FEDERAL COURT OF AUSTRALIA

SZSLF v Minister for Immigration and Border Protection [2014] FCA 64

THE COURT ORDERS THAT:

1.    The application that the Court receive further evidence on appeal be refused.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs in the fixed sum of $1,900.

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

REASONS FOR JUDGMENT

Introduction

1    The applicant for a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (the Migration Act), to whom I will refer as the appellant, is a national of Nepal. He claimed to fear harm in Nepal as a result of threats and actions by Maoists and the Young Communist League (YCL). The delegate refused to grant the visa on 19 March 2012 and the Refugee Review Tribunal (Tribunal) affirmed that decision on 19 November 2012. Proceedings for review in the Federal Circuit Court of Australia were dismissed on 2 October 2013.

2    The notice of appeal to this Court filed on 22 October 2013 sought leave to appeal in relation to grounds 1 to 3 and that the appeal be allowed in relation to grounds 4 to 5. The apparent reason for this approach was that there were two judgments of the Federal Circuit Court given on 2 October 2013. The first refused an application for an adjournment and the second dealt with the substance of the grounds on which the appellant sought judicial review of the decision of the Tribunal.

3    The grounds in the notice of appeal were as follows:

1.    The learned Judge erred in refusing an application for an adjournment in circumstances where shortly prior to the date fixed [for the] hearing the hearing date was moved forward by 23 days.

2.    The learned Judge erred by failing to recues [sic] or disqualify herself in relation to an application for an adjournment in circumstances where the critical issue in relation to an unrepresented litigant was here honours brining [sic] the hearing date forward by 23 days shortly before the hearing date.

3.    Her Honour the Judge below erred by failing to accord the Applicant procedural fairness in that her honour failed to take into account her own conduct in bringing the hearing date forward thereby depriving the application [sic] procedural fairness.

4.    Her Honour the Judge erred by failing to inquire and to take into account as to whether the applicant had a transcript of the Tribunal hearing critical to the grounds of Appeal which the applicant advanced being breach of s 425 and a reasonable apprehension of bias by the second respondent.

5.    The learned Judge erred by failing to find jurisdictional error.

4    The claim or claims alleging bias on the part of the Tribunal were not pressed before me. Further, it seems that the claim of jurisdictional error was limited to a breach of s 425 of the Migration Act and associated denial of procedural fairness on the part of the Tribunal.

5    It is not clear to me that seeking leave to appeal was the appropriate course. I return to this question below.

6    In any event, although time was spent on the adjournment issue in written and oral submissions, it is not necessary to determine that issue as the appellant’s counsel accepted that this Court was in the same position to deal with the substantive issues as the Federal Circuit Court would have been if the adjournment application had been granted. Further, counsel for the appellant accepted that all submissions that could have been put to the Federal Circuit Court had been put to this Court.

7    As will become apparent, the appeal can be disposed of by considering whether or not the further evidence tendered under s 27 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) going to the s 425 and associated procedural fairness question would have produced, or at least would be likely to have produced, a different result had it been available at the trial.

8    Section 425 of the Migration Act was in the following terms:

425 Tribunal must invite applicant to appear

(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.

Procedural chronology

9    A short procedural chronology is as follows.

10    The decision of the Tribunal was given, as I have said, on 19 November 2012. The application for judicial review was filed in what is now the Federal Circuit Court on 21 December 2012. The grounds were as follows:

1.    The Tribunal made jurisdictional error [sic] by not providing me an opportunity to comment on the information which were [sic] used adversely. No particulars were given during the hearing. The Tribunal breached section 425 of the Migration Act.

2.    The Tribunal decision was infected by bias because the way hearing [sic] was conducted can not be justified. I felt that the Tribunal was trying to my answers [sic] inconsistent anyhow.

11    Hand written on the application as filed was that the application was listed for its first court date on 15 March 2013 at 12 noon.

12    On 15 March 2013 the appellant appeared before the judge of the Federal Circuit Court at a directions hearing. The appellant was unrepresented although he had the assistance of a Nepali interpreter. The judge explained to the appellant that the grounds of his application made bare assertions of error that were not particularised. The appellant confirmed that he wished to continue with his application and he was given leave to file and serve an amended application, giving complete particulars of each ground he relied upon, by 10 May 2013.

13    The appellant was also directed to file and serve any evidence by way of affidavit upon which he intended to rely, including any transcript of the Tribunal hearing, by 10 May 2013.

14    However, no document was filed by the appellant either in accordance with those directions or otherwise.

15    The appellant was also provided by the Court with the contact details of legal services providers, and translating and interpreting services. At that directions hearing on 15 March 2013 the appellant elected to participate in the New South Wales RRT Legal Advice Scheme. He received free legal advice in accordance with that scheme on 9 May 2013.

16    By letter dated 10 September 2013 the application was listed in the Federal Circuit Court for final hearing on 2 October 2013 in circumstances where it had been originally listed for final hearing on 24 October 2013.

17    It appears that shortly after 10 September 2013 the appellant approached Elee Luke Georges, solicitor. It also appears that the appellant was then told that he needed to find alternate lawyers or counsel to appear on his behalf on 2 October 2013.

18    On 2 October 2013, the changed hearing date, the chambers of the judge of the Federal Circuit Court received a letter from Elee Luke Georges, solicitor, in the following terms:

Dear Associate,

We have been retained by the Applicant in this matter and we understand that the hearing of this matter has been moved to 2 October 2013. Due the date been moved [sic] our client has been unable to find alternate lawyers or Counsel to act in his matters on short notice and our firm is unavailable to appear tomorrow. We advised our client when he first came to us two week ago [sic] that we could not appear on 2.10.2013 and recommended he seek alternate representation, which he has been was [sic] unable to do.

Further, given the two days of transcript we have been unable to finalise the preparation of this case in order to brief Counsel and will require another two weeks to able [sic] to brief Counsel, advise our client and file an Appearance.

We seek an adjournment of the hearing date on behalf of the Applicant as he has limited English and this case is very important to his life given that if he is unsuccessful he may be returned to the Country that he seek [sic] refuge from. Ms. Burnett for the Minster advised our firm yesterday that she has carriage of this matter and that the Minster does not consent to an adjournment.

We note that this email was sent yesterday to the worng [sic] address.

Regards,

Elee Luke Georges

Solicitor – Director

19    The appellant was unrepresented before the Federal Circuit Court on 2 October 2013, although he had the assistance of a Nepali interpreter.

The reasoning of the Federal Circuit Court

20    The primary judge said that the appellant sought an adjournment on the basis that he approached lawyers “two weeks ago” to seek legal advice and those lawyers had not been able to provide advice in that time. The primary judge noted that the letter received on 2 October 2013 from Elee Luke Georges did not give any indication of what grounds the appellant may have relied upon to establish jurisdictional error in the decision of the Tribunal. The letter did not make any mention of any application to rely upon an amended application and no draft documents were provided.

21    The Federal Circuit Court noted the chronology I have set out above.

22    The appellant was told that relevant to the Court’s consideration of whether to grant an adjournment was the utility of doing so. To that end, the appellant was invited to say whatever he wished in support of those grounds.

23    The appellant said he was unable to pinpoint any particular information in relation to ground 1 and the primary judge understood ground 1 to be the basis of the appellant’s allegation of bias. In those circumstances the primary judge said the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by the Federal Circuit Court.

24    The primary judge said the appellant had had more than ample time to seek legal advice, had had the tools to do so and had, in fact, received free legal advice in accordance with the RRT Legal Advice Scheme.

25    The primary judge said there was a public interest in having administrative decisions finalised. Her Honour said she was satisfied that the overall interests of justice were best served by the appellant’s application for an adjournment being refused.

26    As to the substantive application, the primary judge said that the appellant confirmed that he relied on the grounds contained in his application filed on 21 December 2012, which I have set out above.

27    As to ground 1, the primary judge said it was not supported by particulars, evidence or submissions. Her Honour asked the appellant what was the information which was used adversely by the Tribunal and in respect of which he was not given an opportunity to comment. The appellant did not identify any such information. The primary judge said the Tribunal’s decision record made clear that the Tribunal explored the appellant’s claims with him at two hearings and put to him matters of concern it had about his evidence, noting his responses. The Tribunal also heard submissions from the appellant’s migration agent and noted his request that if there were any inconsistencies or issues affecting the appellant’s credibility, that he and the appellant be given the chance to respond. However, the Tribunal noted that its concerns regarding the appellant’s credibility were put to the appellant at the hearing and explored with him closely. The Tribunal found that the appellant and his migration agent had been given the opportunity to respond to its credibility concerns.

28    Ultimately, the Tribunal comprehensively rejected the appellant’s claims of past harm in Nepal, and that he had a well-founded fear of persecution in Nepal for any Convention reason. The Tribunal found that the appellant was not a witness of truth and that his account of events on which his protection claims were based was false.

29    The primary judge said that to the extent that ground 1 asserted that the Tribunal breached s 425 of the Migration Act, no such complaint was made out. Section 425 of the Migration Act entitled the appellant to be invited to a hearing before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. A fair reading of the Tribunal’s decision record made clear that the issue that the Tribunal had with the appellant’s credibility and the reasons for its concerns were put to the appellant at the hearing and the appellant was given an opportunity to respond. It was well established that the Tribunal’s disbelief of an applicant’s evidence arising from inconsistencies therein is not “information” for the purposes of s 424A of the Migration Act. The information relied upon by the Tribunal in making its adverse findings was the Tribunal’s subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in the appellant’s evidence. None of that was information that the Tribunal was required to give the appellant for comment, either in accordance with s 424A or s 424AA of the Migration Act.

30    Accordingly, ground 1 was not made out.

31    As to ground 2, the primary judge noted it was not supported by particulars, evidence or submissions. Because the bias claim is no longer pressed before me it is not necessary to set out the primary judge’s reasons for rejecting that ground.

32    Her Honour concluded that a fair reading of the Tribunal’s decision record made clear that the Tribunal understood the claims being made by the appellant, explored those claims with the appellant and his migration agent at two hearings, and had regard to all material provided in support. The Tribunal put to the appellant matters of concern it had about his evidence and noted the appellant’s responses. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record made clear that it reached conclusions based on the findings made by it and to which it applied the correct law.

33    The primary judge held that the Tribunal’s decision was not affected by jurisdictional error and was therefore a privative clause decision. Accordingly, pursuant to s 474 of the Migration Act, the Federal Circuit Court had no jurisdiction to interfere.

34    The proceedings were dismissed with costs.

Consideration

35    I first consider the procedural question of whether it is appropriate to seek leave to appeal in the present circumstances. I note that the Minister opposed leave to appeal being granted on the basis that there was no substance in the grounds directed to the adjournment issue.

36    The question is whether the leave application was unnecessary because, upon entry of the final judgment, any interlocutory order which affected the final result can be challenged in the appeal against the final judgment: Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at [6] per Gaudron, McHugh and Hayne JJ.

37    It seems to me in the present circumstances that either the refusal of the adjournment affected the final result in terms of a breach of s 425 or associated failure to afford procedural fairness to the appellant, in which case an appeal as of right lay, or the refusal of an adjournment did not have that effect, in which case leave to appeal should be refused for lack of utility. See, for example, Guss v Johnstone [2000] FCA 1455 at [16] per Sackville J (Drummond and Dowsett JJ agreeing). In the present case the appellant put that the final judgment of the Federal Circuit Court was affected because the appellant was not in a position to advance anything himself in relation to the claimed jurisdictional error and did not tender before the Federal Circuit Court the transcript of the hearings before the Tribunal.

38    I approach the grounds of appeal accordingly.

39    I note that the appellant submitted that the error by the primary judge was that her Honour had not taken into account the critical issue of whether there was a reasonable likelihood the appellant would be prejudiced by the moving forward of the hearing date at a late stage in the cycle. The appellant also submitted that the primary judge should have recused herself and should have referred the adjournment application to another judge of the Federal Circuit Court. As I have said, although it is not necessary for me to deal with those matters, as the appellant accepted that everything that would have been put to the Federal Circuit Court had been put to this Court on the hearing of the appeal, I am not persuaded of legal error in relation to either of these contentions.

40    As to the former point, counsel for the appellant submitted that the appellant being unrepresented before the Federal Circuit Court when he wished to be represented was sufficient reason for the adjournment being granted when he had not consented to the change of hearing date. In my opinion that contention is too broad to be accepted. The answer would depend on the particular circumstances. Here there had been no indication before the changed hearing date that there was any difficulty with the change. An application for an adjournment being then made it was appropriate for the primary judge to explore those circumstances, as her Honour did.

41    Counsel for the appellant also submitted that the normal course where a court proposed to bring a hearing forward would be that the parties would first be contacted as to whether this would raise any difficulty. The later the change, the more likely was it that there would be difficulty.

42    Again, in my opinion, there had been no indication before the changed hearing date that there was any difficulty with the change. A normal course would be for a party to contact the court once the hearing date had been changed to notify the court of any difficulty. It is not clear why that was not done by or on behalf of the appellant.

43    I am not persuaded that her Honour’s exercise of discretion miscarried. I say this in the alternative; my primary reasoning is that it is not necessary to determine these grounds, for the reasons that I have given.

44    As to the latter point, there was no evidence that the primary judge was asked to recuse or disqualify herself. Further, in my opinion, it does not follow that because the occasion for an application to a judicial officer to grant an application to adjourn is something that that judicial officer has done, that means that she cannot decide that application. It would seem to me to be a common occurrence that an application to adjourn arises out of an earlier decision by a particular judge and is considered by that judge. It does not seem to me to matter legally whether the earlier listing of the matter for final hearing on 2 October 2013 rather than 24 October 2013 was something which the primary judge herself had done. I see no substance in this ground.

45    As I have said, I do not need finally to decide this aspect of the matter as counsel for the appellant accepted that everything that would have been put to the Federal Circuit Court could be put to this Court on the hearing of the appeal. I include ground 4 in this conclusion.

46    The appellant before me sought to tender the transcript of the hearing before the Tribunal on 9 August 2012 and 12 September 2012. The application was made orally, although some notice had been given by way of an affidavit sworn on 4 February 2014 by Elee Luke Georges, solicitor. This was opposed by the Minister. No interlocutory application was filed and there was no affidavit explaining the application to rely on this evidence, which was not before the primary judge: see s 27 of the Federal Court Act and r 36.57 of the Federal Court Rules 2011 (Cth).

47    Section 27 of the Federal Court Act is in the following terms:

27  Evidence on appeal

In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken:

(a)    on affidavit; or

(b)    by video link, audio link or other appropriate means in accordance with another provision of this Act or another law of the Commonwealth; or

(c)    by oral examination before the Court or a Judge; or

(d)    otherwise in accordance with section 46.

48    As the Full Court said recently in Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3 at [74] the power is not confined to “fresh evidence”, that is, evidence of which an appellant was unaware at the time of the original hearing and could not have obtained with reasonable diligence. But in many cases it would be “most material” to consider whether the evidence could have been called at trial. The discretion is not at large, despite the absence of any express limitations.

49    As the Full Court also said (at [76]), one important consideration in determining whether the power in s 27 of the Federal Court Act should be exercised is whether the further evidence would have produced, or at least would be likely to have produced, a different result had it been available at the trial. I proceed to consider the application under s 27 by reference to whether or not the further evidence sought to be adduced has that cogency.

50    According to the submissions made by counsel for the appellant by reference to the transcript of the hearing before the Tribunal, on the second day of the hearing the Tribunal raised as an issue of concern whether members of the YCL went to the appellant’s home in the village and damaged it. The Tribunal said that it had “some difficulty” believing that if the YCL did go that the appellant’s wife would wait a few months before telling the appellant.

51    In my opinion, at the appropriate level of generality or specificity (see SZQJH v Minister for Immigration and Border Protection [2013] FCAFC 147), the issue was whether members of the YCL went to the appellant’s home and damaged it. That issue would have fed directly into the appellant’s claim for refugee status.

52    That was a critical issue or factor on which the decision was likely to turn and, in my opinion, the Tribunal was obliged to make the appellant aware of that issue and did so: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591E; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) at [38]-[40]. Remembering that the Tribunal is not a contradictor, this is the appropriate level of specificity to which the s 425 or procedural fairness obligation attached: see SZBEL at [47].

53    Contrary to the appellant’s submission, the fact that the Tribunal member said “Okay” did not, in context, found the conclusion for which the appellant contends, that is, that the Tribunal had reasonably led the appellant to believe that part at least of his account was accepted.

54    Another limb of the argument is that the appellant handed to the Tribunal member in the course of the second day of the hearing photographs which the Tribunal member in his reasons described as “photographs… showing some damage to a room of a house”: see [127] of the Tribunal’s reasons. The appellant submitted that because the Tribunal member, on being handed the photographs, said “Right. Okay. Thank you for that.” and because at the end of the hearing the Tribunal returned the photographs, it was not procedurally open to the Tribunal to state as follows in relation to the photographs:

[127].    The Tribunal [sic] submitted photographs to the Tribunal on the second hearing day showing some damage to a room of a house. The Tribunal disbelieves the applicant’s claims that this depicts the damage done to his home by people from the YCL who went there in early 2012 and that is because the Tribunal does not believe that claim. Assuming these photographs are of the applicant’s home, the Tribunal finds he has not been truthful as to the cause of any damage they depict.

55    It is to be recalled that the appellant had been in Australia and was therefore not present at the alleged event in question. He could give no first hand evidence about what or who had caused the damage to the room or about the photographs or the circumstances in which they were taken.

56    The point in issue, however, is the appellant’s submission that the Tribunal, on the basis of its conduct at the hearing in relation to the photographs, “had plainly led the Appellant to understand that the claim and the photographs were not in issue. In handing back the photographs the RRT was indicating that it accepted the Appellant’s evidence once the photographs had been submitted.”

57    I do not accept that submission. What the Tribunal said and what it did in handing back the photographs did not, in context, amount to the Tribunal indicating that it accepted the appellant’s evidence.

58    It was not clear to me whether the appellant submitted that s 425 had a different or more extensive content. For completeness I should add that, in my opinion, what the High Court said in SZBEL at [29] and [49] to the effect that the content of the procedural fairness obligation in s 425(1) of the Migration Act may, in a given case and on particular facts, extend to the greater level of specificity identified in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592A — that is, to require the decision-maker to identify any issue critical to the decision not apparent from its nature or the terms of the statute under which it is made and to advise of any adverse conclusion which has been arrived at not obviously open on the known material — is not applicable in the present case. This is because of the limited nature of the appellant’s knowledge of the taking of the photographs and the circumstances of the damage which they showed. The photographs did not raise a new issue in the sense that that term is used in s 425. The issue of whether members of the YCL went to the appellant’s home and damaged it was identified and the appellant made submissions about it. The photographs were put forward as additional evidence about an extant issue.

59    I do not accept the appellant’s submissions that the Tribunal found that the photographs were submitted for the purpose of misleading the Tribunal or that this raised a separate issue. The reasoning of the Tribunal was that it disbelieved the appellant’s claim as to the cause of the damage and the photographs did not take that issue further.

60    I accept that the finding as to the cause of the damage was material to the Tribunal’s conclusion that the appellant’s account of events was false and to its overall conclusion at [124].

61    It follows, in my opinion, that the evidence sought to be adduced would not produce, or would be likely to have produced, a different result had it been available at the trial: no jurisdictional error is made out and there was thus no error in the conclusion of the primary judge that there was no jurisdictional error.

62    Counsel for the appellant confirmed that these were the matters which informed ground 5 of the notice of appeal, the claim of jurisdictional error.

63    I reject that application that the Court receive further evidence on this appeal because, in my opinion, it did not have the requisite cogency.

64    As I have said, the appellant submitted that it was open to this Court to determine the matter of jurisdictional error for itself. I agree. I do not accept the appellant’s submission that the matter should be remitted to the Federal Circuit Court. Nothing was pointed to suggesting that any practical injustice would flow from this Court dealing with the matter and counsel for the appellant accepted that the argument there would be the same as the argument here.

Conclusion

65    For these reasons, the appeal is dismissed. The Minister applied for a fixed costs order in the sum of $1,900 and relied for this purpose on an affidavit of Sharon Anne Burnett, sworn on 11 February 2014. The appellant submitted that relevant to the exercise of the Court’s discretion to order costs was that the appellant had been deprived of the benefit of a hearing in the Federal Circuit Court. Since, as I have indicated, I am not persuaded that there was any legal error on the part of the Federal Circuit Court in proceeding as it did, the appropriate order is that the appellant pay the costs of the first respondent. The appellant accepted, in that event, that it was appropriate to fix the costs in the sum of $1,900, as sought by the Minister, and I so order.

Associate:

Dated:    13 February 2014