FEDERAL COURT OF AUSTRALIA

BEB16 v Minister for Home Affairs [2019] FCA 2097

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) dismissing an application for judicial review of a decision of the second respondent (Tribunal): BEB16 v Minister for Immigration & Anor [2019] FCCA 1147 (BEB16). The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) refusing to grant the appellant a Protection (class XA) visa (Visa) under s 65 of the Migration Act 1958 (Cth) (Act).

Background

2    The appellant is a citizen of Malaysia. He arrived in Australia on 6 December 2014 as the holder of an electronic travel authority visa.

3    On 15 December 2014 the appellant lodged an application for the Visa (First Application). The appellant set out his claims in a “personal statement” annexed to the First Application. In summary, the appellant said that:

(1)    his parents had been in bad health and he needed to pay for his parent’s medical treatment and his sister’s tuition fees;

(2)    his salary could not support these expenses;

(3)    he requested help from the government but his request was ignored;

(4)    “the worse thing happened later” and he “did something wrong in [his] work and was suspended by the company which put [his] family in a very dangerous situation”; and

(5)    with the assistance of “some kind and good-hearted” people he came to Australia.

4    By letter dated 18 December 2014 the Department of Immigration and Border Protection (Department) informed the appellant that the First Application was not a valid application because it did not meet the requirements of cl 866.211 of the Migration Regulations 1994 (Cth) (Regulations). The Department explained that this was because the appellant had not provided specific claims under the Refugees Convention or complementary protection criteria addressing why he sought to invoke Australia’s protection obligations. The Department informed the appellant that he could consider lodging a fresh application but, before doing so, he should check that it met the requirements for a valid visa application.

5    On 15 January 2015 the appellant lodged a second application for the Visa (Second Application). The Second Application also annexed a “personal statement” setting out the appellant’s claims. That “personal statement” repeated the claims made in the “personal statement” accompanying the First Application but also included the following additional claims:

(1)    in July 2014 the appellant was introduced by one of his friends to another person to run a restaurant with that person. The appellant provided his personal details to that person so that the new business could be registered;

(2)    the appellant lost touch with that person after half a month but a loan shark found the appellant and asked him to repay 600,000 RM. The appellant realised that the person had provided his details as guarantor for monies borrowed from the loan shark;

(3)    the loan shark came to the appellant’s house, harassed his family and splashed paint on the wall. Despite requests to the police for help they did not assist;

(4)    one day, when the appellant’s mother was planning to go out, the loan shark came to their home and pulled his mother’s hair. The appellant fought with three men who left when he hit one of them on the head with an ashtray; and

(5)    that night those men set fire to the appellant’s home. The family escaped but no longer had a place to live. The appellant’s family moved to a “well-being house” but the appellant could not live with his family. The appellant was concerned that his family would get hurt because of him and came to Australia.

6    By letter dated 9 February 2015 the appellant was invited to attend an interview in connection with the Second Application, to be held on 20 February 2015, to provide personal identifiers.

7    On 25 February 2015 the appellant was interviewed in relation to his travel arrangements to Australia, his living arrangements in Australia and the process of applying for a protection visa. Two other applicants for protection visas residing at the same address as the appellant were also interviewed separately in relation to the same issues.

8    The appellant was subsequently invited to attend an interview with the delegate which was postponed at the request of the appellant first, because of “weather condition” and, on a second occasion, because the appellant missed his train.

9    The interview with the delegate was rescheduled to 3 July 2015. However, the appellant failed to attend on that occasion.

10    On 9 July 2015 the delegate refused the Second Application.

11    The appellant applied to the Tribunal for review of the delegate’s decision.

tribunal proceeding

12    The appellant appeared before the Tribunal to give evidence and present arguments assisted by an interpreter.

13    On 4 May 2016 the Tribunal decided to affirm the decision of the delegate. In its decision record the Tribunal set out the appellant’s claims included in the Second Application. It then turned to consider those claims.

14    The Tribunal first referred to the appellant’s interviews with the Department, including the invitations to attend an interview with the delegate. The Tribunal noted that, in response to a query as to why the appellant did not attend the interviews with the delegate, the appellant informed it that he was half an hour late for the first interview and never in fact attended the Department on that day and that he never received an invitation to the second interview. The Tribunal noted that it would have expected, in circumstances where the appellant was only half an hour late, that if he was serious about his claims he would have attended the Department in any event in the hope of being interviewed. Against that background the Tribunal did not accept the appellant’s assertion that he did not receive the second invitation to attend an interview with the delegate.

15    The Tribunal then observed that the appellant’s claims lacked detail and pointed to the sparsity of information provided by the appellant when questioned in relation to the restaurant.

16    Next the Tribunal pointed out two inconsistencies between the appellant’s written claims and the responses to various questions in the Visa application form 866C that was part of the Second Application (Form 866C). They were that:

(1)     in his “personal statement” the appellant said that he had to start work to help his family with expenses but some time before July 2014 he did something wrong at work and was suspended by the company while in response to question 85 in the Form 866C the appellant provided details of his past employment, noting that he had been employed as a croupier from 2013 to “current”; and

(2)    in his “personal statement” the appellant said that his family home was burnt down and the family no longer had a place to live and at the hearing informed the Tribunal that the house was burnt down in the first week of August 2014. However, in answer to question 82 in the Form 866C the appellant said that he had resided at a particular address in Perak from October 1994 until December 2014.

17    When the Tribunal asked the appellant to comment on these inconsistences he attributed them to failings on the part of the lawyer who had assisted him. The Tribunal noted that there was an internal inconsistency in the appellant’s oral evidence about the circumstances in which his claims were prepared: at one stage the appellant said that his statement of claims in Chinese was drafted by his lawyer but later he said he said he was referred to the lawyer to find out how to apply for a protection visa and ask for a translation of a statement that he had written.

18    The Tribunal then considered what it referred to as omissions from the First Application. Pursuant to s 424AA of the Act, the Tribunal drew the appellant’s attention to the fact that in his “personal statement” in the First Application he had not made any mention of borrowing money from a loan shark for the purposes of opening a restaurant, to the confrontations that occurred as a result of having done so or to his home having been burnt down. The Tribunal informed the appellant that if it was to accept the information in the First Application it may conclude that his claims about the loan shark and the burning down of his home were fabricated to provide a basis for his claims for protection.

19    In response the appellant gave two explanations. First, he said that on the first occasion that he was interviewed by the Department, and his fingerprints were taken, he was only asked simple questions and therefore he decided to make only a brief statement in the First Application. The Tribunal pointed out to the appellant that he would not have been invited to provide his fingerprints before submitting an application for the Visa, that being the step that would have initiated the interview. Secondly, the appellant said that his lawyer drafted his statement for him in Chinese which he read and with which he had no problems and that the lawyer then translated that statement into English. The appellant could not explain why all the details were not included in the statement which was included in the First Application.

20    The Tribunal noted that there was no indication in the Second Application that the appellant was assisted by a migration agent or a lawyer or that he had had any assistance with translation. The appellant asked for more time to establish that his original personal statement contained all of the information, suggesting that the lawyer in question might give evidence to support his claim. The Tribunal allowed the applicant a period of one week to make further submissions and in doing so, at [30] of its decision record, noted that it informed the applicant that:

… even if it were to accept that a lawyer or migration agent had assisted him, that person had failed to indicate in the application form that assistance had been given or interpretation services had been provided. In such circumstances, the Tribunal may not accept that such person was a person of integrity and may give little weight to anything said by that person.

21    The Tribunal also noted that the appellant asserted that any contradictions between his statements and his application form were the fault of the lawyer who assisted him.

22    The Tribunal observed that, despite being given further time, the appellant did not provide any evidence or submissions and did not seek an extension of time to make post-hearing submissions.

23    The Tribunal observed that the appellant’s personal statement submitted with the First Application “made no mention of him borrowing money from a loan shark, made no mention of any confrontation with such a loan shark and in particular made no mention of his house having burnt down in August 2014”. At [34] of its decision record, the Tribunal continued as follows:

Given this, the contradiction in his oral evidence about the way his statement of claims was prepared and the contradictions mentioned above regarding the [appellant’s] place of residence before he left Malaysia and about his employment, the Tribunal finds that his claims about a restaurant, about money borrowed from a loan shark and about adverse attention from such a loan shark culminating in the burning down of the family home, the Tribunal finds that these claims were fabricated by the [appellant] after the rejection of the original application in attempt to bolster his claims for protection. It also finds that his claim that he was suspended by his then employer because he “did something wrong at work” was fabricated.

24    The Tribunal saw no reason not to accept the appellant’s claims that his father became ill and that he had to work to deal with family expenses and had to borrow money and did not receive any assistance from the government. However, it noted that those claims did not demonstrate that the appellant had a well-founded fear of persecution as defined in s 5J of the Act. Accordingly, the Tribunal concluded that the appellant is not a refugee as defined by s 5H of the Act and it was not satisfied that he was a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act or that he was entitled to complementary protection under s 36(2)(aa) of the Act.

proceeding in the federal circuit court

25    On 16 May 2016 the appellant filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court. In that application the appellant raised the following grounds (as written):

1.    The Tribunal member had failed to honour the applicant’s undertaking. The requirement to put information to an applicant contained in s.424A which relevantly states:

424A. applicant must be given certain information.

1.    Subject to subsection (3), the Tribunal must:

a)    Give to the applicant, in the way that the Tribunal consider appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or part of the reason for affirming the decision that is under review; and

b)    Ensure, as far as is reasonably practicable, that the applicant understand why it is relevant to the review and

c)    Invite the applicant to comment on it.

2.    The Tribunal failed to comply with s.424 of the Migration Act 1958.

1.    The invitation was not given in accordance with ss.424(3)(a) and 424B of the Migration Act:

i)    the invitation did not specify the way in which the additional information may be given.

ii)    the invitation did not specify the period within which the information was to be given.

3.    The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per s.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if the .applicant asked to return back to Malaysia. The Tribunal failed to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.

4.    Due to the failures, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing the applicant’s claims.

26    At the hearing the appellant raised a further ground alleging that the Tribunal had prejudged his case and asked him misleading questions (Bias Claim). The appellant was given an opportunity to file evidence in support of the Bias Claim and after the hearing filed an unverified transcript which included commentary but did not file any written submissions.

27    The primary judge considered each of the grounds raised by the appellant but concluded that he had failed to establish any of those claims, including the Bias Claim. Other than the Bias Claim, the grounds raised by the appellant in the Federal Circuit Court are not relevant to the grounds raised on appeal.

28    The primary judge also noted that in submissions the Minister drew the court’s attention to a notification by the Department to the Tribunal concerning the disclosure of information under s 438 of the Act (s 438 Certificate). Her Honour noted that it was not in dispute that neither the existence of the s 438 Certificate or of any of the documents the subject of the s 438 Certificate were disclosed to the appellant.

29    The documents covered by the s 438 Certificate were before the Federal Circuit Court. The primary judge described them at [58] as follows:

… The first is an internal departmental email relating to an impending investigation about possible unregistered assistance to protection visa applicants who were Malaysian nationals. It noted a “spike” in applications with some similarities and proposed action to obtain relevant information. The other document is a summary of interviews with three protection visa applicants who are Malaysian, apparently conducted on 25 February 2015. One of the applicants is the Applicant. The “interview” is clearly a reference to the personal identifiers appointment that the Applicant attended on 25 February 2015.

30    The primary judge noted that the existence of a certificate issued under s 438 of the Act triggers a procedural fairness obligation to disclose the existence of the certificate to the appellant and to give the appellant an opportunity to make submissions. However, her Honour also noted that the Tribunal’s failure to do so did not necessarily amount to a jurisdictional error: at [60].

31    After referring to the relevant authorities and considering the Tribunal’s reasons the primary judge concluded that there was no jurisdictional error on the part of the Tribunal because the breach of procedural fairness was not material. That was because the documents covered by the s 438 Certificate were not relevant to the issues before the Tribunal such that there was no practical unfairness to the appellant by reason of its failure to disclose its existence or the material to which it applied. In those circumstances her Honour further concluded that the non-disclosure could not realistically have resulted in a different decision and was not satisfied that the Tribunal’s approach to the certificate and the documents covered by the certificate involved a jurisdictional error.

the appeal

32    On 22 May 2019 the appellant lodged a notice of appeal in this Court. On 19 June 2019 the appellant lodged a “supplementary notice of appeal”. The supplementary notice of appeal, on which the appellant relied at the hearing, raises the following grounds of appeal:

1.    The judge erred in not finding that there was an error of law (in violation of Section 47(3) of the Migration Act) in the Tribunal actively considering the content of the appellant’s invalid protection visa application (invalid application) in its review process.

2.    The judge erred in not finding that there was an error of law in the Tribunal using the invalid application as a foundation to establish inconsistencies with the appellant’s subsequent valid protection visa application (valid application) to conclude that the appellant fabricated his claims.

3.    The judge erred in making a mistake of an important fact in finding (at Paragraph 63 of the judgment) that: “the Tribunal did not take the applicant’s claims about his lawyer into account in making the adverse credibility finding”. Such finding could not be supported by evidence.

4.    The judge was correct in finding that the Tribunal did not afford procedural fairness to the appellant concerning the s.438 certificate and the documents therein, but erred in making a mistake of an important fact in finding (at paragraph 68 of the judgment) that the documents covered by the s.438 certificate were not relevant. The documents contain important evidence showing that the appellant and two others did have assistance from a lawyer. This evidence is relevant, material and its non-disclosure could realistically have resulted in a different outcome.

5.    The judge erred in not finding that the Tribunal ignored relevant evidence (when considering the relevant issue about the appellant’s assistance from a lawyer) in the Tribunal paying no regards to that part of those documents covered by s.438 certificate, the evidence of which indicates that the appellant did have assistance from a lawyer.

6.    The judge erred in not finding that the Tribunal was biased in the approach it conducted the review process. That is, it did not afford procedural fairness in regards to the s.438 matter mentioned in point 4; it made errors of law in points 1 and 2; ignored relevant evidence in point 5; and when it allowed the appellant time to obtained supporting evidence from the lawyer concerned, it did so by adding (prior to this supporting evidence being received) that the evidence of the lawyer may not be viewed as credible as the lawyer did not indicate that the lawyer assisted the appellant.

Grounds 1 and 2

33    Grounds 1 and 2 can be considered together. They concern the First Application. By those grounds the appellant contends that the Tribunal erred because, by operation of s 47(3) of the Act, it was not authorised to take into account, in the manner it did, or at all, the First Application in considering the Second Application. Grounds 1 and 2 were not raised before the primary judge. Accordingly, the appellant requires leave to raise those grounds on appeal.

34    The Court will grant leave to raise new grounds on appeal where it is in the interests of justice to do so. In Murad v Assistant Minister for Immigration and Border Protection (2017) 250 FCR 510 Griffiths and Perry JJ set out the principles which guide the Court in determining whether to permit an appellant to raise a new ground on appeal. At [19]-[20] their Honours said:

19     The general principles guiding the decision whether or not to permit a ground to be raised on appeal which was not run below are well settled. They are reflected in the following observations of the Full Court in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588 at [46]-[48] (and which were recently reaffirmed in substance by Flick and Rangiah JJ in Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 at [89]-[90]):

46    In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

47    In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

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.

20    In Summers v Repatriation Commission (2015) 230 FCR 179, in discussing the relevant principles, the Full Court stated at [94] that, generally speaking, leave is more likely to be granted to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy. A Full Court constituted by five Justices approved that passage in Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315 at [79].

35    The appellant submitted that leave to raise grounds 1 and 2 should be granted. The Minister opposed the grant of leave on the basis that the grounds have no merit.

Appellant’s submissions

36    The appellant referred to ss 47(3) and 415 of the Act and the decision in SZGME v Minister and Immigration and Citizenship (2008) 168 FCR 487 (SZGME) and then made the following submissions in relation to ground 1:

(1)    the Tribunal has all the powers of the delegate who made the decision but must not exercise powers that are not authorised by the Act or the Regulations: see subss 415(1) and (4) of the Act;

(2)    consideration of the First Application was strictly not authorised by s 47(3) of the Act;

(3)    however the Full Court in SZGME approved the principle that a cured, but previously invalid, application can be considered;

(4)    the primary judge apparently assumed that the invalid application could be considered and her Honour erred by not turning her mind to the proscription in s 47(3) of the Act prohibiting the Tribunal from considering the First Application and therefore erred by failing to address any legal issue as to whether that application had been cured;

(5)    because no cure to the First Application had ever been addressed, it remained invalid and the principle in Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486 (Li) directly qualified the power of the Tribunal, prohibiting it to consider the invalid application. Although Li was a case concerning an invalid application which was subsequently cured and the present case concerns an uncured invalid application and a subsequent valid application, the principle in Li nonetheless applies; and

(6)    in order to find the differences between the First Application and the Second Application, the Tribunal must have considered the First Application which it was not authorised to do.

37    In relation to ground 2 the appellant submitted that because the Tribunal had no power to consider the First Application it could only consider the Second Application and no comparison could be made between the two applications. He further submitted that it was not open for the Tribunal to be dissatisfied with his credibility based on the differences or inconsistencies between the First Application and Second Application.

38    The appellant noted that the Department’s letter dated 18 December 2014 relevantly stated that the First Application had been determined as invalid, could not be accepted and would not be assessed against the criteria for grant or refusal of the Visa, and that any new application would be considered on its individual merits. The appellant contended that this was the correct approach and is consistent with s 47(3) of the Act. That is because if the Second Application was not considered on its merits it would mean that in every case any subsequent attempt by an applicant to ensure that a new application met the criteria of a valid application would result in that second application being inconsistent with the earlier invalid application which had never met the criteria to be a valid application.

Legislative framework

39    Section 47 of the Act provides:

(1)    The Minister is to consider a valid application for a visa.

(2)    The requirement to consider an application for a visa continues until:

(a)    the application is withdrawn; or

(b)    the Minister grants or refuses to grant the visa; or

(c)    the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).

(3)    To avoid doubt, the Minister is not to consider an application that is not a valid application.

(4)    To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.

40    It is also convenient to set out s 415 of the Act, which relevantly provides:

(1)    The Tribunal may, for the purposes of the review of a Part 7‑reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

…

(4)    To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.

SZGME and Li

41    The appellant relies on SZGME to make good his contention that the Tribunal impermissibly considered the First Application. That case concerned the proper construction of s 48A of the Act which provides that a non-citizen who has made a valid application for a protection visa while in the migration zone may not make a further application for a protection visa while in the migration zone where the grant of the first has been refused. The Minister raised three arguments: first, that the phrase “an application for a protection visa” as used in s 48A of the Act did not mean a valid application for a protection visa but any request for a visa; secondly, that the respondent had made an application for review to the Refugee Review Tribunal which was, in effect, “an application for a decision that [he was] a refugee” for the purposes and within the meaning of s 48A(2)(b) of the Act and was not invalid as such; and thirdly, that there was a valid refusal of the visa in the Refugee Review Tribunal, even if the application was invalid.

42    In addressing the third argument Black CJ and Allsop J (as his Honour then was) considered whether two earlier decisions, Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 (Yilmaz) and Li, were inconsistent. At [22] their Honours concluded that those decisions were not inconsistent but were consistent if the premise on which each is founded is accepted. Their Honours noted that reg 2.10 of the Regulations was central to the reconciliation of the two decisions. At the time reg 2.10 relevantly provided that an application must be made, in the case of an application to be made in Australia, “at any office of Immigration in Australia”.

43    At [24] their Honours noted that the debate that was settled in Yilmaz was whether an application that was invalid at the time it was made could be rendered valid by the later provision of the additional and necessary material omitted from it at the time of its lodgement. In Yilmaz the additional material was provided after the delegate’s decision but before the Tribunal made its decision. Black CJ and Allsop J noted that the majority in Yilmaz rejected an argument that, because the application before the delegate was invalid, there was no authority in the Tribunal to review a purported decision of the delegate and went on to explain why that argument was rejected.

44    At [27] their Honours observed that in Yilmaz the application was incomplete at the time it was made and at the time the delegate made his decision but was completed by provision of information to the Tribunal and the Minister’s department by the time the Tribunal undertook its review function, so that reg 2.10(1)(b) of the Regulations was satisfied and had no relevance to the case. By the time of the Tribunal’s decision there was a valid application and the Tribunal had authority to undertake merits review.

45    At [29] Black CJ and Allsop J turned to consider the decision in Li. Their Honours said:

In Li 103 FCR 486, the issue not dealt with in Yilmaz 100 FCR 495 came to a Full Court for consideration. In a joint judgment (Ryan, Sackville and Emmett JJ) the Court identified regulation 2.10(1)(b) and the failure to comply with it prior to the Tribunal’s decision as crucial. The Court distinguished Yilmaz 100 FCR 495 as a case concerned, by the time the Tribunal made its decision, with a valid application. The Court rejected the notion, explicit in the submissions on behalf of the Minister here, that the entitlement to review an invalid decision meant that the Tribunal could refuse a visa on review and validly affirm the decision. The Court said, in Li 103 FCR 486 at [81], [82], the following:

Similarly, it is difficult to see how s 415(1) of the Migration Act, can support a decision by the RRT on the merits, in circumstances where no valid application has ever been lodged. Section 415(1) empowers the RRT, for the purposes of the review of a RRT-reviewable decision, to exercise all the powers and discretions that are conferred by the person who made the decision. Yilmaz held that s 415(1) permitted the RRT to review, on the merits, a decision of the Minister’s delegate where a valid application for a visa had been lodged, albeit after the date of the delegate’s decision. Yilmaz did not consider whether the RRT had jurisdiction to review on the merits a decision of the Minister’s delegate where no valid application for a protection visa had ever been lodged. Nor did Yilmaz consider whether reg 2.10(1)(b) would be satisfied if the information required to complete a Form 866 were supplied to the RRT, rather than to an office of Immigration.

It strains language to say that the powers which are conferred on the RRT for the purposes of the review of a RRT-reviewable decision include the power to receive essential components of the prescribed application form. Regulation 2.10(1)(b) requires an application to be made at an office of Immigration in Australia. That includes all essential components of the prescribed application form. Section 415(4) of the Migration Act makes it clear that the RRT cannot make a decision not authorised by the Migration Act or the regulations. A decision to refuse a visa where no valid application for a visa has been made is a decision not authorised by the Migration Act or the regulations. The fact that the Migration Act preserves an unauthorised decision by a delegate, so as to make it subject to review by the RRT, does not confer on the RRT greater powers than a delegate could ever have properly exercised in relation to an invalid application.

(emphasis in original.)

46    At [30] Black CJ and Allsop J said:

… The ratio decidendi of Li 103 FCR 486 at [81]-[82] is that a valid application is not merely a requirement affecting the delegate’s power, it also affects the authority of the Tribunal. This view is one that is not plainly wrong. It recognises, through s 415 and ss 47 and 65, that only a valid application must be considered by the Tribunal. No equivalent of s 69 saves the Tribunal’s decision from the effect of considering an application that is not valid.

47    For completeness it is useful to set out the facts in Li. Relevantly on 4 July 1997 Mr Li lodged his application for a protection visa with the Melbourne office of the Department of Immigration and Multicultural Affairs, as the Minster’s department was known at the time, and paid the relevant fee. However, the application form which was lodged did not include an attachment referred to in which, according to a notation on the form, Mr Li had responded to questions under the heading “Your reasons for claiming to be a refugee”. No further information was provided by Mr Li prior to the delegate making his decision.

48    On 11 August 1997 the delegate made his decision refusing Mr Li’s application for a protection visa. Thereafter Mr Li lodged an application for review of the delegate’s decision with the Refugee Review Tribunal. Mr Li’s migration agent subsequently provided a submission to the Tribunal. On 16 November 1998 the Refugee Review Tribunal affirmed the delegate’s decision.

49    Mr Li’s appeal was heard with another appeal brought by Mr Kundu which raised similar issues to those raised in Mr Li’s appeal. I do not propose to set out the facts relevant to Mr Kundu. Relevantly at [70] a Full Court of this Court (Ryan, Sackville and Emmett JJ) observed in relation to Mr Li that he never provided the attachment referred to in his incomplete visa application, he supplied the submissions to the Tribunal in support of his application for review of the delegate’s decision which did not purport to be the attachment omitted from the visa application form and there was nothing to indicate that Mr Li’s submission was ever forwarded to or received by the Minister’s department or the delegate.

Consideration

50    Pursuant to s 47 of the Act the Minister is required to consider an application for a visa to the point of determination, ie by the grant or refusal of the application, unless the application is withdrawn (subs 2(a)), further consideration is prevented by s 39 of the Act (subs (2)(c)) or the application is invalid (subs (3)). However, s 47 of the Act does not operate in the way contended for by the appellant. It does not impose a fetter on the exercise of the discretionary power to grant or refuse a valid visa application by excluding all prior invalid applications from being taken into account as evidence by a decision-maker where they concern or impact upon a relevant consideration. Section 47(3), on which the appellant relies, clarifies the effect of subs (1) and (2), as is apparent by the use of the opening phrase “[t]o avoid doubt”.

51    The appellant’s reliance on SZGME and Li in the context of his case is misplaced. Those cases addressed the Tribunal’s ability to consider, in terms of determining an applicant’s entitlement to a visa, an invalid application. But that is not what occurred here. Rather, the Tribunal considered the Second Application, which was a valid application, for the purposes of determining if the appellant had made out his claims for the Visa. It only had regard to the First Application for the purposes of identifying inconsistencies in the appellant’s claims and evidence included in the Second Application. It did not consider it in the sense contemplated by s 47(3) of the Act.

52    The facts and issues raised before me were considered by Gleeson J in CPD16 v Minister for Immigration and Border Protection [2018] FCA 322 (CPD16). In that case the appellant argued that the Immigration Assessment Authority (IAA) had, contrary to s 47(3) of the Act, considered an invalid protection visa application made by him in 2013.

53    At [20] Gleeson J observed that the IAA had regard to material provided by the appellant in the invalid visa application. In dismissing the ground of appeal at [22]-[23] her Honour said:

22    On the appeal, the appellant’s solicitor, Mr Tambimuttu, submitted that s 47(3) “commands the Minister not to consider an application that is not a valid application”, citing Samuel v Minister For Immigration & Multicultural Affairs [2000] FCA 854; (2000) 175 ALR 529 at [17].

23    This proposition does not assist the appellant. The IAA did not consider the 2013 protection visa application. The IAA considered the 2016 application (or, more precisely, the delegate’s decision on that application), which was a valid application, by reference to material that had been submitted in support of the earlier invalid application. Section 47(3) had no relevance to the function of the IAA in this case.

54    That is exactly what happened here. That is, the Tribunal considered the Second Application by reference to the material in the First Application. The Tribunal did not act contrary to s 47(3) of the Act.

55    The appellant has not shown that the decision in CPD16 is wrong, let alone plainly wrong, such that I would not follow it.

56    Grounds 1 and 2 have no merit. It is not in the interests of justice that they be raised for the first time on appeal and I would not grant leave to the appellant to do so.

Ground 3

57    By this ground the appellant alleges that the primary judge erred in finding that the Tribunal did not take his claims about his lawyer into account in making the adverse credibility finding. The appellant submitted that the primary judge made a mistake in relation to an important fact in finding (at [63] of BEB16) that “the Tribunal did not take the [appellant’s] claims about his lawyer into account in making the adverse credibility finding”, which the appellant said was a finding which could not be supported by evidence.

58    The appellant submitted that the Tribunal took his claims about his lawyer into account in making the adverse credibility finding as evidenced at [26] and [34] of its decision record. The appellant contended that the Tribunal’s conclusions at [34] of its decision record confirmed that it took his claims about his lawyer into account in making its adverse credibility finding and that therefore the primary judge erred in making a mistake about an important fact which cannot be supported by evidence.

59    In order to consider this ground it is first necessary to have regard to [63] of BEB16. There the primary judge said:

The February 2015 interview summary also referred to the fact that the Applicant was vague about the details of the lawyer he claimed assisted him in connection with his protection visa application. It is apparent from the Tribunal’s reasons that this was not relevant to its assessment of the Applicant’s claims and his credibility. The discussion of this issue in the Tribunal hearing related to the Applicant’s claim that his lawyer was at fault insofar as details were not included first statement. He sought the opportunity (which he was given) to contact the lawyer after the hearing and to provide further submissions in that respect. He did not do so. However the Tribunal did not take the Applicant’s claims about his lawyer into account in making the adverse credibility finding.

(emphasis added.)

60    The appellant relies on the [26] and [34] (see [23] above) of the Tribunal’s reasons. At [26] the Tribunal said:

26.    At the hearing, the applicant’s oral testimony regarding the circumstances in which his claims were prepared contained an internal inconsistency. At one stage, he said that his statement of claims in Chinese was drafted by his lawyer. However, later in the hearing, when the Tribunal drew his attention to the absence of any statement that anyone had assisted him, the applicant then said that he was referred to the lawyer to find out how he could apply for protection and to ask for a translation of a statement that he had personally written.

61    It is also relevant to have regard to [27]-[29] and [31] of the Tribunal’s decision record. There the Tribunal described the omission of claims that were included in the Second Application from the First Application, including the Tribunal’s response to the appellant’s first explanation for that omission; set out the appellant’s further explanation about how the statement annexed to the First Application had been prepared; and noted the appellant’s assertion that any inconsistency or contradiction between what he said in the Form 866C and in his statement of claims was the fault of the lawyer who he alleged had assisted him in completion of the documents. Those parts of the Tribunal’s decision record provide:

27.    At the hearing, the Tribunal drew the applicant’s attention to the fact that, in the statement of claims accompanying the invalid claim for protection lodged in December 2014, he had failed to make any mention of borrowing money from a loan shark for the purposes of opening a restaurant. It did so in accordance with the provisions of s.424AA of the Act. The Tribunal pointed out that the original statement of claims made no mention of him having borrowed money from a loan shark, it make no mention is of any confrontations with such a loan shark and no mention of his house having been burnt down. The Tribunal pointed out that if it were to accept the information in the original statement of claims, it may conclude that his claims about the loan shark and the burning of his house were a fabrication designed to provide a basis for his claims for protection.

28.    When asked to respond to this information and reminded of his right to seek more time in which to do so, he elected to comment immediately. He said that, on the first time he was interviewed by the Department, and his fingerprints were taken, he was only asked simple questions and, therefore, he elected to make only a brief statement in his application for protection. The Tribunal pointed out that, he would not have been invited to give his fingerprints before he submitted an application and that the application itself would have been the initiating factor. Therefore, the content of his original statement would have been determined by him before any interview.

29.    The applicant then said that he had a lawyer who drafted his statement for him in Chinese. He read that statement and found no problem with it. He said that the lawyer then translated his statement into English and he could not explain why all the details were not included in that statement.

And:

31.    The applicant also asserted that contradictions mentioned above between what he said in his application form and what he said any statement were the fault of the lawyer who allegedly assisted him.

62    At [34] of its decision record the Tribunal does not identify which “contradiction in the [appellant’s] oral evidence about the way his statement of claims was prepared” it relied on. It could be the “contradiction” described at [26] or the “contradiction” described at [28] of the decision record. Accordingly, it could not be established with any certainty that the Tribunal relied on any inconsistency in the appellant’s account about the involvement of a lawyer.

63    Further, it does not appear that the Tribunal made any findings in relation to the involvement or otherwise of a lawyer to assist the appellant in preparing either the First Application or the Second Application. That being so, there was no error in the primary judge’s statement at [63]. Even if that were not the case, the primary judge’s statement at [63] does not necessarily amount to a jurisdictional error on her part. While the appellant asserts that the primary judge made a finding that was a “mistake of an important fact”, he has not demonstrated how that amounts to a jurisdictional error.

Grounds 4 and 5

64    Grounds 4 and 5 concern the primary judge’s consideration of the issues raised by the Minister before the primary judge in relation to the s 438 Certificate.

65    By ground 4 the appellant contends that the primary judge was correct to find that the Tribunal did not afford him procedural fairness in relation to the s 438 Certificate and the documents covered by it but erred at [68] of BEB16 in finding that the documents covered by the s 438 Certificate were not relevant. The appellant contends that those documents contained important evidence, which was relevant and material, showing that the appellant and two others had assistance from a lawyer and that “its non-disclosure could realistically have resulted in a different outcome”.

66    By ground 5 the appellant contends that the primary judge erred in not finding that the Tribunal ignored relevant evidence when considering the issue of assistance to the appellant by a lawyer.

67    In relation to ground 4 the appellant submitted that, as claimed in ground 3, the Tribunal took his claims about his lawyer into account in making the adverse credibility finding and it follows that the Tribunal had regard to the claim about his lawyer which was relevant to credibility. The appellant noted that the documents the subject of the s 438 Certificate contained corroborative evidence showing that the appellant and two others had assistance from the same lawyer. He further contended that the Tribunal said that because the migration agent or lawyer failed to indicate in the Form 866C that that person had assisted the appellant, it may not accept that such a person was a person of integrity and may give a little weight to anything he said. However the corroborated evidence of the two other people who had the assistance from the same lawyer could be viewed with more weight and integrity by the Tribunal. Therefore that evidence was material and could realistically have resulted in a different outcome.

68    In relation to ground 5 the appellant submitted that the Tribunal took the appellant’s claims about his lawyer into account in making the adverse credibility finding. He contended that the claims about his lawyer were relevant to the Tribunal’s reasoning about his credibility and that the documents covered by the s 438 Certificate contain corroborative evidence from the appellant and two others who had assistance from the same lawyer. The appellant said that the Tribunal should not have ignored this evidence but should have had regard to it and balanced it with that part of the evidence in the Form 866C, where the Tribunal noted no lawyer had assisted the appellant, so as to arrive at a more informed conclusion as to whether a lawyer had assisted the appellant.

69    The effect of the appellant’s submissions in relation to grounds 4 and 5 is that the Tribunal could have come to a different decision if it had taken one of the documents the subject of the s 438 Certificate into account, namely a note setting out interviews with three applicants for protection visas including the appellant.

70    In Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599; [2019] HCA 3 the High Court had before it three appeals which considered the effect on a review by the Tribunal under Pt 7 of the Act of a notification to the Tribunal from the Secretary of the Minister’s department that s 438 of the Act applies to a document or information. At [2]-[4] a majority of the High Court (Bell, Gageler and Keane JJ) said:

[2]    The Full Court was correct to take the view that the fact of notification triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review. Breach of that obligation of procedural fairness constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome.

[3]    The Full Court was also correct to take the view that an incorrect notification results in jurisdictional error if, and only if, the incorrect notification is material, again in the sense that it operates to deprive the applicant of the possibility of a successful outcome.

[4]    Where materiality is put in issue in an application for judicial review of a decision of the Tribunal, it is a question of fact in respect of which the applicant for judicial review bears the onus of proof. The Full Court was correct to hold in CQZ15 that evidence of the content of notified information can be relevant to the determination of materiality and can on that basis be admissible in such an application. The Full Court was also correct to find on the evidence adduced in BEG15 that the undisclosed and incorrect notification in that case was immaterial. The undisclosed and incorrect notification in SZMTA was similarly immaterial and did not result in jurisdictional error.

71    At [38] their Honours said:

Because procedural fairness requires disclosure of the fact of notification, non-disclosure of the fact of notification constitutes, without more, a breach of the Tribunal’s implied obligation of procedural fairness. For such a breach to constitute jurisdictional error on the part of the Tribunal, however, the breach must give rise to a “practical injustice”: the breach must result in a denial of an opportunity to make submissions and that denial must be material to the Tribunal’s decision.

(footnotes omitted.)

72    At [45]-[46] Bell, Gageler and Keane JJ addressed the issue of materiality as follows:

[45]    Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

[46]    Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.

The two documents the subject of the s 438 Certificate were before the primary judge and before me. They are described by the primary judge at [58] of BEB16 (see [29] above).

73    The second document referred to by her Honour as the summary of interviews with three protection visa applicants, including the appellant is, as noted above, the document which the appellant contends could have made a difference to the outcome had the Tribunal taken it into account. In that document each interviewee refers to a lawyer in Eastwood called Nicole who assisted them in the submission of their protection visa applications.

74    For the following reasons these grounds cannot succeed.

75    First, the Tribunal’s reasons do not include a finding that the appellant fabricated his claims about having received assistance from a lawyer before lodging his Visa application. The Tribunal asked the appellant about the inconsistencies between his First Application and his Second Application. At [29] of its decision record (see [61] above) the Tribunal records that the appellant informed the Tribunal of how the statement of claims had been prepared for his First Application, referring to the fact that he had been assisted by a lawyer. At [30] of its decision record the Tribunal observed that there was no indication in the Second Application that he had been assisted by a lawyer. The appellant sought time to prove that the statement attached to his First Application contained all of the information, including by way of providing evidence from the lawyer who assisted him. The Tribunal indicated that it would allow the appellant one week to provide further evidence but noted that, given the circumstances, which it described, it “may not accept that such a person was a person of integrity and may give little weight to [that evidence]”. The appellant did not provide any further submissions or evidence in the period allowed to him by the Tribunal.

76    At [33]-[34] of its decision record the Tribunal rejected a number of the appellant’s claims, finding that they were fabricated. In that part of the Tribunal’s decision record, there is no finding by the Tribunal to the effect that appellant fabricated his claim that he was assisted by a lawyer in preparing his statement of claims accompanying the First Application or otherwise assisted by a lawyer. Secondly, the documents the subject of the s 438 Certificate do not corroborate the appellant’s claim that the lawyer drafted his statement of claims included in the First Application nor that the lawyer translated that statement into English.

77    Thirdly, as the primary judge observed at [61] of BEB16, there were a number of reasons given by the Tribunal for its rejection of the appellant’s claims. Her Honour noted that the issue before the Tribunal was whether the appellant would be harmed in Malaysia by a loan shark, as he claimed, and that the Tribunal was not satisfied that the appellant’s claims were credible in that regard given the significant lack of detail in his claims for protection, inconsistencies in his oral evidence and written statement of claims and the differences between the First Application and the Second Application in relation to the claimed basis for the appellant’s fear.

78    Lastly, the primary judge noted that the Tribunal referred to one of the documents the subject of the s 438 Certificate. This is a reference to [17] of the Tribunal’s decision record, where it said:

The applicant was interviewed on 25 February 2015 in relation to his travel arrangements to Australia, his living arrangements in Australia and the process of applying for a protection visa. [Two other applicants for protection visas residing at the same address as the applicant were also interviewed separately in relation to the same issues.] The record of interview states that applicant’s account of what he feared upon return to Malaysia was consistent in his written claims.

79    That statement, as the primary judge noted, was not adverse to the appellant. Further, as the primary judge explained at [65]-[68] of BEB16, the documents the subject of the s 438 Certificate did not contain any discussion about the appellant’s claims for protection or any reasons for disbelieving his evidence about that nor did they contain an evaluative statement suggesting in any way that the appellant’s claims to fear harm should be disbelieved. As the primary judge correctly concluded at [68] of BEB16, the documents the subject of the s 438 Certificate were not relevant to the issues before the Tribunal and there was no practical unfairness to the appellant by reason of its failure to disclose their existence or the material to which it applied. Her Honour concluded that the non-disclosure could not realistically have resulted in a different decision.

80    The appellant has failed to establish that there was any error in the primary judge’s conclusion in that regard and that disclosure and/or consideration of the documents the subject of the s 438 Certificate could have resulted in a different outcome.

Ground 6

81    By this ground the appellant alleges that the Tribunal was biased in the way it conducted the review process because it did not afford procedural fairness in relation to the s 438 Certificate; it made errors of law as propounded in grounds 1 and 2; it ignored the relevant evidence in the s 438 Certificate and it indicated that evidence the appellant might call might not be viewed as credible, before that evidence was received.

82    In part, this ground, by referring in its particulars to the errors of law alleged by grounds 1 and 2, raises matters which were not raised before the primary judge and are raised for the first time on appeal. To that extent the appellant requires leave to rely on those aspects of ground 6. The Minister opposes the grant of such leave, again on the basis of a lack of merit.

83    The appellant submitted that the manner in which the Tribunal conducted the hearing supports a conclusion that a hypothetical fair-minded lay observer properly informed as to the nature of the proceedings, the matters in issue and the conduct of the hearing might or would reasonably apprehend that the Tribunal’s conclusions were reached with a mind not open to persuasion. That is, the appellant makes a claim of apprehended bias on the part of the Tribunal by reason of the particular matters he relies on.

84    The primary judge dealt with the appellant’s claim of bias on the part of the Tribunal at [48]-[52] of BEB16. In support of his claim the appellant filed a transcript after the hearing which the primary judge considered. Her Honour concluded that the appellant had not established that there was any bias on the part of the Tribunal, whether actual or apprehended.

85    The appellant relies on Re Refugee Tribunal; ex parte H (2001) 179 ALR 425; [2001] HCA 28. At [27]-[28] the High Court said:

[27]    The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of “a fair-minded lay observer” when, as is the case with the tribunal, proceedings are held in private.

[28]    Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.

(footnotes omitted.)

86    Given my findings above in relation grounds 1 and 2 and the s 438 Certificate it follows that the appellant cannot establish any apprehended bias on the part of the Tribunal in relation to the Tribunal’s treatment of those matters. For completeness I also note that I would not grant leave to the appellant to raise grounds 1 and 2 as a basis for alleging bias on the part of the Tribunal for the first time on appeal given their lack of merit.

87    I turn then to consider the last basis upon which the appellant relies, namely whether the primary judge erred in not finding that the Tribunal was biased because it said, before receiving the evidence, that the evidence the appellant might call might not be viewed as credible. The appellant relies in that regard on the Tribunal’s statement at [30] of its decision record in relation to evidence that the appellant might provide from the lawyer he asserted assisted him (see [20] above).

88    At [30] of its decision record the Tribunal said no more than that it may not accept the evidence of the lawyer. It went no further. It could not be said, based on that comment alone, that the Tribunal brought a closed mind to the issue. In any event the Tribunal gave the appellant time to provide further submissions about the issue and evidence from the lawyer who he said assisted him, further indication that the Tribunal had not closed its mind to the issue. No submissions or evidence were provided.

89    In those circumstances, the appellant has not made out ground 6.

conclusion

90    For those reasons the appeal should be dismissed. As the appellant has been unsuccessful he should pay the Minister’s costs.

91    I will make orders accordingly.

Associate:

Dated:    13 December 2019