FEDERAL COURT OF AUSTRALIA

SZALG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1987

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

3.    The name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

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

REASONS FOR JUDGMENT

(Revised from transcript)

O’BRYAN J:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia on 8 May 2019, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 17 August 2016. The Tribunal had affirmed a decision of a delegate of the Minister made on 18 June 2014 under s 65 of the Migration Act 1958 (Cth) (Act) refusing to grant the appellant a protection visa.

2    A written outline of submissions was filed and served on behalf of the Minister prior to the hearing of the appeal. No written submissions were filed and served on behalf of the appellant.

3    The appellant was not legally represented at the appeal. With the assistance of an interpreter, the appellant asked the Court to reconsider the decision below.

4    For the reasons that follow, the appeal should be dismissed with costs.

Background

5    These proceedings have a lengthy history. The primary judge set out the background to the current appeal at [3] – [5]:

Background

[3] The Applicant arrived in Australia on 2 July 2001 on a Business (Short Stay) (Class UC) (Subclass 456) visa. He applied for a Protection visa under the Refugees Convention criterion (first Protection visa application), which was refused on 13 November 2001 by a Delegate of the Minister. The Refugee Review Tribunal (RRT) affirmed the Delegate’s refusal of the Protection visa on 11 December 2002, and judicial review for jurisdictional error was successively refused in the Federal Magistrates Court, the Federal Court of Australia and the High Court of Australia by 26 May 2005: see SZALG v MIMIA [2005] HCA Trans 360.

[4] Then, on 31 May 2013 the Applicant applied for the Protection visa (present Protection visa application) which is the subject of this proceeding, following the introduction on 24 March 2012 of the complementary protection criterion under s.36(2)(aa) of the Migration Act 1958 (Cth) (the Act). The decision of the Full Court of the Federal Court of Australia on 3 July 2013 in SZGIZ v The Minister of Immigration and Citizenship (2013) 212 FCR 235 (SZGIZ) found that s.48A of the Act as it then stood did not prevent a person from making another Protection visa application on complementary protection grounds when the earlier application had been determined only on Refugees Convention grounds.

Claims for Protection

[5] The Applicant, in answer to question 43 of his Protection visa application form as supplemented by his statutory declaration declared on 10 June 2014, which formed part of his Protection visa application, claimed in short:

•    to fear physical harm or death in Nepal at the hands of supporters and members of the Communist Party of Nepal (Maoist) and the Nepalese Police on account of his involvement with the Maoist political party; and

•    the fear of being harmed and mistreated in Nepal because he is a homosexual.

6    On 18 June 2014, the delegate refused the second application for a protection visa. On 14 December 2014, the Tribunal affirmed that decision but, on 25 February 2016, this Court made orders by consent setting aside the Tribunal’s decision and remitting the matter back to the Tribunal. This appeal is concerned with the second Tribunal hearing.

Second Tribunal Hearing

7    On 15 July 2016, the appellant attended the remitted hearing before the Tribunal to give evidence and to present arguments. He did so with the assistance of an interpreter.

8    On 17 August 2016, the Tribunal delivered its statement of decision and reasons, affirming the delegate’s decision not to grant a protection visa.

9    The Tribunal’s findings are set out at [117] – [138]. In short, the Tribunal was not satisfied as to the first appellant’s credibility and found that his account of events (giving rise to the fear of persecution or suffering significant harm on return to Nepal) had changed significantly over the course of the two protection visa applications, the interview with the delegate and the Tribunal hearings.

10    The Tribunal found the appellant’s evidence to be vague and unpersuasive. The Tribunal decision was based on extensive credibility concerns the member had with the appellant as a witness. For example, the member found his motivations for joining the Maoist party in Nepal were opaque and that his explanations for inconsistencies in his evidence did not allay the Tribunal’s concerns. The Tribunal was not satisfied that the appellant ever supported or joined the Maoist party in Nepal, was involved in any of their activities, was ever approached by police or was in hiding and fearful of harm from the police, government agencies, political opponents of the Maoists, the Maoists or any other party (at [117] – [124]).

11    As a result of the finding of inconsistencies in his evidence, and the lateness of the claim, the Tribunal was not satisfied that the appellant is bisexual or homosexual or has conducted homosexual relationships or encounters with men in either Nepal or Australia. The Tribunal found that, although the appellant may have participated in Mardi Gras parades and been involved with LGBTI advocacy and support groups, those activities were engaged in to support or strengthen his protection visa application. The Tribunal found there is no real risk of significant harm from the appellant’s family, his wife’s family, his community, Nepalese society or any other person or party in Nepal for any reason relating to his sexuality (at [125] to [133]).

12    Although crime is a significant problem in Nepal, the Tribunal found the risk of harm the appellant would face in Nepal is the same that would be faced by the general population. The Tribunal found this did not amount to significant harm. The Tribunal found that, as the appellant was not homosexual as claimed, he would not face harm from accusations of abandoning his wife or his sons. The Tribunal found the appellant had not been truthful about his personal circumstances or relationships, including with his wife. The Tribunal found there is no real risk of harm from his immediate family amounting to significant harm (at [134] to [137]).

13    For those reasons, the Tribunal affirmed the delegate’s decision.

Proceedings in the Federal Circuit Court

14    On 19 September 2016, the appellant lodged an application in the Federal Circuit Court, seeking judicial review of the Tribunal’s decision under s 476 of the Act. Subject to various exceptions (which are not presently relevant), s 476 grants the Federal Circuit Court the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. As such, review by the Federal Circuit Court was confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

15    To constitute jurisdictional error, the error must comprise a failure to comply with a statutory precondition which must exist in order for the decision-maker to embark on the decision-making process or a failure to comply with a condition which the statute expressly or impliedly requires to be observed in the decision-making process, and the error must ordinarily be material in the sense that compliance with the condition could have resulted in the making of a different decision: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 (Hossain) at [17] – [31] per Kiefel CJ and Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA (2019) 163 ALD 38 (SZMTA) at [45] per Bell, Gageler and Keane JJ. Such errors can include identifying a wrong issue, asking the wrong question, ignoring relevant material, relying on irrelevant material, failing to observe an applicable requirement of procedural fairness or, in certain circumstances, making an erroneous factual finding: Craig v South Australia (1995) 184 CLR 163 at 179; Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [67]; Hossain at [70].

16    The grounds of review stated in the amended application to the Federal Circuit Court were as follows (errors in original):

l.     I disagree with the Tribunal Member's purported decision because I believe the Tribunal Member has breached certain sections of the Migration Act in dealing and applying the requirements of certain case laws in identifying the adverse issue or material referred to.

2.     The Tribunal based the finding of lack of credibility was based on a clearly erroneous fact.

3.     The Tribunal's decision failed to conform to standards of procedural fairness as apprehended bias was established through its arbitrary views rather than the facts of my claims.

4.     The Tribunal Member took irrelevant considerations into account and in its decision by ignoring relevant material for me.

5.     The Tribunal breached its obligations to provide procedural fairness and natural justice to me.

17    The grounds of review stated in the amended application were primarily directed to the factual findings of the Tribunal concerning the appellants’ claims for protection. As noted above, the Tribunal’s factual findings were based principally on its conclusions as to the credibility of the appellant. Such findings are not immune from judicial review, but to establish jurisdictional error it is ordinarily necessary to show that the findings were legally unreasonable, for example by being based on illogical or irrational findings or inferences of fact: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626 per Gleeson CJ and McHugh J and at 657 per Gummow J; Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 73 ALD 1 at 3 [5] per Gleeson CJ; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 at 232 [37] – [38] per Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS). However, judicial review does not involve mere merits review – it is not enough for the question of fact to be one on which reasonable minds may differ: SZMDS at [96] and [130] per Crennan and Bell JJ; ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at 122.

18    The primary judge concluded that the appellants had not demonstrated jurisdictional error in the Tribunal’s decision.

19    On ground 1, the primary judge found that the Tribunal had considered all of the claims made by the appellant, including his claim concerning his homosexuality and associations and involvement with Maoists (at [22] – [26]).

20    On ground 2, the primary judge rejected the claim that the tribunal’s decision was unreasonable, illogical or irrational (at [27] – [29]).

21    On ground 3, the primary judge rejected the claim that the tribunal had misapplied the law (at [30] – [31]).

22    On ground 4, the primary judge rejected the argument that the tribunal had pre-judged the appellant’s claims and had acted in a procedurally unfair way (at [32] – [33]).

23    On ground 5, the primary judge found that Article 1C(5) of the Refugee Convention had no relevance to the appellant’s case (at [34]).

24    Finally, the primary judge dealt with a further matter that the Minister had identified in his written submissions prior to the hearing: whether the Tribunal had committed jurisdictional error by failing to disclose to the appellant that the Tribunal had received a s 438 certificate issued by the Minister and dated 10 March 2016. The s 438 certificate and the documents to which it referred were tendered at the hearing, and the appellant was given leave to raise the contention of jurisdictional error. It was common ground that the certificate had not been disclosed to the appellant at the time of the Tribunal hearing.

25    The primary judge found there had been no jurisdictional error by reason that the certificate had not been brought to the attention of the appellant, relying on SZMTA at [44]. That was because the documents referred to in the certificate were solely of an administrative kind and could have no bearing upon the issues to be considered by the primary judge (at [38]).

26    The primary judge found that the Tribunal had not committed jurisdictional error and dismissed the application for review with costs.

Notice of Appeal

27    By Notice of Appeal filed on 7 June 2019, the appellant appeals from the judgment of the Federal Circuit Court. The appeal is by way of rehearing under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). Accordingly, the Court must determine whether the Federal Circuit Court was correct to find that the decision of the Tribunal was not affected by jurisdictional error: Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1.

28    The Notice of Appeal raises the following grounds of appeal (without correction):

1.     I believe the Federal Circuit Court Judge erred by failing to find that the Tribunal Member deprived me of natural justice and procedural fairness in its decision.

2.     It is argued that the Tribunal Member's findings that I lacked credibility and the rejection of my claims and evidence was actually an irrelevant finding because of the Tribunal Member's arbitrary views rather than facts of my claims and evidence.

3.     It is strongly argued that the Tribunal's reasons ignored to deal with important elements of my claims and the invitation to comment at the hearing was unnecessarily uninformative and, in the circumstances, inadequate.

4.     It is argued that the Tribunal Member made its mind not to believe me and failed to give proper consideration to my claims and my answers were directly dismissive in which I believe my case was taken in breach of the rules of natural justice.

5.     It is not fair that the Tribunal Member failed to consider the real question in my case is whether I have a well-founded fear of persecution in the future for a Convention reason, and not whether I have a well-founded fear of persecution and failed to consider the issue of adequate state protection for me given Nepal failed state protection in the past.

29    The grounds of appeal do not identify with clarity the alleged errors in the decision of the Federal Circuit Court. As noted earlier, the appellant did not file written submissions prior to the hearing of the appeal and his oral submissions to the Court at the hearing of the appeal did not elaborate on the grounds of appeal.

30    Nevertheless, it is tolerably clear that the grounds of appeal are directed to the factual findings of the Tribunal concerning the appellant’s claims for protection, and particularly the adverse credibility findings made by the Tribunal. Although worded in different language to the grounds of review below, the grounds of appeal can be broadly related to the grounds of review and the issues considered by the primary judge.

31    In the absence of written submissions or any substantive oral submissions from the appellant, I have carefully reviewed the decision of the Tribunal and the documentary record on which the Tribunal’s decision was based and the decision below. In my view, the decision of the Tribunal does not display legal unreasonableness or other jurisdictional error, and the primary judge was correct to so find.

32    As the Tribunal’s decision was primarily based on adverse credibility findings, it is convenient to state the principles which guide judicial review of findings concerning credibility. Those principles have been discussed by the Full Federal Court in a number of recent decisions, including CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at 507-512; DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 (DAO16) at [30]; and AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83 at [40] – [41]. The principles include the following:

(a)    Whether or not a credibility finding is affected by jurisdictional error is a case specific enquiry and should not be assessed by reference to fixed categories or formulae.

(b)    Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reason or finding of fact was immaterial, or not critical, to the ultimate conclusion or end result (such as, for example, where it is by one of several findings that independently may have led to the ultimate decision).

(c)    Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review.

33    Turning to each of the grounds of appeal, in ground one the appellant alleges the primary judge erred by failing to find that the Tribunal deprived him of natural justice and procedural fairness. This appears to be a reference to ground four before the primary judge. In ground four, the appellant argued the Tribunal had acted in a procedurally unfair way. At [32] of the primary judge’s decision, the primary judge noted that the appellant had been invited to appear and did appear before the Tribunal on 15 July 2016 for an oral hearing and found that the Tribunal gave meaningful consideration to his claims and evidence. The appellant does not identify how the Tribunal denied him natural justice or was procedurally unfair towards him. In my view, no error is displayed in that aspect of the primary judge’s decision. The primary judge’s finding that the Tribunal gave meaningful consideration to the appellant’s claims was open to be made and, in my view, was correct.

34    Ground one may also be intended to incorporate the s 438 certificate issue. In so far as that is intended, I consider that the primary judge was correct to conclude that there was no jurisdictional error arising from the failure of the Tribunal to notify the appellant of the certificate. Although not addressed by the Minister, I consider that the certificate is likely to be invalid because it asserted that the disclosure of identified documents would be contrary to the public interest because the documents contained information relating to “an internal working document and business affairs”. That does not provide a sufficient basis for a claim of public interest immunity: MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 at [37] per Beach J. Procedural fairness required the Tribunal to disclose the existence of the certificate to the appellant. By failing to do so, the Tribunal breached its procedural fairness obligations: SZMTA at [27]. However, the breach would only amount to jurisdictional error if the breach was material, in the sense of depriving the appellant of the possibility of a successful outcome: SZMTA at [44]-[45], [72]. In the present case, there was no such possibility. The primary judge was correct to describe the documents as banal and administrative and entirely irrelevant to any consideration of the appellant’s application (at [38]). The documents contained internal communications concerning the progress of the appellant’s application, particularly concerning the remitter to the Tribunal.

35    For those reasons, ground one of the appeal should be rejected.

36    By ground two, the appellant contends that the Tribunal’s adverse credibility findings were arbitrary and not based on evidence. This appears to be a reference to ground two before the primary judge. As noted earlier, the primary judge understood the allegation to be that the adverse credibility findings were legally unreasonable. The primary judge correctly referred to the applicable principles as stated in DAO16 at [30] and considered the Tribunal’s findings in light of those principles (at [27] – [29]). The primary judge concluded that the Tribunal had considered and analysed the appellant’s claims in a legally reasonable way. The primary judge’s finding was open to be made and, in my view, was correct. For those reasons, ground 2 of the appeal should be rejected.

37    By ground three, the appellant contends that the Tribunal did not properly consider his claims, and that the “invitation to comment at the hearing” was inadequate. This ground appears to combine elements of grounds one and four before the primary judge. As to the contention that the Tribunal did not properly consider his claims, the primary judge found that the decision of the Tribunal is replete with references to the appellant’s claims to be homosexual or bisexual and his claimed involvement with Maoists, and how that put him at risk of harm (at [23]). In my view, the primary judge was correct to find that the Tribunal carefully considered all of the claims made by the appellant. As the primary judge found (at [22]), there was no jurisdictional error of the kind identified in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55]. The further contention that the Tribunal’s invitation to comment at the oral hearing was inadequate is not substantiated by evidence before the Court. There was no transcript tendered by the appellant at the hearing before the primary judge. As far as the record reveals, the appellant was given a proper opportunity to give oral evidence (at two oral hearings) and to provide post hearing submissions on his claims. Further, as the primary judge found at [32], the Tribunal decision record shows that the Tribunal gave meaningful consideration to all the appellant’s claims and evidence. For those reasons, ground 3 should be rejected.

38    By ground four, the appellant contends that the Tribunal member made up her mind not to believe the appellant and did not give proper consideration to the appellant’s claims. The ground appears to be a combination of grounds 1, 2 and 4 before the primary judge. For the reasons already given, in my view the primary judge was correct to dismiss those grounds. As to the contention that the Tribunal had pre-judged the appellant’s claims, the primary judge found there was no evidence that established pre-judgment on the part of the Tribunal (at [32]). In the absence of clear evidence, it is well established that allegations of bias must be rejected: see Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507. For those reasons, ground four should be rejected.

39    Ground 5 is difficult to comprehend. The appellant contends that the Tribunal failed to consider whether the appellant had a “well-founded fear of persecution in the future for a Convention reason” and failed to consider the issue of “adequate State protection” given “Nepal failed State protection in the past”. This appears to be a reference to grounds 3 and 5 before the primary judge. In relation to ground 3, in my view the primary judge was correct to conclude (at [30]) that the Tribunal correctly confined itself to the complementary protection criteria under s 36(2)(aa) of the Act (in circumstances where an earlier application for a protection visa by the appellant had been considered on Convention grounds and been rejected): AMA15 v Minister for Immigration and Border Protection (2015) 244 FCR 131 at [44], approved in Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366. In relation to ground 5, the issue of adequate State protection did not arise in the appellant’s case because the Tribunal did not accept the appellant’s claims based on adverse credibility findings. Having rejected the appellant’s claims (as untrue) regarding his alleged involvement with the Maoists ([123] and [137]) and his claim he was bisexual or homosexual ([132] and [137]), the Tribunal did not need to consider any issue of State protection. For those reasons, ground 5 should be rejected.

Conclusion

40    In my view, the grounds of appeal do not identify any error on the part of the primary judge nor jurisdictional error on the part of the Tribunal. The appeal should be dismissed with costs.

Associate:

Dated:    25 November 2019