FEDERAL COURT OF AUSTRALIA

SZTMH v Minister for Immigration & Border Protection [2015] FCA 124

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

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

REASONS FOR JUDGMENT

1    The appellant has appealed from a judgment of the Federal Circuit Court of Australia (“the Circuit Court”) which dismissed his application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (“the Minister”), to refuse to grant the appellant a Protection (Class XA) visa.

Background

2    The appellant is a citizen of China who lived in Fujian province. He first arrived in Australia on 13 August 2007 on a subclass TU 571 (Schools Sector) visa. He returned to China for brief stays in 2009 and 2012 and for a longer period in 2010. During this time he applied for and was granted a number of different visas. The appellant applied for a protection visa on 6 June 2012.

3    The appellant claims that if he returns to China he will face persecution because of his Catholicism. The appellant claims that he was introduced to the Catholic faith by his girlfriend in around mid-2006 and that when he returned to China, he attended meetings of the underground Catholic church (“the underground church”) with his girlfriend. The underground church is unable to be registered with the Chinese government because it maintains its allegiance to the Vatican instead of the Communist Party.

4    The appellant claims that during one visit to China in April 2012, his girlfriend organised three youth group meetings of the underground church at the home of a church member. The appellant was to speak to other young people about his Catholic beliefs and understandings based on his experiences overseas. He claims that the police arrived suddenly during the third meeting on the suspicion that attendees were participating in an illegal meeting. The police found three bibles and two hymn books which had been published in Taiwan. The attendees were taken away and interrogated by the police. The appellant told the police that he did not think the meeting was illegal and that everyone had the right to freedom of religious belief. Following his interrogation, he was sent to a detention centre with a number of other leaders of the underground church including his girlfriend. He was kept in detention for 18 days. During the period of his detention, he claims that he was interrogated, forced to complete manual labour and subjected to “inhuman torture”. The appellant feared that he would be tortured to death.

5    The appellant states that he was released from detention on 27 April 2012, after his father provided a large bribe to the police and the other members of the church told the police that the appellant was not a member of the underground church and did not provide any support to them. The appellant left China on 2 May 2012 after his father allegedly bribed an officer at the airport in Fuzhou.

6    Upon his arrival in Australia, the appellant learned that a number of attendees of the youth group had confessed that the appellant was a key member of the underground church. He claims that since then, his family have been investigated by the police.

7    On 1 February 2013, a delegate of the Minister refused the appellant’s application for a protection visa. The delegate was not satisfied that the harm feared by the appellant was well-founded. The delegate also found that the appellant did not satisfy the complementary protection criterion found in s 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”).

The Tribunal’s decision

8    On 18 February 2013, the appellant applied to the Tribunal for review of the delegate’s decision. On 8 October 2013, the Tribunal decided to affirm the decision to not grant the appellant a protection visa.

9    Although the Tribunal was prepared to accept that the appellant had been involved in religious activities whilst in Australia, it found that he “is not a witness of truth” and rejected in its entirety his claim that he was a member of the underground church in China. The Tribunal found that the appellant’s claims “lacked internal logic”. It rejected the appellant’s claims that his girlfriend was a member of the underground church and that he had any association with the underground church. The Tribunal did not believe the appellant’s claims as to his arrest and detention by the police and did not accept the appellant’s account that his family had been investigated by the police and were forced to resign from their jobs because they were harassed by the authorities.

10    In reaching its decision, the Tribunal considered the evidence provided by the appellant. Three witnesses, Father McGee, Ms Hong Chen and Ms De Lon Chen also gave testimony in support of the appellant. Each gave evidence that they believed the appellant to be a genuine Catholic. Ms Hong Chen also gave evidence that those within the appellant’s church in Australia believed him to have good organisational abilities and that he often led young people in singing competitions. While the Tribunal was prepared to accept that the appellant was an ordinary church parishioner in Australia, it did not believe he was a church leader.

11    Although the Tribunal doubted that the appellant attended church as regularly as he claimed, it accepted that he did have “some degree of knowledge” of the Catholic faith. As a result, the Tribunal was prepared to accept that the appellant’s participation in religious activities in Australia was not solely done for the purpose of strengthening his claim for protection.

12    The Tribunal also relied on country information which indicated that Chinese regulations concerning the practice of religion were generally applied more liberally in Fujian province.

13    The Tribunal concluded that the appellant had not been involved in religious activity in China, had not come to the attention of the Chinese authorities and has no profile with the authorities in China other than as an ordinary citizen. As a result, the chance of the appellant suffering harm by reason of his religion was remote.

14    The Tribunal found that there was no evidence to suggest the appellant would face a real chance of serious harm in China on the basis of his religious practice in Australia. The Tribunal found that there was no real chance that the appellant would face persecution in the reasonably foreseeable future if he returned to China. The Tribunal also affirmed the delegate’s decision on the complementary protection criterion.

The Circuit Court’s decision

15    The appellant relied on the following grounds in his application for review of the Tribunal’s decision made to the Circuit Court:

1.    The Applicant appeals against or in the alternative seeks a declaration as specified above regarding the entirety of the purported privative clause decision of the Refugee Review Tribunal made on 19 September 2013 on the grounds that it was not a decision under the act.

Particulars

i.    Section 5E

ii.    Transcript and evidence, whereby the Tribunal refused to accept facts that are obvious.

iii.    For example, the Catholic Church in Australia is an identical body to the Underground church in China.

2.    The Tribunal “come what may” did not permit the facts as to religious intolerance in Fujian province China to be considered. See decision record generally, and especially paragraph 64 and 65.

3.    The Tribunal did not permit the facts as to the application of the refugee application to be considered. See generally and especially paragraph 74, 79, 83

4.    The Tribunal was so predisposed to refuse to believe the applicant as to deny them procedural fairness by way of statutory breach

5.    The Tribunal’s conclusion was encumbered by characteristics which would lead a reasonable person to apprehend bias, and was thus not an effective decision that is protected by Section 474.

(Errors in original)

16    The primary judge narrowed the appellant’s grounds of review into the question of whether the Tribunal’s decision was affected by apprehended bias.

17    The primary judge had before him a transcript of the Tribunal hearing. The transcript had been typed by an interpreter and annexed to an affidavit filed on behalf of the appellant. The appellant relied on the transcript to support his allegation that the Tribunal’s decision was affected by apprehended bias. It is convenient to summarise both the appellant’s allegations and the primary judge’s findings on the question of apprehended bias.

    The appellant argued that the question “Other than your religious beliefs and activities, what other reasons are you afraid to return to China?” evidences an intention on the part of the Tribunal to dismiss the entirety of the appellant’s claim because of his religion. The primary judge found that this question gave an opportunity for the appellant to advance the claims he wished to rely on.

    The appellant claimed he was “peppered” with questions regarding the practice of Catholics at Christmas. The primary judge held that the questions asked were legitimate, and provided the appellant with an opportunity to address doubts about whether he was a genuine Catholic.

    The appellant contended that the Tribunal subjected him to a “bible quiz” and that it was “probable that the Member [was] not interested in hearing the answers”. The primary judge was prepared to accept that at one point, the Tribunal asked a question before the appellant had a chance to finish his previous answer. However, the primary judge was not prepared to find that the Tribunal was not interested in the answer because it then gave the appellant an opportunity to finish his answer.

    The appellant claimed that the Tribunal’s questioning over what he said to the police during his detention evinced an intention on the part of the Tribunal to fault his claims. The primary judge was not prepared to accept this argument, and found that the Tribunal’s questioning of the appellant merely formed part of the Tribunal’s obligation of disclosure under the Act.

    The appellant contended that the Tribunal cut the evidence of Father McGee short. The primary judge found that the Tribunal was aware that the interpreter had been booked for a fixed period. Rather than “being uninterested” in the evidence that was being given, the Tribunal was cognisant of the fact that the appellant had an opportunity to understand the events of the hearing while the interpreter was present; with no interpreter, the hearing could not have proceeded. The primary judge also noted that the appellant could have recalled Father McGee on the adjourned hearing date. The primary judge did not accept that the Tribunal determined that Father McGee was a perjurer.

    The primary judge found that the Tribunal’s assessment of the appellant’s likelihood of suffering harm in Fujian province was appropriate because it was reasonable to infer that he would return there if he were to go back to China. The harm he claimed he would suffer in a different province was not relevant to the determination of the matter before the Tribunal.

    Finally, the appellant complained about the use of country information sourced from US reports by the Tribunal. The primary judge found that it was appropriate for the Tribunal to rely on “reputable country information” to establish the risk of harm to the appellant in his home province.

18    The primary judge concluded that the record did not support a finding of apprehended bias. As the appellant failed to establish jurisdictional error, the primary judge dismissed the appellant’s application for review.

Consideration

19    The appellant raised the following grounds of appeal in his notice of appeal to this Court:

1.    The Federal Circuit Court erred when it rejected ground 1 of the Application before it.

Particulars

i.    Section 5E Migration Act

ii.    Transcript and evidence, whereby the Tribunal refuses to accept facts that are obvious.

iii.    For example, the Catholic Church in Australia is an identical body to the Underground catholic church in China.

2.    The Federal Circuit Court erred when, despite the Application, it found that the Tribunal had not applied an onerous standard of proof.

Particulars

i.    Failure to note the expressed belief by the Tribunal that the Appellant had not addressed the issue of persecution to the Tribunal, which was the opposite of the facts.

3.    The Federal Circuit Court erred when, despite the Application, and despite the authorities, it found that a reasonable person would not have apprehended bias on the part of the Tribunal, and therefore contrary to the Act.

20    In his written outline of submissions the appellant raised for the first time additional particulars of his first two grounds of appeal, based on the judgment of North J in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 (“WZAPN”). WZAPN was delivered on 3 September 2014, after the Circuit Court’s judgment had been delivered on 22 August 2014, but before the institution of this appeal. The Minister has applied for special leave to appeal to the High Court from the decision in WZAPN.

21    The Minister objected to the appellant relying on the grounds based on WZAPN as those grounds were not raised before the primary judge. Parties are generally bound by the conduct of their case at first instance. A court will permit a party to raise a point that was not raised at trial only in limited circumstances and in the interests of justice: see Park v Brothers (2005) 80 ALJR 317 at [34] and the cases cited therein. As WZAPN had not been delivered before the Circuit Court gave its judgment, I am prepared to grant the appellant the leave necessary to rely on the grounds based on that case.

22    In WZAPN, North J found that the Tribunal failed to apply the correct test when assessing whether the appellant in that case was at risk of serious harm within the meaning of s 91R(1)(b) and (2)(a) of the Act. Section 91R provides, relevantly:

91R     Persecution

(1)    For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a)    that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b)    the persecution involves serious harm to the person; and

(c)    the persecution involves systematic and discriminatory conduct.

(2)    Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)    a threat to the person’s life or liberty;

(b)    significant physical harassment of the person;

(c)    significant physical ill-treatment of the person;

…

23    In WZAPN it was held that once a decision-maker finds a risk of harm under s 91R of the Act consisting of a threat to life or liberty, that section does not then permit the decision-maker to undertake a qualitative assessment of the harm that would be experienced by an applicant. North J concluded that:

30    The conclusion from the language and structure of s 91R(2) is that serious harm in s 91R(1)(b) is constituted by a threat to life or liberty, without reference to the severity of the consequences to life or liberty.

…

44    In taking the human rights approach, there is no place for a qualitative assessment of detention affecting the right to liberty for it to constitute an infringement of that right.

45    By making a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant’s liberty was sufficiently significant, the reviewer in the present case applied the wrong test in the application of s 91R(2)(a), and thereby fell into jurisdictional error.

24    The appellant submits that the Tribunal committed jurisdictional error in finding that s 91R of the Act was not engaged. The appellant submits that in order for the Tribunal to find that no obligations of protection are owed to a particular person, it is necessary for there to be a finding that the person is in no danger of persecution. The appellant relies on paragraph (a) of the definition of serious harm in s 91R(2) of the Act, “a threat to the person’s life or liberty”. The appellant argues that the definition possesses no qualification and once the Tribunal accepted that the appellant adhered to a Catholic faith which accords with the beliefs of the underground church in China, and once country information indicated that adherents to that faith had suffered persecution (which to an extent had waxed and waned, but had never been absent), then s 91R(2)(a) of the Act was met.

25    The Minister submits that WZAPN has no relevance as the Tribunal did not accept the appellant had been detained in the past and was not prepared to find that there was a real chance he would suffer harm in the future. The Minister contends that in circumstances where the Tribunal has found that there is no real chance of serious harm, the appellant cannot satisfy the criterion in s 36(2)(a) of the Act and the issues raised by WZAPN do not arise because s 91R(1) is not enlivened.

26    I consider that the Tribunal did not fall into the error identified by North J in WZAPN. The appellant ignores the Tribunal’s findings at [83] of the Tribunal’s reasons:

I have found that the [appellant] has not previously been involved in religious activity in China and I have rejected his claims to have come to the attention of the Chinese authorities because of his religious beliefs and activities. I have found that the [appellant] has no profile with the Chinese authorities other than that of ordinary citizen. Taking into consideration the independent information set out above concerning the circumstances in Fujian province for ordinary members of the underground catholic church and my findings that the [appellant] has never attracted the adverse attention of the Chinese authorities and my assessment of the nature of his religious practice in Australia (that is, he is an ordinary practitioner), I am satisfied that the chance of the [appellant] suffering any harm by reason of his religion is remote.

27    Section 36 of the Act provides, relevantly:

36    Protection visas

…

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol …

28    Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol provides that the term “refugee” applies to any person who:

…owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…

29    In Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 the High Court held that in order for a fear of persecution to be well-founded, there must be a “real chance” of persecution: at 389, 398, 407 and 429.

30    Section 91R of the Act defines “persecution” for the purpose of applying s 36(2) of the Act. Section 91R(1) provides that Article 1A(2) does not apply to persecution unless three criteria are met. The second criterion is that the persecution involves “serious harm” to the person, which is defined in s 91R(2)(a) to include a “threat to the person’s life or liberty”. The word “threat” refers to the likelihood or risk of harm, rather than a communication of intention to harm: VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 233 CLR 1 (“VBAO”) at [3] and [18]. If no threat or relevant risk is current or prospective, there can be no well-founded fear of persecution: VBAO at [50].

31    The Tribunal was required under s 36(2) of the Act to decide whether Australia owed protection obligations to the appellant. Sections 36(2) and 91R requires that there must be a real chance of serious harm. The Tribunal found at [83] of its reasons that the chance of the appellant suffering any harm by reason of his religion was remote and, implicitly, that there was no real chance of any harm. The Tribunal’s finding necessarily meant that there was no real chance of a threat to the appellant’s life or liberty. The criterion in s 91R(1)(b) was not satisfied.

32    In WZAPN the reviewer accepted there was a real chance that the applicant for a protection visa would be detained by police and a religious group for short periods. North J considered that the real chance of a threat to the appellant’s liberty was enough to constitute serious harm within s 91R; and that the reviewer fell into error by engaging in a qualitative assessment of the nature and degree of the harm experienced by the appellant when asking whether the threat to the appellant’s liberty was sufficiently significant. The present case is quite different because the Tribunal found that the appellant faced no real chance of any persecution, so there was no threat to his liberty, in the sense that there was no risk that he would be deprived of his liberty. The Tribunal did not commit any error of the kind identified in WZAPN.

33    The appellant next submits that the primary judge erred in attributing to the Tribunal a finding that there was no chance the appellant would suffer a threat to his life or liberty if he were to return to China. The appellant relies on the following passages from the Tribunal’s reasons:

81.    I have therefore considered whether there is a real chance the [appellant] will face serious or significant harm if he attends a Catholic church in Fujian province in China. While Chinese authorities have shown increased tolerance in recent years for unofficial religious activity that does not challenge the authority of the state, levels of tolerance vary by location.

…

83.    … I am satisfied that the chance of the [appellant] suffering any harm by reason of his religion is remote. There is also no evidence to suggest that the [appellant] would face a real chance of serious harm on the basis of having practised as a Catholic in Australia. Consequently, I find that there is no real chance that the [appellant] would face Convention-related persecution in the reasonably foreseeable future if he were to return to China.

(Footnotes omitted)

34    The premise of the appellant’s argument is not made out. The primary judge stated that “the Tribunal concluded that there was no real chance that he would face Convention-related persecution”. His Honour did not suggest that the Tribunal found that there was no chance of a threat to the appellant’s liberty.

35    In addition, the Tribunal found that the chance of the appellant suffering any harm by reason of his religion is “remote”. The remote chance, which may be contrasted with a real chance, did not suffice to enliven the protection obligations under the Refugees Convention. Even if the primary judge erred in his understanding of the Tribunal’s findings, the error would be of no consequence. The Tribunal applied the correct test.

36    The appellant submits that the country information relied upon by the Tribunal did not establish that there was no threat in Fujian province to members of the underground church, but rather that any such threat was “low”. The appellant submits further that the Tribunal confused the underground church with the Patriotic Church (being a registered church). However, to entertain such submissions would require the Court to engage in impermissible merits review: NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 (“NAHI”) at [11].

37    The second ground of the appellant’s appeal relates to the standard of proof applied by the Tribunal. During oral submissions, the solicitor for the appellant explained that the second ground should be interpreted to mean that the primary judge ought to have found that the Tribunal did not adequately consider the evidence as it was not disposed to listen. The appellant observes that the primary judge accepted the Tribunal’s findings by citing them with approval at [6] and [7] of his reasons, namely:

6.    The Tribunal rejected the [appellant’s] claims to have practised Christianity in China and to have been arrested and detained by the authorities for that reason in 2012. The Tribunal found that there were logical and factual inconsistencies in the [appellant’s] evidence about those claims including the reasons for which the [appellant] converted to Christianity in the first place and also that his evidence about his practice there was vague and did not come from his own experience. For those and other reasons, the Tribunal found that the [appellant] was not a credible witness and found that he did not have a genuine fear of persecution in China.

7.    On the other hand, the Tribunal accepted that the [appellant] had attended church in Sydney and, giving him the benefit of the doubt, that this was otherwise than for the purpose of advancing his claims to protection. The Tribunal then assessed the [appellant’s] claims on the basis that the [appellant] would return to China and practice in the underground catholic church. On the basis of country information about people belonging to that church in the [appellant’s] home province, the Tribunal concluded that there was no real chance that he would face Convention-related persecution in the reasonably foreseeable future if he were to return to China.

38    The appellant submits that the primary judge should not have accepted these findings because it was available to his Honour to find the opposite. The appellant suggests that this ground forms part of the apprehended bias argument that was run before the primary judge.

39    The appellant’s third ground of appeal also relates to the question of apprehended bias. The appellant explains that this ground is to be considered in the alternative to the first two grounds, and that it also overlaps with the second ground of appeal. It is convenient to deal with this part of the second and the third ground of appeal together.

40    In order to establish that a decision of a Tribunal has been affected by apprehended bias, the Court must be satisfied that a fair-minded lay observer might apprehend that the Tribunal was not impartial: Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 at [27]–[28]. Whether or not there is apprehended bias is determined by the Court objectively: Hot Holdings Pty Limited v Creasy (2002) 210 CLR 438 at [68] per McHugh J. An allegation of apprehended bias must be “firmly established”: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J, at 359 – 360 per Wilson J and at 371 – 372 per Dawson J. It is not sufficient to merely show that the Tribunal has formed a preliminary view of the appellant’s credit: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72]. Robust and vigorous questioning by the Tribunal will not of itself amount to a finding of apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [4] per Allsop CJ, [24] per Flick J and [87] per Robertson J.

41    The appellant submits that the Tribunal’s insistence on considering the appellant’s claim in relation to Fujian province rather than Jiangxi province, in spite of the appellant’s objections, would lead a reasonable person to apprehend that the Tribunal’s conclusion that the appellant was not a member of the underground church in China was not reached on an objective assessment of the facts. The appellant submits that the refusal of the Tribunal to consider the risk of harm to the appellant in Jiangxi province, the absence of any finding that the appellant had lied about being located in that province and the fact that it was not for the Tribunal to direct the appellant to go to any particular province establishes that the Tribunal’s decision was affected by apprehended bias. The appellant alleges that the Tribunal made adverse findings as to the appellant’s credibility as a “solution” to the evidence that was before it; that is, the Tribunal made a finding that the appellant was not involved in the underground church in China in order to avoid a conclusion that the appellant did have a well-founded fear of persecution. This accusation is not supported by the evidence before the Court. The Tribunal carefully considered the appellant’s claims and was willing to give the appellant the benefit of the doubt in the operation of s 91R(3) of the Act. I have considered the transcript of the Tribunal hearing. For the reasons advanced by the primary judge, the questioning of the appellant by the Tribunal was merely directed towards fulfilling the Tribunal’s obligations and ensuring that the appellant was apprised of the arguments against him. It was not expressing disbelief in the form of prejudgment.

42    Most of the appellant’s submissions on the ground of apprehended bias were directed to the issue of the country information relied upon by the Tribunal. In NAHI at [11] the Court stated:

By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court.

43    The primary judge appropriately and comprehensively dealt with the appellant’s arguments relating to the reliance placed on the country information and, in particular, the use of information relating to Fujian province. As was recognised by the primary judge, it was appropriate for the Tribunal to consider the country information relevant to Fujian province because that is the appellant’s home province and will likely be the province to which he returns. It is also relevant that the Tribunal disbelieved the appellant’s claims as to what he alleged occurred in Jiangxi province; such a finding left little need to consider the risk of harm in other provinces.

44    Section 424AA of the Act provides:

If an applicant is appearing before the Tribunal because of an invitation under section 425:

(a)    the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    if the Tribunal does so––the Tribunal must:

(i)    ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii)    orally invite the applicant to comment on or respond to the information; and

(iii)    advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)    if the applicant seeks additional time to comment on or respond to the information––adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

45    The Tribunal was careful to put to the appellant the concerns it held about his evidence and claims to fear harm as it was required by s 424AA to do. On numerous occasions the Tribunal asked the appellant to address its concerns. Rather than evidencing a closed mind, the Tribunal’s questioning provided the appellant with an opportunity to respond to what could be perceived as weaknesses in the appellant’s case, and to provide any additional information the appellant considered was relevant to assessing his claim. The appellant’s second and third grounds of appeal are not made out.

Costs

46    At the conclusion of oral submissions, the Minister applied for a personal costs order against the solicitor for the appellant, Mr McArdle, pursuant to Pt 8B of the Act.

47    Section 486F of the Act allows the Court to order that a person pay the costs of a respondent to the proceeding if the person acts in contravention of s 486E. The Minister alleges that the appeal had no reasonable prospect of success and that Mr McArdle contravened s 486E because he encouraged the appellant to bring and continue the appeal without having given proper consideration to its prospect of success.

48    Section 486F of the Act provides, relevantly:

486F    Cost orders

(1)    If a person acts in contravention of section 486E, the court in which the migration litigation is commenced or continued may make one or more of the following orders:

(a)    an order that the person pay a party to the migration litigation (other than the litigant), the costs incurred by that party because of the commencement or continuation of the migration litigation;

…

49    Section 486E of the Act provides:

486E Obligation where there is no reasonable prospect of success

(1)    A person must not encourage another person (the litigant) to commence or continue migration litigation in a court if:

(a)    the migration litigation has no reasonable prospect of success; and

(b)    either:

(i)    the person does not give proper consideration to the prospects of success of the migration litigation; or

(ii)    a purpose in commencing or continuing the migration litigation is unrelated to the objectives which the court process is designed to achieve.

(2)    For the purposes of this section, migration litigation need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

(3)    This section applies despite any obligation that the person may have to act in accordance with the instructions or wishes of the litigant.

50    The expression “migration litigation” refers to a court proceeding in relation to a migration decision: see s 486K of the Act.

51    Section 486I of the Act prohibits lawyers from filing documents commencing migration litigation unless the lawyer certifies that there are reasonable grounds for believing the litigation has a reasonable prospect of success.

52    Mr McArdle does not dispute that he drafted the notice of appeal and certified that the appeal had a reasonable prospect of success. He also prepared and filed written submissions and made oral submissions at the hearing.

53    The Minister submits that the appellant’s grounds do not reflect any balanced and thoughtful assessment of the prospects of success because they do not disclose any reasonably arguable case on the facts. The Minister equated a reasonable prospect of success with an arguable case, such that the case must be one that can properly be put with real issues in dispute.

54    The policy rationale behind Pt 8B of the Act is not difficult to discern. The legislature was concerned to discourage lawyers and other persons from encouraging the commencement or continuation of migration litigation that is without merit. In SZFDZ v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 482 (“SZFDZ”), Moore J said of Pt 8B:

26    [Section 486F] is part of a recently enacted costs regime embodied in Pt 8B of the Act. That regime was introduced against a background where in both this Court and the Federal Magistrates Court, there has been an unrelenting stream of applications challenging decisions made under the Act. Those applications are often brought by litigants in person who, in many cases, have been given assistance by others. History reveals that many of those applications are unmeritorious and are doomed to fail. That is not to say, of course, that there are not also applications which reveal decision-making either arguably or actually infected by reviewable error. There are. Mostly, the applications relate to decisions made under the Act concerning applications for protection visas. Legal error resulting in the refusal of a protection visa, in circumstances where such a visa should or might be granted, could have profound consequences for the individual applicant.

27    However, Parliament appears to have taken the approach that, in relation to proceedings concerning decisions under the Act, proper consideration must be given by people assisting litigants about the prospects of success before proceedings are commenced. If that does not happen, the person providing assistance is at risk of being ordered to pay the costs of other parties to the litigation.

55    While Parliament intended to discourage persons from encouraging others to make and continue unmeritorious applications in migration cases, it is evident from Pt 8B that Parliament was also concerned to balance competing aspects of the public interest. It is in the public interest that “…lawyers should not be deterred from pursuing their clients’ interests by fear of incurring a personal liability to their clients’ opponents”: Ridehalgh v Horsefield [1994] Ch 205 at 226. If costs are too readily awarded against lawyers and other persons, even more litigants (many of whom have little or no English and no familiarity with our legal system) will have to represent themselves in migration litigation, increasing the burden on the courts and potentially decreasing the quality of justice that is delivered. Parliament balanced these competing considerations by building some protections for lawyers and other persons into Pt 8B.

56    Section 486E(1) is not contravened merely because the migration litigation has no reasonable prospects of success. For the provision to be contravened it must also appear that the person has not given proper consideration to the prospects of success, or that a purpose in commencing or continuing the migration litigation is unrelated to the objectives the court process is designed to achieve. These requirements reflect the circumstances in which costs may be awarded against a lawyer under the general powers of courts to award costs against a non-party, including s 43(1) of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”). In Levick v Deputy Commission of Taxation [2000] FCA 674, the Full Court said at [44]:

There must be something akin to abuse of process; that is, using the proceeding for an ulterior purpose or without any, or any proper, consideration of the prospects of success.

57    As the Minister alleges that s 486E(1) was contravened, there is onus on the Minister to prove the contravention. Section 140(1) of the Evidence Act 1995 (Cth) provides that in a civil proceeding the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. Section 140(2) provides that the matters the Court must take into account in deciding whether it is so satisfied include the nature of the cause of action or defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged. It has been held that Dixon J’s discussion of the operation of the civil standard of proof in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363 expresses the considerations which s 140(2) of the Evidence Act requires a court to take into account: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at [31].

58    An allegation that a lawyer or other person has contravened s 486E is a serious one and an order under s 486F that a lawyer or other person pay costs has serious consequences. Not only is there the financial cost, but the professional reputation of the lawyer will be damaged. These circumstances call for caution on the part of the Court when deciding whether there has been a breach of s 486E. Such a view is consistent with Levick, where the Full Court endorsed the need for caution in making orders against solicitors: see also Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300 at 333 and 345.

59    Section 486E is not contravened unless a person “encourages” another person to commence or continue migration litigation in a court. It is unclear whether a person encourages another merely by giving advice or providing representation, or whether something more must be demonstrated: c.f. SZFDZ at [21]. As this issue was not the subject of argument before me, I prefer not to determine it. It is not necessary for me to do so in order to dispose of the application.

60    The power to award costs against a lawyer or other person under s 486F(1) is discretionary: SZFDZ at [27]. The Court “may” make one or more of the orders set out in that provision. The discretion to make the order is enlivened if a person acts in contravention of s 486E.

61    In Lemoto at [113], McColl JA noted that the cases in which legal practitioners had been ordered to pay a party’s costs were those in which a case was presented that was plainly unarguable or futile. Part 8B expands the range of cases in which costs may be ordered against a lawyer or other person as s 486E(2) provides that migration litigation need not be hopeless or bound to fail for it to have no reasonable prospect of success.

62    In SZFDZ, Moore J held at [25] that “[t]he word ‘proper’ invites consideration of whether, in the circumstances, there was a balanced and thoughtful assessment of the prospects of success, such assessment being directed to whether, objectively, the litigant had prospects of success”.

63    The Minister also relied on SZVAG & Anor v Minister for Immigration & Anor (No. 2) [2014] FCCA 2536 (“SZVAG”). In that case, Judge Cameron ordered that Mr McArdle, who acted for the applicant in that case, pay the costs of the Minister in a fixed sum. Judge Cameron considered that the words “reasonable prospect of success” bear the same meaning as in s 31A of the Federal Court Act.

64    Most of the appellant’s written and oral submissions were directed towards the question of whether the Tribunal had correctly applied the test that had been expounded by North J in WZAPN. I consider that the appellant’s grounds based on WZAPN cannot be said to have had no reasonable prospect of success; but that the remaining grounds had no reasonable prospect of success. In order for there to be a contravention of s 486E(1), it must be the migration litigation as a whole that has no reasonable prospect of success. It is not enough that some of the grounds have no reasonable prospect of success. If there is even one ground that gives the proceeding a reasonable prospect of success, the provision is not contravened.

65    It is also necessary for the Minister to prove that Mr McArdle did not give proper consideration to the prospects of success of the appeal. Unsurprisingly, the Minister has been unable to provide any direct evidence that Mr McArdle failed to give proper consideration to the prospects of success. In many cases, a conclusion that the litigation had no reasonable prospect may be enough to allow an inference to be drawn that no proper consideration was given. As I have concluded that one ground did have a reasonable prospect of success, this proceeding is not in that category.

66    I find that there was no contravention of s 486E. Therefore no costs order may be made against the appellant’s solicitor pursuant to s 486F(1).

67    The usual order as to costs should be made. I will order that the appellant pay the Minister’s costs of the appeal.

Associate:

Dated:    27 February 2015