FEDERAL COURT OF AUSTRALIA

DWQ16 v Minister for Immigration and Border Protection [2018] FCA 1916

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s interlocutory application dated 28 August 2018 be dismissed.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the proceeding (including the interlocutory application), to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

4.    Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.

5.    In the absence of any agreement pursuant to paragraph 4 of these orders, within 21 days the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS).

6.    Within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).

7.    In the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The appellant, a citizen of Vietnam, appeals from orders of the Federal Circuit Court of Australia. The appellant seeks leave to amend his notice of appeal to raise two new grounds, that is, grounds that were not raised at the hearing in the Federal Circuit Court. The appellant does not press either of the grounds in the notice of appeal as filed.

2    For the reasons that follow, in my view it would not be appropriate to grant the appellant leave to raise the two new grounds on appeal. In circumstances where the appellant no longer pursues the grounds in the original notice of appeal, it follows that the appeal is to be dismissed.

Background facts

3    The appellant, a citizen of Vietnam, arrived in Australia by boat in May 2013. He was an unauthorised maritime arrival.

4    On 5 June 2013, an entry interview with the appellant was conducted.

5    On 25 June 2014, the appellant lodged an application for a Protection (Class XA) visa.

6    On 14 October 2014, the appellant attended an interview with a delegate of the first respondent (the Minister).

7    On 16 January 2015, the delegate decided to refuse the appellant’s visa application. In the decision record, the delegate stated that the appellant’s application for a Protection (Class XA) visa was refused. While this was the class of visa referred to in the appellant’s visa application, the delegate appears to have overlooked legislative changes that had come into effect on 16 December 2014, the effect of which was to convert an application for a class XA (permanent) visa by an unauthorised maritime arrival into an application for a class XD (temporary) visa. By force of reg 2.08F of the Migration Regulations 1994 (Cth) (made under s 45AA of the Migration Act 1958 (Cth)), a valid application for a class XA visa by a prescribed applicant (which included an unauthorised maritime arrival: see reg 2.08F(2)(c)) made before the commencement of those provisions was: (a) taken not to be, and never to have been, a valid application for a class XA visa; and (b) taken to be, and always to have been, a valid application for a class XD visa made by the prescribed applicant. It is common ground that the delegate, in referring to an application for a class XA visa rather than a class XD visa, made an error. In his supplementary written submissions, the Minister accepts that the delegate erred in purporting to refuse to grant a class XA visa. The Minister accepts that: the delegate found that the appellant was an unauthorised maritime arrival and found that he had made a valid application; thus, the preconditions for the application of reg 2.08F were met.

8    The delegate’s decision record summarised the appellant’s claims at pp 4-5. Relevantly for present purposes, the claims included:

•    On 7 July 2012, he was on his way to participate in a protest for Con Cuong, the church which was attacked by the military. The applicant along with twelve others, were on their way to join the protest in response to a call by the Diocese of Vinh priest. They wanted to show their respect for the victims of the attack. This was the first time that he had participated in a protest of this nature and he did so because the attack was so brutal. He took it as an insult on his religious beliefs. They had to fight for their right to practice their beliefs in peace.

•    They travelled together on a number of scooters to the venue when they were stopped by four policemen. Their identities were checked including the applicant's driving licence. The police made them sit on the ground in one group. They took four people away to the police station because they only had one police van.

•    There were two policemen looking after the remaining nine in the group. They were kept there for thirty minutes. One police called for more vehicles to come and take the remaining group. The group explained to the police what they were doing and where they were going. In response they were abused, kicked and beaten with batons. The applicant resisted and was beaten.

•    The applicant suddenly saw a rock, picked it up and hit a policeman on the head to defend himself. The policeman was bleeding from the head and fell unconscious. After he collapsed, the applicant and another person were able to run away from the group. About five of the others in the group grabbed the other policeman and stopped him from chasing him.

9    The delegate made findings in relation to these claims at pp 6-9 of the decision record. The delegate’s consideration of these claims included the following paragraph:

The applicant claims that he was on his way to participate in a protest for Con Cuong on 7 July 2012 in response to a call by the priest of the Diocese of Vinh. I have considered this claim including the following:

•    The applicant has not submitted any documentary evidence such as media reports to substantiate his claim that the Con Cuong priest/bishop had called for a protest on 7 July 2012 at the Con Cuong church. Nor am I able to find any country information to indicate a Con Cuong priest had called for a demonstration to be held there on that particular date. However, I note country information reports the Vinh Diocese sent a letter to cardinals and bishops on 10 July 2012 calling for massive protests to end to persecution of Catholics for 15 July 2012. Consequently, I find the applicant has not substantiated this claim. Furthermore, I am not satisfied the Vinh diocese had called for Catholics to protest at the Con Cuong church on 7 July 2012 as claimed by the applicant.

(Footnote omitted.)

10    The decision record included a footnote immediately after the words “I note country information” in the above passage. The footnote was as follows:

Vietnam: mass protests after government crackdown on Catholic Church, Independent Catholic News, 15/7/2012, accessed at www.indcatholicnews.com/news.php?view Story=20803

11    The delegate considered a number of other aspects of the evidence relating to the alleged incident with police on 7 July 2012. Ultimately, the delegate concluded (at pp 8-9) that the appellant’s claims relating to his involvement in the incident with police on that date lacked credibility.

12    On 9 February 2015, the appellant applied to the Refugee Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal), for review of the delegate’s decision.

13    On 22 November 2016, the Tribunal set aside the decision of the delegate to refuse to grant the appellant a Protection (Class XA) visa and substituted a decision to refuse to grant the appellant a Protection (Class XD) visa.

14    The Tribunal noted, at [3] of its statement of decision and reasons, the effect of s 45AA of the Migration Act and reg 2.08F of the Migration Regulations (which has been set out above). The Tribunal stated that, although the appellant applied for a Protection (Class XA) visa, the application was taken to be, and to have always been, an application for a Protection (Class XD) visa rather than for a Protection (Class XA) visa. The Tribunal proceeded to consider the application on that basis.

15    The Tribunal set out the appellant’s claims, including his claims relating to the incident with police on 7 July 2012. The appellant made a number of other claims, including that he faced persecution in Vietnam as a Catholic.

16    The Tribunal considered the claims relating to the incident with police on 7 July 2012 (including the aftermath of the incident) at [33]-[71]. Overall, as indicated at [33], the Tribunal found the appellant’s claims regarding the incident with police to be implausible, and that there were significant inconsistencies in his evidence about this claimed event and its aftermath. The Tribunal described in some detail the evidence that the appellant gave in response to questions asked by the Tribunal at the hearing. The Tribunal observed, at [45], that the appellant’s account of the claimed incident with the police had not been consistent. The Tribunal also commented, at [46], that when the Tribunal questioned the appellant about the event his answers were vague and lacking in detail.

17    Towards the end of the section dealing with the claims relating to the incident with police on 7 July 2012, the Tribunal referred to the country information that had been referred to in the delegate’s decision. The Tribunal stated at [67]-[69]:

67.    In considering the applicant’s claims about past events in Vietnam upon which he has based his protection claims the Tribunal has also taken into account independent country information before the Tribunal and which is discussed in the delegate’s decision. That information is contained in an article dated 15 July 2012 by JB An Dang “Vietnam: mass protests after government crackdown on Catholic Church” (http://www.indcatholicnews.com/news) which reports that the Vinh Diocese of the Catholic church in Vietnam sent a letter to all cardinals and bishops in Vietnam on 10 July 2012 calling for massive protests to end the persecution of Catholics, and that mass protests took place on 15 July 2012. The letter stated that:

“Recently, Catholics in the diocese of Vinh who reside in the North West Region of the Nghe An Province have been repeatedly persecuted for their faith. The attack on Sunday 1 July was the peak of a series of harassments against Catholics in the region. On that day, the local government mobilised large groups of police, army, militiamen and thugs to disturb, and to physically attack priests and the faithful. They seized the chapel of Con Cuong, desecrated the Eucharist Host, and smashed a statue of the Virgin Mary.”

68.    The applicant has claimed that he and a group of friends were travelling to Con Cuong on 7 July 2012 in response to the call from the priest of the Diocese of Vinh. Yet country information suggests that such a call was not made until 10 July 2012 when the letter described above was sent to the Catholic church throughout Vietnam. The country information before the Tribunal does not include any information to indicate that a Con Cuong priest had called for a protest to be held there on a particular date.

69.    The Tribunal is not satisfied that the applicant was travelling on 7 July 2012 in response to a call from the priest of the Vinh Diocese for Catholics to protest at the Con Cuong church.

18    The Tribunal concluded, at [70], that: based on the implausible nature of the appellant’s claims and his inability to provide consistent and coherent evidence about the event and its aftermath, it did not accept that the incident with the police in fact occurred; it did not accept that he was involved in an incident with the police who pulled him over on his way to Con Cuong on 7 July 2012; and it therefore did not accept that he had come to the adverse attention of the Vietnamese authorities for this reason.

19    After considering other claims, the Tribunal concluded, at [115], that: it was not satisfied that the appellant was a person in respect of whom Australia had protection obligations under the Refugee Convention; therefore, the appellant did not satisfy the criterion set out in s 36(2)(a) of the Migration Act. The Tribunal also concluded, at [116], that it was not satisfied that the appellant was a person in respect of whom Australia had protection obligations under s 36(2)(aa).

The proceeding in the Federal Circuit Court

20    The appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The appellant was represented by counsel at the hearing in the Federal Circuit Court (which took place on 16 February 2018).

21    The appellant relied on a single ground in his amended application. This was as follows:

The Tribunal breached s424A of the Migration Act 1958 (Cth) by failing to give “information” within the meaning of s.424A to the applicant in the prescribed way.

Particulars

(a)    The first piece of information – that the applicant indicated he had gone back to his home area after he attacked the policeman – was:

i.    at relevant times, including during the Tribunal’s hearing, information that would be a reason or part of the reason for affirming the decision under review;

ii.    information that was provided orally by the application to the department during his protection visa interview and accordingly, the information was not excluded by s.424A(3): see s.424A(3)(ba).

(b)    The second piece of information – that the police did not question his mother or siblings in the aftermath of the police incident – was:

i.    at relevant times, including during the Tribunal’s hearing, information that would be a reason or part of the reason for affirming the decision under review; and

ii.    information that was provided orally by the application to the department during his protection visa interview and accordingly, the information was not excluded by s424A(3): see s.424A(3)(ba).

22    The primary judge gave judgment on 15 March 2018. His Honour set out the background to the application for judicial review at [3]-[12]. His Honour’s consideration of the ground was at [11]-[16] of his reasons. In relation to the first piece of information referred to in the appellant’s ground, the primary judge found that the appellant gave this information during the process that led to the decision that was under review by lodging his statement in support of his protection visa application. Further, the information contained in the appellant’s statement was set out in identical terms in the delegate’s decision which was provided to the Tribunal by the appellant during the process that led to the decision under review. Consequently, the primary judge held, the carve outs in ss 424A(3)(b) and 424A(3)(ba) applied.

23    In relation to the second piece of information referred to in the appellant’s ground for judicial review, the primary judge stated, at [13], that it was conceded by counsel for the appellant that the inclusion of a description of the second piece of information in the delegate’s decision, which the appellant provided to the Tribunal, meant that the appellant gave the information for the purposes of the review. The primary judge stated that this concession was properly made. The primary judge concluded, at [15], that the carve out in s 424A(3)(b) was engaged.

24    Accordingly, the primary judge concluded, s 424A(1) did not apply to either piece of information and there had been no jurisdictional error of the kind raised by the amended application. The application was therefore dismissed.

The appeal to this Court

25    The appellant has appealed to this Court from the orders of the Federal Circuit Court. The appellant’s notice of appeal, prepared by a firm of solicitors, included two grounds. The first ground raised a matter that had not been raised in the Federal Circuit Court. This ground was: “The Tribunal made adverse credibility finding so unreasonable and/or illogical that no reasonable person would have made it”. The second ground was substantially the same as the ground that was relied on in the Federal Circuit Court. The Minister filed a notice of contention in the context of the original notice of appeal.

26    Despite having legal representation, no submissions were filed on behalf of the appellant before the hearing of the appeal. At the hearing, counsel (who had been retained only a short time before the hearing) sought an adjournment. I indicated that I would give the appellant leave to file written submissions after the hearing and refused the application for an adjournment.

27    The appellant subsequently filed written submissions (dated 28 August 2018). These are signed by the solicitors for the appellant. Also, on 28 August 2018, the appellant filed an interlocutory application seeking leave to file and serve an amended notice of appeal in the form of annexure “LT-1” to the affidavit of Luke Luat Thien Tran, the solicitor acting for the appellant, dated 28 August 2018. The affidavit states: “The applicant seeks leave [to amend the notice of appeal] on the basis that it is in the interests of the administration of justice to do so, and that there is merit to the amended grounds of relief sought.” No other explanation is provided in support of the application for leave to amend the notice of appeal.

28    The proposed amended notice of appeal contains two new grounds of appeal as follows:

1.    The Tribunal breached s424A of the Migration Act 1958 (Cth) by failing to give “information” within the meaning of s424A to the applicant in a prescribed way.

Particulars

a.    The Tribunal was required to comply with s 424A (1) and give clear particulars of the information in the ICN Report to the applicant, ensure that the applicant understood why that information was relevant, and invite the applicant to comment or respond.

b.    The Tribunal had regard to the ICN Report and erroneously treated it as “independent country information” when it was not. The ICN Report was evidentiary material that was, and would have been, part of the reasons for affirming the decision.

c.    Had the applicant been given clear particulars of the information and the opportunity to understand its relevance, and the consequences of it being relied on, and thence to comment or respond, he could have explained the matter in a way that would not have led to his key claim being rejected.

2.    The applicant has not been notified pursuant to s 66 of the Migration Act 1958 (Cth) of the decision of a delegate of the Minister for Immigration and Border Protection dated 16 January 2015.

Particulars

a.    The Act was amended with effect 16 December 2014 to add, among others, s 45AA and regulation 2.08F of the Migration Regulations 1994 (Cth). The effect of s 45AA and regulation 2.08F was that the applicants for Class XA visas were taken to be applicants for Class XD visas in circumstances specified by reg 2.08F.

b.    Section 65 of the Act specifies the criteria for the grant of a visa. Section 66 provides that the Minister, on making a decision to grant or not grant a visa, must notify the applicant.

c.    The matters that must be in the notification include the criterion that the applicant did not satisfy and any provision that prevented the grant of the visa.

d.    The decision record of the delegate, and accompanying letter, both dated 16 January 2015, refer to a refusal to grant a Class XA visa.

e.    The decision record referred to a failure of the applicant to meet, among others, the criterion in “subclause 866.221 (4) of the Schedule 2 to the Migration Regulations”. The version of the Regulations in force at the time of the decision contained no such subclause.

f.    The decision record referred to a visa class that the applicant was not an applicant for, and referred to a criterion that no longer existed.

29    I note that neither of these grounds was raised in the Federal Circuit Court. Accordingly, leave to rely on these grounds is required.

30    The two grounds of appeal contained in the original notice of appeal are not included in the proposed amended notice of appeal, and I take these to no longer be pressed. (They are also not dealt with in the appellant’s written submissions dated 28 August 2018 or the appellant’s supplementary submissions filed on 19 September 2018.)

31    The proposed amended notice of appeal seeks (in addition to the orders originally sought) a declaration that the Minister by his delegate failed to comply with s 66 of the Migration Act. This form of relief evidently is tied to proposed ground 2.

Consideration

32    In circumstances where the appellant seeks leave to amend his notice of appeal to raise two grounds that were not raised in the Federal Circuit Court, it is necessary to consider whether the appellant should be granted leave to rely on the new grounds. This involves consideration of whether permitting the new grounds of appeal is expedient in the interests of justice: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46]. In that case, the Full Court (Kiefel, Weinberg and Stone JJ) stated at [48]:

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

33    As indicated by the above passage, the relevant factors in considering whether to grant leave to raise a new ground include: whether there is an adequate explanation for why the ground was not raised in the court below; and the prospects of success of the new ground: see also Gupta v Minister for Immigration and Border Protection (2017) 255 FCR 486 at [83] per Gilmour and Mortimer JJ.

34    In relation to the first of these factors, the affidavit of the solicitor in support of the application for leave to amend does not attempt to provide an explanation as to why the arguments were not raised below. I note that the appellant was legally represented in the Federal Circuit Court.

35    In relation to the prospects of success, for the reasons that follow I consider the proposed grounds to be weak.

36    By proposed ground 1, the appellant seeks to contend that by failing to give the appellant particulars of the information in a report of Independent Catholic News dated 15 July 2012 (the ICN Report), the Tribunal breached s 424A. That section relevantly provided as follows at the time of the Tribunal’s decision:

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.

…

(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

…

37    The substance of the ICN Report was that the Vinh Diocese sent a letter to bishops and cardinals on 10 July 2012 calling for protests on 15 July 2012.

38    If an applicant gives a delegate’s decision to the Tribunal as part of an application for review, then information set out in the delegate’s decision is “given by the applicant for the purpose of the application for review” within the meaning of s 424A(3)(b): see Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 at [16]-[22] per Sundberg J, cited with approval in Minister for Immigration and Citizenship v Brar (2012) 201 FCR 240 at [74] (discussing s 359A); SZVDC v Minister for Immigration and Border Protection [2018] FCAFC 16 at [76] (discussing s 424A). Here, the substance of the ICN Report was contained in the delegate’s decision (see [17] above). The appellant provided the delegate’s decision to the Tribunal as part of the application for review: see the Tribunal’s decision at [34] and the reasons of the primary judge at [12], [13] and [14]. It follows that the carve out in s 424A(3)(b) applies. The prospects of success of this proposed ground are therefore weak.

39    By proposed ground 2, the appellant seeks to contend that he was not notified pursuant to s 66 of the Migration Act of the decision of the delegate, because the delegate wrongly purported to refuse a class XA visa, when that class had been replaced by the class XD visa.

40    As noted above, the Minister accepts that the delegate made an error in this regard. However, the error by the delegate did not deprive the Tribunal of jurisdiction to review the delegate’s decision. Despite the error, the delegate’s decision remained a “Part 7 reviewable decision” as defined in s 411 of the Migration Act: see Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495; Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344. That conclusion follows from a long line of cases, beginning with Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307.

41    The appellant does not challenge the Tribunal’s jurisdiction as such, but rather seeks to challenge the validity of the notification of the delegate’s decision. However, for the reasons given above, the delegate’s error had no effect on the validity of the Tribunal’s decision.

42    In my view, the error in the delegate’s decision does not undermine the effectiveness of the notification of that decision. In any event, there does not appear to be any utility in making a declaration as sought by the appellant. The delegate’s decision has been wholly overtaken by the Tribunal’s decision. Any declaration about the delegate’s decision would not have any foreseeable consequences for the appellant: see Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582.

43    The two cases cited by the appellant are distinguishable. In Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319, the Minister was still in the process of deciding whether to exercise a non-compellable power, and the decision advising him contained legal error. In SZQBN v Minister for Immigration and Citizenship (2013) 213 FCR 297, there was utility in making declarations about a visa that had since expired because the appellant in that case might seek to re-enter Australia or enter another country: see at [83].

44    For these reasons, the prospects of success of proposed ground 2 are weak.

45    In light of the above, in my view leave to raise the new grounds should be refused. It is appropriate in the circumstances for leave to amend to be refused. As the appellant does not press the grounds in his original notice of appeal, the appeal is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, I will order that the appellant pay the Minister’s costs of the appeal (including the costs of the interlocutory application), to be fixed by way of a lump sum.

Associate:

Dated:    30 November 2018