FEDERAL COURT OF AUSTRALIA

BTN16 v Minister for Immigration and Border Protection [2019] FCA 1354

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

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

4.    In the absence of any agreement:

(a)    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);

(b)    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); and

(c)    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:

1    The appellant, a citizen of Nepal, appeals from a judgment of the Federal Circuit Court of Australia, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal). The appeal was originally listed for hearing in August 2018, but the hearing was vacated pending the outcome of certain appeals to the High Court. The appeal was re-listed following the judgment of the High Court in Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599 (SZMTA).

2    The appellant first arrived in Australia in 2009 as a dependent on his (then) wife’s student visa. Following the appellant’s separation from his wife, in 2010, his visa was cancelled, at which time he became an unlawful non-citizen within the meaning of the Migration Act 1958 (Cth).

3    On 18 September 2013, the appellant applied for a protection visa. On 14 October 2014, a delegate of the first respondent (the Minister) refused the application for a protection visa.

4    The appellant applied to the (then) Refugee Review Tribunal for review of the delegate’s decision. The appellant provided a copy of the delegate’s decision to the Tribunal as part of the review application. On 7 April 2016, the Tribunal invited the appellant to appear at a hearing before it to give evidence and present arguments on the review. The appellant appeared at a hearing on 6 May 2016.

5    On 8 April 2016, the Tribunal issued a summons to the Secretary to the Department of Immigration and Border Protection to produce documents relating to the appellant’s student visa. Save for the documents covered by a section 438 certificate (discussed below), the documents were provided to the Tribunal.

6    On 20 April 2016, a delegate of the Minister purported to issue a certificate under s 438(1)(a) of the Migration Act, certifying that disclosure of certain identified folios on an identified Departmental file would be “contrary to the public interest” because the identified folios “contain information relating to an internal working document and business affairs”. The Minister now accepts that the certificate was invalid, on the basis that the preconditions set out in s 438(1) were not met. In particular, paragraph (a) of s 438(1) provides, in summary, that the section applies to a document if the Minister has certified that the disclosure would be contrary to the public interest for any reason specified in the certificate “that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed”. The Minister accepts that the reason specified in the certificate in this case – that the information related to an internal working document and business affairs – did not meet that precondition. Further, it was not suggested that the (alternative) precondition in s 438(1)(b) was met.

7    On 16 June 2016, the Tribunal affirmed the decision of the delegate. The Tribunal summarised the basis of the appellant’s application at [4] of its reasons:

4.    According to these documents, his claims can be summarised as follows:

•    The applicant’s house is located in Biratnagar, in the Terai region near the Indian border. He operated a business there.

•    The applicant had been threatened to be killed and kidnapped many times by Madhesi Mukti Morcha and the Maoist Youth Communist League (YCL) in Biratnagar.

•    On 10 February 2002, he was kidnapped by Jantantrik Terai Mukti Morcha (JTMM), he was held for nine days. The kidnappers threatened to kill him because he supported the King and the Rastritya Prajatantra Party (RPP). They accused him of spying on them and not donating money to their party. They demanded his father pay Rs.2.5 million for his release, otherwise they would kill him. His father was able to organise to pay R.s.1.5 million for his release, selling their land to pay the ransom. He was released on 19 February 2002 and went back to their home at Biratnagar.

•    Five days after the applicant’s release, he and his family moved to Kathmandu. In 2003 he opened a Colour Lab and started a small business in Kathmandu.

•    On 18 March 2005 the NCP Maoist and JTMM called him seeking a donation and threatening his life again. They ordered him to close down his business. The applicant closed the colour lab but they still troubled him all the time with phone calls and letters. He went to the police station with the letters and the phone records and also told them about the previous kidnapping but the police said it was impossible to provide a police escort. They said they would investigate but this was not enough and he lived in fear every day and night.

•    He married a Nepalese girl who then told him they could go to Australia to study, and they went to Melbourne. He found it difficult to earn money in Melbourne, so he moved in search of work. His wife wanted a divorce.

•    He could not return to Nepal because he does not have the ability to fight against the Maoists and the Madhesi Mukti Morcha in Nepal and his life is at risk.

(Footnote omitted.)

8    The Tribunal’s findings against the appellant on issues of credibility were extensive: see [14] to [56]. The Tribunal noted many inconsistencies in the appellant’s evidence, including matters such as where he was born and when he moved to Kathmandu: see [41] to [47]. It also identified a number of other reasons for not accepting the appellant’s evidence.

9    The Tribunal ultimately determined, at [64], that the appellant was not a “witness of truth”, and had fabricated his account of events underpinning his claims to engage Australia’s protection obligations. The Tribunal’s concerns were not overcome by the “corroborative evidence” (identified at [60]-[63]) put forward by the appellant.

10    As the Tribunal did not accept that the appellant had provided truthful evidence about his claims concerning Nepal (or India), it rejected his asserted claims of past harm (at [65]-[70]). The Tribunal concluded that the appellant would not face a real chance of serious harm, or a real risk of significant harm, on return to Nepal (at [71]-[77]) or from the general security situation, conflict generally and the conflict in Terai (at [78]-[86]). A similar factual conclusion was reached in relation to complementary protection (at [89]-[91]). The Tribunal concluded that the appellant did not satisfy the criteria in s 36(2) for a protection visa, and it therefore affirmed the delegate’s decision.

11    On 13 July 2016, the appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The grounds of the application are set out in the primary judge’s reasons at [9], [11], [13] and [15]. On 11 December 2017, following a hearing that day, the primary judge delivered ex tempore reasons for judgment. The primary judge concluded that none of the grounds were made out: see [10], [12], [14] and [16] of the reasons for judgment.

12    At the hearing before the primary judge, the Minister, as a model litigant, raised an issue concerning the section 438 certificate. The documents that had been the subject of the certificate were provided to the appellant and the Federal Circuit Court (by way of annexures to an affidavit). The primary judge dealt with this issue under the heading “Potential Additional Ground” at [17]-[19] of his reasons. The primary judge referred to cases including Minister for Immigration and Border Protection v CQZ15 (2017) 253 FCR 1 (CQZ15) and BEG15 v Minister for Immigration and Border Protection (2017) 253 FCR 36 (BEG15). The primary judge noted that the documents covered by the certificate appeared to be the administrative records of the appellant’s student visa application. His Honour stated that the documents “contain a non-migration record case dump which appears to be a computer printout of basic data, and a number of other records being movement details, some brief health records, some summary financial information and an English language test score result”: [17]. The primary judge stated that “[n]one of these documents appear to have any relevance to the decision that the Tribunal had to make”: [17].

13    The primary judge stated, at [18], that the one limited relevance that the documents may have was in demonstrating that the appellant had a student visa for a period of time prior to coming to Australia, and that there was a period of time between the student visa and when he applied for a protection visa. The primary judge then stated that neither of these matters was in dispute; only the discrepancies in the information provided by the appellant with respect to the underlying facts were in dispute. The primary judge noted that the Tribunal referred to the timing issues at [50]-[51] of its reasons, which the primary judge then set out. The primary judge concluded, at [19], that he was not persuaded that the documents gave rise to even a possibility of any different outcome. Accordingly, the application for judicial review was dismissed.

14    The appellant appeals to this Court from the judgment of the Federal Circuit Court. The appellant’s notice of appeal contains two grounds, to the following effect:

(a)    that the primary judge failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the appellant’s claim, and that the Tribunal ignored “the aspect of persecution and harm in terms of” s 91R of the Migration Act and thereby failed to observe its statutory obligation; and

(b)    that the primary judge dismissed the case without considering the legal and factual errors contained in the Tribunal’s decision.

15    The appellant is not represented by a lawyer. At the hearing of the appeal he was assisted by an interpreter. The appellant did not file an outline of submissions in advance of the hearing. At the appeal hearing, he said that he did not wish to make any oral submissions.

16    In relation to the first ground, the appellant has not identified how it is said that the Tribunal acted in a manifestly unreasonable way. It is not apparent on the face of the material that the Tribunal acted in such a way. It appears likely that the appellant is merely expressing his disagreement with the Tribunal’s factual conclusions: see CED15 v Minister for Immigration and Border Protection [2018] FCA 451 at [80] per Thawley J. It is also not apparent that the Tribunal ignored “the aspect of persecution and harm in terms of” s 91R of the Migration Act. The Tribunal identified the applicable law and then applied it to the appellant’s claims. No attempt has been made by the appellant to establish that the Tribunal did not conduct a review as required by the Migration Act, having regard to the correct approach it must take to its statutory task as explained in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431. Accordingly, the first ground is not made out.

17    The second ground is not particularised. It is not apparent on the face of the material that the primary judge erred in the way that is contended.

18    I have considered the way in which the primary judge dealt with the issue concerning the section 438 certificate. In my view, the way in which the primary judge dealt with the issue was consistent with the judgment of the High Court in SZMTA (although the primary judge did not have the benefit of that decision at the time he gave judgment). The primary judge relied on the decisions of the Full Court in CQZ15 and BEG15. Those judgments were affirmed by the High Court in SZMTA. As noted above, the primary judge concluded that he was not persuaded that the documents (that were the subject of the certificate) gave rise to even a possibility of a different outcome. Having reviewed the documents and the reasons of the Tribunal, I do not consider there to be any error in the primary judge’s conclusion that the documents were not material. Although the Tribunal referred to the student visa application file at [43] and [50] of its reasons, these references do not suggest that the documents were material. At [43], the Tribunal referred to a matter from his student visa application file, but this matter was not in the part of the file that was the subject of the certificate. At [50] of its reasons, the Tribunal referred to a matter that it had put to the appellant pursuant to s 424AA of the Migration Act. Accordingly, no procedural fairness issue arises from the documents being covered by the certificate. In any event, it appears that the information came from documents on the file that were not the subject of the certificate. For these reasons, no error arises in relation to the primary judge’s conclusion that the documents the subject of the certificate were not material. In relation to materiality, I refer to the judgment of Bell, Gageler and Keane JJ at [45]-[50] of SZMTA.

19    For these reasons, the second ground of review is not made out.

20    It follows that the appeal is to be dismissed. In relation to costs, there is no apparent reason why costs should not follow the event. I will also make an order to this effect.

21    The Minister sought an order for his costs to be fixed in the sum of $7,000. The Minister noted that, under the provisions of the Federal Court Rules 2011 dealing with short form bills of costs in migration matters (rr 40.43 and 40.44), the amount to which he is entitled is $7,241 (see item 15.2 in Sch 3 to the Rules). However, I think it is preferable to order that the costs be fixed by way of a lump sum, with appropriate directions to facilitate the determination of this amount by a Registrar. This is consistent with the process described at [4.10]-[4.14] of the Court’s Costs Practice Note (GPN-COSTS). While it is true that the amount sought by the Minister ($7,000) is less than the amount referred to in item 15.2 of Sch 3 ($7,241), that amount is subject to the procedure for the taxation of short form bills of costs set out in r 40.44. Accordingly, it is not necessarily the case that the Minister would obtain $7,241 under that process.

Associate:

Dated:    26 August 2019