FEDERAL COURT OF AUSTRALIA

SZTMD v Minister for Immigration and Border Protection [2015] FCA 150

THE COURT ORDERS THAT:

1.    The application to amend the application for leave to appeal be dismissed with costs.

2.    The application for leave to appeal be dismissed with costs.

3.    The first respondent’s application to lead fresh evidence be dismissed.

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

REASONS FOR JUDGMENT

1    This is an application for leave to appeal from a judgment of the Federal Circuit Court which dismissed the applicant’s claims for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) on 14 July 2014: SZTMD v Minister for Immigration [2014] FCCA 1523. The Tribunal had affirmed a decision of the Minister refusing to issue the applicant with a protection visa.

2    The applicant does not contend that the Federal Circuit Court erred in the way in which it dealt with his application. He appeared before that Court unrepresented and in circumstances of some disadvantage. However, by the time the matter came before me he had obtained the benefit of being represented by Mr Stapleton of junior counsel. Mr Stapleton sought to recast the way the case was put. As developed, this involved putting it in an entirely new way. Generally, a party is bound by the way a case is put but, so long as the new ground, if advanced at trial, would not have caused the trial to be conducted in a different way, the Court may, in its discretion, still entertain a fresh ground. It will not generally do so, however, where there is no utility in taking that course. This will be relevant, for example, where the ground, even if accepted, would have no impact on the outcome or where the ground has insufficient prospects of success to warrant its ventilation. Nor will the Court encourage a state of affairs to develop where the difference between a trial and an appeal is effectively elided or the appeal allowed to become an opportunity, in effect, for a second trial.

3    In this case I take the view that, subject to the fresh grounds being viable and it being clear that the trial would not have been conducted differently had they been raised at it, I should now permit them to be raised.

4    This then conveniently flows into the next procedural issue which is the need of the applicant to obtain leave. This has arisen because the Court below dismissed the applicant’s proceeding on a summary basis at a show cause hearing. Such a determination is interlocutory: Federal Circuit Court Rules 2001 (Cth) r 44.12(2). Leave will be granted where the decision below is attended by sufficient doubt and substantial injustice is likely result if the decision is left in place: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (FC); Bienstein v Bienstein (2003) 195 ALR 225 (HC). Where the decision of the Court below in substance disposes of the matter the second limb will usually be satisfied.

5    In any event, the leave requirement and the fact that the grounds now advanced were not advanced at trial requires the Court to be satisfied, at least, that the proposed grounds are arguable before proceeding any further. It is useful then to consider the applicant’s three arguments.

The First Argument

6    The applicant’s first argument focused on the obligation imposed on the Tribunal by the Migration Act 1958 (Cth) (‘the Act’) to comply with any Ministerial directions which had been issued under the Act. Section 499(1) authorised the Minister to issue directions to persons having functions or powers under the Act as to the performance or exercise of those functions and subs (2A) provided:

‘A person or body must comply with a direction under subsection (1)’

7    I set this out now because an issue arises later in these reasons as to whether a failure by a decision-maker to comply with a direction issued by the Minister results in the invalidity of the decision or merely in the decision’s illegality. This turns, in part, on the language of subs (2A) and the word ‘must’. For now, it is sufficient to flag the issue.

8    The Minister has issued many such directions. One of these is Ministerial Direction 56 of 21 June 2013 (‘Direction No. 56’). It applies to decisions made under s 414 which is the section under which the Tribunal was reviewing the applicant’s visa application. Clauses 2 and 3 were submitted by the applicant to provide as follows (and the Minister did not dispute this):

‘2.    In performing functions or exercising powers under section 65, 414 or 415 of the Act, the decision-maker is to take account of the following guidelines prepared by the Department of Immigration and Citizenship to the extent that they are relevant to the decision under consideration.

“PAM3: Refugee and humanitarian – Complementary Protection Guidelines”

“PAM3: Refugee and humanitarian – Refugee Law Guidelines”

3.    Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.’

9    Clause 2 required the Tribunal to take account of the two guidelines mentioned in it ‘to the extent that they are relevant to the decision under consideration’. Neither of these documents was put before this Court but, as will shortly be seen, this is of no moment to the applicant’s argument. Clause 3 bound the Tribunal to take into account any country information assessment prepared by the Department of Foreign Affairs and Trade but, significantly, only if it was relevant.

10    The Tribunal did mention the two guidelines in its reasons for decision and also its obligations with respect to country information. The first way it did so was by an incorporating reference which appeared at [2] of its reasons, which included this statement: ‘A summary of the relevant law is set out at Attachment A’. The second was Attachment A itself, which at [91] contained this statement:

‘Ministerial direction

91.    In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship – ‘PAM3: Refugee and humanitarian – Complementary Protection Guidelines’ and ‘PAM3: Refugee and humanitarian – Refugee Law Guidelines’ – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.’

11    Beyond this, however, the Tribunal did not go. It did not explain whether it dealt with the guidelines and country information at some other part of its reasons (in fact, it did not); nor did it explain whether it regarded some parts or all of the guidelines to be irrelevant to the task it was required to perform. The same is true of its treatment of the country information.

12    It was this silence by the Tribunal which formed the platform for the applicant’s argument. How, so the applicant asked rhetorically, could the Tribunal have complied with the requirement that it take into account the two guidelines and country information, even if only to dismiss them as irrelevant, if it had not apparently turned its mind to them at all?

13    For his part, the Minister did not seek to suggest that the Tribunal had gone any further, at least expressly, in its reasons than the applicant submitted. But his counsel, Mr Hume, did submit that close attention needed to be paid to what might reasonably be inferred from that silence.

14    The first step, in his submission, was to attend to the nature of the Tribunal’s reasons. The Tribunal was bound by s 430(1) to provide a written statement of those reasons. Relevantly it provided as follows:

‘430 Refugee Review Tribunal to record its decisions etc.

(1)    Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a)    sets out the decision of the Tribunal on the review; and

(b)    sets out the reasons for the decision; and

(c)    sets out the findings on any material questions of fact; and

(d)    refers to the evidence or any other material on which the findings of fact were based.’

15    It has been held that the effect of s 430(1) is that the Court is entitled to infer that a matter not mentioned in the Tribunal’s reasons was not considered by it to be material: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69] (‘Yusuf’). Therefore it is permissible for this Court to conclude from the absence of any direct consideration of either the two guidelines or the country information that the Tribunal did not consider them to be material to its decision.

16    If that inference were to be drawn it would defeat the applicant’s argument at the threshold. This is because the silence of the Tribunal on these matters would then signify not that it had not considered the guidelines and country information but that it did not consider them material to the task it had to perform. This is significant because cll 2 and 3 of Direction No. 56, in terms, contemplate that the Tribunal is only obliged to consider the guidelines or country information to the extent that they are relevant.

17    It might be possible to argue that the concept of materiality under s 430(1) and relevance under Direction No. 56 were in some subtle way different and that the guidelines were immaterial whilst relevant. However, such a submission was not made. Had it been made, I would not have been inclined to accept it because I doubt the stability of the distinction.

18    It follows then that if the inference suggested in Yusuf is drawn then it will be open to this Court – indeed probably required of it – to conclude that the Tribunal did consider the question of the relevance of the guidelines and the country information and decided that they were not relevant.

19    The inference in Yusuf is not mandatory. The manner in which a statement of reasons is drawn, or even its surrounding context, may provide material which detracts from, or even displaces, the inference. For example, there may be country information which was available to the Tribunal which is so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it. There is nothing, however, like that in this case. The applicant’s argument did not move beyond the generality of the claim that the material was not considered to any detailed analysis of what that might signify. In those circumstances, there is no good reason not to draw the Yusuf inference. Once that occurs it seems to me that I cannot avoid the conclusion that the Tribunal did address itself to the issue of the relevance of the material and decided that it was irrelevant.

20    Although the applicant did not directly raise the issue, I would indicate that I accept Mr Hume’s submission that it was for the Tribunal to form an opinion as to what was relevant under cll 2 and 3 and what was not. The usual way of reading provisions such as these clauses is that they are construed as requiring the formation by the decision-maker of an opinion on the standard (here, relevance) imposed; that is to say, they are not generally construed as requiring the existence of a jurisdictional fact: see, for example, Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 at 466-468 (FC). Consequently, there is no occasion to consider whether this Court is of the opinion that there were relevant parts of the guidelines or country information. It is the Tribunal’s views on relevance which matter, not those of this Court. In any event, even if that was not so, the applicant made no attempt to point to any aspect of the guidelines or country information which he said were relevant and should, therefore, have been taken into account.

21    The first argument therefore fails. The applicant put it on a number of legal bases; for example, that there had been a failure to conduct the review required by s 414 or that it had misused its powers in doing so beyond that which could be countenanced under s 415. I do not need to assess these arguments, all of which had as their point of departure the allegation that the Tribunal had failed even to consider whether there were relevant parts of the guidelines or relevant elements of country information. For the reasons already given, I do not accept that contention. Consequently, the first argument must fail. In that circumstance, it is not necessary to explore further the issue adverted to above at [7] as to whether a breach of s 499(2A) involves a jurisdictional error. The Minister submitted that the word ‘must’ was not fatal, citing Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627 at 640 [36]. This is a difficult question. I prefer to leave it for a case where it arises. There are some complex issues within it, such as the significance of the fact that directions are disallowable instruments, the extent to which a direction may pick up an external document such as the guidelines and, if it can, whether such a document may be amended at a later time, thereby thwarting Parliamentary scrutiny. All of these are related to the issue of what non-compliance with s 499 means.

22    I should record that whatever else might have happened with the first argument, I would not have permitted it to be put in this Court in relation to proposed particular (e). Particular (e) was as follows:

‘e.    The second respondent failed to inquire about whether a country information assessment by the Department of Foreign Affairs and Trade for Burundi existed for protection status determination purposes and:

i.    If a country assessment did exist, failed to consider it and analyse the implications of it for the applicant’s protection visa application; and

ii.    Failed to identify the existence of any alternative country information that might exist including for example from the UNCHR [sic] or other international governments; and or

iii.    If a country assessment or other available relevant information about the country did not exist, failed to state that it did not and that despite the second respondent’s obligations, there was no relevant country information to be considered.’

23    I would not have permitted this to be raised because the Minister could have met it at trial with evidence that there was no such country information in the case of Burundi, which is the country of origin of the applicant. The Minister applied, in the event that particular (e) was permitted to be raised, to lead fresh evidence on the appeal to that effect. Because I would not permit particular (e) to be raised, that application is unnecessary and will be dismissed. In those circumstances, I will order that the first respondent’s interlocutory application filed on 19 December 2014 be dismissed. No order as to costs was sought.

The Second Argument

24    Section 420 of the Act provided:

‘420 Refugee Review Tribunal’s way of operating

(1)    The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2)    The Tribunal, in reviewing a decision:

(a)    is not bound by technicalities, legal forms or rules of evidence; and

(b)    must act according to substantial justice and the merits of the case.’

25    The applicant contended that the failure by the Tribunal to turn its mind to the relevance of the guidelines or the country information infringed s 420(2)(b).

26    There are two answers to that contention. The first is the one I have already given under the first argument, namely, that the Tribunal did not fail to consider the relevance of the material. The second is that, even if that had been shown, this would not establish a breach of s 420 and, in any event, a breach of s 420 does not necessarily constitute a jurisdictional error. The provision is facultative, not restrictive and does not prescribe any particular procedure: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 628 [49] per Gleeson CJ and McHugh J; Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489 at 497 [21].

The Third Argument

27    The applicant’s third argument was expressed in draft proposed ground of appeal 7 which was as follows:

‘7.    Further and in the alternative, the Second Respondent’s decision was affected by making an erroneous finding or reaching a mistaken conclusion in a way that affected the exercise or purported exercise of the Second Respondent’s power which amounted to jurisdictional error and invalidated the decision of the Second Respondent.

Particulars

a.    The applicant repeats particulars to Ground 5 above; and

b.    The second respondent failed to ask a relevant question, being whether:

i.    The evidence that the applicant had an ethnic background as a Tutsi but was a member of the Hutu “CNDD-FDD” party in order to obtain employment; and

ii.    The evidence of the applicant’s signs and symptoms of post-traumatic stress, anxiety, grief and depression;

Together, were sufficient to cause the decision-maker to ask whether the applicant could be highly likely to be considered a traitor by his native ethnic group and a traitor by his adopted ethnic group, which could rationally and logically cause him to be exposed to a real risk that he will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Burundi.’

28    The language of the last two lines is the language of the test used to determine whether Australia has a refoulement obligation, which suggests the ground is directed at the issue of complementary protection, i.e., s 36(2)(aa).

29    Viewed from that perspective, three points are in play. First, the alleged failure of the Tribunal to consider whether the guidelines and country information were relevant. For the reasons I have already given this argument cannot succeed and I give this issue no further attention. Secondly, the fact that the applicant was ethnically a Tutsi but became a member of a Hutu political organization for employment reasons. Thirdly, the fact that he had given evidence to the Tribunal that he was suffering post-traumatic stress disorder, together with anxiety, grief and depression.

30    These points were then said to give rise to an obligation on the Tribunal to consider whether the applicant might not be considered a traitor by his own Tutsi ethnic group and also by the Hutu.

31    I do not see that the issue of post-traumatic stress disorder can advance that case. I can follow that the applicant’s decision to join a Hutu political party when he was a Tutsi could have all sorts of ramifications for him in terms of being perceived to be a traitor. But I cannot perceive any logical link between the applicant’s psychological conditions and the risk of him being considered a traitor by either camp.

32    In oral argument, Mr Stapleton suggested that it was relevant to the issue of the grant of a protection visa. This was because he would be more likely to suffer persecution if suffering from these conditions or, alternatively, the existence of those conditions increased the likelihood that he had a well-founded fear of persecution. There are two answers to this. First, the argument being advanced by the applicant is about complimentary protection (i.e. refoulement) rather than any residency right springing from the Refugee Convention. Secondly, even if that were not so, his augmented perception of a risk of persecution because of his own psychological condition would not alter his position under the Convention. Accordingly, I do not think this submission can go very far.

33    Leaving aside this variant of the argument developed in oral address, I do not think the balance of the argument has any substance. Both matters complained about were, in fact, considered by the Tribunal. On the issue of being considered a traitor by both sides, the Tribunal clearly assessed these twin risks at [72], [75] and [76] which were in these terms:

‘72.    I do not accept that, if [name of applicant] returns to Burundi now or in the reasonably foreseeable future, there is a real chance that the CNDD-FDD will want anything further to do with him. I consider that they will see him as someone who tried to use the party for his own ends, namely to obtain employment. While I accept they will want nothing further to do with him I do not accept on the evidence before me that there is a real chance that members of the CNDD-FDD, the Imbonerakure or the Government of Burundi will persecute him as a result of his long absence from Burundi or any political opinion imputed to him as a result of his actions in leaving the country in the way that he did and remaining in Australia.

…

75.    Having regard to my findings of fact above I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [name of applicant] being removed from Australia to Burundi, there is a real risk that he will suffer significant harm at the hands of members of the CNDD-FDD, the Imbonerakure or the Government of Burndi because he will be perceived as a traitor to the party as a result of his refusal to do what was asked of him by senior members of the party or the Imbonerakure, his actions in leaving the country in the way that he did and remaining in Australia or his long absence from Burundi.

76.    Having regard to my findings of fact above I likewise do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [name of applicant] being removed from Australia to Burundi, there is a real risk that he will suffer significant harm at the hands of members of the FNL or the MSD, members of other opposition parties in Burundi, other Tutsis or the community in general as a result of his past involvement in the CNDD-FDD.’

34    On the issue of his mental health, the Tribunal considered this at [3] and [4] in these terms:

‘3.    In a letter dated 15 November 2011 a counsellor at the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) said that he had conducted an assessment of [name of applicant] that day, that [name of applicant] reported a range of severe signs and symptoms associated with post-traumatic stress, anxiety, grief and depression and that ‘[a]s a consequence of this symptomatic presentation’ he was currently not capable of undertaking paid employment for a period of at least three months.

4.    I have considered the evidence regarding [name of applicant]’s post-traumatic stress, anxiety, grief and depression in assessing whether he had the capacity to participate in the Tribunal hearing. Although the counsellor said in his letter that [name of applicant]’s symptoms included poor concentration and memory, [name of applicant] had no apparent difficulty in recounting the events which he claims prompted him to leave Burundi. He answered my questions appropriately and I consider that he understood the issues which I raised with him in the course of the hearing. I find that he was able to participate effectively in the hearing before the Tribunal.’

(footnote omitted)

35    This was in the context of working out whether the applicant was fit to take part in the hearing. Whilst, for reasons similar to those I have already given, I do not accept that his mental health was relevant to the issue of complimentary protection, it is simply not correct to say that the Tribunal did not consider it. Accordingly, this third argument fails.

36    The application to amend the application for leave to appeal and the application for leave to appeal will be dismissed with costs. The first respondent’s application to lead fresh evidence is also dismissed.

Associate:

Dated:    4 March 2015