FEDERAL COURT OF AUSTRALIA

AAW16 v Minister for Immigration and Border Protection [2017] FCA 49

ORDERS

THE COURT ORDERS THAT:

1.    The originating application dated 16 September 2016 and filed on 23 September 2016 be dismissed.

2.    The application for an extension of time to file a notice of appeal dated 12 December 2016 and filed on 19 December 2016 be dismissed.

3.    The applicant pay the respondents’ costs as taxed or agreed.

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

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    This is an application for an extension of time to file a notice of appeal from orders made by a judge of the Federal Circuit Court of Australia on 23 August 2016. The primary judge dismissed an application to review a decision of the Administrative Appeals Tribunal. On 7 July 2015, the Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the applicant a protection visa. For the reasons that follow, the application must be dismissed with costs. For completeness, the originating application originally filed, but not relied upon by reason of reliance instead upon the application for an extension of time, should also be dismissed.

History of the proceedings

History of visa applications

2    The applicant is a citizen of Egypt. On 19 May 2006, he arrived in Australia on a TU-572 Vocational Education and Training Sector visa, valid until 12 October 2008. On 14 September 2006, he lodged a protection visa application. He relied upon his homosexual orientation and personal history of homosexual and bisexual activity, together with his asserted fear of harm arising from adverse reaction to his sexual orientation and past sexual activities if he was made to return to Egypt.

3    On 9 November 2006, the protection visa application was refused by a delegate of the Minister. On 28 February 2007, the Refugee Review Tribunal (RRT) affirmed the delegate’s decision. On 8 August 2007 the Federal Magistrates Court (now the Federal Circuit Court of Australia) dismissed an application for judicial review of the RRT’s decision. Subsequent student visa and partner visa applications were also unsuccessful.

4    On 5 November 2012, the applicant made a further application for a protection visa. In SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235, the Full Court interpreted s 48A of the Migration Act 1958 (Cth) as constituting a barrier only to more than one protection visa application on the same Refugee Convention grounds, and therefore as permitting a second protection visa application based on the complementary protection regime in s 36(2)(aa) of that Act. Accordingly this further application, while valid, was confined to consideration of the applicant meeting the criteria for complementary protection.

5    On 17 June 2014, a second delegate of the Minister refused the second protection visa application. On 16 July 2014, the applicant applied for merits review of the second delegate’s decision. On 7 July 2015, the Tribunal affirmed the second delegate’s decision. The Tribunal’s decision was explicitly confined to consideration of satisfaction of the criteria for complementary protection. No issue was taken in the Federal Circuit Court or in this Court as to the correctness of that approach.

6    At the time of the second delegate’s decision on 17 June 2014, at the time of the Tribunal hearing on 11 June 2015, and at the time of the Tribunal’s decision on 7 July 2015, the applicant was in a heterosexual relationship, having married an Australian citizen in 2012. The Tribunal said at [46] that the applicant’s wife had “forgiven him” for his prior homosexuality, and that he “agreed that he was no longer engaged in any homosexual or bisexual activities (for some years). He was now only engaged in heterosexual activities”. Those findings were an important part of the reasoning of the Tribunal in deciding to affirm the delegate’s decision not to grant the applicant a protection visa.

History before the primary judge

7    On 5 January 2016, six months after the Tribunal’s decision, the applicant filed an application in the Federal Circuit Court seeking orders to quash the Tribunal’s decision. On 23 June 2016, at the hearing of his application before the primary judge, his Honour acceded to an application for an extension of time in which to bring the application. His Honour made an order pursuant to s 477(2) of the Migration Act that the time for the applicant to make his application to that Court be extended up to and including 5 January 2016.

8    At the 23 June 2016 hearing, the applicant, represented by the same counsel as in this Court, sought to rely upon a further amended application. That application in draft contained three proposed grounds. The primary judge granted leave to file an amended application containing two of those three grounds. That course was consented to by the Minister. The Minister opposed leave being granted in respect of the third proposed ground. His Honour refused leave in respect of that ground.

9    The rejected third proposed ground will be discussed in further detail below, but may shortly be described as evidence of changed circumstances pertinent to the applicant’s claims for protection. The evidence went to establishing that his marriage ended in April 2016, some nine months after the Tribunal’s 7 July 2015 decision, due to him resuming homosexual relations with men, of social activities in support of that situation, of his wife threatening to tell their families and of him being scared he would be killed or harmed if he was returned to Egypt.

10    The rejected third proposed ground and supporting evidence sought to be relied upon in the applicant’s judicial review application therefore concerned facts and circumstances that did not exist at the time of the Tribunal’s decision. Those facts and circumstances therefore could not have been placed before the Tribunal and necessarily could not have had any bearing on the decision that was made on the information that existed and was available at the time.

11    On 23 August 2016, the primary judge dismissed both the original application filed 5 January 2016 and the further amended application filed in court on 23 June 2016. His Honour also gave detailed reasons for refusing leave to rely upon the third proposed ground and refusing to admit the fresh evidence in support of that ground.

History before this Court

12    On 23 September 2016, the applicant, apparently on the advice of his counsel, filed an originating application for relief under s 39B of the Judiciary Act 1903 (Cth). That application sought to rely upon two grounds. The first ground was an allegation of a denial of procedural fairness on the part of the primary judge in refusing the applicant leave to rely upon his third proposed ground of changed circumstances emerging well after the Tribunal’s decision or the evidence which he sought to lead in support of that ground. The second ground raised two issues concerning alleged error on the part of the primary judge in failing to find jurisdictional error on the part of the Tribunal.

13    On 30 November 2016, the applicant lodged a draft notice of appeal which in substance replicated the grounds in the 23 September 2016 originating application.

14    On 13 December 2016, the day before the scheduled hearing in this Court, the applicant’s counsel emailed to my associate:

(1)    an draft application for an extension of time in which to file a notice of appeal, dated 12 December 2016;

(2)    a supporting affidavit sworn by the applicant on 12 December 2016 which annexed the draft notice of appeal lodged with the court on 30 November 2016;

(3)    a draft amended notice of appeal which was confined to the second ground (raising two issues concerning alleged error on the part of the primary judge in failing to find jurisdictional error on the part of the Tribunal), dated 13 December 2016; and

(4)    an amended originating application under s 39B of the Judiciary Act dated 13 December 2016 which was confined to the first ground, concerning the fresh evidence of events occurring well after the Tribunal’s decision and associated ground of review sought to be relied upon before the primary judge.

15    At the hearing on 14 December 2016 in this Court, the Minister objected to the proposed dual notice of appeal/originating application as an abuse of process. Counsel for the applicant explained that the reason why the grounds were sought to be split between a proposed notice of appeal and a proposed amended originating application was that he had concerns that the fresh evidence ground could only be advanced by way of an application under s 39B of the Judiciary Act, while the remaining appeal ground (in two parts) could only be raised by way of a notice of appeal. The Minister’s position was that all three grounds could be the subject of a notice of appeal, although leave to file a notice of appeal containing any of them was opposed upon the grounds of lack of merit and delay.

16    The matter proceeded to hearing upon the agreed basis of it being an application for an extension of time to file a notice of appeal in terms of the draft notice of appeal lodged with this Court on 30 November 2016, with each ground being fully argued as though leave had been granted. There was no prejudice to the applicant in this approach because, in the circumstances of this case, delay alone would probably not be a sufficient basis to refuse leave if any of the grounds sought to be relied upon were found to be sufficiently meritorious. Thus the possible outcomes were refusal of leave, the grant of leave but none of the grounds succeeding, or the grant of leave and one or more of the grounds succeeding in the appeal and thereby being upheld.

17    On 18 December 2016, four days after the hearing in this Court, and without seeking or obtaining leave, counsel for the applicant lodged a further draft amended notice of appeal which mirrored the grounds contained in the 13 December 2016 draft notice of appeal and the 13 December 2016 draft amended originating application. Because there was no prejudice to the Minister in allowing this application to be considered in the context of this proposed notice of appeal, rather than the document upon which the argument proceeded at the hearing, and for which the Court gave a direction should be electronically filed, no further point needs to be taken in this regard.

Extension of time principles

18    The Full Court has relatively recently confirmed that the factors which the Court should generally take into account in determining whether to grant an extension of time include the length of delay and whether there is an acceptable explanation, the merits of the appeal, and any prejudice to the opposing party, although the mere absence of prejudice is not sufficient: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]. As noted above, the main barrier advanced by the Minister to the grant of an extension of time was the asserted lack of merit in the proposed appeal. It is convenient to address that issue by reference to a consideration of each ground sought to be relied upon. Before doing so it is necessary to consider key aspects of the Tribunal’s reasons.

Before the Tribunal

19    The Tribunal characterised the principal issue raised by the applicant as being his fear of harm in Egypt by reason of his “former” homosexuality. The applicant’s case was described in that way because his claims were based on a combination of events that occurred in his adolescence and young adulthood (he is now 35), and his claims of adverse reaction to that history by his family and local community. As mentioned at [6] above and detailed in the quotes reproduced from the Tribunal reasons at [41] below, by the time of both the delegate’s decision and the Tribunal’s decision, the applicant said he was living in a heterosexual marriage and would not be engaging in homosexual or bisexual activity. That stance was the critical context in which the Tribunal’s reasoning and ultimate decision must be evaluated. It is also the apparent reason why the applicant sought to rely upon fresh evidence seeking to establish that this was no longer the situation post the Tribunal’s decision.

20    Except in one important respect, the Tribunal largely accepted the history of events recounted by the applicant. Key amongst the findings (but falling short of an exhaustive summary), the Tribunal accepted that:

(1)    the applicant was sexually assaulted by an elderly male teacher at a school camp in about 1996 and subsequently, when he was 15 years of age, and that he was teased and mocked after that assault;

(2)    the applicant met two foreign homosexual men in Egypt towards the end of 2004;

(3)    the applicant (and others) met a homosexual Hungarian man in Egypt and the police subsequently visited the apartment where they then were;

(4)    the applicant engaged in a homosexual relationship in Egypt for almost a year with “H”, but H resided in the applicant’s home village in Egypt for another five years after the applicant had departed without suffering any harm – the Tribunal did not accept the applicant’s claim that H’s family made arrangements for H to be killed;

(5)    the applicant’s family and community were very concerned, but unsure, about the applicant’s relationship with H prior to the applicant’s departure from Egypt in May 2006; and

(6)    for a limited time, the applicant engaged in homosexual activity in Australia with at least two individuals.

21    The important exception to the above general acceptance of many of the applicant’s key claims was that the Tribunal did not accept that the applicant’s family or community in Egypt had been advised of his homosexuality either in 2007-2008, or at any time since he departed Egypt in May 2006, nor that the Egyptian authorities or Islamists would have known about the applicant’s prior homosexual activities in Egypt or Australia.

22    The Tribunal found the applicant did not face a real risk of significant harm upon return to Egypt, having given consideration to the applicant’s account, the situation for homosexuals in Egypt, the applicant’s “western outlook” and his heterosexual wife. The Tribunal considered that in light of its findings that the applicant was not at any real risk of persecution should he return to Egypt, further findings on relocation may be redundant. However because this was discussed at the hearing the Tribunal considered whether the applicant could safely and reasonably relocate within Egypt. Remembering that the principal source of the applicant’s asserted fear of persecution was his family and community, relocation was directed to whether it was reasonable in the sense of practicable for him to live somewhere else in Egypt. In the context of the applicant having agreed that he was not, and had not been for several years, engaged in any homosexual or bisexual activities, the Tribunal considered that the applicant would willingly disengage from any homosexual activity if returned to Egypt (the Tribunal also noting the High Court’s findings in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473). The Tribunal considered that as the applicant had resided away from his family in Egypt for the preceding nine years and had shown himself capable of engaging in employment commensurate with his skills, the economic problems in Egypt reflected in the country information were not considered to be any impediment to relocation. The Tribunal considered that the applicant could safely and reasonably relocate within Egypt.

First proposed ground of appeal – fresh evidence

23    Ground 3 sought to be relied upon by the applicant in the Federal Circuit Court, and sought to be re-agitated as a ground of appeal in this Court, was in the following terms, reproduced in [26] of the primary judge’s reasons:

Ground 3: Relevant Considerations

The second respondent did not have the benefit of relevant and fresh evidence before the Tribunal when affirming the decision by the delegate to the Minister to refuse the applicant a protection visa.

Particulars

a)    The applicant has separated from wife;

b)    The applicant has resumed his homosexuality;

c)    The former wife has threatened to inform their families of his homosexuality.

24    The affidavit of the applicant in support of that proposed ground contained the following relevant paragraphs reproduced in [27] of the primary judge’s reasons:

2.    I ask the Court to give me permission to introduce new evidence regarding my protection claims.

3.    Towards the end of April 2016, I separated from my wife. I am no longer living with her and my former wife is seeking a divorce.

4.    The reason why my relationship with my wife failed is because I have resumed homosexual relations with men.

5.    My former wife has threatened to tell our families.

6.    I am scared that I will be killed or harmed if I am returned to Egypt.

25    Before the primary judge, the applicant also sought to tender in support of this proposed ground an extract from Grindr, which his Honour described at [28] being told “was a homosexual website where people go to meet and where photographs of the Applicant with his now alleged homosexual partner out sight-seeing and holding hands in company could be viewed”. I understand Grindr to be an app rather than a website, but in any event, the nature of the extract seems sufficiently described for his Honour’s purposes. It seems that there was also a compact disc containing video footage to like effect by which it was sought to prove that the applicant had engaged in or resumed homosexual activities.

26    At the hearing in this Court, counsel for the applicant submitted that the content of the compact disc had not been viewed by the primary judge (in error) and that the evidence sought to be relied upon had not been evaluated for its evidentiary worth going to the question of relevance and thus admissibility (again allegedly in error). That argument was misconceived and failed to grapple with the real hurdle standing in the way of this ground succeeding either at first instance or on appeal, namely that, given that the only issue before the Federal Circuit Court was jurisdictional error on the part of the Tribunal, the applicant had to demonstrate how the evidence sought to be relied upon, whatever its contents, could possibly be relevant to that issue, given that it was confined to evidence seeking to prove facts that did not exist at the time of the Tribunal’s decision. Rhetorically, how could the Tribunal err at all, let alone make a jurisdictional error, by failing to have regard to material going to facts and circumstances that did not exist at the time of its decision and which had no bearing on the way in which the Tribunal conducted the proceedings before it (such as by way of a denial of procedural fairness, whether knowing or inadvertent)? The question of how the new evidence could establish any jurisdictional error on the part of the Tribunal was repeatedly put to counsel for the applicant, but no serious attempt was made to answer it.

27    The primary judge stated the following as being the primary basis for refusing leave and declining to admit the evidence in support:

[30]    It is not open for an applicant in such a proceeding to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal. Fresh evidence cannot be admitted in this Court in order to establish that an opposite result would have been reached if the new evidence had been made available to the Tribunal: Ozberk v Minister for Immigration (1998) 79 FCR 249 per Marshall J.

[31]    In this Court the function of judicial review is to ascertain whether there is any legal error which vitiates the decision of the Tribunal. The Tribunal as the primary decision maker has the responsibility for determining the questions of fact or the merits of the application for review being considered by it on the materials which it has before it: see MZXHY v Minister for Immigration [2007] FCA 622 at ([8]) per Nicholson J; SZNOE v Minister for Immigration [2012] FCA 96 at ([56]-[57]); SZJBD v Minister for Immigration (2008) 102 ALD 622 at 626 ([24]) per Siopis J; MZXLD v Minister for Immigration [2007] FCA 1912 at ([10]-[11]) per Gordon J and Minister for Immigration v Singh [2016] FCA 575 at ([51]) and ([58]).

[32]    Of course, post-Tribunal evidence in relation to alleged bias or procedural unfairness may be an exception to this rule and may be admitted, depending upon the particular circumstances, as the above authorities indicate.

28    The primary judge then proceeded to consider a range of authority dealing with what was described as the general principle of the law as to the finality of litigation, including cases which have applied that principle to administrative law cases. This included in particular SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 at [86], Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at 538 [176] and Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491 at 495 [15].

29    The primary judge also noted at [48] that the applicant was not without potential rights in relation to his asserted change of circumstances. His Honour referred to the ministerial discretion in s 48B of the Migration Act to allow the applicant to make a further application for a protection visa, or to substitute a more favourable decision than that arrived at by the Tribunal, citing and quoting from M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131; (2003) 131 FCR 146 at 169 [80] as to the purpose and operation of that provision.

30    While I can discern no error in the primary judge’s reasoning or conclusion in refusing leave to rely on the fresh evidence ground and evidence in support, save that the reference in [31] to “legal error” needs to be more narrowly cast to refer only to jurisdictional error, not all of those reasons need to be considered. I accept the Minister’s submission that the passages at [30]-[31] of the primary judge’s reasons reproduced above are a complete and compelling explanation as to why this ground could never succeed in this case.

31    On one view, the primary judge went further than was required in deciding to refuse leave to rely upon the fresh evidence and fresh evidence ground. The wider principles and authorities in relation to fresh evidence and finality in mostly very different circumstances referred to by his Honour arguably do not require consideration when regard is had to the very limited nature of judicial review of migration decisions, confined as they are to jurisdictional error: ss 474, 475 and 476 of the Migration Act, to be understood in the context of Plaintiff S157 at 506-8 [76]-[82], 511 [96] and 511-12 [98]; see also Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 91-2 [17], 101 [41], and 141 [163]. Moreover the remedies available by way of the Constitutional writs referred to in s 476(1) do not lie of right, but rather are discretionary, even if the discretion to deny relief if the claim is made out is to be sparingly exercised: Aala at 91-2 [17] and 106-8 [51]-[55].

32    Counsel for the applicant argued in written submissions, and maintained in oral submissions, that refusal of the application for leave to rely upon the proposed third ground concerning fresh evidence, and failing to consider that evidence in detail, constituted a denial of procedural fairness by the primary judge. He was undeterred by the fact that his Honour made a timetable for written submissions, heard arguments and did not in any way deny the applicant an opportunity to be heard. Counsel for the Minister submitted that his Honour’s approach to this matter was orthodox and procedurally fair, including that the contents of the compact disc were explained to his Honour as evidenced by the applicant’s written submissions before his Honour. I consider that is a fair characterisation of what occurred and that there was no need for his Honour to consider further the contents of the proposed evidence in the circumstances.

33    Counsel for the applicant also relied heavily on a long list of authorities concerning fresh evidence, but those cases generally concerned very different factual and legal circumstances. It is not to the point that the outcome before the Tribunal might have been different had the new evidence, assuming that it was accepted to establish the facts sought to be relied upon, existed and been before the Tribunal at the time that the decision was made. As noted above, the fresh evidence had to be relevant to the issues able to be agitated before the Federal Circuit Court, which was confined to asserted errors capable of establishing jurisdictional error on the part of the Tribunal. In Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601, the Tribunal mistakenly informed the applicant that it had read all the material relating to his application when it could not in fact have done so because not all of that information had been referred to the Tribunal by the Minister’s Department as required by the Migration Act. That constituted a denial of procedural fairness, albeit innocently, on the part of the Tribunal. By contrast, in this case the underlying facts did not exist at the relevant time.

34    It was suggested by counsel for the applicant that the judicial review jurisdiction of the Federal Circuit Court in migration matters went further than jurisdictional error by the Tribunal in some unclear and ill-defined way. By reason of the passages from Plaintiff S157 and Aala cited at [31] above and the terms of ss 474, 475 and 476 of the Migration Act, that is plainly wrong. However even if the concept of procedural fairness (or any other form of error sought to be relied upon) is theoretically wider in operation than jurisdictional error in the context of the exercise of federal executive power, which seems doubtful at least in relation to procedural fairness following Aala at 101 [41], any additional operation of any such complaint or remedy is of no use to the applicant because any error by the Tribunal beyond jurisdictional error is also beyond the judicial review jurisdiction of the Federal Circuit Court.

35    As counsel for the Minister pointed out in written submissions, when it comes to a challenge to the exercise of federal judicial power, it is more likely to be the case that any denial of procedural fairness by a member of the federal judiciary will be an error within jurisdiction than a jurisdictional error: see Allsop CJ in SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; (2016) 238 FCR 456 at 459 [20], citing Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 (see in particular 208-9 [31]); see also Aala at 101 [42]. Such an error within jurisdiction may be amenable to correction by appeal, but not by a Constitutional writ.

36    It follows that, contrary to the submissions made by counsel for the applicant, there is no wider judicial review jurisdiction reposed in the Federal Circuit Court beyond jurisdictional error for judicial review of migration matters. Review grounds such as fraud and denial of procedural fairness relied upon by counsel as examples of a wider ranging review jurisdiction either fall within the ambit of (and restrictions upon) jurisdictional error, rather than having some unidentified wider operation, or to the extent of any such wider operation that may exist are not within the jurisdiction of the Federal Circuit Court at all. The reference by the primary judge at [32] to an exception to the general restriction on fresh evidence in migration cases is an example of the somewhat wider application of the concept of jurisdictional error, which the Federal Circuit Court can consider.

37    Leave cannot be granted to file a notice of appeal containing this ground because it has no prospect of success.

Second proposed ground of appeal – the applicant’s sexuality in Egypt

38    The applicant’s draft notice of appeal included a second ground headed “jurisdictional error law – arguable case” which was then split into two separate issues of the applicant’s sexuality in Egypt and relocation within Egypt. Both issues seemingly fed into a third issue in the nature of a conclusion that the primary judge fell into error at [53] of his Honour’s reasons by finding that these grounds before his Honour should fail. At the hearing, the second ground was treated as two separate grounds which are discussed in that way below.

39    In relation to the applicant’s sexuality in Egypt, which is now treated as a second proposed ground of appeal, counsel for the applicant contended both before the primary judge and in this Court that the Tribunal fell into jurisdictional error by failing to consider the issue of persecution in relation to the “particular social group” of being a homosexual or bisexual man in Egypt. Counsel contended that the Tribunal wrongly required or expected the applicant to live discreetly or take reasonable steps to avoid persecutory harm.

40    Apart from the fact that this was a complementary protection claim, not a Refugees Convention claim, such that the requirements discussed below not to expect or require a protection visa applicant to behave discreetly or take steps to avoid harm arguably do not necessarily apply (as contended on behalf of the Minister, but something that it is not necessary to decide in this case), there is a more fundamental defect in the applicant’s case on this issue. Counsel for the applicant relied upon a case that his client did not advance before the Tribunal and upon incorrect assertions as to the reasoning of the Tribunal.

41    Counsel for the applicant forcefully maintained at the hearing in this Court that the Tribunal had wrongly expected or required the applicant to be discreet about his homosexuality/bisexuality upon a forced return to Egypt, contrary to the principles stated in Appellant S395 and reaffirmed in SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 in the application of the same principles to relocation. The paragraphs of the Tribunal’s reasons which were said by counsel for the applicant to evidence a proscribed requirement or expectation as a matter of inference, if not direct language, were [25], [51] and [56]. Those paragraphs, together with the contextual paragraphs relied upon by the Minister to rebut that suggestion, namely [46] and [48], are reproduced in full as follows (footnotes omitted):

25.    At the (second) hearing, the Tribunal put to the applicant (words to the effect) that it understood that close relationships between young men in Egypt were not unusual, and those relationships may involve physical acts (not sexual) that may not be considered acceptable in western societies. I then said that it may not appear plausible the applicant’s relationship with [H] would have aroused suspicions (particularly given the applicant said they were very discreet). I also put that I understood that given the control of young women in Egypt, limited homosexual activities between young males may be tolerated if discreet. The applicant agreed this was correct. However, he still believed his family and community “suspected” he was a homosexual prior to his departure from Egypt in May 2006. That said, and after discussing this at hearing, I accept the applicant’s family and community were concerned (but unsure) about his relationship with [H], prior to the applicant’s departure from Egypt in May 2006.

…

46.    Some time ago, the applicant had approached a “sympathetic Imam” in Australia for advice. The Imam recommended the applicant should “pursue the possibility of marriage”. The applicant then discovered that he was really bisexual and eventually married an Egyptian woman (in Australia on 9 or 10 October 2012). The applicant had first met his wife in the first half of 2011. The applicant’s wife is an Australian citizen and had “forgiven him” his prior homosexuality [sic]. When discussed at the (second) hearing, the applicant agreed that he was no longer engaged in any homosexual or bisexual activities (for some years). He was now only engaged in heterosexual activities. However, in his (second) Protection visa application, the applicant said that though he is now married to a female, he still fears that if persons in Egypt discovered his prior homosexual activity, he would be harmed (though as set out herein, the Tribunal is not satisfied there is a real risk of this occurring).

…

48.    As stated herein, the Tribunal has accepted the applicant had engaged in some homosexual activity in both Egypt and initially, in Australia. However, the Tribunal is satisfied the applicant is now only engaged in heterosexual activity. For the reasons set out herein, the Tribunal is not satisfied the applicant’s family and community were more than concerned about his former relationship with [H], prior to the applicant’s departure from Egypt in May 2006. However, now that the applicant is married, the Tribunal does not accept there is a real risk of any further suspicion of him being a homosexual, should he return to Egypt.

…

51.    Next, the applicant claimed that when he met his wife, he discovered he was bisexual. However, he had not engaged in any homosexual activity for some years. As stated above, I also put that I understood that given the control of young women in Egypt, limited homosexual activities between young males may be tolerated if discreet. The applicant agreed this was correct. In the circumstances of this case, and after discussing the applicant’s claims at hearing, I am satisfied he has voluntarily decided not to engage in further homosexuality in Australia. I am further satisfied there is not a real risk he would intend to re-engage in such activity, should he return to Egypt.

…

56.    Furthermore, the Tribunal acknowledges that in Appellant S395/2002 by majority, the High Court held it is an error to fail to consider whether the need to act discreetly to avoid a threat of serious harm constituted persecution. The unifying principle underlying the two joint majority judgments in S395 was that asylum seekers are not required, nor can they be expected, to take reasonable steps to avoid persecutory harm. The Tribunal believes this authority is materially relevant when considering complementary protection claims. However, given my findings about the applicant’s present sexuality, I am satisfied he would willingly disengage from any homosexual activity if returned to Egypt. Therefore, I do not accept he has a real risk of significant harm for this reason on return to Egypt.

42    I do not accept that the passages from the Tribunal’s reasons relied upon by counsel for the applicant, when considered in context, either by direct language or by inference, constitute any expectation or requirement on the part of the Tribunal that the applicant be discreet about his sexual activities or orientation, either homosexual or bisexual, as opposed to predicting that was what would happen if he returned to Egypt, based upon what he told the Tribunal. It is clear that the applicant expressly disavowed engaging in any such activities. The Tribunal regarded that as a free or voluntary choice, and found that this denied any material risk of the claimed feared persecution. I therefore do not accept the submissions by counsel for the applicant that the primary judge erred in [53] of his Honour’s reasons.

43    Thus, the Tribunal did not err, as did the Tribunal in Appellant S395, in effectively requiring discretion as described by McHugh and Kirby JJ at 492-3 [50]-[51] and by Gummow and Hayne JJ at 501 [82]. Nothing said by the Tribunal in this case can fairly be read as a statement of what the applicant must do in terms of being discreet. That conclusion is reinforced by the Tribunal at [56], clearly stating and appreciating the burden of the test and proscribed reasoning in Appellant S395. In my opinion, the Tribunal properly instructed itself on this issue and carefully complied with it.

44    Oral submissions made by counsel for the applicant also asserted that the Tribunal, in focussing on what the applicant would do in the future, “forgot or ignored or blocked out that there might be repercussions for historically bringing shame on the family”, being said to be a risk of harm irrespective of whether he “suppresses his sexuality or whether he expresses it”. However these submissions ignored the factual findings of the Tribunal that the applicant’s family and community were not aware of the applicant’s homosexuality, either in 2007-2008 or at any time since the applicant left Egypt. There was no evidence accepted by the Tribunal that he had, in the past, brought shame to his family.

45    Further oral submissions by counsel for the applicant also asserted that there was a “clear incompatibility” between the Tribunal accepting that the applicant’s family and community were very concerned (but unsure) about the relationship with H prior to the applicant’s departure from Egypt in May 2006 and the Tribunal not accepting that the applicant’s family or community in Egypt had been advised of the applicant’s homosexuality either in 2007-2008 or any time since he departed Egypt in May 2006. The asserted incompatibility is not evident. Being concerned about a relationship between two young males is not inherently incompatible with not being told about homosexuality or otherwise becoming aware of it at that time or subsequently. Indeed, the reference to the family and community being unsure is consistent with not having been overtly told anything about the applicant’s homosexuality.

46    None of the arguments advanced on behalf of the applicant on this proposed ground have been shown to have merit. Leave therefore cannot be granted to file a notice of appeal containing this ground either, because again it has no prospect of success.

Third proposed ground of appeal – relocation

47    Counsel for the applicant asserted that the primary judge erred in failing to find that there was an insufficient logical or evidentiary basis for the Tribunal to find that the applicant could “safely” and “reasonably” relocate within Egypt, and that accordingly the Tribunal’s decision lacked an evident and intelligible justification of the kind described in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332. Although the arguments presented were somewhat difficult to understand, being in the form of a series of standalone propositions unsupported by any real thread of reasoning, the central complaint again seemed to be one of the Tribunal being said to require or expect the applicant to be discreet about his sexuality. To that end reliance was placed on SZATV. However this argument falls down for much the same reason as the arguments for the second proposed ground concerning the applicant’s sexuality in Egypt.

48    In reaching the conclusion that the applicant could safely and reasonably relocate, the Tribunal cited SZATV at [24] and [81] (being the case that applied Appellant S395 reasoning to relocation). Once again, the Tribunal properly instructed itself on this issue and carefully complied with it. I accept the Minister’s submissions that the primary judge correctly rejected this ground for the reasons set out in [55] of his Honour’s decision.

49    The balance of the arguments sought to be relied upon by counsel for the applicant in support of this proposed ground in substance took issue with the factual findings made by the Tribunal. This was not even a thinly disguised attempt at impermissible merits review. It was impossible for the primary judge to accede to any of these arguments. They were quite incapable of raising, let alone establishing, jurisdictional error.

50    Leave cannot be granted to file a notice of appeal containing this ground either, because again it has no prospect of success.

Conclusion

51    As all three proposed grounds were without merit, both before the primary judge and in this Court, the proposed draft notice of appeal is so lacking in any reasonable prospect of success that granting an extension of time in which to file it would be futile. Leave must therefore be refused.

52    The applicant must pay the respondents’ costs.

Associate:

Dated:    3 February 2017