FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE APPEALS TRIBUNAL
DATE OF ORDER:
THE COURT ORDERS THAT:
2. The appellant pay the costs of the first respondent, to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 The appellant appeals a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of Administrative Appeals Tribunal: ARA17 v Minister for Immigration & Anor  FCCA 342. The Tribunal had affirmed the decision of the Minister of Home Affairs (formerly Minister for Immigration and Border Protection) not to grant the appellant a protection visa.
2 The appellant is a Nigerian citizen who arrived in Australia in 2015. His tourist visa was cancelled when he informed officers of the Minister’s Department that he was in fact in Australia for business purposes. He was taken into immigration detention. His application for a protection visa was refused. He sought review in the Tribunal, without success, and then sought judicial review in the Federal Circuit Court, also without success.
3 The primary judge’s reasons disclose the following uncontentious background (at -):
4. The [appellant] had a spare car parts business in Nigeria. In 2010 he travelled to Taiwan to locate, export and sell a variety of spare car parts for the purposes of his business. After spending some time unlawfully in Taiwan, the [appellant] returned to Nigeria on 16 September 2014.
5. On 5 October 2014, the [appellant] received a letter from the Movement for the Actualization of a Sovereign State of Biafra (MASSOB) inviting him to a meeting. He did not respond to that letter or attend the meeting.
6. On 28 November 2014, a container of spare parts acquired by the [appellant] in Taiwan arrived in Nigeria. He sold the contents of the container for a total of USD9,000. However, on or about 5 December 2014, after the [appellant] had unsuccessfully attempted to deposit the cash in a bank, eight members of MASSOB entered the [appellant’s] house, assaulted the [appellant] and then stole his money.
7. The [appellant] did not report the incident to the Police as he was advised that would create further problems for him.
8. On 7 December 2014, five members of MASSOB came to the [appellant’s] house and demanded that he attend a meeting with them. The [appellant] was taken to a location where a meeting was being held and the members apologised to the [appellant] for having taken the USD9,000. They explained that they would repay that money if he joined MASSOB and threatened him with death if he did not. The [appellant] than joined the group and received a membership card.
9. On 4 January 2015, the [appellant] was again invited by telephone to attend a MASSOB meeting and he attended the meeting the following day. The meeting was suddenly interrupted by Police who detained and arrested approximately ten of the thirty MASSOB members at the meeting while the others, including the [appellant], managed to escape. The [appellant] than fled to another town and stayed there for the remainder of his time in Nigeria.
10. On or around 14 April 2015, militants from Boko Haram bombed the [appellant’s] family village and killed the [appellant’s] father and two brothers, destroying the [appellant’s] family home. The [appellant] then travelled to his family village and took his mother back with him to the town where he was staying.
11. The [appellant] was then granted a visitor’s visa for the purposes of visiting Australia and he left Nigeria in July 2015.
12. The [appellant] claimed that he feared being mistreated by the Nigerian authorities, including members of the Nigerian police force, MASSOB, Boko Haram and other militant Islamist groups. He claimed that the Nigerian authorities would not protect him because they viewed him as a member of MASSOB and also because they do not have capacity to protect Christians such as the [appellant] from persecution caused by militant Islamic groups such as Boko Haram.
13. The [appellant] was interviewed by a delegate of the Minister on 16 March 2016. The [appellant] and the delegate were present in the same room while the [appellant’s] representative and an interpreter in the Igbo language took part in the interview by telephone. According to the reasons of the delegate, there were at times some communication problems between the interpreter and those present on site. The delegate believed this to be caused by technological problems with the medium of communication.
14. The delegate made his decision on 9 September 2016 refusing to grant the [appellant] a protection visa. Amongst the reasons for the delegate’s decision was the fact that the [appellant] had been interviewed by Departmental officials on 16 July 2015 and had claimed to fear harm from Boko Haram on the basis of his Christian religion, but that the first time that he made a claim relating to MASSOB, was in his protection visa application made on 1 September 2015.
15. The [appellant] applied to the Tribunal for review of the delegate’s decision and attended a hearing conducted by the Tribunal on 9 December 2016. In its reasons for decision, the Tribunal explained that at the hearing the [appellant] addressed the “delegate’s conclusion that his failure to raise his claims earlier meant they were not credible”. The [appellant] explained that when he flew to Australia he was flying to Sydney and “although his plane landed in Perth, before he was to transfer to a flight to Sydney, he did not expect he would be clearing immigration in Perth”. He said that he was not prepared at that point to disclose his reason for coming to Australia, particularly as he feared he might be returned to Nigeria.
16. The Tribunal made its decision on 12 January 2017.
IN THE TRIBUNAL
4 The appellant failed in the Tribunal on credit grounds. As noted by the primary judge, the main ground was a failure to disclose the approach and threats by Movement for the Actualization of the Sovereign State of Biafra (MASSOB) at the first interview. Alternatively, the Tribunal found that the appellant could relocate to avoid the harm he claims to fear. The Tribunal concluded there was not a real chance that Boko Haram would commit acts of terror, targeting Christians in Southern Nigeria, which meant that the appellant did not have a well-founded fear of persecution for the reasons set out in s 5J of the Migration Act 1958 (Cth), did not meet the definition of refugee as defined in s 5H and did not meet the requirements of subs 36(2)(a). In terms of complementary protection for the purpose of subs 36(2)(aa) of the Migration Act, the Tribunal found the appellant faced no real risk of harm in relation to MASSOB and the risk posed by Boko Haram was ‘too remote to amount to a real risk’.
IN THE FEDERAL CIRCUIT COURT
5 In the application before the Federal Circuit Court the first ground of judicial review was:
1. The Authority made a jurisdictional error in that it unreasonably concluded, and/or addressed the wrong question in concluding, that the [appellant] does not have a well-founded fear of persecution.
(a) The Authority misdirected itself in concluding that the [appellant], a Nigerian Christian from Anambra State, does not face a real chance of serious harm for reasons of MASSOB’s forced recruitment of members if he returns to Anambra, Nigeria, when the Authority failed or neglected to consider various media outlets information and articles reporting forced recruitments by MASSOB in the South and South Eastern Nigeria.
(b) The Authority misdirected itself in concluding that the [appellant], a Nigerian Christian from Anambra State, does not face a real chance of serious harm for reasons of his religion if he returns to Anambra, Nigeria, when the Authority acknowledged the violent attacks by Boko Haram on Christians and Muslims in Nigeria, which conclusion does not reasonably lead to a conclusion that the [appellant] does not have a well-founded fear that there is a real chance of serious harm for reasons of his religion if he returns to Nigeria.
6 The second ground was that no consideration was given to the practicality of the appellant working in Nigeria, the economic circumstances in Nigeria, the appellant’s qualifications and ability to secure employment or any other factors necessary to be considered in determining whether or not relocation is reasonable and practical (emphasis added).
7 The appellant was represented by counsel in the Federal Circuit Court. The first ground relied upon was not argued in the terms of the application before the primary judge, but rather, a different ground was pressed, focussing on language used in MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 per North, Bromberg and Mortimer JJ (at -) on the risks of relying only on failures to disclose matters at entry interviews. The primary judge distinguished MZZJO from the facts and circumstances surrounding the interview of the appellant.
8 As to the second ground (the Tribunal had erred in finding that it was reasonable and practical to relocate), the objections raised to this finding were, first, that the appellant would be harmed anywhere in Nigeria; and secondly, that the place he went to live for six months was not suitable because it was farmland. The Federal Circuit Court was satisfied that the Tribunal had addressed both those matters on the merits. According to the primary judge, there was no error of principle in the approach taken by the Tribunal and those grounds of review were consequently rejected.
9 In this Court, the appellant advances the following grounds of appeal:
1. The [appellant] found Constructive failure by Federal Circuit Court to exercise his [sic] jurisdiction because it failed to grappled [sic] directly with important elements of the [appellant’s] primary claims and reasons.
The [appellant] relies on the following information:
(1) Country Reports on human Rights practices for 2013 complied [sic] by the US Department of state
(2) International Crisis Group - Crisis Watch http://www.Crisisgroup.org.en.aspx#
3.[sic] Department of Foreign affairs and Trade travel warnings – Smart Traveller http://www.smarttraveller.gov.au/zw-cgi/view/Advice
(a) The [appellant] contended the decision of the Federal Circuit Court was unreasonable and illogical in ensuring fair opportunity and procedural fairness, alternatively, when Court found that the [appellant’s] legal representation deviated from ground one of the amended application, by raising different arguments completely and squarely. The Federal Circuit Court misunderstood its Statutory functions and failed to instruct the [appellant’s] legal representation of the drifting, because ground one of the amended application was never addressed in the court for verdict to be made out. This is jurisdictional error see (Para 22 & 23 of the Court decision).
(b) The Federal Circuit Court failed to satisfy that the [appellant’s] fear of persecution was not for a convention reason. It is therefore appropriate to set out the Federal Circuit Court’s finding with respect to that contention.
(c) The federal [sic] Circuit Court determination of ground two of the amended application, “Relocation” in isolation of ground one of the amended application was unreasonable and invalid, failure by the competent Court to erred [sic] and provide fair opportunity for the [appellant] to be truly represented made the whole judgement [sic] invalid.
(d) The [appellant] asserted at the initial interview at the airport and detention centre on 13 & 16 July 2015, he requested for an interpreter and legal instructions as he was not the best in spoken English language, he was denied such a request, as such, he could not provide all his claims for fear of apprehension and deportation, that it was incumbent on the department to have provided he [sic] with such relief but failed. The decision of the Federal Circuit Court should be quashed with cost.
ARGUMENTS IN SUPORT OF THE APPEAL
10 At the hearing before me, the appellant contended that he should be allowed to rely upon two more articles by way of country information.
11 As to the power to adduce new evidence on an appeal, the Full Court (North, Barker and Katzmann JJ) said in Kedem v Johnson Lawyers Legal Practice Pty Ltd  FCAFC 3 (at -):
73 The appeal is brought under s 25 of the Federal Court of Australia Act 1976 (Cth) (“FCA Act”). It is an appeal in the nature of a rehearing. A rehearing is not a new hearing (a “hearing de novo”) conducted without regard to the findings made in the court below. Error must be shown in the judgment of the primary judge. See Branir Pty Limited v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at , , . Allsop J (as his Honour then was) explained at :
(T)he hearing of an appeal in this Court is neither a trial de novo nor a trial of the case afresh on the record (Duralla Pty Ltd v Plant (1984) 2 FCR 342) and the court is not obliged to proceed to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the trial judge and do not support the judgment. The Court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be so satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made.
74 The Court may in its discretion receive further evidence in an appeal: FCA Act, s 27. The power is not confined to “fresh evidence”, that is to say, evidence of which an applicant was unaware at the time of the original hearing and could not have obtained with reasonable diligence: cf. CDJ v VAJ (No 1) (1998) 197 CLR 172 (a case concerned with a similar provision in s 93A(2) of the Family Law Act 1975 (Cth)). But this circumstance is not irrelevant. Indeed, in many cases it would be “most material” to consider whether the evidence could have been called at trial: August v Commissioner of Taxation (2013) 2013 ATC ¶20-406;  FCAFC 85 (“August v Commissioner of Taxation”) at . The discretion is not at large, despite the absence of any express limitations.
75 As the Full Court observed in Sobey v Nicol and Davies as Joint and Several Receivers and Managers of the Property of Mercorella and the Scheme and as Joint and Several Liquidators of the Scheme (2007) 245 ALR 389;  FCAFC 136 (“Sobey v Nicol”) at  :
The discretion to receive further evidence must be exercised judicially, consistently with proper judicial process and in the interests of justice. It is highly unlikely that the legislature intended that s 27 should be construed in such a way as to obliterate the distinction between original and appellate jurisdiction.
The proper role of an appellate court under s 25 of the Federal Court Act … is ordinarily to correct error. Nothing in CDJ was, in our view, intended to minimise the force of the observation of Gibbs CJ and Wilson, Brennan and Dawson JJ in Coulton v Holcombe (1986) 162 CLR 1 at 7 … that:
It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.
76 The power is remedial: August v Commissioner of Taxation at . One important consideration in determining whether it should be exercised is whether the further evidence would have produced, or at least would be likely to have produced, a different result had it been available at the trial.
12 One document was an apparently current version of the Australian Government’s Department of Foreign Affairs and Trade (DFAT) publication warning of dangers in travelling to Nigeria. The other was an article from the United Kingdom’s Home Office. Certainly, the article from DFAT appeared to be more current and relevant and did not paint a particularly safe and secure picture of Nigeria.
13 However, it is not for this Court to determine whether or not the appellant should have a protection visa. The role of this Court, in exercising appellate jurisdiction, is to ascertain whether or not appellable error has been demonstrated in the process of reasoning and the decision of the Federal Circuit Court on the issue of whether there was jurisdictional error on the part of the Tribunal. The material that the appellant sought to place before this Court was not before the Tribunal or the Federal Circuit Court, but even if it had been, unless the provision of that material could somehow bear upon the grounds of appeal or other unpleaded, but obvious appellable errors of the Federal Circuit Court, the admission of the material on which the appellant sought to rely cannot be permitted in the interests of justice. It has no bearing on the issue of whether there was appellable error in the decision of the primary judge. Further, the items of country information the appellant now seeks to advance were not raised before the Tribunal, even though a report of a similar name, but from a different website, was referred to in the submission provided by the appellant’s representative. However, none of the articles were referred to in the country information relied upon by the appellant to support his grounds before the Federal Circuit Court. Much more importantly, there is no explanation as to how these articles demonstrate that there was appellable error in the approach taken by the primary judge. No good reason is shown as to why this material should be admitted into evidence in support of any ground of appeal properly available in this Court. Its admission cannot be permitted.
14 Also, at length, the appellant pressed this Court to obtain and listen to audio recordings of interviews conducted by Departmental officers shortly after the appellant’s arrival in Australia which were referred to, both by the Tribunal and by the Federal Circuit Court. Once again, while these interviews might be relevant to grounds of appeal which the appellant would seek to advance, the merits of this issue have been closely examined, both in the Tribunal and in the Federal Circuit Court. In the Tribunal, the matter was dealt with at - as follows:
16. The Tribunal accepts the [appellant] did not appreciate, prior to arriving in Australia, that he would be clearing immigration in Perth. However, it should have been apparent to him on arrival that that was what was occurring. He claims that without an interpreter he did not fully appreciate what was occurring in the interview with Immigration officials and he did not comment when invited to in relation to their consideration of cancelling his Tourist visa, because he did not understand that was what they were going to do. The Tribunal accepts it is plausible that the [appellant], who had arrived after a long flight, was not communicating in his first language, and did not expect to be clearing Immigration at that point, was not fully aware of the import of the interview and the importance of raising any claims for protection.
17. The Tribunal does not accept however that the [appellant] did not understand at the second interview that he was being asked why he should not be returned to Nigeria. He certainly understood enough to state he feared harm from Boko Haram. At that point in time he had not applied for a Protection visa and was facing possible removal and return to Nigeria. Were he genuinely fearful of returning to Nigeria, the Tribunal finds he would have put his best case forward.
18. The Tribunal finds the [appellant] has fabricated his claims to have been approached and threatened by MASSOB. The Tribunal makes this finding based on the [appellant’s] failure to raise the claim at the interview on 16 July when he was asked why he could not be returned to Nigeria. The Tribunal also makes this finding on the basis of the [appellant’s] poor migration history, which the Tribunal finds affects his credibility and points to his real motives for coming to Australia. He resided and worked in Taiwan for 4 years, when he had only a 2 week visa. He came to Australia on a Visitor visa with business documents in his possession. When asked at the airport as to his intention, he conceded he was not a tourist but was here for business purposes. The Tribunal finds the [appellant] came to Australia not to flee MASSOB or the police, but to work in the spare car parts business as he had done in Taiwan, From [sic] the [appellant’s] perspective, a short term Visitor visa was no impediment for his doing so, as it had not stopped him residing and working in Taiwan for a lengthy period.
15 The third main matter the appellant sought to press at the hearing before me was the topic already covered in his appeal grounds and written submissions to the effect that his legal advisor at the hearing before the Federal Circuit Court failed to press or failed to understand the appellant’s argument on ground 1 dealing with forced recruitment. However, as I view the reasoning in the Federal Circuit Court, together with the written submissions which were made available to this Court at the hearing, the choice made by counsel was to press a better argument as to the caution a tribunal should exercise in relying on the fact that a particular claim had not been raised on the first interview occasion, particularly in circumstances where an interviewee had arrived after a long journey in poor conditions and was being interviewed under duress by authority figures who may be regarded with fear by an interviewee who does not speak English and is labouring under very difficult circumstances. The primary judge examined the observations of the Full Court in MZZJO and quite properly distinguished the circumstances of the appellant’s second interview in the present situation from that which was considered in in MZZJO.
16 The argument advanced for the appellant was quite appropriate in the circumstances. It was a better choice on judicial review than the forced recruitment ground, which went only to the merits. That ground would almost certainly have failed. This issue was dealt with rationally and carefully by the Tribunal, as well as by the Federal Circuit Court. There is no proper basis to allow into evidence on the appeal (assuming they are available) the relevant recordings. Further, apart from the appellant’s suggestion from the Bar Table, there is no evidence other than assertion that the appellant did not understand what he was being asked at each of the interviews.
17 A reading of the grounds of appeal and the submissions in support make it clear that the appellant is, in substance, seeking a merits review of the decision of the primary judge. Those arguments misunderstand the role to be played by this Court in exercising appellate jurisdiction and, indeed, in the role of the Federal Circuit Court in conducting judicial review of the decision of the Tribunal.
18 While it is true that jurisdictional error can relate to a tribunal identifying a wrong issue, asking itself a wrong question, ignoring relevant consideration, relying on an irrelevant consideration or failing to afford procedural fairness, it is not open to this Court simply to revisit the merits in the absence of relevant jurisdictional error.
19 Ground 1 in the terms cast is clearly merits review. However, in any event, it is clear that the primary judge did squarely address the specific grounds which were raised and which were open for the Federal Circuit Court to consider. Specifically, the primary judge did address ground 1(a) of the application as argued at the hearing as distinct from how it was addressed in written submissions. The primary judge also considered ground 2 of the application. The appellant abandoned ground 1(b). More specifically, on this topic, I accept the Minister’s contention in relation to ground 1 of the appeal that:
(a) the first ground raised by the appellant in the Federal Circuit Court was a very broad ground alleging jurisdictional error on the basis that the Tribunal unreasonably concluded and/or addressed the wrong question in concluding that the appellant did not have a well-founded fear of persecution;
(b) the first particular to this ground alleged that the Tribunal misdirected itself in concluding that the appellant, a Nigerian Christian from Anambra State, did not face a real chance of serious harm for reasons of MASSOB’s forced recruitment if he returns to Anambra, in circumstances where the Tribunal did not consider various media articles reporting on forced recruitment by MASSOB. This was addressed in the written submissions to the Federal Circuit Court;
(c) in written submissions filed in the Federal Circuit Court, the Minister submitted that, prior to addressing country information, the Tribunal had made a clear finding at  of its reasons that the appellant had fabricated his claims to have been targeted by MASSOB. The Minister submitted that it was clear that the Tribunal’s finding that the appellant did not have a well-founded fear of being targeted by MASSOB was based on its adverse credibility findings in relation to the appellant’s evidence. Accordingly, if there was any error in the Tribunal’s treatment of the country information, it was not a jurisdictional error;
(d) the appellant’s solicitor, at the hearing, challenged in relation to ground 1 the adverse credibility finding made by the Tribunal. It can be inferred that the appellant’s oral submission was made in response to the Minister’s written submission. The Federal Circuit Court allowed the appellant to raise this additional submission at the hearing;
(e) the Federal Circuit Court was not under any obligation to advise the appellant’s solicitor that he was addressing a different point to that addressed in his written submissions. The appellant was not denied a fair hearing as a result of the Federal Circuit Court allowing the appellant to raise a new submission at the hearing. The authorities on judicial review that the appellant relies on in his submissions to suggest that he was denied a fair hearing before the Federal Circuit Court are all authorities that relate to administrative decision-making. They are not directly relevant to whether the Federal Circuit Court made an appellable error;
(f) the Federal Circuit Court expressly addressed the appellant’s ground 1 as ‘finally argued’ (at ). The Federal Circuit Court did not expressly address the appellant’s written submissions in relation to ground 1; and
(g) the Federal Circuit Court was not required to expressly address the appellant’s written submissions in relation to ground 1 in the context of the application before the Federal Circuit Court. First, in summarising the Tribunal decision, the Federal Circuit Court found (at ):
In respect of the MASSOB claim, the Tribunal relied on its findings rejecting the [appellant’s] factual assertions and found in its conclusions in the alternative that the [appellant] be able to relocate where there would be no real risk that he would suffer significant harm…
(Emphasis in submissions.)
Thus, it is clear that the Court did not see the decision turning in any way on the Tribunal’s assessment of country information. Second, as the Federal Circuit Court dismissed ground 1 as it was finally argued, that is, in relation to the Tribunal’s primary findings about the MASSOB claim that the appellant had fabricated his claims in relation to MASSOB and that he was not at risk of serious harm from MASSOB, any findings that it made in relation to the ground as argued in written submissions could not have had any impact on the Court’s decision.
20 The contention that country information was required to be put to the appellant is incorrect. There is no obligation to put country information to an appellant, nor did the appellant raise as a ground in the Federal Circuit Court a denial of procedural fairness on that basis. It is well established that the obligation in s 424A of the Migration Act, to put adverse information to an applicant, does not extend to information which is not specifically about the applicant, but is, rather, about a class of persons of whom the applicant is a member: s 424A(3); VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs v (2013) 131 FCR 80 per Kenny J (at  and the cases therein cited).
21 No identifiable appellable error is identified in particular (a).
22 In relation to particular (b) and particular (c), these particulars simply seek merits review. Such review is unavailable.
23 In relation to particular (d), properly understood, this also seeks merits review. However, giving due regard to the observations in MZZJO, the position in this instance is quite different from the circumstances discussed in that case. Those differences were expressly addressed by the primary judge (at -). It is clear in the circumstances of this case that the Tribunal gave reasons for not drawing any adverse inference from the 13 July 2015 interview and for finding that if the appellant was genuinely fearful of forced recruitment by MASSOB, he would have raised these issues at the subsequent interview on 16 July 2015. Those findings were open to the Tribunal. The appellant had not just arrived in Australia after a long journey on the ocean in cramped and difficult conditions and was not asked questions designed to elicit information about ‘people smuggling’: MZZJO (at ). Rather, as found by the Tribunal, he was asked why he should not be returned to Nigeria and, as also noted by the Tribunal, was able to indicate a response to that question which showed that he understood it. This finding and the reasons for it were set out by the Tribunal at  of its decision (as set out above at ). The finding was open to the Tribunal.
24 No appellable error is demonstrated in particular (d).
25 The appeal must be dismissed with costs.