FEDERAL COURT OF AUSTRALIA

BSL15 v Minister for Immigration and Border Protection [2018] FCA 1898

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Circuit Court of Australia on 19 April 2017 be set aside and in lieu thereof, order:

(a)    a writ of certiorari issue to quash the decision of the second respondent dated 28 July 2015;

(b)    a writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application for review of the decision made by a delegate of the first respondent on 5 June 2014 according to law; and

(c)    the first respondent pay the applicant’s costs of and incidental to the application filed by the applicant on 25 August 2015.

3.    The first respondent pay the appellant’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

KENNY J:

1    This is an appeal from the judgment of the Federal Circuit Court of Australia delivered on 19 April 2017, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal made on 28 July 2015. The Tribunal had affirmed a decision of a delegate of the respondent Minister dated 5 June 2014 to refuse the appellant’s application for a Protection (Class XA) visa (protection visa). The Federal Circuit Court’s judgment has the citation BSL15 v Minister for Immigration & Anor [2017] FCCA 1071.

2    On 15 May 2017, the appellant applied to this Court pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) for an extension of time within which to file a notice of appeal from the judgment of the Federal Circuit Court. An extension of time was granted on 17 November 2017: see BSL15 v Minister for Immigration and Border Protection [2017] FCA 1444.

3    For the reasons that follow, the appeal should be allowed.

Background

4    The appellant is a national of Nepal. He arrived in Australia as the holder of a student visa on 25 November 2008. On 21 August 2013, he applied for a protection visa. This appeal concerns the appellant’s unsuccessful application for that visa.

5    In summary, the appellant claimed to be at risk of harm from Maoists in Nepal on the basis of his political background and activities in Nepal. The appellant claimed that he used to work as a district level leader of the Teachers Association of Nepal, a “sister wing” organisation of the Nepali Congress Party. In that capacity, he trained youths and teachers affiliated with the right wing to discourage Maoists. He was responsible for “upgrad[ing] democratic norms [and] values in the village”.

6    The appellant stated that he was targeted by the Maoists, including because he was a well-known democratic leader who taught at a private school. He said that the Maoists objected to the school, particularly because it was a private boarding school. The Maoists started asking the teachers for half of their salary, but the appellant and other staff refused. On 27 October 2003, the Maoists stopped the appellant on his way to school and threatened that the school should close down or he would face physical harm. The appellant and the school’s shareholders decided to keep the school open. On 5 November 2003, the appellant was abducted while at the school. He was taken to a Maoist camp and severely beaten, suffering serious injuries to his leg. Two days later, the appellant was taken by the Maoists to the bank of a river near the school, where he was found by villagers. After a period of time moving to different places within Nepal due to his fear of harm, the appellant applied for a student visa to come to Australia.

7    In a statement to the Tribunal, the appellant claimed that if returned to Nepal, he was at risk of losing his life on account of his political opinion “because of possible abduction and bodily harm that the [Maoist] insurgents could cause” him in Nepal (and in India, it being accepted by the appellant that he could enter India freely via Nepal and live there).

Tribunal’s Decision

8    The appellant applied to the Tribunal for review of the delegate’s decision. He was represented in the Tribunal by a migration agent. The appellant appeared before the Tribunal on 25 June 2015 to give evidence and present arguments. Following the hearing, the Tribunal sent the appellant a letter purportedly under s 424A of the Migration Act 1958 (Cth) (s 424A letter). The letter invited a response from the appellant to certain “information” in the recording of the interview between the appellant and the delegate. It was said that this information gave rise to “inconsistencies” in relation to the “claims and other evidence” given by the appellant during the Tribunal hearing. The appellant did not respond to the letter.

9    The Tribunal identified the “issue in this case” as “the credibility of the [appellant] and whether, on his accepted claims, he fulfils the criteria for protection”. The Tribunal subsequently stated that it had “significant concerns with the [appellant’s] evidence about being abducted by Maoists and suffering injuries”. In particular, the Tribunal held that the appellant had “provided inconsistent evidence as to the number of people who abducted him”; “inconsistent accounts of being taken back to the school by Maoists, from their camp”; “differing evidence as to the severity of the injuries on his leg and the nature of the treatment he received”; and “inconsistent evidence … concerning when the [appellant] fled to Kathmandu”. Based on these inconsistencies, the Tribunal was not satisfied that the appellant was “a truthful witness in relation to his account of being kidnapped by Maoists … and suffer[ing] severe, or indeed any, harm, and [having] to flee immediately to Kathmandu as a result”.

10    The Tribunal was only prepared to accept very limited aspects of the appellant’s evidence, specifically, that he:

… has had some political involvement with the Teachers Association and with the Nepali Congress both in his home area and in Kathmandu. In Kathmandu the [appellant] said he was not a high profile political member. The Tribunal is not satisfied, however, that the [appellant] has ever been harmed by or threatened by Maoists or any other groups or individuals as a result of his political involvement.

11    Having regard to the credibility issues with the appellant’s evidence regarding his abduction, the Tribunal did not accept that the appellant and his colleagues had been “extorted for money and/or their salaries by Maoists”. In light of the Tribunal’s findings regarding the appellant’s abduction and his evidence “relating to the [appellant’s] activities in Kathmandu”, the Tribunal was not satisfied that the appellant had been truthful in relation to his fear of Maoists whilst in Kathmandu, nor that he had constantly moved around while in Nepal due to such fear. Similarly, the Tribunal did not accept that the appellant’s family were contacted by Maoists who threatened to harm the appellant, nor that the appellant suffered harm or received threats from Maoists from 2004 until he departed for Australia in 2008.

12    The Tribunal also drew a “significant adverse inference” from the fact that the appellant waited five years from arriving in Australia in 2008 on a student visa until 2013 to apply for a protection visa.

13    The Tribunal was not satisfied that the appellant had a well-founded fear of being persecuted for a Convention reason as a result of his political activity, past harm, threats, or donation request from Maoists, or psychological conditions. For the same reasons, the Tribunal was also not satisfied that there was a real risk the appellant would suffer significant harm on return to Nepal on these bases. Accordingly, the Tribunal concluded that the appellant did not satisfy the criterion set out in s 36(2)(a) of the Migration Act, or the criterion in s 36(2)(aa).

Court Proceedings

14    The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. He was self-represented in that Court. He challenged the Tribunal’s decision on a number of bases, including that the Tribunal did not afford him procedural fairness and failed to comply with its obligations under s 424A of the Migration Act. In relation to the latter claim, which is relevant to grounds 1 and 2 of the present appeal, the primary judge stated (at [19]-[21]):

[19]    In relation to the claim that the Tribunal had failed to comply with its obligations under s.424A of the Migration Act, the Tribunal made reference in its decision to forwarding a letter to the [appellant] and at the hearing asking or putting to the [appellant] inconsistencies in the evidence he had given to the delegate and to the Tribunal. The decision itself refers to information provided by the delegate to the Minister that two people abducted the [appellant] in November 2013, and the letter to the [appellant] from the Tribunal dated 2 July 2015 also makes reference to the abduction in November 2013.

[20]    That reference is a clear typographical error and was understood to be such by the [appellant] when he appeared here before the Court. There is a typographical error both in the letter forwarded to the [appellant] and in the reference to the correspondence in the Tribunal decision.

[21]    The typographical error was apparent and did not undermine the [appellant’s] ability to have a fair hearing before the Tribunal or for him and his migration agent to deal with the substance of matters raised. Further, the failure on the part of the migration agent to pass the correspondence on is not a matter that gives rise to jurisdictional error.

15    The appellant appealed from the Federal Circuit Court to this Court. The appeal proceeded on the basis of a further amended notice of appeal, filed with leave on 19 September 2018. There were four grounds of appeal, although only three were pursued at the hearing. The substance of the three grounds advanced at the hearing appears from the following outlines of the parties’ submissions.

GROUND 1

16    Grounds 1 and 2 related to the s 424A Letter dated 2 July 2015 and sent by the Tribunal to the appellant’s migration agent after the hearing before the Tribunal.

17    Ground 1 concerned some apparent errors in the s 424A Letter, Specifically:

    the s 424A Letter referred to “the November 2013 incident”, instead of “the November 2003 incident” three times on page 1 and once on page 2; and

    the s 424A Letter also referred to “in the Tribunal hearing”, instead of “in the interview with the delegate”.

18    The appellant submitted that, by virtue of these errors, the s 424A Letter did not comply with the requirements of s 424A of the Migration Act, particularly the obligation in s 424A(1)(a) to give an applicant “clear particulars” of certain information. Counsel for the appellant emphasised that the provision has been held to impose “strict requirements”, citing SZEOP v Minister for Immigration and Citizenship [2007] FCA 807 at [36]. Referring to SZNKO v Minister for Immigration and Citizenship [2010] FCA 297; 184 FCR 505 at [23], counsel contended that the mistaken references rendered the s 424A Letter insufficiently specific, with the result that the appellant was not afforded a meaningful opportunity to comment on the adverse information.

19    While counsel for the appellant accepted that a minor typographical error would not necessarily fall foul of the requirement to provide “clear particulars”, he submitted that the issue needed to be approached as “a matter of fact, degree and context depending on the circumstances of the case”, citing MZXKH v Minister for Immigration and Citizenship [2007] FCA 663 at [18]. Counsel submitted that the circumstances relevant here included that there were five errors, not just one or two; that the appellant’s credibility was of central importance to the Tribunal’s decision; and that the appellant’s imperfect command of the English language was such that it could not be said that he would have understood that the mistaken reference were mere typographical errors had he been provided with the s 424A Letter.

20    The respondent Minister submitted, with respect to both ground 1 and ground 2 (see below), that the circumstances of the present case had not given rise to any obligation on the Tribunal’s part to issue an invitation of the kind contemplated by s 424A(1) of the Migration Act. The Minister further contended that, if the provision applied, then the s 424A Letter complied with the requirements of the provision, notwithstanding the admitted errors in it.

21    There is much force in the Minister’s threshold contention that s 424A was not engaged in the relevant circumstances. The s 424A Letter sent by the Tribunal to the appellant was essentially concerned with apparent “inconsistencies” between statements made by the appellant in his interview with the delegate on 30 May 2014 and statements made by the appellant at the Tribunal hearing. Inconsistencies of this kind do not generally amount to “information” of the kind engaging s 424A. So much might be thought to appear from the provision itself and is, in any event, confirmed by the decision of the High Court in Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [9], where French CJ and Keifel J held that “the existence of ‘inconsistencies’ and ‘contradictions’ in an applicant’s testimony and written submissions to the Tribunal is not ‘information’ of the kind to which s 424A is directed”: see also Heydon and Crennan JJ agreeing at [91] and [92].

22    In any event, even if s 424A were engaged, there was in my opinion no relevant failure to comply with its requirements. The requirement in s 424A(1)(a) that the Tribunal give an applicant “clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision … under review” has been held to require that the Tribunal provide that information to an applicant “unambiguously” and with “sufficient specificity”: see SZMTJ v Minister for Immigration and Citizenship (No 2) [2009] FCA 486; 232 FCR 282 at [45] (Flick J); see also SZNKO at [23]. As the Minister submitted, and I accept, read in context, the errors were not of a kind that might have introduced uncertainty or deprived the s 424A Letter of the requisite clarity and particularity. This is because, when the s 424A Letter is read as a whole, there could be no misunderstanding about the supposed information that the Tribunal considered would be part of the reason for it to make a decision adverse to the appellant, as outlined.

23    The relevant part of the s 424A Letter read:

The particulars of the information are, the following information contained in the recording of the interview between yourself and the delegate of the Minister dated 30 May 2014:

1.    an indication that two people abducted you in the November 2013 incident;

2.    an indication that you were incapacitated for one of half months as a result of your injuries in the November 2013 incident; and

3.    an indication that you were incapacitated for one of half months as a result of your injuries in the November 2013 incident, after which your family gave you money to travel to Kathmandu.

This information is relevant to the review because there are inconsistencies in relation to these claims and other evidence given by you. More particularly, in relation to each respective point:

1.    In the Tribunal hearing you said that you were abducted by 7 to 8 men as compared to 2 men in the Tribunal hearing;

2.    an injury causing such incapacity is not consistent with you stating that you walked the five to six hours back from the Maoist camp, and it is not consistent with your indication in the Tribunal hearing that the injuries caused you to suffer difficulties for a couple of weeks; and

3.    the statement suggests that you remained in your local area for at least a month and half after the November 2013 incident, which is inconsistent with the claim in the Tribunal hearing that you left Kathmandu several days after the kidnapping in November 2003.

If the Tribunal relies on this information in making its decision, it may make adverse findings in relation to your credibility on the specific points, and more generally.

(Errors in bold)

24    The only claim the appellant made about his adduction was for the 2003 year, not 2013. More particularly, the mistake would have been apparent to the appellant and to his migration agent, as the appellant had departed Nepal and arrived in Australia by 2008, and there is a correct reference to 2003 towards the end of the passage set out above. It would also have been clear to the appellant and his migration agent that the reference to “in the Tribunal hearing” for the second time (see above) was also an inadvertent error, since it was clear from the context that a comparison was intended and that that comparison was between the appellant’s evidence “in the Tribunal hearing” and “in the recording of the interview between [the appellant] and the delegate” on 30 May 2014, to which reference was made at the commencement of this passage. This is particularly so in circumstances where the Tribunal had previously identified the source of the evidence regarding the number of people involved in the abduction being two as the appellant’s interview with the delegate.

25    Ground 1 is therefore not made out.

Ground 2

26    Ground 2 raised the appellant’s submission, also advanced in the Federal Circuit Court, that since his migration agent never gave him the s 424A Letter, he had not had an opportunity to respond to the invitation that it contained.

27    Although the primary judge made no specific finding that the appellant’s migration agent had not drawn the s 424A Letter to the appellant’s attention, it would seem that the fact was uncontested and that his Honour addressed the submission on this basis.

28    Under this ground, the appellant argued that his lack of opportunity to respond to the s 424A Letter meant that the Tribunal’s jurisdiction was constructively unexercised. The appellant submitted that the purpose of s 424A is to give an applicant an opportunity to respond to adverse information which may be relied upon by the Tribunal in making a decision adverse to the applicant, and the appellant did not have this opportunity. The appellant contended that “[t]he conduct of the appellant’s migration agent is not the important issue. Rather, it is the effect and impact of that conduct on the appellant’s ability to be afforded natural justice.” As the Minister submitted, and I accept, certain provisions of the Migration Act make this argument untenable.

29    The appellant appointed his migration agent as his authorised recipient for the purposes of s 441G(1) of the Migration Act and, consequently, the Tribunal was required to give the appellant’s migration agent, rather than the appellant, any document the Tribunal would otherwise have given to the appellant: see s 441G(1). It is not disputed that the Tribunal gave the s 424A Letter to the appellant’s migration agent, as the authorised recipient of correspondence between the Tribunal and the appellant. The consequence was that the Tribunal was taken to have given the s 424A Letter to the appellant: see s 441G(2). There was no allegation of fraud on the part of the appellant’s migration agent in this case: contrast SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189.

30    Ground 2 therefore fails.

Ground 3

31    This ground was abandoned at the hearing of the appeal.

Ground 4

32    Ground 4 concerned the way in which the Tribunal dealt with what may be broadly described as independent country information. Under the heading “Independent information – political violence in Nepal”, the Tribunal referred, at [26]-[27] of its reasons, to various items of country information relating to political violence in Nepal. Both the appellant and the respondent Minister accepted that, in keeping with this heading, a reference by the Tribunal to “independent evidence” elsewhere in its reasons was a reference to the country information set out at [26]-[27].

Country information in the Tribunal’s reasons

33    It is convenient to discuss in some detail the country information, detailed at [26]-[27], before considering the parties’ submissions relating to it. Counsel for the appellant identified each item by reference to its source, and these reasons will do the same.

34    Source 1 was a Background Paper titled “Nepal: Maoists in Nepal” prepared by the former Country Advice section of the Tribunal. It was issued on 7 June 2013 and reviewed in December 2013. This Background Paper stated that:

Violence and intimidation remain features of Nepal's political landscape; though no longer on the scale that it was prior to the 2008 constituent assembly elections, or during the war. Members of the UCPN-M [Unified Communist Party of Nepal-Maoist] and associated groups have contributed to this culture of violence; the ICG posits the argument that as cadres of a Maoist revolutionary party, some members of the UCPN-M continue to believe that violence can be a legitimate political tool, particularly as a means to “resist oppression”. Another contributing factor to Nepal’s violent political culture is the ongoing impunity enjoyed by cadres of numerous political parties.

… While the level of political violence no longer reaches the levels of 2008, UCPN-M cadres, particularly in remote regions of Nepal, continue to be implicated in violent acts against political rivals and others, including journalists.

(Footnotes omitted)

35    Source 2 was a report from the Country of Origin Information Section of the Department of Immigration and Border Protection prepared in January 2015. This report stated that:

… inter-party violence amongst Maoists and the Nepali Congress has diminished considerably in recent years. During 2014, there were no reports of inter-party violence in general across Nepal.

36    Source 3, the South Asia Terrorism Portal’s 2015 assessment of Nepal, recorded that:

The successful holding of elections for the second Constituent Assembly (CA) … have, in some measure, transformed the political environment of the country and diminished violent inter-party clashes. As against 22 such clashes resulting in four deaths and 167 injuries in 2013, no such clashes were reported through 2014.

37    Source 4, the South Asia Terrorism Portal’s 2014 assessment of Nepal, reported that, although there was no insurgency-related violence in 2013, “political violence did increase considerably during 2013”. It elaborated that:

Activists of political parties clashed with each other on at least 22 occasions resulting in four deaths and 167 injuries. There were four such incident resulting in seven injuries and no fatalities in 2012. Further, activists of political parties clashed with law enforcement personnel on at least four occasions in 2013, with 14 persons injured.

38    Source 5 was an article in Business Standard, which reported on 27 May 2013 that “the Nepali Congress today accused [Unified Communist Party of Nepal-Maoist (UCPN-M)] cadres of attacking its youth leader and abducting an ex-Maoist who had defected to the party”. The Tribunal added that the source reported that Maoists had “pelted stones” at a vehicle that the youth leader and central committee member were in and that an individual who had defected from the UCPN-M had been abducted by the UCPN-M.

39    Source 6 was the South Asia Terrorism Portal’s 2015 assessment of Nepal, which recorded that there was “a clear manifestation of growing political volatility in the Republic”. It also referred to protests that turned violent in January 2015, stating that:

[O]pposition members of the CA, led by UCPN-M, vandalized Parliament and attacked ruling party leaders and security staff, leaving four security staff members injured, on January 20, 2015. Again, on January 22, 2015, opposition CA members threw microphones and shoes at the members of the ruling alliance. On this day, protests also erupted across Nepal, in which several persons were injured and a substantial quantum of property was damaged. … Significantly, during [a general strike] enforced by the UCPN-M-led alliance, which turned violent in several parts of the country, a protester … died… .

40    Source 7 was in fact two sources, the first being an article from The Hindu published on 25 February 2015, entitled “Nepal Maoist youth wing stages show of strength”. The second source was an article in the Nepali Times dated 28 February 2015, which reported that protests involving the Maoist youth wing of the UCPN resulted in injuries to several policemen, protestors and onlookers.

41    After setting out this country information, the Tribunal did not mention it again until [54] of its reasons, where it stated:

The Tribunal put to the [appellant] in the hearing that even if it was to accept the abduction in 2003, the [appellant] had suffered no difficulties whilst in Kathmandu from 2004 until 2008. It indicated that this lack of difficulty would suggest that there was not a risk of harm should the [appellant] return to Nepal today, given that the incident in which he claims to have suffered harm happened in 2003. The Tribunal summarised the independent evidence contained in this decision that political violence has declined significantly in recent years, with one source indicating no insurgency violence taking place at all in 2014.

(Emphasis added)

42    The Tribunal returned to the country information again in recording its conclusions in relation to the Refugees Convention criterion at [59]-[61] and the complementary protection criterion at [66]-[67], stating:

59.    Given that the Tribunal is not satisfied that the [appellant] was subject to a kidnapping by Maoists in 2003, that he has not been subject to requests for money or for part of his salary, that he was not subject to any threats or harm by Maoists whilst in Kathmandu from 2004 until 2008, the Tribunal is not satisfied that there is any past threat or harm that has occurred to the [appellant] that would provide a real chance of serious harm in the reasonably foreseeable future from Maoists should the [appellant] returned to Nepal.

60.    While the Tribunal is prepared to accept that the [appellant] has been politically active with organisations associated with the Nepali Congress, the Tribunal is not satisfied, based on the independent evidence and the [appellant’s] profile as a political operative, that the [appellant] faces a real chance of serious harm should he return to Nepal as a result of any ongoing political activity.

61.    The [appellant] stated in the interview with the delegate of the Minister that in Kathmandu he held a general fear as a result of the security situation, and the fact the bombs went off. Independent information does not support the contention that any individual citizen in Nepal today is at a real chance of serious harm as result of the general security situation and the Tribunal does not consider there is a real chance of serious harm to the [appellant] on that basis.

…

66.    The Tribunal is not satisfied that should the [appellant] continue political activities as an ordinary member involved in the Nepali Congress or its associated organisations that he is, based on independent evidence and his own profile, at a real risk of significant harm.

67.    The Tribunal is not satisfied that independent evidence before it establishes that the [appellant] would be at a real risk of significant harm as a consequence of the general security situation in Nepal.

(Emphasis added)

Parties’ submissions

43    The appellant submitted that the Tribunal’s reasons evidenced a constructive failure to exercise jurisdiction because, after setting out the country information in considerable detail, in its reasons at [26]-[27], the Tribunal failed to consider the information before reaching its conclusions. The appellant submitted in the alternative that in so far as the Tribunal’s findings were based on that country information, its findings were unreasonable, irrational or illogical. Since there has been found to be a constructive failure to exercise jurisdiction, it is unnecessary to consider this alternative argument.

44    Significantly, counsel for the appellant submitted that it was clear from the Tribunal’s reasons that the country information was at least part of the basis for the Tribunal’s conclusions in relation to both the Refugees Convention and the complementary protection criteria. Counsel for the appellant submitted that the country information could, simplistically, be summarised as follows: “[in] 2013 … political violence had increased, [in] 2014 it had abated somewhat, but in 2015 it increased again to the point where someone was killed”. The important point was, so counsel submitted, that “the difference or divergence” in the country information was not mentioned in the Tribunal’s reasons. It is convenient to note at this point that counsel for the appellant characterised the Tribunal’s reference to the country information at [54] (set out at [41] above), not as a finding, but merely an indication of what the Tribunal had put to the appellant at the hearing, namely, “that political violence has declined significantly in recent years, with one source indicating no insurgency violence taking place at all in 2014.” Counsel for the appellant submitted that, save for the reference in [54], the Tribunal did not return to the matter of country information until its conclusions at [60]-[61] and [66]-[67]: see [42] above.

45    Relying on the Full Court’s decision in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431, especially at [38] and [50], the appellant submitted that, as in MZYTS, the Tribunal’s reasons in the present case disclose:

… no weighing up of those particular sources, there’s no consideration of them, there’s no commentary, there’s no assessment, there’s no preference for one source over another which is disclosed. On a fair reading, in my submission, your Honour, the logic process of the Tribunal seems to have been this: we’re going to list a whole lot of sources of information, we’re not going to comment on them and then we’re going to make findings about them.

46    The appellant emphasised that the Tribunal went no further than merely listing the sources and content of country information:

[t]he decision does not discern a weighing up of the information. It does not show a preference for particular sources. It does not assess, comment or otherwise make findings about the information set out at [26] and [27].

47    The appellant submitted that it was the Tribunal’s task to assess and consider all the material before it, regardless of the source of that material. Counsel for the appellant accepted that there was a distinction between the appellant’s case and MZYTS (see [54] below), but argued that the distinction was of little significance, given the statutory task of the Tribunal.

48    Counsel for the appellant contended that consideration of the country information was called for before the Tribunal could make conclusions of the kind set out at [60]-[61] and [66]-[67], because the country information to which the Tribunal referred was not consistent. Adopting the formulation in Tickner v Chapman (1995) 57 FCR 451 at 462, the appellant submitted that the requisite consideration required “an active intellectual process” directed at the country information. The appellant submitted that the country information clearly revealed that, at least in 2015 (the year of the Tribunal’s decision), political violence remained a live issue in Nepal and had increased since 2014. This was apparent, so the appellant said, from source 6 which referred to “a clear manifestation of growing political volatility in the Republic” and described the violent protests that occurred in January 2015 resulting in the death of one protester, and also source 7, which reported that protests involving the Maoist youth wing of the UCPN in February 2015 had resulted in injuries to several policemen, protestors and onlookers. The information in these sources was to be contrasted, so it was submitted, with the information in sources 2, 3, and 4.

49    Counsel for the appellant contended that the fact that the Tribunal’s reasons did not contain any consideration of the country information (before the Tribunal arrived at its conclusions at [60]-[61] and [66]-[67]) revealed relevant error in the Tribunal’s decision. This was particularly so in circumstances where the Tribunal appeared to give greater weight to the sources of country information that suggested political violence had abated than to more recent sources indicating an increase in political volatility, without, for example, indicating that it considered one source more reliable than another or more relevant in the appellant’s case.

50    Citing NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] and CSJ15 v Minister for Immigration and Border Protection [2017] FCA 1463 at [40], the Minister submitted that, as a matter of settled principle, it is for the Tribunal to determine what country information to rely upon and the weight to give it.

51    The Minister submitted that the Tribunal’s conclusions at [60]-[61] and [66]-[67] were informed by, and must be read in light of, a number of other matters, including:

(a)    the Tribunal’s finding at [53] that the appellant had only a modest level of political involvement with the Teachers Association and with the Nepali Congress and that his political profile was not such that he would have “ever been harmed by or threatened by Maoists or any other groups or individuals as a result of his political involvement”; and

(b)    the Tribunal’s complete rejection of the appellant’s claims to have been the subject of harm by Maoists at [59].

52    In addition, counsel for the Minister urged the Court to adopt a different construction of the Tribunal’s reference to the country information in [54] of its reasons to that put forward by the appellant. Counsel contended that the Tribunal at [54] was “recording its view of the country information … extracted at [26] and [27]” of its reasons. This view was that there had been a significant decline in political violence in recent years and in 2014 there had been no insurgency violence. It was submitted that this assessment of the country information evidently reflected the information contained in sources 2 and 3, which stated that “inter-party violence amongst Maoists and the Nepali Congress has diminished considerably in recent years” and there were no “violent inter-party clashes … reported through 2014”. Counsel submitted that, in reaching the view recorded at [54], the Tribunal “evidently engaged in a process of weighing”, although she conceded that the Tribunal’s analysis in reaching that view was “slim” and that the Tribunal’s reasons do not “expose[] the detail” of its analysis. Nonetheless, counsel urged the Court to infer from [54] that the Tribunal, having weighed all of the country information referred to, made a finding based on the information which had most relevance to the appellant’s claims.

53    Counsel for the Minister submitted that it could be inferred that the Tribunal:

(a)    favoured the information in source 2 because that information intersected with the appellant’s claims in so far as both related to political conflict between the Maoists and persons involved with the Nepali Congress Party; and

(b)    was not persuaded by the more recent sources of country information that evidenced growing political volatility because:

(i)    source 6 is concerned with an attack on ruling party leaders and security staff, and these people have political profiles that are different to that which the Tribunal found the appellant had; and

(ii)    source 7 refers to an incident of violence involving the UCPN-M youth wing, not the Nepali Congress with whom the appellant was affiliated.

54    Counsel for the Minister submitted that [54] of the Tribunal’s reasons, when read with [60]-[61] and [66]-[67], demonstrated that the Tribunal had sufficiently “appreciated the political landscape in Nepal at a time that was proximate to the appellant’s possible return”. She submitted that the Tribunal’s “assessment” of the country information at [54] was open to it and was sufficient in circumstances where the appellant had not provided contrary country information to the Tribunal or made submissions in relation to the substance of the country information, which had been put to the appellant at the hearing. In this regard, the Minister contended that the present case should be distinguished from MZYTS, where the fundamental concern was that the Tribunal failed to consider country information put forward by the applicant in connection with a claim that the applicant had made. Counsel for the Minister submitted that the application of MZYTS should be limited to situations of that kind, and should not extend to situations such as the present where the Tribunal referred to country information of its own initiative.

Consideration – ground 4

55    Section 414 of the Migration Act requires that, if a valid application is made under s 412 for review of a Part 7-reviewable decision, the Tribunal must review the decision. The Tribunal in this case was concerned with such a decision. The Tribunal had before it an application for review of a decision to refuse a protection visa. The Tribunal was therefore required to determine whether or not it was satisfied of certain matters to which s 65 directs attention and, in particular, whether or not the criteria for a protection visa set out in s 36(2)(a) and (aa) of the Migration Act were satisfied.

56    The Tribunal is empowered by s 415(1) of the Migration Act “for the purposes of the review” to exercise all the powers and discretions that are conferred by the Migration Act on the person who made the decision. Under s 415(2), the Tribunal may, relevantly, affirm the decision, vary it, remit for reconsideration or set it aside and substitute a new decision. Before exercising these dispositive powers, however, the Tribunal must first conduct a review.

That is to say it must have considered the application which is the subject of review in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself. So much is contemplated by ss 423, 424, 425 and 426 of the Migration Act.

See Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [44].

57    The nature of the review that the Tribunal is required to undertake in a case such as this has been frequently explored by this Court and the High Court over the past twenty years or so, including relatively recently in MZYTS. The Full Court in MZYTS held that the Tribunal in that case had failed to deal with the applicant’s claim that there were cyclical and increasing risks of violence to actual or perceived members of the leading opposition political party in Zimbabwe, of which the applicant was one. The Court acknowledged at [35] that the determination of whether there was an objective basis for the applicant’s fear of persecution in his country of nationality (an element of the criterion in s 36(2)(a)) could only be made by reference to “an assessment of, and findings of fact about” the circumstances in the applicant’s country of nationality at the time the applicant was likely to be returned there. Consistently with Applicant WAEE the Court explained, in MZYTS at [38], that a “decision could only be made by the Tribunal after evaluation of all the pertinent material put forward by the visa applicant in support of the specific claim (and, of course, any contradictory information to which the Tribunal chose to make reference), including the most recent material and a decision about whether or not things had changed, were changing, were likely to change or had stayed much the same”.

58    In reaching the conclusion that the Tribunal had failed to address the applicant’s claim about the increasing risks of violence, the Court in MZYTS at [49]-[50] added that it was:

… entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present — and what is absent — from the reasons may in a given case enable a Court on review to find jurisdictional error: see Yusuf 206 CLR 323 at [10], [44], [69].

… The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.

59    The outcome of this appeal turns on the Tribunal’s reasons in the appellant’s case and, since those reasons represent what the Tribunal considered material to its decision, on what the Tribunal included in, and omitted from, its reasons.

60    It is plain enough from the Tribunal’s reasons that the country information was an integral part of its decision-making. Notwithstanding that the Tribunal made various findings adverse to the appellant, including respecting his credibility, the Tribunal’s reasons establish that the country information set out at [26]-[27] was part of the basis for the Tribunal’s determination that it was not satisfied that the appellant satisfied the criteria for protection as a refugee under the Refugees Convention (as required by s 36(2)(a) of the Migration Act) or by reference to the complementary protection criteria (as required by s 36(2)(aa)). This is apparent from the Tribunal’s findings at [60]-[61] and [66]-[67] of its reasons, that:

(a)    “based on the independent evidence and the [appellant’s] profile as a political operative”, the Tribunal was not satisfied that the appellant faced a real chance of serious harm should he return to Nepal as a result of any ongoing political activity (at [60]);

(b)    “[i]ndependent information does not support the contention that any individual citizen in Nepal today is at a real chance of serious harm as result of the general security situation and the Tribunal does not consider there is a real chance of serious harm to the [appellant] on that basis” (at [61]);

(c)    “based on independent evidence and [the appellant’s] profile”, the Tribunal was not satisfied that the appellant was at a real risk of significant harm should he continue political activities as an ordinary member involved in the Nepali Congress or its associated organisations (at [66]); and

(d)    the Tribunal was not satisfied that the “independent evidence before it establishes that the [appellant] would be at a real risk of significant harm as a consequence of the general security situation in Nepal” (at [67]).

61    In substance, the Tribunal’s reasons, particularly between [59]-[67], indicate that the Tribunal’s non-acceptance of the appellant’s case was the outcome of both its adverse credibility findings and the country information it had obtained. The Tribunal did not treat each matter as a separate and distinct basis for its decision. Rather, the Tribunal treated the two matters as jointly supporting its non-acceptance that the appellant satisfied the criteria for the protection visa he sought.

62    The findings and conclusions at [60]-[67] of the Tribunal’s reasons might have been based on the view, expressed in sources 2 and 3, that the level of political violence in Nepal had relevantly diminished. As the appellant submitted, a different view might have been said to have been expressed in sources 6 and 7, to the effect that political violence had increased in 2015, when the Tribunal was making its decision. The evaluation of this information was, and remains, a matter for the Tribunal, and not for the Court. It is, however, undeniable that the country information that the Tribunal set out at [26]-[27] in its reasons (and, it may be inferred, the Tribunal regarded as material to its decision) does not provide a uniform description of the prevalence of political violence in Nepal. In order to determine whether the appellant had an objective basis for his fear of persecution in Nepal, the Tribunal had to do more than cite various different views about the relevant circumstances in that country. The Tribunal had to make relevant findings of fact, not only about the appellant’s past (and indeed future) political activity or involvement in Nepal but also about the risk of harm to him as a consequence of such activity or involvement. This could not be done unless the Tribunal made an evaluation of the relevant country information before it, in light of any other relevant evidence and the appellant’s submissions.

63    As the Court in Applicant WAEE at [44] made clear, the need for the Tribunal to evaluate information and evidence is the same, whether or not the information is provided to it by an applicant or it obtains the information for itself. In conformity with this, it is plain enough that, although the circumstances that gave rise to the jurisdictional error in MZYTS differ from the circumstances that are said to give rise to the same kind of jurisdictional error in the appellant’s case, the duty to consider (as referred to in Applicant WAEE) and, in so doing, to make pertinent findings of fact and to evaluate and assess the evidence, information and arguments before it (referred to in MZYTS) remains the same. For this reason, the distinction that the Minister sought to draw between this case and MZYTS does not assist the Minister’s case.

64    Having cited various sources concerning the prevalence of political violence in Nepal that it regarded as material to its decision, the Tribunal’s reasons contain no evaluation of those sources, whether as regards relevance to the appellant’s position on a likely return date, reliability, cogency, or some other basis. It may be, as the Minister invited the Court to infer, that the Tribunal considered that the sources of country information regarding the decline in inter-party violence in 2014 were more persuasive than the country information in 2015 indicating “growing political volatility” and risk of political violence. It is, however, impossible to discern this from what the Tribunal said in its reasons. As counsel for the appellant accepted at the hearing, it would have been open for the Tribunal to have explained how it arrived at its conclusions, notwithstanding the country information from 2015 indicating a rise in political violence. The fact is, however, that the Tribunal’s reasons do not contain any evaluation or assessment of the disparate country information, and the Tribunal did not state a preference for any particular source of country information over another as a result of any such evaluation.

65    Having regard to the differences between the sources of country information before the Tribunal, some weighing or evaluation indicating a basis for preferring one source to another was called for. The Tribunal’s analysis of the country information that led it to reach the conclusions set out at [60]-[61] and [67]-[68] of its reasons was not just slim; it was non-existent.

66    The Tribunal’s reference at [54] of its reasons to “independent evidence” does not provide the missing analysis. First, the paragraph simply recorded what the Tribunal put to the appellant at the Tribunal hearing and did not disclose any post-hearing analysis based on all the information, evidence and arguments before it. Secondly, the Tribunal’s reference to having “summarised” the independent evidence for this purpose does not disclose a process of weighing and evaluating the evidence of a kind to which the Court in MZYTS referred at [50] or appropriate to the fact-finding on which the Tribunal’s decision depended. Thirdly, having regard to the apparent inconsistency between the Tribunal’s characterisation of the country information at [54] and sources 6 and 7 (see [39]-[40] above), it is not possible to infer the requisite evaluation merely from the Tribunal’s statement that “one source indicat[ed] no insurgency violence [had] tak[en] place at all in 2014”. The Minister’s submissions to the contrary should be rejected.

67    The Tribunal’s duty to consider an application for review before exercising its dispositive powers, which was discussed at [56] above, requires that the Tribunal consciously engage with the claims, submissions, information and evidence before it relating to that application. The reasons for decision in MZYTS express this idea at a number of levels: see MZYTS at [38]-[39], [41], [45]-[46] and [50]. It may be that to use the language of “consideration”, as the appellant has done from time to time in his submissions, is unhelpful, and that Black CJ’s elaboration of the verb “consider” in Tickner v Chapman at 462 is of limited, if any, assistance in the present context: see MZYTS at [72]. Be this as it may, in this case the absence of any evaluation of the country information in the Tribunal’s reasons, in circumstances in which such an evaluation was called for, together with an absence of findings of fact that might be seen as consequential on that evaluation, signifies a constructive failure to exercise jurisdiction in that, as in MZYTS, the Tribunal has failed to undertake the requisite steps to form the state of satisfaction required for the purposes of the review in respect of the criterion in s 36(2)(a) and, here also the criterion in s 36(2)(aa) of the Migration Act.

68    It is important that this conclusion not be misunderstood. The Court in no way seeks to substitute its own decision for that of the Tribunal or to dictate what the decision should be.

Disposition

69    For the reasons stated, I would allow the appeal and make consequential orders.

70    The Court would like to record its appreciation of counsel appearing pro bono for the appellant.  It is appropriate that the Court acknowledge the public service rendered to the Court and to litigants in person by members of the profession who agree to act without fee as solicitor or counsel in the preparation of cases and presentation of argument in order that the interests of justice may be served.

Associate:

Dated:    29 November 2018