FEDERAL COURT OF AUSTRALIA

BHG15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2019] FCA 1993

ORDERS

THE COURT ORDERS THAT:

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

2.    Leave be granted for the appellant to raise the following additional ground of appeal:

The Tribunal denied the appellant procedural fairness or failed to conduct a hearing according to law by virtue of not disclosing to the appellant a document purportedly covered by a certificate under s 438 of the Migration Act 1958 (Cth).

3.    The appeal be dismissed.

4.    The appellant pay the first respondent’s costs, of and incidental to the appeal, including reserved costs, if any, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    On 25 May 2018, Barker J made the following order in this appeal:

This matter be stood over to a date to be fixed following the determination of CQZ15 v Minister for Immigration and Border Protection (M2/2018) and BEG15 v Minister for Immigration and Border Protection (S6/2018).

2    The reference by his Honour to those two cases was a reference to two cases then pending in the High Court of Australia. These reasons for judgment must be read in conjunction with the reasons for judgment delivered by Barker J on 25 May 2018 for the making of the order just recited: see BHG15 v Minister for Immigration and Border Protection [2018] FCA 761 (interlocutory judgment).

3    The interlocutory judgment was the then culmination of a series of applications and related Tribunal review and judicial review cases which had their origin in an initial application, under the Migration Act 1958 (Cth) (the Act), by the appellant for a protection visa in 1997. The appellant had arrived in Australia in the preceding year, in August 1996, on a tourist visa. The course of relevant events on and from the appellant’s application for a protection visa is recited by Barker J in the interlocutory judgment. Neither the appellant nor the Minister’s solicitor submitted today that there was any error in the recitation of events by his Honour in the interlocutory judgment. I therefore adopt that and incorporate it by reference.

4    Since 25 May 2018 the two cases to which his Honour referred in the order made that day as well as an appeal by the Minister in Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252 (SZMTA) have been determined by the High Court of Australia. The appeal has been consequently listed today for final hearing. The Notice of Appeal pleads the following grounds:

Grounds of appeal

1.    Hon. Judge Manousaridis of the Federal Circuit Court failed to hold that Administrative Appeal Tribunal committed a jurisdictional error when it failed to apply the correct test in relation to the Complementary Protection Provision contained in section 36 (2) (aa) of the Migration Act. The AAT did not follow Rules of Real Risk Test of Persecution and harm. AAT decision is unreasonable with regards to Complementary Protection Provision.

2.    The Tribunal’s assessment of the credit of the fact about the Appellant’s political or industrial activity in India is, misconceived and misinformed. Being a truthful witness the appellant disclosed all about his association with PWG and how he broke out with PWG. He had been harmed and detained by the Local Authority in Andhra Pradesh. The Appellant claims that Hon Judge made a jurisdictional error when he agreed with the respondents on all of the contents of the Appellants oral and written evidence without giving a reasonable explanation. The appellant claims that he was denied natural justice and procedural fairness when the Tribunal in making decision ignored the basic principles of assessing a claim for the Complementary Protection.

5    With consummate fairness, the Minister, through his solicitor, signified that he would not oppose the addition, by amendment, of a further ground of appeal raising as an issue the subject of whether, in light of the conceded invalidity of a certificate purportedly given under s 438 of the Act in respect of a document on the departmental file which was before the Tribunal but which was not disclose to the appellant, there was a jurisdictional error.

6    The appellant indicated that he wished the Court to consider, on the merits, such a ground. Accordingly, I directed that, for the purposes of the hearing of the appeal, the notice of appeal be treated as if it contained a third ground, namely:

That the Tribunal denied the appellant procedural fairness or failed to conduct a hearing according to law by virtue of not disclosing to the appellant a document purportedly covered by a certificate under s 438 of the Migration Act 1958 (Cth).

7    I have approached the hearing of the appeal on the basis that it would be open to me to reach a view contrary to those expressed by Barker J in the interlocutory judgment in respect of the then only grounds of appeal, namely, grounds 1 and 2. That may well be adopting an overly benign view of the consequence of the statements of dismissal made by his Honour in relation to those grounds, but again, with consummate fairness, the Minister did not seek to raise any question of estoppel as an issue. Further, the Court’s formal order on 25 May 2018 was not one of dismissal but rather an interlocutory order of adjournment.

8    The Minister adopted the reasoning of Barker J in the interlocutory judgment in respect of each of the then pleaded grounds of appeal. Though given an opportunity so to do today, the appellant did not advance any particular submission as to why I ought not to form a like view of the merits of those grounds to those expressed by Barker J. Nonetheless, the appellant quite plainly wished me to reach my own view as to the merits of those grounds. I have done so.

9    The Tribunal’s absence of satisfaction as to the foundation of the appellant’s claim for complementary protection – and that was the material question before the Tribunal in reviewing the appellant’s second protection visa application – was based on an assessment by the Tribunal of the appellant’s credibility, having regard to statements made by him as well as to other material before the Tribunal, including country information. As the Full Court held in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496, the mere fact that a Tribunal’s decision is based on an assessment of credibility of an applicant does not mean that a challenge based on jurisdictional error grounds may not be made on judicial review in the Federal Circuit Court.

10    The difficulty for the appellant is that the Tribunal’s reasoning in relation to why it was not satisfied in respect of his claim for complementary protection was neither irrational nor illogical. In particular, a feature of that reasoning was a comparison by the Tribunal between country information concerning the situation in the area in India in which the political organisation of which the appellant claimed to be a member was said to be active and his own account. Suffice it to say, the appellant’s account was at variance with what other information before the Tribunal suggested was the position in relation to that organisation in that area.

11    That formed part – and, in my view, an essential part - of the Tribunal’s credibility assessment based on inconsistency. The learned primary judge reached the conclusion that it was open to the Tribunal on this basis to reach that view. I respectfully agree with his Honour’s assessment as made for the reasons which his Honour gave, as to which see BHG15 v Minister for Immigration [2017] FCCA 3218. What necessarily followed from an absence of satisfaction in relation to the foundation for the appellant’s claim was that there was no particular reason at all to apprehend any basis for complementary protection under s 36(2AA) of the Act.

12    Thus, whilst I have considered, for myself, the merits of the two originally pleaded grounds of appeal, the result of that separate consideration is concurrence, on my part, with the views expressed as to their merits by Barker J in the interlocutory judgment.

13    That then leaves the question of the further ground of appeal added for consideration today. The long and the short of the High Court’s judgment in SZMTA and the related appeals is that it is necessary but not sufficient to demonstrate that a document covered by a certificate under s 438 and before the Tribunal was not disclosed to an applicant for review. There must be some material consequence of the non-disclosure.

14    In this instance, the certifying under s 438 was, with respect, correctly conceded by the Minister to have been misconceived. It is quite impossible to see how public interest immunity could in any way attach to folio 42 of the Minister’s Department’s filed, that being an email between the detention coordination unit and the New South Wales detention BVE team such that it could be legitimately covered by the purported certificate. It is just a routine internal communication concerning the need to consider the granting of a bridging visa to the appellant in light of what is regarded as a valid application by him – his second application – for a protection visa on the complementary ground on this occasion.

15    What follows too from this, though, is that not even on the most generous reading of the recitation of the document covered by the purported certificate, in the certificate, or of folio 42 itself, is there anything which could in any way have been material to the credibility assessment made by the Tribunal or to any other feature of the Tribunal’s reasons for affirming the Minister’s delegate’s refusal of the appellant’s second protection visa application. Given this, in light of SZMTA, there is no merit in ground 3. In turn, that means that there is no merit in the appeal. The appeal must therefore be dismissed.

16    In my view, there is no reason why costs should not follow the event. The Minister has been put to the expense, not just of meeting the appeal up to and including the time of the adjournment order of 25 May 2018 but also of preparing for and attending at the hearing of the appeal today. Impecuniosity of a party is not, in the ordinary course, any reason at all to fail to exercise the cost discretion in the usual way.

17    Accordingly, the further order of the Court is that the appellant pay the first respondent’s costs of and incidental to the appeal, including reserved costs, if any, to be taxed if not agreed.

18    There was also an application for the amendment of the name of the first respondent in light of a change in the designation of the Ministerial office as a result of administrative arrangements made by His Excellency the Governor-General-in-Council. I therefore direct that the name of the first respondent be amended so as to read Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

Associate:    

Dated:    25 November 2019