FEDERAL COURT OF AUSTRALIA

AOJ15 v Minister for Immigration and Border Protection [2017] FCA 675

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants 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

BURLEY J:

1.    INTRODUCTION

1    In these proceedings the appellants appeal from the judgment and orders made by the Federal Circuit Court of Australia (FCCA) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal). The Tribunal had affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the first appellant, as well as the second appellant, the wife of the first appellant, Protection (Class XA) Visas (Visas) under s 36 of the Migration Act 1958 (Cth) (Act).

2    In the present proceeding the appellants were not legally represented. They were assisted by the services of an interpreter in the Gujarati and English languages and the first appellant appeared and made brief submissions on behalf of himself and his wife. They relied upon the following grounds of appeal, namely that the primary judge erred:

1.    … by not considering [the] grounds of my judicial review application in which the Administrative Appeals Tribunal (AAT) made legal error.

2.    … by not considering procedural fairness by the Administrative Appeal Tribunal who [did] not follow s 424(2) of the Migration Act 1958.

3.    … in considering costs without having itemised bills.

4.    … by not considering the AAT decision in which the AAT made legal error in not assessing documentary evidence and oral submission provided by the appellants.

5.    … as [the] AAT did not provide [an] opportunity to the appellant to respond to the country information considered in its decision and source of country information.

3    These grounds are somewhat different to those advanced on appeal before the FCCA, a subject to which I shall return below.

4    The Minister filed an outline of written submissions on 24 April 2017. No written submission was filed by the appellants. At the commencement of the hearing, the first appellant confirmed that the submissions had been translated for him.

2.    BACKGROUND

2.1    Visa application and the decision of the Delegate

5    The first appellant was born in Ahmedabad in the late 1970s. He is a citizen and a national of India and holds an Indian passport. The second appellant is his wife, and accordingly, a member of the family unit. The second appellant relied upon the claims advanced by the first appellant in support of her application. Visitor visas were granted to the appellants on 20 November 2012 and they arrived in Australia on 25 December 2012.

6    The appellants lodged their claim for the Visas pursuant to s 36 of the Act and cl 866.221 of Schedule 2 of the Migration Regulations 1994 (Cth). The Delegate considered the appellants' claims and concluded that the appellants are not persons to whom Australia has protection obligations under the Act. The basis for the refusal given was, in broad terms, that the Delegate was not satisfied that the claims made by the first appellant, the husband, were credible.

2.2    The Tribunal's decision

7    The appellants applied for a review of the Delegate's decision. They were not legally represented before the Tribunal, although they had the assistance of an interpreter in the Gujarati and English languages. A hearing was conducted on 5 May 2014 at which the first appellant gave evidence and presented arguments. At the end of the hearing the Tribunal allowed the first appellant until 16 May 2014 to provide additional information. On 9 May 2014 the Tribunal received some additional materials.

8    On 1 April 2015 the Tribunal affirmed the Delegate's decision not to grant the Visas. The Tribunal concluded that it was not satisfied that the appellant has a well-founded fear of persecution within the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (Convention).

9    The appellants' claims were set out in their Visa applications, in a handwritten statement that had been prepared by the first appellant with an English-speaking friend, and in the oral evidence given by the first appellant in the hearing before the Tribunal. The materials provided to the Tribunal following the hearing included a copy of a translation of a Divorce Agreement dated early in 2007, and a translation of a complaint to the Mansa police station, also dated early 2007.

10    The Tribunal recorded the following claims made by the first appellant in his Visa application:

(a)    The first appellant claims to fear harm from his wife's ex-husband.

(b)    The first appellant met the second appellant before she was divorced and he was instrumental in protecting her from her ex-husband and then securing their divorce.

(c)    The first appellant had met the second appellant when she was visiting her mother. They were married in 2007.

(d)    The ex-husband found out about the first appellant within a few days of their marriage and went to the first appellant's residence looking for the second appellant. The ex-husband went to the second appellant's parents' residence to kill them, he dashed her father to the ground, ransacked their valuables and kicked her father when he was asked to leave.

(e)    The appellants knew that he was coming and the first appellant took his wife to the village. The first appellant had a difficult time supporting them and mostly stayed at home. He then looked for a job in another state and risked moving to Ahmedabad where he obtained a job in a finance company in 2010.

(f)    The ex-husband filed a case alleging that the first appellant had kidnapped the second appellant and the local police went looking for the second appellant.

(g)    The ex-husband also hired a contract killer to kill both appellants. They were hiding in a village and hired a lawyer to file for divorce.

(h)    A few years after starting work for the finance company, the first appellant went to a business address of a client to check its business position and refused a loan that the client was seeking. The client went to the Bharatiya Janata Party office for help, which is where the ex-husband worked. When the first appellant finished work that day he took his wife to a friend's birthday party. He received a call from his parents at around 10.00 pm and was informed that 6 to 7 people had come to look for him with guns. They had ransacked the house. He did not go home that night and stayed at his friend's home. In the morning the first appellant received a call from his office telling him that a few people had come and asked about him and were waiting. The first appellant realised the situation and, after discussing the matter with his boss, his parents, friends and relatives, he and his wife decided to leave the country. They never went back to their home and hid until coming to Australia.

11    The Tribunal considered these claims in conjunction with evidence given by the first appellant during the course of the hearing and the documentary materials that were before the Tribunal. It considered that there were a number of reasons why the veracity of the first appellant's version of events should be doubted. Some of these reasons are summarised below.

12    First, whilst in the Visa application materials he claimed that he and his wife met before the second appellant was divorced, and that he was instrumental in protecting her from her ex-husband and then securing the divorce, at the hearing the first appellant claimed that the second appellant had been divorced for four or five months by the time that he had met her, at the suggestion of his maternal uncle.

13    Secondly, the Tribunal found that the first appellant had given different accounts of events material to his story regarding the ex-husband. In the statement accompanying his Visa application he refers to moving to Ahmedabad to start working for the finance company in 2010, whereas the addresses given in his protection Visa application showed that he had lived in that city from 2001. Furthermore, his evidence at the hearing was that with some brief exceptions, the first appellant had lived his whole life in Ahmedabad until coming to Australia.

14    Thirdly, the Tribunal found that the implication in the Visa application was that the first appellant had been unemployed for a period of time, which was inconsistent with his evidence given at the hearing.

15    Fourthly, at the hearing the first appellant elaborated on the incident that took place on the day that the appellants attended a friend's birthday party. The first appellant said that the ex-husband attacked him at the party, and when it was over and the first and second appellants were on their way home, the ex-husband tried to attack them while they were travelling on a motorbike. He came out onto the road with four or five other thugs and slapped the appellants. The first appellant also said that he was attacked when he was going to work on a motorbike. When asked by the Tribunal why this version of events was different to what he had written in the application documents that had been prepared with an English-speaking friend, the appellant said that when he made his Visa application he was not mentally ready. The Tribunal did not accept this explanation.

16    Fifthly, the Tribunal considered that there were inconsistencies in the first appellant's evidence about his son, including the son's age when he was said to have been sent to live in a hostel in Rajasthan. He gave evidence that his son first went to the hostel in 2011 when he was six or seven. Later he said that he went when he was five and a half. The first appellant said that his son was very young to be sent to a hostel but because of the problem that they had, there was no choice. The first appellant confirmed that his son was born in 2009 and then said that at the date of the Tribunal hearing in 2015 he was seven. The Tribunal suggested to the first appellant that the son must have been born in 2007, but the first appellant said that this was incorrect because that was when the appellants were married. The difficulty with this story, the Tribunal found, was that assuming that the child was born in 2009, he must have been sent to Rajasthan at the age of two, in 2011, which is at odds with the evidence of the appellant that his son was six, seven or five and a half years old. Furthermore, when the appellants came to Australia in mid-December 2012 the child would have been no more than three years old. Ultimately, the Tribunal did not accept that the appellants' son is being looked after in a hostel in Rajasthan.

17    Sixthly, there was a 10 month delay between the appellants obtaining their passports and leaving India. The first appellant explained the delay on the basis that they were both mentally disturbed at the time that the passports were granted. However, the Tribunal did not accept that this was a satisfactory explanation.

18    The Tribunal referred to several other reasons for disbelieving the evidence and claims made by the appellants. It is not presently necessary to recount further examples. Ultimately, the Tribunal did not accept that the appellants' claims for protection were credible. It rejected in terms the claims made by the appellants and in particular disbelieved that the ex-husband has harmed or threatened the first appellant, or will harm or threaten harm to the first appellant, if he returns to India. The Tribunal was not satisfied that there is a real chance that the first appellant will suffer serious harm in the reasonably foreseeable future for a Convention reason if he returns to India. It concluded that he does not satisfy the requirements of ss 36(2)(a) or 36(2)(aa) of the Act.

19    The second appellant made no claims of her own and did not give evidence at the hearing. Accordingly, the Tribunal did not separately consider her application.

2.3    The decision of the FCCA

20    The appellants filed an application for review of the decision of the Tribunal by the FCCA on 10 April 2015. The grounds were as follows:

1.    The [Tribunal] failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.

Particular:

The Tribunal did not issue any written invitation under section 424A of the Act and made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.

2.    The [Tribunal] denied the applicants procedural fairness by reaching adverse conclusions that the applicants' claim was implausible, being conclusions that were not obviously open on the known material, without giving the applicants the opportunity to be heard in respect of those matters.

3.    The Tribunal failed to accord "procedural fairness" to the applicants because of the little weight it gave to the claim of the applicants, because of the applicants' inconsistencies in the application for a protection visa.

21    The primary judge summarised the credit findings of the Tribunal and then turned to the particular grounds relied upon by the appellants. Her Honour considered that ground 1 (read with s 424AA) of the Act does not identify any information to which s 424A would apply, such as to give rise to the obligation under s 424A(1) of the Act. Her Honour noted that the Tribunal's adverse factual findings were based on documents provided to it by the appellants for the purposes of the review, the first appellant's oral evidence and the Tribunal's findings about his credibility. Those documents fell within the exclusion in s 424A(3) of the Act. Her Honour further found that the concept of "information" does not extend to the Tribunal's conclusion, or belief or disbelief of an appellant's claims. More generally, the primary judge found that there was no evidentiary basis for any claim in relation to s 424AA of the Act in the absence of a transcript of the hearing. Accordingly, her Honour found that ground 1 was not made out; [27] – [28].

22    The primary judge considered that ground 2 could either be seen as alleging legal unreasonableness in that the decision was one which no rational or logical decision maker could arrive at on the same evidence, or as alleging a lack of an opportunity to be heard or non-compliance within s 425 of the Act in that the finding that the appellants' claims were implausible had to be put to them. The primary judge rejected both of those alternatives. She rejected the first because the decision of the Tribunal has not been shown to be one at which no rational or logical decision maker could arrive on the same evidence. She rejected the second because the Tribunal invited the appellants to a hearing in circumstances where it had advised that it had considered the material before it, but was unable to make a favourable decision on that information alone. The first appellant attended the Tribunal hearing. The only evidence before the Court as to what occurred in the Tribunal hearing indicates that the Tribunal raised with the appellant issues of concern relevant to his credibility, in particular in relation to inconsistencies in his evidence and his explanations. The primary judge found that there was nothing in the material before the Court to establish that the Tribunal failed to raise dispositive issues with the first appellant (citing SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152), or otherwise fell into error in the manner contended.

23    The primary judge considered that ground 3 misconceives the basis for the Tribunal's decision. It was not a case where the Tribunal gave little weight to an applicant's claim, but rather a case where the Tribunal disbelieved his claims because of its adverse credibility finding. In taking that approach, the primary judge considered that the Tribunal did not make its credibility finding on the basis of inconsistencies in the Visa application, but rather, and more significantly, on the basis of inconsistencies between the account in the Visa application and the account in the first appellant's oral evidence at the Tribunal hearing, and also inconsistencies within that oral evidence. Further, insofar as the ground was intended to take issue more generally with the fact that the Tribunal made an adverse credibility finding, the primary judge considered that no jurisdictional error has been established. The findings were, the primary judge concluded, reasonably open on the material before it for the reasons which it gave, and a merits review is not available. The primary judge ultimately concluded that no jurisdictional error has been established.

24    The result was that the primary judge dismissed the application for review and ordered that the appellants pay reasonable costs being assessed in the sum of $5,000.

3.    THE PRESENT APPEAL

25    The first appellant appeared at the hearing and made submissions on behalf of himself and the second appellant with the assistance of an interpreter in the Gujarati and English languages.

26    In this context, I commence my consideration of this appeal with the observation, which is apt for many such appeals, that neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the appellants satisfy the criteria for the grant of the Visas or to grant the appellants a visa. As such, neither Court has the capacity to consider the factual merits of the Tribunal's decision to refuse to grant the Visas to the appellants. The jurisdiction of the FCCA is limited to considering only whether the Tribunal's decision to refuse to grant the appellants a Visa is lawful under the Act, that is, whether the decision of the Tribunal is invalid by reason of jurisdictional error; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA on appeal from the Tribunal under s 24 of the Federal Court of Australia Act 1976 (Cth).

27    I now turn to the specific grounds of appeal that are raised.

3.1    Ground 1: Legal error by failure to consider grounds of judicial review application

28    In ground 1, the appellants contend that the primary judge fell into error by failing to consider grounds raised in their review application. I have set out in [20] above the grounds of review relied upon before the FCCA. The primary judge considered each in the course of the reasons given and additionally addressed some matters raised by the first appellant in oral argument. In my view it is not factually correct for the appellants to assert that the FCCA failed to consider the grounds raised before it. I dismiss this ground of appeal.

3.2    Ground 2: Failure to comply with s 424(2) of the Act

29    In ground 2, the appellants contend that the primary judge erred, in effect, by failing to conclude that the Tribunal acted in breach of s 424(2) of the Act. In ground 1 before the primary judge, the appellants contended that the Tribunal erred by failing to comply with the mandatory requirements of s 424A of the Act. Although these two provisions are, of course, different, as the appellants are self-represented I will first consider this ground on the basis that the appellants intend to allege breach of s 424A, read with s 424AA.

30    Subsection 424AA(1) is in some respects similar to s 424A, although it applies to an oral hearing. Subsections 424AA(1) – (2) provide as follows:

424AA Information and invitation given orally by Tribunal while applicant appearing

(1)    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.

(2)    A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

31    Section 424A provides the following:

424A Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

(2)    The information and invitation must be given to the applicant:

(a)    except where paragraph (b) applies--by one of the methods specified in section 441A; or

(b)    if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

(2A)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non-disclosable information.

…

32    The meaning of the word "information" as applicable in s 424A(1) was considered by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 (SZBYR) at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. The existence of inconsistencies and contradictions in an applicant's evidence and written submissions is not "information" of the kind to which s 424A is directed. The term "information" does not extend to the Tribunal's "subjective appraisals, thought processes or determinations" but rather is related to the existence of evidentiary material or documentation. It is not directed to the existence of doubts, inconsistencies or the absence of evidence; SZBYR at [18]; VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 236 FCR 549 (per Finn and Stone JJ). The exclusion of this class of information from the obligation imposed by s 424A is consistent with limits on the procedural fairness hearing rule at common law.

33    Procedural fairness requires a decision maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision; Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [9] (French CJ and Kiefel J; Heydon and Crennan JJ agreeing at [91] and [92] respectively).

34    By reason of s 424A(3), information which is commonly referred to as "country information" does not fall within the reach of s 424A(1); SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 at [82] – [83] per Tracey and Foster JJ (SZMCD).

35    The ground raised by the appellants does not identify any information to which they submit s 424A would apply such as to give rise to the obligation under s 424A(1) of the Act. The Tribunal's adverse factual findings were based on documents provided to it by the appellants for the purposes of the review, the first appellant's oral evidence and the Tribunal's findings about his credibility. The primary judge correctly found that the documents are within the exclusion within s 424A(3)(b) of the Act. As noted above, the concept of "information" does not extend to the Tribunal's belief or disbelief of an applicant's claims.

36    The primary judge considered these matters and concluded that a ground based on s 424A was not made out. I agree with that conclusion.

37    I now turn to consideration of the literal effect of ground 2.

38    On its face, ground 2 is that the primary judge erred by failing to consider that the Tribunal failed to follows s 424(2) of the Act. This ground was not advanced before the primary judge and leave is required to rely upon it on appeal; Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398 – 400.

39    Section 424 provides:

424 Tribunal may seek information

(1)    In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2)    Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

(3)    A written invitation under subsection (2) must be given to the person:

(a)    except where paragraph (b) applies--by one of the methods specified in section 441A; or

(b)    if the person is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

40    It is apparent that if the appellants are in fact relying on this provision then the ground is misconceived. The Tribunal did not obtain information other than from the appellants and did not invite, either orally or in writing, a person to give information other than the appellants themselves. In the circumstances I would not grant leave to rely on ground 2.

41    Accordingly, I dismiss ground 2 of the appeal.

3.3    Ground 3: error in considering costs without itemised bills

42    In ground 3, the appellants contend, in effect, that the primary judge fell into error by making a lump sum costs order without first receiving itemised bills.

43    Subsections 79(2) – (3) of the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA Act) provide a statutory basis upon which a FCCA judge may award costs in all proceedings. It provides as follows:

79 Costs

…

(2)    The Federal Circuit Court of Australia or a Judge has jurisdiction to award costs in all proceedings before the Federal Circuit Court of Australia (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.

(3)    Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Circuit Court of Australia or Judge.

44    Section 79 finds expression in r 21.02(2) of the Federal Circuit Court Rules 2001 (Cth) (FCCA Rules) which provided that in making an order for costs in a proceeding, the Court may set the amount of the costs. Irrespective of the costs schedule found at Div 1, Part 3 of Schedule 1 to of the FCCA Rules, there remains a discretion for the primary judge to award costs. Neither the rules nor the FCCA Act require, as a condition to the exercise by the Court of its discretion to award costs, that there be a prior production of an itemised bill. Accordingly, no error is demonstrated in the decision of the primary judge to award a lump sum costs order. I dismiss ground 3.

3.4    Ground 4: Failure to consider documentary evidence and oral submissions

45    In ground 4, the appellants contend, in substance, that the primary judge erred by failing to find that the Tribunal failed to assess the documentary evidence and oral submissions provided by the appellants. This ground was not pleaded before the primary judge and, as with ground 2, leave to rely upon it is required.

46    Further, the appellants have not identified any evidence which they contend was not considered by the Tribunal, or any oral submission that they contend was ignored.

47    I have considered the reasoning of the Tribunal and the claims made in the first appellant's Visa application. It appears to me that there is no basis upon which it might be said that a claim made by the appellants was not considered by the Tribunal. Furthermore, it appears that the Tribunal carefully reviewed the evidence and oral submissions provided to it. Accordingly, in my view this ground has no substance and I decline leave for the appellants to rely upon it.

3.5    Ground 5: Failure to provide opportunity to respond to country information

48    In ground 5 the appellants contend that the primary judge erred in failing to find that the Tribunal did not provide them with an opportunity to respond to the country information considered in its decision and the source of that country information. This ground was not relied upon before the primary judge.

49    I have set out in [31] above s 424A of the Act. This makes plain that the Tribunal was not obliged to provide the appellants with an opportunity to respond to information that is not specifically about the applicant or another person and is about a class of persons of which the applicant or other person is a member, that is, country information – see s 424A(3)(a) and SZMCD at [82], [83]. In the circumstances, the Tribunal did not fall into error in the manner alleged and nor did the primary judge. Accordingly, I decline leave to the appellants to rely upon this ground.

4.    DISPOSITION

50    The appeal must be dismissed. I order that the appellants pay the first respondent's costs of the appeal.

Associate:

Dated:    16 June 2017