, in the circumstances described, the most obvious target for the harm was the election candidate with whom the appellant was travelling, rather than the appellant. The appellant did not explain how these submissions support a conclusion of appellable error on the part of the FCCA judge.
74 The meaning of the second proposed ground of review remains obscure, as it was before the FCCA judge. I am not satisfied that there is any basis for a conclusion that the FCCA judge erred in his conclusion that the second proposed ground of review lacked merit.
Tribunal’s consideration of the appellant’s explanation for delay in applying for leave
75 Ultimately, the appellant did not contend that the FCCA judge made any error in his Honour’s consideration of the appellant’s explanation for his delay in applying for leave.
76 The FCCA judge was correct to give careful consideration to that question, which was relevant to the decision whether to grant the leave sought: cf Aon at [108] to [110]. It was open to his Honour to conclude, as he did, that the delay was not adequately explained. Even so, his Honour decided that leave should not be refused because of the lack of a satisfactory explanation and there was no criticism of this aspect of his Honour’s reasoning.
Conclusion
77 The appeal must be dismissed. The appellant should pay the first respondent’s costs of the appeal.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson. |
Associate:
