FEDERAL COURT OF AUSTRALIA

SZSLM v Minister for Immigration and Border Protection [2014] FCA 945

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent of the appeal.

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

REASONS FOR JUDGMENT

iNTRODUCTION

1    This is an appeal from orders made by a Judge of the Federal Circuit Court (Judge Manousaridis) dismissing an application for review of a decision of the Refugee Review Tribunal refusing to grant the appellant a protection (Class XA) visa: SZSLM v Minister for Immigration & Anor [2014] FCCA 1043.

2    The Tribunal’s decision was dated 30 August 2013. It was the fourth decision of the Tribunal (differently constituted in each case) concerning applications made by the appellant for a protection visa.

3    Two issues arise in the appeal. The first issue is whether the Circuit Court Judge erred in his construction of s 416 of the Migration Act 1958 (Cth). That section applies where a person “makes a further application for review” of a Tribunal decision. If the section is engaged, the Tribunal, in considering the further application may take to be correct any earlier decision made by the Tribunal about information considered in the earlier application.

4    The appellant contends that, in the unusual circumstances of the present case, the Tribunal (that is to say the fourth Tribunal) was bound to follow the decision of the second Tribunal which determined, in 2004, that the appellant was a person to whom Australia had protection obligations under the Refugees Convention.

5    The second issue is whether the Circuit Court Judge erred in failing to find that the fourth Tribunal misapplied the test stated in s 36(2)(aa) of the Act of whether there is a real risk that the appellant will suffer significant harm if he returns to his country of nationality.

6    This issue arises because the appellant is a Nigerian citizen who was convicted in Australia of a drug offence and who may therefore be liable under a Nigerian law known as Decree 33, to imprisonment for an offence if he returns to that country (see J [19]).

7    Here, the appellant contends that the Circuit Court Judge was in error in failing to find that the Tribunal considered the risk of harm by reference to a class of persons of which the appellant is not a member.

Background

8    The background to the appellant’s claims and the lengthy history of his immigration status are set out in the Circuit Court judgment at [1]-[6].

9    At the first Tribunal hearing the appellant claimed to have a well-founded fear of persecution in Nigeria on the ground that he was a homosexual. The claim was rejected on credibility grounds.

10    On 17 March 2014 consent orders were made in the Federal Magistrates Court quashing the decision of the first Tribunal. The orders contain no note or details of the basis upon which the orders were quashed.

11    At the second Tribunal hearing the appellant claimed to be bisexual. The Tribunal had “serious credibility concerns” about some of the claims but ultimately accepted that the appellant’s homosexual activities may come to the adverse attention of the Nigerian authorities. The Tribunal was satisfied that the appellant satisfied Article 1A(2) of the Refugees Convention. It remitted the matter for consideration with a direction that the appellant satisfied that Article.

12    On 22 August 2004, three days after the date of the second Tribunal’s decision, and nearly a month before it was handed down, the appellant left Australia only a few days before he was due to stand trial on a charge of importing into Australia commercial quantities of cocaine. He was arrested in the UK in 2004 and eventually extradited to Australia in December 2005 to face the outstanding charges. In the meantime, on 7 February 2005, the Department refused his application for a protection visa because he was not “in Australia” as required by s 36(2) of the Act.

13    The appellant was convicted on the criminal charges and was sentenced to 12 years imprisonment. He made a fresh application for a protection visa on 12 December 2011 while in criminal detention. The application was refused and he applied to the Tribunal for a review. The Tribunal, which was the third Tribunal to hear an application, refused to grant the appellant a protection visa in its decision dated 20 December 2012.

14    In his claims to the third Tribunal the appellant claimed to fear harm in Nigeria by reason of his homosexuality or bisexuality, and his conviction in Australia for drug importation offences which exposed him to liability in Nigeria under Decree 33.

15    On 19 June 2013 a Judge of the Federal Circuit Court made orders by consent quashing the decision of the third Tribunal. The Court noted in its orders that the decision was affected by jurisdictional error and that the Tribunal erred in law by drawing an adverse inference from the exercise by a witness of the right to privilege against self-incrimination.

The Fourth Tribunal

16    There were, relevantly, three critical issues in the fourth Tribunal hearing. The first was whether the Tribunal should exercise the discretion under s 416 to take the decision made by the second Tribunal to be correct. The second was whether the appellant’s evidence of his homosexuality was to be accepted. The third was whether there was a real risk that he would suffer significant harm by reason of the application of Decree 33.

17    The Tribunal decided not to exercise the discretion afforded by s 416 of the Act to take the decision of the second Tribunal to be correct because it considered the reasoning process of that Tribunal to be flawed. The relevant passages are set out in the judgment below at [9]-[10].

18    Nor did the Tribunal consider that the appellant was a person to whom Australia owed complementary protection obligations under s 36(2)(aa) of the Act. The essence of the Tribunal’s reasons may be found in [94] of its decision as follows:

“ ... I accept that the Nigerian authorities will be aware that he has been convicted of a drug offence in Australia. I also accept that Decree 33 is still in force in Nigeria. However I find on the basis of the advice of the Australian Department of Foreign Affairs and Trade that no repatriated Nigerian nationals have been prosecuted under Decree 33 since 1 April 2003. With regard to the prospect raised by the more recent advice from the Australian High Commission in Nigeria that people may be detained under Decree 33, not for the purposes of prosecution but for the purposes of debriefing, including in the course of seeking information that might relate to other ongoing trials, I give weight to the advice of the Australian High Commission that there were no other sources of which they or their UK colleagues were aware that had reported detention on these grounds. I do not accept on the evidence before me that there is a real chance that [the applicant] will be detained, prosecuted, further punished or otherwise persecuted because he has been convicted of a drug offence in Australia if he returns to Nigeria now or in the reasonably foreseeable future.”

The Circuit Court Judgment

19    His Honour rejected the appellant’s submission as to the proper construction and application of s 416 of the Act. He observed at [12] that the appellant’s construction was not supported by the language of s 416 which is entirely permissive. He referred to three earlier authorities of the Court which endorse the discretionary nature of the power conferred by the section.

20    His Honour also dealt comprehensively with the second ground of the application for review which was the misapplication of the test of the risk of significant harm.

21    The terms of Decree 33 are set out at [19] of his Honour’s judgment. The country information as to the detention of persons in Nigeria under Decree 33, provided by the Australian High Commission in Nigeria is set out at [22(d)] of the judgment. The relevant part of that paragraph is as follows:

“... the National Drug Law Enforcement Agency (NDLEA) have confirmed to British Officials verbally that yes, they would detain people under decree 33, not for the purposes of prosecution, but for the purposes of debriefing – including in the course of seeking information that might relate to other ongoing trials... There are no other sources that have reported detention on these grounds of which we, or our UK colleagues, are aware.

...

... the UK currently deport [sic] Nigerian drug offenders to Nigeria, but as a result of decree 33, they refuse to inform the Nigerian authorities about the exact nature of the offence.”

22    His Honour considered that this country information referred to a class of persons of which the appellant is a member. He said at [27]:

“... That class is Nigerians who have been convicted of drug offences in foreign countries and who, on their return to Nigeria, are or would be detained under Decree 33 for the purpose of seeking information that might relate to other ongoing trials. That class would not, however, include Nigerians who are deported from the United Kingdom but whose convictions for drug offences is not revealed by the United Kingdom authorities to Nigerian authorities.”

23    His Honour went on to say at [28]:

“If, contrary to what I say in the preceding paragraph, the class of persons referred to by the country information on which the Fourth Tribunal relied included both Nigerians whose convictions for drug offences in overseas countries has become known to the Nigerian authorities, and Nigerians whose convictions for drug offences has not become known to Nigerian authorities, the applicant would still be a member of the class of persons who would be detained under Decree 33 for the purpose of seeking information that might relate to other ongoing trials. And the Fourth Tribunal would have assessed the risk of harm to the applicant by reference to the risk of harm to a class of which the applicant was a member.”

The Appeal

24    The grounds of appeal seek to re-agitate the submissions on which the appellant failed in the Circuit Court.

Ground 1

25    The appellant’s approach to the proper construction of s 416 is contrary to the plain language of the section and to the authorities which have construed it: see NEJAD v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 153 at 158 D-E (Beaumont J); Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 83E (Wilcox J); SNZOL v Minister for Immigration and Citizenship [2012] FCA 917 at [23] (Emmett J).

26    As Beaumont J said in NEJAD at 158, whether sub-paras (c) and (d) of s 416 are read literally or purposively (or both), the section places no obligation upon the Tribunal to accept the conclusion or process of reasoning of the earlier Tribunal, although in a proper case it is at liberty to do so.

27    Justice Wilcox in Sun at 83 took the same approach and Burchett J at 125 agreed with him. Emmett J in SZNOL at [23] also focussed upon the language of s 416 in stating that it is apparent from the language of the section that it confers a discretion on a subsequent Tribunal as to the significance it may attach to an earlier decision.

28    In my respectful opinion the construction adopted by their Honours in each of those decisions is correct and the Circuit Court Judge correctly followed and applied them.

29    Nevertheless, Mr Jones, who appeared for the appellant argued that in the unusual circumstances of the present case, the second Tribunal’s decision was the only previous Tribunal decision which was not affected by jurisdictional error at the time of the fourth Tribunal hearing. He submitted that the fourth Tribunal was therefore bound to accept the finding of the second Tribunal that the appellant was a person to whom Australia owes protection obligations.

30    He sought to make good that submission by pointing to s 474 of the Act which had the effect that the decision of the second Tribunal, being a privative clause decision, was final and conclusive and could not be called into question in any court.

31    In my opinion, this submission cannot be sustained. This is because it misconstrues the nature of a privative clause decision as expressed in s 474 of the Act. It is final and conclusive and, unless affected by jurisdictional error, cannot be called into question by a court: Plaintiff S 157/2002 v The Commonwealth (2003) 211 CLR 476. But that says nothing about the use which can be made by a Tribunal of an earlier application for review of an RRT-reviewable decision. That question is governed by the terms of s 416 which, as I have said, is expressed in the language of discretion.

32    Indeed, the fourth Tribunal correctly answered Mr Jones’ submission on this issue at [9] of its decision. It said that the decision of the second Tribunal was final and conclusive with regard to the matters it dealt with in the context of the application for review then before it (that is to say, the application for review of the applicant’s first application for a protection visa). The Tribunal continued at [9] by saying:

“ However this does not mean that it is final and conclusive with regard to the matters which the Tribunal is required to deal with in relation to [the applicant’s] current application. Were the situation otherwise then section 416 would have no work to do.”

33    That approach to the effect of an earlier decision of the Tribunal is in my view correct. The Tribunal is not a court operating within the doctrines of res judicata or issue estoppel: see e.g. Bhatt v Minister for Immigration & Citizenship [2012] FMCA 317 at [18]; (2012) 262 FLR 219 at [18]. This principle is unaffected by the observation of Buchanan J in Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131 at [23]; (2012) 294 ALR 84 at 89.

34    It is true that a decision of the Tribunal is made by it even though it is constituted by a single member. But it does not follow that a decision of one member is binding on another. Mr Jones’ submission to the contrary must be rejected because it ignores the statutory nature of the Tribunal and fails to give effect to the plain meaning of s 416 of the Act.

35    Nor is Mr Jones’ submission supported by the decision in SZNOL. That decision must be considered on its own facts, as succinctly explained by the Circuit Court Judge in the present case at [16].

36    In SZNOL the first Tribunal affirmed the Minister’s decision not to grant the applicant a protection visa. The appeal from the Federal Magistrate’s order was dismissed by the Federal Court. The applicant then left Australia but subsequently returned and made a second application for a protection visa: SZNOL at [2]-[3].

37    The second Tribunal in SZNOL considered whether to apply the provisions of s 416 to the decision made by the first Tribunal. The situation which the second Tribunal faced was the opposite of that which occurred in the present case because the applicant contended that the Tribunal should not exercise the discretion under s 416 but should undertake a full review of the evidence: see SZNOL at [25].

38    The approach which the second Tribunal took in SZNOL was that the information considered by the earlier Tribunal should not be re-considered by the later Tribunal, except where it can be said that the decision of the earlier Tribunal was affected by an error of law or fact, or the previous reasoning was flawed: SZNOL at [26].

39    Justice Emmett observed at [27] that the applicant in SZNOL was probably barred by issue estoppel or res judicata from contending that the earlier decision was affected by error of law. This proposition was correct in the context of that case because the earlier decision was the subject of orders made by the Federal Magistrates Court and the Federal Court. It does not detract from the proposition stated above that a decision of one Tribunal member is not affected by that of another.

40    The issue determined by Emmett J in SZNOL proceeded on the basis that s 416 conferred a discretion on the second Tribunal. The appellant’s contention in SZNOL was that the exercise of the discretion miscarried because it was too narrowly focussed on a search for error in the earlier decision. That contention was rejected by Emmett J: see SZNOL at [38], [39], [42], [45].

41    Three propositions may be extracted from SZNOL relevant to the determination of the present appeal.

42    First, as I said above, SZNOL confirms the fundamental proposition, fatal to the present appeal, that s 416 confers a discretion on the later Tribunal which is under no obligation to accept the conclusion or reasoning of the earlier Tribunal.

43    Second, contrary to the approach taken by the fourth Tribunal in this case, Emmett J did not accept at [26] of SZNOL that the discretion under s 416 not to reconsider the earlier decision should be exercised except where the previous decision was affected by error of law or fact or was otherwise flawed: cf Circuit Court judgment at [9].

44    Rather, Emmett J merely recorded at [26] of SZNOL that this was the basis upon which the later Tribunal proceeded. He did not endorse it as a principle of universal application in relation to the proper construction and approach to s 416. Instead, his Honour merely held at [45] that the discretion in SZNOL did not miscarry because the Tribunal conducted a full review, including a consideration of what had been before the earlier Tribunal and:

“... it was simply saying that, absent legal or factual error or flawed reasoning, it was exercising its discretion to proceed in accordance with the discretion conferred by s 416.”

45    The third proposition which emerges from SZNOL is that Emmett J’s statement of the legislative purpose of s 416 has to be read in light of his Honour’s overall approach to the construction of the section. His Honour’s apparent acceptance at [42] of the proposition that the broad purpose of s 416 is to promote finality in decision-making and to relieve the Tribunal of the need to repeat a review, must be read subject to his Honour’s other observations.

46    In particular, assuming his Honour’s statement of the legislative purpose to be correct, it cannot be treated as an adoption of the construction put forward by the appellant in the present case. Rather, the statement of the legislative purpose must be considered in the light of the proper construction of s 416 of the Act. Plainly, his Honour did not intend to suggest that the “broad purpose” emasculated the discretion conferred by the section. So much is clear from his Honour’s view of the proper construction of the language stated at [23].

47    Finally, even if it be correct to say that a later Tribunal should ordinarily exercise the discretion to take as correct a decision made by an earlier Tribunal unless satisfied that the decision was flawed, that was precisely the approach adopted by the fourth Tribunal in this case. Mr Jones’ submission that there is a distinction between “weight” and “reasoning” is correctly answered in the judgment of the Circuit Court at [17].

Ground 2

48    The substance of appeal ground 2 is that his Honour made the same error as the fourth Tribunal. That error is said to be failing to appreciate that the source of the country information was the British authorities who had no evidence of the application of Decree 33. This is because the British authorities do not inform the Nigerian authorities of the nature of the offence committed by the UK deportees.

49    The appellant points in particular to the final paragraph of the extract reproduced above at [21].

50    The effect of the appellant’s submissions is that the Tribunal considered the risk of harm by reference to a group of people of which the appellant was not a member because the group consisted of persons whose drug offences were not brought to the attention of the Nigerian authorities.

51    In my opinion, the appellant’s submission wrongly characterises the country information, and its source, upon which the fourth Tribunal relied.

52    The country information was provided by the Australian High Commission based, in large part on inquiries it had made from the British High Commission. But the information was not limited to what the British High Commission had reported to its Australian counterpart.

53    Although the British authorities do not disclose the commission of drug offences, it is clear in my view that the information which was supplied by them and passed on to the Australian authorities extended beyond information about persons returning from Britain whose drug offences were not disclosed to the Nigerian authorities.

54    So much is sufficiently clear from the first sentence of the passage reproduced above at [21]. The second sentence commencing “There are no other sources ...” also suggests that the information is not confined to persons removed from the UK without disclosure of their drug offences and that the sources of the information were both Australian and British. It was open in my view for the Tribunal to read the country information in that way.

55    It follows that the country information on which the fourth Tribunal relied referred to a class of persons of which the appellant was a member. That was the conclusion which the Circuit Court Judge reached at [27]. I see no error in it.

56    His Honour went on to say at [28] that an alternative approach to the country information was that it included Nigerians whose convictions for drug offences in overseas countries were not known to Nigerian authorities as well as those whose convictions were known.

57    His Honour said that on this approach, the appellant would still have been a member of the class. This is because the fourth Tribunal found in the passage of its reasons set out at [18] above that the Nigerian authorities would be aware that the appellant has been convicted of a drug offence in Australia.

58    Accordingly, there is no error in the finding made by his Honour that the fourth Tribunal would have assessed the risk of harm by reference to the risk to a class of persons of which the appellant is a member.

Conclusion and Orders

59    For the reasons set out above, the appeal fails. The orders that I will make are that the appeal be dismissed and that the appellant pay the costs of the first respondent of the appeal.

Associate:

Dated:    2 September 2014