FEDERAL COURT OF AUSTRALIA

SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86

THE COURT ORDERS THAT:

1.    The extension of time within which to appeal is granted.

2.    Leave is granted to amend the notice of appeal.

3.    The appeal is dismissed.

4.    The appellant is to pay the costs of the first respondent as agreed or assessed.

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

REASONS FOR JUDGMENT

THE COURT

1.    INTRODUCTION

1    The appellant seeks an extension of time within which to appeal the Federal Circuit Court’s decision to dismiss his application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal). By its decision given on 4 December 2013, the Tribunal affirmed a decision of the Minister’s delegate not to grant the appellant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2    The issues on appeal are:

(1)    whether the Tribunal misconstrued the appellant’s evidence as to the reasons why he delayed in raising his claim to fear persecution or significant harm if returned to Nigeria by reason of his sexual orientation; and, if so,

(2)    whether that error meant that the Tribunal had failed to consider an essential integer of the appellant’s claims or made irrational, illogical and unreasonable findings of fact.

3    While an extension of time within which to appeal should be granted, together with leave to amend the notice of appeal, the appeal must be dismissed. Fairly read, the Tribunal’s reasons for rejecting the appellant’s explanation for the delay did not turn upon its construction of the evidence in question, but on other grounds which are not the subject of challenge.

2.    THE APPLICATION FOR AN EXTENSION OF TIME WITHIN WHICH TO APPEAL AND FOR LEAVE TO AMEND THE NOTICE OF APPEAL

4    The Minister opposes the grant of an extension of time and leave to file the amended notice of appeal on the grounds that the appeal would lack any merit.

5    In the absence of an order extending time, an appeal from the Federal Circuit Court to the Federal Court under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) must be filed within 21 days of judgment: r 36.03 of the Federal Court Rules 2011 (Cth). Judgment below was given on 30 January 2015, as a result of which the 21 day period expired on 20 February 2015. The application for an extension of time was filed almost two weeks later on 5 March 2015.

6    The factors which the Court should take into account in determining whether to grant an extension of time include whether there is an acceptable explanation for the delay, the length of the delay, the merits of the appeal, and any prejudice to the respondent albeit that the mere absence of prejudice is not sufficient: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 (Wilcox J); SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [16]-[25] (Cowdroy J).

7    The delay in filing the draft notice of appeal was relatively short and an adequate explanation is given by the appellant in his accompanying affidavit, namely, that he was in custody in prison and lacked legal representation when the Court’s decision was handed down, and that his lack of access to the internet in prison prevented his timely receipt of the judgment of the Court below. In addition, the Minister did not suggest that he would suffer prejudice if the extension of time were granted. In the circumstances, we give greater weight to the appellant’s reasons for the delay over the merits of the appeal in the proposed amended notice of appeal, and grant the extension of time.

8    That leaves the application for leave to amend the notice of appeal. By the proposed amended notice of appeal, the appellant seeks to abandon all of the grounds of appeal originally pleaded and to substitute two new grounds, namely, that the Court below erred in failing to find that the Tribunal’s decision was tainted by jurisdictional error because:

(1)    the Tribunal failed to consider the appellant’s claim to fear persecution by reason of his bisexuality in misunderstanding or failing to consider oral evidence by the appellant as to his reasons for not advancing his claim to be bisexual earlier; and

(2)    the Tribunal’s finding at [87] of its reasons that the appellant was not homosexual or bisexual was irrational, illogical and unreasonable in that the Tribunal placed significant weight upon oral evidence given by the appellant in response to ambiguous questioning by the Tribunal relating to the appellant’s failure to earlier advance his claim as to his sexuality.

9    The proposed amended notice of appeal raises new grounds not argued in the Court below and does so despite the appellant having been represented at first instance. The Court has power to permit a new issue to be raised on appeal where no additional facts need be proved and the issue is one of construction or law only. Nonetheless, a trial is not a “preliminary skirmish”: Coulton v Holcombe (1986) 162 CLR 1 at 7 (Gibbs CJ, Wilson, Brennan and Dawson JJ). The Court must still be satisfied that allowing the new issue to be raised would work no injustice to the other party and the interests of other litigants whose appeals require hearing, together with the broader public interest in efficient judicial administration: H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348; (2000) 63 ALD 43 at 45 [8] (Branson and Katz JJ); see also ss 37M and 37N of the FCA Act. An award of costs in favour of a respondent is rarely, if ever, a sufficient answer to the question of whether an injustice might be suffered by permitting a new point to be run on appeal: Lansen v Minister for Environment and Heritage [2008] FCAFC 189; (2008) 174 FCR 14 at 19 [6] (Moore and Lander JJ).

10    In the present case, the two grounds of appeal raise issues of law and construction only. Nor does the respondent contend that it would be prejudiced by the grant of leave to amend. Furthermore, both parties have filed written submissions on the appeal which address only the proposed new grounds, with all other grounds abandoned by the appellant. In all of the circumstances and notwithstanding the failure to raise the issues below, we consider that the interests of justice are best served by allowing the application for leave to amend the notice of appeal.

3.    BACKGROUND

3.1    The three visa cancellation decisions

11    The appellant was born in 1974 and is a citizen of Nigeria. He arrived in Australia on 18 September 2000 on a Temporary Business Entry (Class UC) subclass 456 visa. On 29 January 2002, the appellant was granted a Subclass 820 (Spouse) visa, as a consequence of which he withdrew an application for review of a decision by the Minister’s delegate refusing to grant him a protection visa. The appellant obtained a permanent Subclass 801 (Spouse) visa on 11 April 2003.

12    The appellant’s permanent visa was cancelled by the Minister under s 501(2) of the Act on 21 April 2011 following his conviction and imprisonment for drug-related offences (the first cancellation decision). That decision was set aside by the Administrative Appeals Tribunal (AAT).

13    The Department of Immigration and Citizenship (the Department) subsequently wrote to the appellant indicating that the Minister was considering cancelling his permanent resident visa. On 5 September 2011, the Minister set aside the decision of the AAT and cancelled the appellant’s visa under s 501A(2) of the Act (the second cancellation decision). That decision was quashed by the Federal Court, whereupon the appellant was released from immigration detention, his permanent visa having been reinstated.

14    On 12 December 2012, the Minister again decided to cancel the appellant’s visa (the third cancellation decision), the validity of which was upheld in proceedings for judicial review in the Federal Court and on appeal.

3.2    The application for a protection visa

15    On 25 July 2013, the appellant applied for a Protection (Class XA) visa. In submissions to the Department dated 12 August and 13 September 2013, his representatives submitted that he had a well-founded fear of persecution by reason of:

(a)    his religion (Catholic);

(b)    his membership of three particular social groups, namely, “Gay or bi-sexual males in Nigeria”, “Gay or bi-sexual Christian males in Nigeria” or “Gay or bi-sexual males who belong to a conservative Christian family”, referring to information concerning penalties applying to homosexual acts under Nigerian law and to the prejudice against homosexuality in Nigeria; and

(c)    his criminal conviction for drug offences in Australia given that, under the Nigerian penal code (and in particular a law known as Decree 33), Nigerians convicted of drug offences abroad are liable to up to five years’ imprisonment.

16    With respect to the appellant’s claim for complementary protection, the appellant contended that he would face torture and significant harm from the Nigerian authorities due to his sexual orientation.

17    On 8 October 2013, the Minister’s delegate refused the application.

18    The appellant sought review of this decision in the Tribunal. Before the Tribunal the appellant relied upon evidence to corroborate his claim to be bisexual. First, he relied upon a letter from a prison chaplain (also before the delegate) who said that the appellant had recently confided in him regarding his homosexuality. Secondly, the appellant’s partner, Ms X, gave evidence before the Tribunal that she learned of the appellant’s bisexuality in August 2012. Thirdly, Mr Y gave evidence confirming that he had met the appellant in prison where they had had a sexual relationship and that, following the appellant’s release, they “got together often”. Both Ms X and Mr Y had also provided communications to the delegate in support of the appellant’s claim, which were also before the Tribunal.

19    The appellant also gave evidence at the Tribunal hearing in the course of which he was questioned about his claims to be bisexual and as to why he had not mentioned his claims regarding his sexual orientation when he had been invited to respond to the notice of intention to cancel his permanent resident visa (see further at [27]-[29]).

20    On 4 December 2013, the Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa.

21    The application for judicial review against the Tribunal’s decision was dismissed by the Court below. No complaint is made of her Honour’s reasons for dismissing the application on the grounds then pleaded. As mentioned, the only issues on appeal are new and relate to the Tribunal’s rejection of the appellant’s claims to have a fear of persecution by reason of his sexual orientation.

3.3    The critical passage in the Tribunal’s reasons

22    The critical passage in the Tribunal’s reasons challenged on the appeal appears at [85]. In the course of considering the appellant’s claim to fear persecution by reason of sexual orientation, the Tribunal stated that:

85.    [The appellant] has claimed that he realised that he was bisexual while he was in prison and that his life will be in danger because of his sexual orientation if he returns to Nigeria. However, as I put to him, I consider that he had every opportunity to make this claim when the Minister was considering the cancellation of his permanent resident visa. [The appellant] has said that at that stage he did not want anybody else to know about his sexual orientation and he has referred to the fact that his current partner, Ms [X], was not aware of it. However, as I put to him, he has said that Ms [X] found out about his bisexuality in August 2012 which was before he was sent the notice in relation to the third and final cancellation of his permanent resident visa. [The appellant] referred at the hearing before me to the fact that he had been successful in having the cancellation of his permanent resident visa overturned on two previous occasions and that he still has an application for special leave pending in the High Court. However it is difficult to accept that he could have been so confident of his prospects of success that he believed it was unnecessary to raise his claim that his life would be in danger because of his sexual orientation if he returned to Nigeria.

(Emphasis added.)

23    The Tribunal then found that:

86.    [The appellant] has said that he had still been struggling with his sexual orientation and that it had still been a grey area in his life at the time so there had been no way he would have been able to mention this in his response to the notice of intention to cancel his visa. However the fact remains that, if it were accepted, his claim regarding his sexual orientation was clearly relevant in the context of the cancellation of his visa. As I put to him, he mentioned other matters in this context relevant to Australia’s international obligations such as his Hepatitis B and the letter from his sister saying that his kindred had passed a resolution excommunicating him as a result of his involvement in a criminal offence in Australia. As I put to him, I consider that he had ample opportunity to raise his claims regarding his sexual orientation in the letters and submissions which were sent to the Minister before the Minister finally cancelled his visa on 12 December 2012 but he did not do so. I accept that [the appellant’s] evidence regarding his sexual orientation is corroborated by Mr [Y] and Ms [X]. I note that Father Carroll also said that [the appellant] had confided in him regarding his homosexuality. However I give greater weight to the problems I have with [the appellant’s] own evidence – specifically what I consider to be his history of saying whatever he believes will be to his advantage without regard for the truth and his failure to raise his claimed sexual orientation in the context of the cancellation of his permanent resident visa – than I do to this corroborating evidence. I consider that [the appellant’s] claim to be bisexual is a late invention after his other attempts to remain in Australia had proved unsuccessful.

(Emphasis added.)

24    The appellant accepted that the findings at [86] had to be read together with the Tribunal’s findings at [80]-[84] that the appellant’s conduct demonstrates that he has a history of saying what he believes will be to his advantage without regard to the truth.

25    The Tribunal concluded at [87] that it did not accept that the appellant is bisexual or homosexual, nor that he had had sexual relations with Mr Y or other men, or will now or in the reasonably foreseeable future, if returned to Nigeria. Accordingly, it rejected his claim to fear persecution by reason of his membership of any of the three particular social groups suggested by his legal representatives in their submission (see at [15(b)] above). For the same reasons, the Tribunal held that the claim under s 36(2)(aa) of the Act to be a person to whom complementary protection obligations are owed by reason of the appellant’s claims to be bisexual or homosexual must be rejected (at [96]).

4.    CONSIDERATION

4.1    The appellant’s submissions

26    The appellant submits that the Tribunal at [85] rejected one of his reasons for failing to raise his sexual orientation claim when the Minister was considering cancelling his visa because it found that the appellant had given inconsistent evidence, i.e., that he claimed to have resisted telling the Minister earlier about his bisexuality because he did not want his partner to know, on the one hand, while conceding that his partner had discovered his bisexuality before receiving the Minister’s third notice of intention to consider cancellation, on the other hand. However, in the appellant’s submission, the finding that he gave inconsistent evidence is based upon a misunderstanding of his evidence with the consequence that an integer of his claim to fear persecution by reason of his sexual orientation was not considered. In this regard, while the appellant contended the error was one of fact, being a misunderstanding of the evidence, nonetheless he contended that the error constituted jurisdictional error because it meant that the Tribunal had failed to consider the appellant’s claim: Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 at 309 [28] (North and Lander JJ) (Katzmann J agreeing at 310 [35]); see generally Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at 259 [42] (Allsop J (as his Honour then was)).

27    The appellant’s evidence in response to the Tribunal’s questioning about his failure to mention earlier his sexual orientation commenced in the following passage:

MEMBER: Why did you not mention your claims regarding your sexual orientation when you were invited to respond to the notice of intention to cancel your resident visa?

APPLICANT: Why I did not mention it?

MEMBER: Yeah.

APPLICANT: When I was invited to cancel my permanent residents visa because at that time I was still struggling with this, who I am senior member and I don’t – I don’t want my partner to know. I don’t want her to know about who I am and I don’t want any other person to know. This is something that I was struggling with, it’s not – it’s not easy, it’s not easy senior member. This is – I know that I have my like – my lawyer was inform me then that my – because I have children here which are minor that – that the offence that I’ve committed, department never give me warning before that I should be okay. So this is the reason senior member. This is something that I wouldn’t let anybody to know.

MEMBER: But you’ve said that your partner, that’s Miss [X] who was here to give evidence is that right?

APPLICANT: Yes.

MEMBER: You said she found out in August 2012?

APPLICANT: Yes, yes.

MEMBER: And you were responding to the last notice of intention in relation to cancellation after that.

APPLICANT: There are so many – the minister cancel my visa 3 times.

MEMBER: Yes I know but I’m talking about the third one.

APPLICANT: The last one.

MEMBER: And you were invited to respond, you responded October and November 2012.

APPLICANT: Yes senior member, as I was telling you, after – I ask my lawyer – my lawyer told me that what we going in for is judicial review not merely review and---

MEMBER: This is before judicial review Mr [appellant], this is when you had the opportunity to persuade the department, the minister that there were problems and you couldn’t return to Nigeria.

APPLICANT: Yeah, as I told you then senior member that I was struggling with this, I don’t want anybody to know and I didn’t – since I’ve been outside working, I started working, set up a family, I’m not associating with anybody that doing crime in anything and I believe that my lawyer informed me that I should be fine, I should be fine that minister is not going to cancel my visa and that---

MEMBER: Well Mr [appellant], I can’t see how your lawyer could’ve given you that advice when you got a notice from the minister saying he was contemplating cancelling your visa.

(The appellant’s emphasis.)

28    Later, the Tribunal member put to the appellant that:

As we’ve discussed you’ve said that at that time you didn’t want anyone else to know about it and you’ve referred to the fact that your current partner, Ms [X], wasn’t aware of it but as we’ve discussed you’ve actually said that she found out about your bisexuality in August 2012 which is before you were sent the notice in relation to the third and final cancellation of your permanent residents visa. So you therefore had ample opportunity to raise your claims relating to your sexual orientation in the letters and submissions which were sent to the minister before the minister finally cancelled your visa on 12 December 2012. You didn’t do so and you’ve said you never thought the minister would cancel your visa yet that was precisely what the minister indicated was his intention to do, subject to any submissions you might make.

29    Counsel for the appellant then contends that it is clear from the appellant’s response to this proposition that the appellant was aware that his evidence that he did not want his partner to find out about his bisexuality had been misunderstood because it was not clear to which of the three letters of intention to cancel his visa the question related. Specifically, the appellant responded that:

You ask me why I did not show – why I did not explain to the minister when he send me notice of intention to consider cancelling my visa, why I did not mention it about my sexual orientation but I said to you that my – my partner, I don’t want to mention it then because I was still struggling with it and my partner Ms [X], I don’t want her to know about it and you said to me no but this is – your partner known this in 2012 and I said to you the minister send me that letter of intention to consider cancelling my visa 3 times. The question you ask me - you ask me when minister send you letter of intention to consider cancelling your visa why you did not mention it but you did not ask me when the minister send the letter of intention in September 2012, why I did not mention it because if you ask me when the minister send me the letter of intention in September 2012, I will not answer you that I don’t want my partner Miss [X] to know about it because my partner only aware about it in August. So this is where I was – this is where the question was confused.

(The appellant’s emphasis.)

30    On this basis, the appellant contends that the Tribunal’s finding at [85] that the appellant gave inconsistent evidence as to whether his partner had known of his bisexuality when the Minister was considering cancellation, was based upon a mistaken interpretation of his evidence, having been given in response to an ambiguous question. In turn, the appellant contends that:

Had the Tribunal understood properly the Applicant’s evidence, it would have had to confront the Applicant’s assertion that the reason he did not earlier raise the bisexuality claim was because he did not want anyone (excluding his partner) from finding out about it. The Tribunal has not yet examined and weighed this evidence when taken together with the corroborative evidence given by the Applicant’s witnesses.

…The fact that the Applicant had an opportunity to raise his bisexuality claims earlier and did not do so is not determinative of the question of whether those claims were recently invented. The Tribunal needed to go a step further and assess the Applicant’s proffered reasons for why he did not raise his claims to be bisexual when he had the opportunity to do so. The Applicant attempted to explain why, but the Tribunal misunderstood the Applicant’s evidence, and held it against him in rejecting the explanation.

4.2    Construction of the Tribunal’s reasons

31    It may be accepted that the question asked in the interview was ambiguous and that the appellant was aware that that was so and sought, in his response quoted at [29] above, to explain any apparent inconsistency on the basis of the ambiguity in the earlier question. However, as was apparent from the appellant’s submissions, both grounds of appeal rest on the premise that the Tribunal made a finding at [85] that there was no plausible explanation for his failure to raise his sexual orientation claim in the context of the visa cancellations because of the perceived inconsistency in his evidence (the premise). The finding at [85], in turn, is said to expose the Tribunal’s reasons for finding at [86] that his failure to raise his sexual orientation claim earlier was a reason to disbelieve his claim to be bisexual. As counsel for the appellant explained in oral submissions, the Tribunal at [86] is “expressing its views having already arrived at the conclusion [at [85] of its reasons] that it doesn’t accept that there’s any plausible reason why the claims wouldn’t have been raised earlier.”

32    The appeal must be dismissed because the premise underlying the two grounds is not made out.

33    The Tribunal sets out the appellant’s explanations for the delay in raising the sexual orientation claim at [85] and the start of [86]. With respect to the appellant’s claim that he did not want “anyone else” to know about his sexual orientation, the Tribunal contrasted his evidence that his partner had found out about it before the third and final cancellation of his visa. In our view, that does not reveal any misunderstanding of the appellant’s evidence by the Tribunal, but is an accurate statement of his evidence. The passage from the reasons also suggests initial difficulties with the appellant’s explanations but no more. Contrary to the appellant’s submissions, the Tribunal does not at this point in its reasons make any finding rejecting the appellant’s explanation on the grounds that it was not credible because of an inconsistency in his evidence or otherwise.

34    Having found the appellant’s explanations for failing to raise the claim earlier to be questionable, the Tribunal accepts nonetheless at [86] that there is corroborative evidence giving rise to the question of how the evidence is to be weighed. It resolves that issue at [86] by giving greater weight to the problems with the appellant’s own evidence - his history of saying what will be to his advantage without regard for the truth and his failure to raise it earlier - over the corroborative evidence. It is on this basis that the Tribunal rejects the appellant’s claims, including his explanations as to why the sexual orientation claim was not made earlier. Properly understood, therefore, the Tribunal’s findings are made at [86] of its reasons, not [85], and did not turn upon the perceived inconsistency in his evidence. With respect, in seeking to elevate [85] to a finding and thereby to connect that finding to the conclusions in [86], the appellant fell into error in seeking to scrutinise the Tribunal’s reasons “with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at 641 [46] (the Court).

35    Finally, the appellant’s written submissions imply a criticism of the Tribunal’s reasons in making no findings in relation to whether homosexual or bisexual men faced a risk of harm in Nigeria and whether the appellant, as a bisexual man, would face a risk of harm in Nigeria if he returned there. However, no complaint of this is made in the amended grounds of appeal. Further and in any event, as the appellant rightly accepted at the hearing, the strength of the findings by the Tribunal in rejecting the appellant’s sexual orientation claim meant that it was not required to take into account the chance that the appellant was so persecuted in forming an opinion on whether there is a real chance of persecution, if returned: cf Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).

5.    CONCLUSION

36    The extension of time within which to appeal is granted. Leave is also granted to amend the notice of appeal. However, the appeal is dismissed with costs.

Associate:

Dated:    18 June 2015