FEDERAL COURT OF AUSTRALIA
IMMIGRATION ASSESSMENT AUTHORITY
DATE OF ORDER:
THE COURT ORDERS THAT:
2. The appellants pay the first respondent’s costs of the appeal to be assessed in the absence of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 This is an appeal from an order made by the Federal Circuit Court of Australia on 5 September 2018. On that day, the Federal Circuit Court made an order dismissing the appellants’ application for judicial review of a decision made by the Administrative Appeals Tribunal (CCB16 & Anor v Minister for Immigration & Anor  FCCA 2732). The Administrative Appeals Tribunal (the Tribunal) made a decision whereby it affirmed a decision by a delegate of the first respondent not to grant protection visas to the appellants.
2 There are two grounds of appeal in the Amended Notice of Appeal. The first respondent has filed a Notice of Contention.
3 The appellants are nationals of India. They were married in India on 10 December 2014. On 11 January 2016, they lodged applications for Current Class XA subclass 866 protection visas. It would seem that the first appellant was treated as the principal applicant and, as the primary judge noted, the second appellant did not separately claim to fear harm. The hearings below focused on the claims made by the first appellant.
4 The first appellant first travelled to Australia on 7 August 2014. He left Australia and went to India on 2 November 2014. As we have said, he married the second appellant on 10 December 2014. The two appellants arrived in Australia on Sponsored Family visas on 25 May 2015. The period of the Sponsored Family visas ceased on 25 August 2015 and, on the following day, the appellants were unlawfully in Australia because they did not depart Australia following the cessation of their visas. On 1 January 2016, the appellants were taken into detention. On 5 January 2016, they applied for Bridging visas, indicating at that time that they wished to return to India. On 7 January 2016, their respective applications for Bridging visas were refused.
5 The basis of the first appellant’s claim for protection may be shortly stated. A friend of the first appellant married a woman from the same village in which the friend lived. That was, in the eyes of some, wrong. The first appellant was involved in the wedding. The relatives of the bride killed the groom and then decided to pursue the first appellant, intending to harm him. He feared harm because of that circumstance. His case was that he came within the definition of refugee, or, in the alternative, his circumstances engaged the complementary protection provisions of the Migration Act 1958 (Cth) (the Act) i.e., ss 36(2)(aa), (2A) and (2B).
6 The Department of Immigration and Border Protection (the Department) received two “dob-in” emails in January 2016. We will refer to these emails as the anonymous reports. The first anonymous report is dated 5 January 2016 and the information provided in it is to the effect that the appellants were living and working in Australia illegally and that they had been taken into detention on 1 January 2016. Furthermore, the appellants had a criminal history in India and that is why they were living illegally in Australia. It is asserted that they should be removed from Australia. The second anonymous report is dated 22 January 2016 and it purports to provide the respective passport numbers of the appellants. Again, the assertion is made that the appellants are living in Australia illegally. It is asserted that the appellants have been using fake documents and a medical condition to “get more visa” and that they should be investigated as they are using false documents to “gain” a visa. It is said that they are “needed” by the Indian police in “Mudrer” case and that they are criminals and should be handed over to the Punjabi police. These two anonymous reports were received at or about the time the appellants made their applications for protection visas.
7 The delegate decided to refuse the applications and his decision is dated 22 February 2016. In his reasons for decision, the delegate makes reference to the fact that the Department had been provided with information alleging that either one or both of the appellants had a criminal history in India and that they were wanted by Indian authorities. The delegate decided not to give any weight to these allegations for reasons we do not need to discuss.
The Tribunal’s Reasons
8 The Tribunal accepted that the appellants were nationals of India. It considered their claims for protection as refugees with a well-founded fear of persecution (s 36(2)(a)) and under the complementary protection provisions of the Act (ss 36(2)(aa), (2A) and (2B)).
9 The Tribunal summarised the appellants’ submissions made prior to a hearing before the Tribunal on 18 May 2016. It also analysed the evidence the appellants gave at the hearing. The Tribunal also asked the appellants about the possibility of them relocating to Delhi.
10 The Tribunal accepted that there had been an “honour killing” in the first appellant’s village and that the first appellant knew the victim, Mr Gulab Singh. The Tribunal accepted that the victim had been killed by relatives of the victim’s wife.
11 The Tribunal noted that it had given the appellants until 25 May 2016 to provide further evidence of their problems and country information about killings of family of people who marry inter-caste or inter-faith. It noted that on 24 May 2016, it received a letter purporting to be from the village council or panchayat. According to the letter, there is a danger to the first appellant’s life “due to [his] being a friend of Gulab Singh”. The Tribunal noted that another letter it received purported to be from Mr Gulab Singh’s mother and she said that the first appellant’s life is in danger. The Tribunal noted that the letter supported the first appellant’s claims. Both letters were purportedly written in Punjabi and translated into English.
12 The Tribunal noted that allegations of pending criminal charges were raised by the delegate at an interview before him based on a “dob-in” from an unknown source i.e., the anonymous reports. The Tribunal said that it had discussed the issue with the appellants as well and that they had denied being involved in any criminal conduct. The Tribunal observed that the allegations were anonymous. It noted that one of the allegations was that the appellants were using a “medical condition” to obtain visas. The Tribunal said that the appellants left India on genuine Indian passports and the “movement records” available to the Tribunal from the Department indicated that they travelled on a direct flight from New Delhi to Melbourne. The Tribunal noted that the first appellant’s brother was permanently domiciled in Australia and that the appellants had travelled to this country. It said that if the Indian authorities suspected that the appellants had fled to avoid facing criminal charges in India, Australia would likely be the first country they would approach. The Tribunal then said (at ):
Because (1) the source of the information is unknown, (2) at least one of the allegations (about a “medical condition”) is demonstrably false, (3) the Indian authorities could contact the Australian authorities if they were seeking to extradite the applicants, and (4) the applicants strenuously deny that the allegations are true, the Tribunal considers that the allegations are baseless. The Tribunal gives no weight to these allegations in making its decision.
13 Immediately after this section of its reasons, the Tribunal deals with the appellants’ claims under the heading of “Well-founded fear of persecution” and it states the following (at ):
However, for the reasons that follow, the Tribunal does not accept that the applicants are credible witnesses and rejects their claims …
The Tribunal then sets out seven reasons in support of the conclusion that the appellants were not credible witnesses and their claims should be rejected. We do not need to summarise those reasons.
14 The Tribunal said that it had considered the totality of the evidence. It did not have the originals of the letters purporting to be from the village council and Mr Gulab Singh’s mother. It did note that they had been procured quickly after the hearings. The Tribunal said the following (at ):
… However, the Tribunal notes that the letters were procured rather quickly after the hearing — the hearing was held on 18 May 2016 and the applicants, who are in detention, managed to obtain the two letters from rural India, translate them into English and give them to the Tribunal by 24 May 2016.
15 The Tribunal went on to say that, in light of the speed with which the letters were obtained from India and translated into English, the contents of the village council’s letter and the Tribunal’s other credibility concerns, the Tribunal gave the letters little weight.
16 In essence, the Tribunal found that the appellants were not credible witnesses. The only aspect of the appellants’ claims which the Tribunal accepted as true was that Mr Gulab Singh was a good friend of the first appellant. The Tribunal did not accept that the first appellant was a witness at the wedding, that the bride’s family had ever had any adverse interest in him, or that they threatened him (or his wife or any of his relatives). The Tribunal did not accept that two other men, who were friends with Mr Gulab Singh, had been on the run or had been imprisoned on false charges as the first appellant claimed. The Tribunal did not accept that the appellants had to move away from their village in order to avoid harm. The Tribunal found that neither appellant was of any adverse interest to anybody in their home village or anybody else anywhere in India. The Tribunal rejected the appellants’ claim to be refugees with a well-founded fear of persecution and as persons within the complementary protection provisions of the Act.
17 The Tribunal went on to consider whether the appellants could, in any event, relocate to Delhi.
18 With respect to the appellants’ claims to have a well-founded fear of persecution for one of the Convention reasons and, therefore, to be a refugee, the Tribunal referred to s 5J(1)(c) of the Act which provides that a person has a well-founded fear of persecution if the real chance of persecution relates to all areas of a receiving country. The Tribunal found that the appellants can relocate to Delhi. It noted that the appellants did not argue that there were any practical impediments to them doing so. The first appellant’s brother had offered to help them financially. The appellants’ contention was that they feared that the bride’s family may find them and harm them in Delhi. With respect to that claim, the Tribunal made the following finding (at ):
The Tribunal finds that as Delhi is one of the largest cities in the world, with a population of over 10 million people, the claim that the bride’s family can locate the applicants in Delhi is far-fetched. Therefore, the applicants do not satisfy the requirements of s.5J and they do not have a well-founded fear of persecution.
19 The Tribunal turned to consider the issue of relocation in the context of the appellants’ claims for complementary protection. It noted that s 36(2B)(a) provided that there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm. The Tribunal referred to the matters attending relocation discussed with the appellants at the Tribunal hearing and noted that the first appellant had told the Tribunal that their concern with moving to Delhi was that the bride’s family would find them and harm them. The Tribunal then made the following finding (at ):
As noted above, the Tribunal does not accept that proposition. The Tribunal finds that it would not be unreasonable for the applicants to relocate to Delhi — if they must — and that there is less than a real chance that they will be found in Delhi by anybody who may wish to inflict harm on them.
The PROCEEDINGS IN the Federal Circuit Court
20 On 29 July 2016, the appellants brought an application for judicial review of the decision of the Tribunal in the Federal Circuit Court. The grounds of the application as they were at that time were as follows:
1. The decision of the Tribunal:
(a) is affected by an error of law; and
(b) denied the applicant procedural fairness.
2. I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.
21 In August 2017, the first respondent’s solicitors noted that the file of the Department contained a document entitled “Notification regarding the disclosure of certain information under section 438 of the Migration Act 1958” and filed an affidavit in the proceeding which annexed the Notification and the documents referred to in it.
22 The Notification is a notification under s 438(1)(b), namely, that the documents the subject of the Notification were given to an officer of the Department in confidence. The documents which are the subject of the Notification are the two anonymous reports.
23 There were three hearings before the Federal Circuit Court on 29 August 2017, 9 March 2018 and 15 August 2018 respectively. The primary judge described the reason for this circumstance as being that the decision of the Full Court in Minister for Immigration and Border Protection v CQZ15  FCAFC 194; (2017) 253 FCR 1 had not been handed down. That decision was handed down on 29 November 2017.
24 The primary judge referred to the grounds in the application for judicial review dated 29 July 2016. He said that the grounds provided no insight about the propositions of fact or law that underpinned the appellants’ contentions about the Tribunal falling into jurisdictional error. He said that when the matter was first fixed for hearing on 29 August 2017, the appellants applied to amend their application and they handed to the primary judge their proposed amended application. The primary judge said that counsel for the first respondent told the Court that the first respondent did not object to the grant of leave to amend because the amended application streamlined the case and was a useful document. The proposed amended application was not filed at that time. The primary judge said that in their amended application, the appellants abandoned the two earlier grounds “correctly in my view” and relied instead on one ground. The one ground relied on in the amended application was as follows:
(1) The decision of the second respondent was affected by jurisdictional error, in that failing to disclose the existence of a certificate issued pursuant to section 438(1)(b) of the Migration Act 1958 (Cth) (Act) to the Applicants constituted a denial of procedural fairness.
[It is not necessary to set out the Particulars]
25 The primary judge then went on to consider the application for judicial review on the basis that the one ground of review was that identified in the amended application. The primary judge decided that the appellants had not been denied procedural fairness in the manner asserted in their amended application. He said that there had been no loss of opportunity as a result of the Tribunal’s failure to put the documents which were the subject of the certificate (i.e., the Notification) to the appellants. The Tribunal covered, in the sense of examined, “significantly more than there was in [the documents which were the subject of the certificate] with the [appellants]” (at ).
The Appeal to this Court
26 The appellants’ Notice of Appeal contained one ground of appeal. It was to the effect that the primary judge had erred in not finding jurisdictional error for the reason outlined in the ground in their amended application for judicial review.
27 In their Amended Notice of Appeal, the appellants raised a second ground, which is in the following terms:
2. The primary Judge erred, or denied the Appellants procedural fairness, in failing to address the grounds of the Appellants’ application.
a) The Appellants advanced an application on the basis that the decision of the Second Respondent was affected by procedural unfairness or an error of law.
b) The primary Judge, in error, decided the Appellants’ application on the basis that it was confined to the Tribunal’s failure to notify the Appellants of the existence of a s 438 certificate or the documents the subject of the certificate.
28 The first respondent did not object to the appellants having leave to file an Amended Notice of Appeal, although he did submit that Ground 2 had no merit.
29 The first respondent’s Notice of Contention was to the effect that the decision of the Federal Circuit Court should be affirmed on grounds other than those relied on by that Court. The contention is that the failure to disclose to the appellants the existence of the Notification given under s 438(1)(b) of the Act did not amount to jurisdictional error because the Tribunal’s breach of its implied obligation of procedural fairness was not material in the sense described in Minister for Immigration and Border Protection v SZMTA  HCA 3; (2019) 363 ALR 599 (SZMTA). The contention is that the breach was not material because:
(a) the Tribunal expressly gave no weight to the information subject to the notification in making its decision; and
(b) the Tribunal had a separate and independent basis for its decision – namely, that the Appellants could reasonably relocate to Delhi.
Ground 1 of the Amended Notice of Appeal and the Notice of Contention
30 The first respondent accepted, correctly in our opinion, that in light of the decision of the High Court in SZMTA, the Tribunal’s failure to disclose the existence of the Notification to the appellants amounted to a breach of its implied obligation of procedural fairness.
31 The area of dispute between the parties related to the issue of materiality. In SZMTA, Bell, Gageler and Keane JJ said (at ):
Because procedural fairness requires disclosure of the fact of notification, non-disclosure of the fact of notification constitutes, without more, a breach of the Tribunal’s implied obligation of procedural fairness. For such a breach to constitute jurisdictional error on the part of the Tribunal, however, the breach must give rise to a “practical injustice”: the breach must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal’s decision.
32 Their Honours discussed the concept of materiality at – and referred to whether compliance could realistically have resulted in a different decision (at ) and “whether there is a realistic possibility that the Tribunal’s decision could have been different if the notification had been disclosed so as to allow the applicant a full opportunity to make submissions” (at ).
33 As we understood it, the appellants advanced two arguments to the effect that the non-disclosure of the Notification was material. First, they contended that although the Tribunal had identified some of the allegations in the anonymous reports and specifically said that it would give no weight to them, the Tribunal had not referred to all of the allegations. The Tribunal referred to allegations of pending criminal charges relating to alleged criminal conduct (which the appellants denied) and using a “medical condition” to obtain visas (see the summary in  above). However, there is no reference in the Tribunal’s reasons to the statement that the appellants were living and working illegally in Australia (although at least the first part of that proposition appears to be uncontentious) and that they are living here illegally to protect themselves, nor is there any reference to the use of “fake” documents and “false” documents. The appellants submitted that the Tribunal may have relied on the allegations to which it did not refer in support of its finding that the appellants were not credible witnesses. The appellants asked the Court to note that the Tribunal’s findings of credit followed immediately after its treatment of some of the allegations in the anonymous reports. They submitted that it is not possible to disentangle the Tribunal’s reasons for its credit findings. As the credit findings were crucial to the Tribunal’s decision, reliance on allegations in the anonymous reports not referred to in the Tribunal’s reasons would be material.
34 The second argument advanced by the appellants is that the information in the anonymous reports had it been disclosed may have been used by them in a manner which favoured their case. The argument was that the appellants’ case before the Tribunal included allegations that the bride’s family were influential and, in fact, one of the bride’s aunties was a member of the Legislative Assembly of Punjab. The appellants’ case was that the police did not want to the help the appellants. The appellants’ submission was that the information that the police in India were pursuing the appellants supports, or might support, their case that the bride’s family were influential and able to influence the police.
35 The first respondent relied on a number of matters in support of its argument that the appellants had not shown that the Tribunal’s failure to disclose the existence of the Notification to them was material in the sense identified by the High Court in SZMTA. First, the first respondent submitted that, on a fair reading of the Tribunal’s reasons, it ought to be concluded that it considered that the allegations in the anonymous reports, that is, all of the allegations, were baseless and that it gave no weight to the allegations in making its decision. There is no suggestion that the allegations played any part in the Tribunal’s decision that the appellants were not credible witnesses. The first respondent submitted that there is no reason to think that the Tribunal was excluding from its consideration certain allegations, but not others.
36 Secondly, the first respondent submitted that the appellants’ suggestion that the information in the anonymous reports might have been taken into account in a way favourable to the appellants was fanciful. The appellants had strenuously denied that the allegations were true, and those allegations included allegations of pending criminal charges. In other words, the appellants denied that they were the subject of pending criminal charges.
37 Finally, the first respondent submitted that the relocation finding by the Tribunal provides an independent basis for its decision. In that context, the first respondent referred to Hossain v Minister for Immigration for Border Protection  HCA 34; (2018) 359 ALR 1 (Hossain).
38 We agree with the third submission of the first respondent and that is sufficient to dispose of Ground 1. The Tribunal referred to the fact that its relocation finding was in addition to the Tribunal’s findings that the appellants’ claims were false. We consider that what the Tribunal meant by that was that the relocation finding was an alternative basis for concluding that Australia did not owe the appellants protection obligations. We reject the submission by the appellants that the Tribunal’s credit findings played any part in its findings with respect to relocation. There is simply no indication that that is the case. Nor can it be suggested that the anonymous reports were relevant to the Tribunal’s findings with respect to relocation.
39 In our opinion, the Tribunal’s findings as to relocation lead to the same result as the Tribunal’s finding as to the public interest criterion in Hossain. In that case, Kiefel CJ, Gageler and Keane JJ said at :
Here the Tribunal breached that implied condition by misconstruing and misapplying the criterion which related to the timing of the making of the application. The breach, however, could have made no difference to the decision which the Tribunal in fact made to affirm the decision of the delegate. That was because the Tribunal was not satisfied that the public interest criterion was met, and, on the findings which the Tribunal made, the Tribunal could not reasonably have been satisfied that the public interest criterion was met. The Tribunal in those circumstances had no option but to affirm the decision of the delegate.
40 Paragraph (b) of the Notice of Contention is upheld and Ground 1 of the Amended Notice of Appeal is rejected.
41 We would add that, although we do not need to rule on them, there is a good deal of force in the first respondent’s other submissions.
42 As to the first submission, whilst it is true that the Tribunal’s discussion of the anonymous reports appears under a heading of allegations of criminal conduct in India and the anonymous reports contain allegations of conduct outside India, the most obvious inference, in our view, is that the Tribunal referred to what it considered to be the sting of the anonymous report, not that it left out the other matters.
43 With respect to the second submission, we are disposed to think that the first respondent is correct that any favourable use of the allegations was fanciful in light of the appellants’ denials.
Ground 2 of the Amended Notice of Appeal
44 The second ground of appeal is set out above (at ). Under this ground, the appellants sought to attack the Tribunal’s conclusion that the speed with which the letters were provided to the Tribunal after the hearing was a matter, together with other matters, which meant the letters should be given little weight. The appellants submitted that in circumstances where the Tribunal had requested evidence within a particular time frame, it was not reasonably open to it to conclude that the provision of evidence of the kind provided within that time frame undermined the weight to be placed on that evidence. This claim is said to fall within the rubric of Ground 2 of the Amended Notice of Appeal.
45 The appellants submitted that they had pressed this claim at the hearing before the primary judge on 9 March 2018 which was at a time when they were not represented. The transcript records the following exchange on that day:
THE INTERPRETER: Because we did not have any information earlier about these documents. We were in the detention centre; it was hard to get anything from there. We were not aware of these documents earlier. They asked us if we need to submit any more documents or evidence for our case and they gave us – I told them that yes and they gave us a week’s time to do that. And we were in the detention centre. Whatever documents we could get with the help of our family – two to three documents – we submitted those. And then they gave their decisions – the decision and they said that those documents are fake documents.
HIS HONOUR: Well, hang on a moment. By that do you mean that you actually produced the documents to the tribunal and the tribunal said that the documents were fake?
THE INTERPRETER: Yes. It was in the decision that the documents that were provided were not real.
HIS HONOUR: But just a moment. I’m trying to work out whether you gave the documents, at some stage, to the tribunal.
THE INTERPRETER: Yes. We did give – they gave us – when we had a hearing after that, they gave us one week’s extra time.
HIS HONOUR: Right.
THE INTERPRETER: So we did provide - - -
HIS HONOUR: And it was in that one week time that you got them; is that right?
THE INTERPRETER: From India, which were - - -
46 The first respondent submitted that the Federal Circuit Court had proceeded correctly because, although the first appellant may have alluded to the argument on 9 March 2018, by the time of the Court’s decision it was clear that the appellants had abandoned the grounds of review set out in their application filed on 29 July 2016. The first respondent accepts that at the hearing on 9 March 2018, there was some doubt about what grounds the appellants were relying on. As a result of that doubt, the first respondent’s solicitors sent a letter to the primary judge’s associate which contained the following:
As you would be aware, this matter was listed for final hearing on 9 March 2018, after previously being adjourned on 29 August 2017 pending the outcome of Minister for Immigration and Border Protection v CQZ15  FCAFC 194.
At the hearing on 29 August 2017, the applicants sought leave to file an amended application. In the amended application, the applicants advanced a single ground of review, relying on MZAFZ v Minister for Immigration and Border Protection  FCA 1081 (MZAFZ), Singh v Minister for Immigration and Border Protection  FCAFC 183 (Singh) and the existence of a notification under s 438 of the Migration Act 1958 (Cth). At that hearing, the Minister consented to the filing of the amended application.
At the hearing on 9 March 2018, in oral submissions, the first applicant made at least one argument that went beyond the scope of the ground set out in the amended application. Following that hearing, the solicitors for the Minister searched the Commonwealth Courts Portal. According to the Commonwealth Courts Portal, the amended application was never in fact filed with the Court. Therefore, it is presently unclear whether the applicants rely on the ground set out in the amended application, or the grounds set out in their original application filed on 29 July 2016, or some combination of those grounds.
The Minister considered it appropriate to make the Court aware of the above. In the circumstances, it may be appropriate for the Court to give the applicants an opportunity to confirm which application or ground/s they wish to rely on.
47 On 23 July 2018, the associate to the primary judge wrote to the parties asking the appellants to identify what ground or grounds they relied on. On 27 July 2018, the appellants filed their amended application. Ground 2 was not part of the amended application. The first respondent submitted that nothing occurred at the subsequent mention on 15 August 2018 which indicated that the appellants intended to depart from the clear statement of their intention manifested in the filing of the amended application on 27 July 2018. The appellants sought to overcome the difficulties associated with an apparently free choice by them by submitting that they were unrepresented at the time and that the Federal Circuit Court had a duty to assist the appellants with which it did not comply (SZRUR v Minister for Immigration and Border Protection  FCAFC 146; (2013) 305 ALR 557). We do not need to consider this argument or whether, assuming it is successful, the Tribunal committed a jurisdictional error in the manner alleged.
48 Again, the Tribunal’s relocation findings stand as an independent basis for its decision. They are not affected by the Tribunal’s findings as to the weight to be given to the letters or the credibility findings.
49 Ground 2 of the Amended Notice of Appeal is rejected.
50 In our opinion, the appeal should be dismissed with costs.
51 The Court expresses its gratitude to Mr J Maloney who appeared for the appellants on a pro bono referral.