FEDERAL COURT OF AUSTRALIA
BEG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 660
ORDERS
First Appellant BET17 Second Appellant BEU17 Third Appellant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The name of the first respondent is amended to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2. Leave is granted to amend the notice of appeal in terms of the draft notice of appeal filed on 7 June 2019 save for proposed particular (f) to ground 1.
3. Leave is granted to the appellants to raise the new issues raised by particulars (a), (b) and (e) to ground 1 and ground 1A of the amended notice of appeal.
4. The appeal is allowed.
5. Set aside the orders made by the Federal Circuit Court on 26 October 2018 and in lieu thereof:
(a) the decision of the second respondent made on 22 October 2014 be quashed; and
(b) a writ of mandamus issue directed to the second respondent requiring it to determine the appellants’ application according to law.
6. In the absence of agreement as to the orders as to the costs of the appeal and with respect to the order as to costs in the Federal Circuit Court made on 16 November 2018:
(a) on or before 4pm on Friday 29 May 2020 the parties are to file and serve an outline of written submissions not exceeding 3 pages in length in support of their respective proposed orders; and
(b) final orders as to costs on the appeal and in the Federal Circuit Court will be determined on the papers without a further oral hearing.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
PERRY J:
[1] | |
[5] | |
[5] | |
[10] | |
[24] | |
[24] | |
[30] | |
[32] | |
[38] | |
[45] | |
[47] | |
[54] | |
4.1 Were the appellants afforded an invitation to a real and meaningful hearing for the purposes of s 425 of the Act? | [54] |
[54] | |
4.1.2 No real and meaningful invitation to a hearing was given | [58] |
[66] | |
[66] | |
[73] | |
[76] | |
[78] | |
[89] |
1 The first and second appellants (Mr and Mrs [BEG]) are respectively, a husband and wife. The third appellant is their son and is a minor under the age of 10. Mr and Mrs [BEG] met in Australia and have been in Australia since 2008 and 2007 respectively. Their son was born in Australia. All of the appellants are citizens of India.
2 This is an appeal from a decision of the Federal Circuit Court (FCC) dismissing the appellants’ application for judicial review of a decision of the then Refugee Review Tribunal (Tribunal). By that decision, the Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), refusing to grant the appellants protection visas. The Tribunal accepted Mr and Mrs [BEG]’s claims that if returned to India as an inter-caste couple, there was a real chance that they would be the victims of honour killings from Mrs [BEG]’s relatives in Punjab. However, the Tribunal found that they had a right to enter and reside in Nepal where it considered that the chance that the relatives in Punjab would discover that they were living there and be able to harm them there was “remote” (at [69] and [70]). It is this finding which was the subject of challenge before the FCC and on the appeal. As the Tribunal found that the appellants had not taken all possible steps to avail themselves of that right, it therefore held that Australia does not owe protection obligations to the appellants under s 36(3) of the Migration Act 1958 (Cth) (the Act).
3 For the reasons set out below, the application for leave to amend the notice of appeal and to raise the new issues, to the extent that they are truly new, should be granted. The appeal is allowed on the basis that in all of the circumstances, the Tribunal failed to extend a real and meaningful invitation to the hearing contrary to s 425 of the Act and the decision was unreasonable by reason of the Tribunal’s failure to advise the appellants that they could apply for an adjournment and seek to put further material before it on the Nepal issue.
4 In this regard, I would emphasise that these findings are based upon an objective assessment of all of the circumstances, as opposed to the Tribunal member’s subjective appreciation of the situation. In this regard, it is apparent that the Tribunal member was understandably troubled by the difficulties which Mr and Mrs [BEG] and their baby may face if sent to Nepal for the reasons she gave at [74] as to why she considered that their case should be referred to the Department to be brought to the Minister’s attention.
2. SHOULD LEAVE BE GRANTED TO RAISE THE NEW ISSUES?
2.1 The proposed amendments to the notice of appeal
5 By the notice of appeal as originally filed, the appellants alleged that:
1. The learned Federal Circuit Court judge erred in not finding that the RRT failed to conduct a proper review in accordance with Part 7 of the Migration Act1958.
2. The learned Federal Circuit Court judge wrongly applied and/or wrongly interpreted the concepts of unreasonableness as applicable to the RRT in its decision.
3. The learned Federal Circuit Court judge erred by failing to find that the RRT failed to properly interpret and/or apply s 36 and/or ss 5H to 5LA of the Migration Act 1958;
6 Following certain matters being raised in arguendo when the matter was first listed for hearing, the appeal was adjourned and timetabling orders were made for the appellants to seek leave to amend the notice of appeal and for the filing of supplementary submissions in support of the grant of leave to amend and to raise new grounds on appeal and on the substance of the proposed amended grounds.
7 The proposed additional grounds were set out by way of particulars to ground 1 as follows:
Particulars:
(Each particular raises a separate ground of jurisdictional error or the particulars taken cumulatively or part-cumulatively demonstrate jurisdictional error)
(a) The RRT did not properly apply and/or breached s424AA of the Migration Act
(b) In applying Division 4 – Part 7 – reviewable decisions: conduct of review, of the Migration Act the RRT did not ‘act in a way that is fair and just’ and therefore did [not] meet its obligation under s422B(3) of the Migration Act;
(c) In making its decision the RRT did not act judicially and instead determined the matter by making a “snap decision” or [“]by acting on instinct, a hunch or gut feeling”;
(d) The RRT made its decision on a basis of generalised statements which failed to properly disclose the manner in which and the basis upon which a decision was made and/or failed to disclose its actual path of reasoning to determine the matters required under s36 of the Migration Act 1958;
(e) The RRT did not comply with the principles set out in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 in that it did not give the applicant a fair and reasonable opportunity to rebut or qualify by further information, and comment by way of submission, upon the ‘Nepal issue’;
(f) The RRT acted as a ‘contradictor’ in the manner and way it raised and examined the ‘Nepal issue’.
8 In addition, the appellants sought to include a new ground 1A in the following terms:
In the alternative, the RRT breached the natural justice hearing rule set out in Division 4 – Part 7 of the Migration Act and thereby denied the appellants procedural fairness
Particulars
(a) The RRT did not properly apply s424AA and/or s424A of the Migration Act;
9 The Minister contended that particulars 1(a), (b), (e) and (f), together with ground 1A, were new in that they were not raised before the FCC and therefore leave was required to raise them, which was opposed.
2.2 Should leave to appeal be granted?
10 The principles by which this Court exercises its discretion as to whether leave should be granted to raise a new ground on appeal in the context of migration matters ultimately turn upon whether it is expedient in the interest of justice to grant leave and were summarised in Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 (Murad) as follows:
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] FCAFC 158; 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] FCAFC 52; 243 FCR 220 at [89]-[90]):
46 … 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] FCAFC 36; 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 Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [79].
(emphasis added)
11 As these observations suggest, merit alone will generally be insufficient for the grant of leave. As Bromwich J observed in the course of his helpful discussion of the authorities in Han v Minister for Home Affairs [2019] FCA 331 (Han):
8. It may be convenient, and in many cases it will be entirely appropriate, to decide the question of whether to grant leave to advance an entirely new proposed ground of review in the form of a ground of appeal by giving dominant, but not exclusive, weight to the merit of the proposed ground. Merit is necessary, but not of itself ordinarily sufficient. Other features will generally need to be absent or present. Possible further considerations for the granting of leave in addition to merit include such things as an acceptable explanation for the ground not being run below, the nature and extent of any injustice (beyond a merely adverse result) that may result if the issue raised is not addressed, and the lack of prejudice to the opposing party. The decision to grant or refuse leave is then made by weighing the competing considerations, which are sometimes finely balanced.
9. The approach of relying predominantly on merit as the basis for leave becomes more problematic when there is no adequate explanation for the ground not having been advanced at the trial in the court below and other circumstances also tell against leave being granted. Care needs to be taken to ensure that a focus on merit does not have the troubling practical effect that a new ground sought to be raised is effectively heard and determined by this Court in the exercise of its appellate jurisdiction as though leave was not required. If that happens, the appellant may get to run an appeal which in truth is a new trial upon nothing more compelling than the fact that it might have succeeded if it had been run below. If the argument in support of the proposed ground finds favour, leave is then granted, and the appeal is allowed. If the argument does not find favour, leave is refused and the appeal dismissed. The grant or refusal of leave then turns on the success or failure of the new ground, making leave a mere formality. If so, an important principle in the administration of justice may be lost in the process.
12 The need for the caution to which Bromwich J refers is amplified in the context of the scheme for judicial review established by Part 8 of the Act so as to ensure that the evident purpose of s 476A precluding the Federal Court from having original jurisdiction in a case of this nature is not subverted: BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292 at [28]-[29] (the Court); Han at [17]-[18] and [20(4)].
13 The Minister’s “primary submission” was that leave to amend ought not to be granted due to the alleged lack of merit in the new grounds. The Minister also pointed to the lack of evidence explaining why the issues were not raised at trial.
14 Argument proceeded correctly on the basis that the so-called “particulars” to ground 1 were in fact intended to give substance to the very general pleading in ground 1 which failed to identify the error the subject of the complaint.
15 The fact that no evidence had been led to explain why the new particulars to ground 1 and ground 1A were not relied upon at trial would ordinarily be a telling factor against the grant of leave. Nonetheless, on balance leave to amend should be granted, save for particular (f) to ground 1, having regard to the following considerations.
16 First, there is no suggestion that particulars (c) and (d) were not raised in the FCC. As such, the concerns to which Bromwich J referred in Han do not apply to these proposed amendments. They plainly reflect grounds argued in the Court below.
17 Secondly, the same finding by the Tribunal is sought to be challenged by the proposed new particulars, namely, the Tribunal’s finding that the appellants had not taken all reasonable steps to avail themselves of an existing right to enter and reside in Nepal where they would have no more than a remote chance of persecution. Furthermore, the new particulars seek to challenge essentially the same aspects of the Tribunal’s reasoning. In effect they seek to re-characterise the same aspects of the Tribunal’s decision as those underpinning the grounds of judicial review in the FCC. In this regard, it must be borne in mind that grounds of judicial review often overlap and that a jurisdictional error may therefore be capable of more than one characterisation such as failure to ask the correct question, having regard to an irrelevant consideration, and absence of an intelligible basis for the decision: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ). By contrast, in Han the primary judge held that “[t]he appeal on the proposed new ground would amount to no more than a de facto trial on an entirely new basis. It would be an appeal in name only as a matter of formal jurisdiction and power” (Han at [20(5)] (emphasis added)). Indeed, in Han the appellant’s legal representative had conceded at trial that the judicial review application had to fail if the judicial review grounds then advanced were unsuccessful (Han at [20(3)]).
18 Thirdly, it is by no means clear that the appellants did not raise the substantive concern which underlies particulars (1)(a), (b), and (e) before the primary judge. In particular, while the primary judge did not specifically address the issue in his reasons, he records at [47] that, among other things, the appellants submitted that:
… the question of relocation by the applicants to Nepal was raised by the tribunal without notice to the applicants and the tribunal had plainly researched the matter without revealing to the applicants the material upon which it was proceeding.
(emphasis added)
19 Fourthly, the Minister does not rely upon any particular prejudice beyond that which inevitably flows where a new ground is raised on appeal. In so saying, I do not intend to detract from the importance of protecting the integrity of the distinction between trials and appeals and, more specifically, of the scheme established by Part 8 of the Act.
20 In the fifth place, I have given weight to the potential seriousness of the outcome for the appellants including their son who is a minor aged under 10 years of age. In this regard, it is relevant that the Tribunal accepted the appellants’ fundamental claim that they were at risk of persecution if they returned to India from Mrs [BEG]’s family. The findings the subject of challenge relate to the Tribunal’s rejection of their evidence that there was a real risk that Mrs [BEG]’s family might discover that they were in Nepal and be able to harm them there directly or through contacts. On this pivotal issue the complaint put in various ways by the appellants is that they were taken completely by surprise when this issue was raised with each of them separately at the Tribunal hearing and they were never afforded a real opportunity to lead evidence and make submissions in response to the issue.
21 Finally, approaching the issue at a reasonably impressionistic level and in particular as clarified by the appellants in the course of oral argument, the proposed new particulars have sufficient merit to justify the grant of leave to amend with the exception of ground (f). The question of whether the appellants had failed to avail themselves of a right to reside in Nepal and could do so safely was raised for the first time with the first and second appellants separately by the Tribunal at the interview without them being afforded any opportunity to put in further evidence or submissions or even to discuss the matter, including its implications for their son, among themselves.
22 However, in my view, particular (f) to ground 1 lacks merit bearing in mind that the Tribunal’s function is inquisitorial in nature. As Gummow and Hayne JJ explained in Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510:
187. … The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether the claim is made out.
23 The inquisitorial process necessarily involves the Tribunal testing the evidence: Re Refugee Review Tribunal; ex parte H [2001] HCA 28; (2001) 75 ALJR 982 at [30]. Furthermore, the particular would add nothing further to the existing grounds. As the appellants’ counsel accepted at the hearing, the thrust of their case was not the fact that the Nepal issue was raised at the hearing without any prior notice, but rather that the appellants were not given any real opportunity to respond to the issue afterwards (T 29/10/19 at pp. 46.43-47.1). As such, leave to amend to include particular (f) should be refused.
3.1 Relevant provisions of the Migration Act
24 The Act provides for the circumstances in which a person who is not a citizen of Australia (a non-citizen) may enter and remain in Australia. One of the classes of visa for which the Act provides is a protection visa under s 36 of the Act. A protection visa may be granted where the criteria in s 36(2)(a) or (aa) are met.
25 As at the relevant time, it was necessary under s 36(2)(a) for the Minister to be satisfied that the visa applicant is a person to whom protection obligations are owed because the person is a refugee as defined in article 1A(2) of the Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137, [1954] ATS 5 (entered into force 22 April 1954) as amended by the Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267, [1973] ATS 37 (entered into force 4 October 1967) (collectively, the Refugees Convention). Australia is a party to both the Convention and the Protocol. Article 1A(2) defines a refugee as a person who:
…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return it.
26 A determination of whether a (subjective) fear is (objectively) “well-founded” requires the Tribunal to assess what will occur in the future. A fear is “well-founded” when there is “a real and substantial basis for it” even though the chance of the fear eventuating is less than 50 per cent (often described as a “real chance”): Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 572 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). Conversely, a fear of persecution is not well-founded “if it is merely assumed or if it is mere speculation”: ibid.
27 In the alternative, s 36(2)(aa) provides for the grant of a protection visa to a non-citizen where the Minister is not satisfied that the person is a refugee but is nonetheless satisfied that the person is entitled to protection under Australia’s international non-refoulement obligations (described as complementary protection), being a person:
…in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm…
28 A determination of whether there is a real risk for the purposes of s 36(2)(aa) requires a consideration of whether there is a “real chance” that an applicant will suffer “significant harm” (as defined in s 36(2A)) if returned to her or his country of origin: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 at 551 [242]-[246] (Lander and Gordon JJ) (with whom Besanko and Jagot JJ at 557-558 [297] and Flick J at 565 [342] relevantly agreed). The level of risk of harm under s 36(2)(aa) is therefore the same as the level of risk of persecution required under s 36(2)(a) of the Act.
29 Relevantly, however, a person will not meet either criterion for a protection visa where that person has not taken all reasonable steps to avail herself or himself of a right to enter and reside in another country provided that the person would not face persecution for a Refugees Convention reason, or a real risk of significant harm, in that other country. Specifically, ss 36(3) and (4) of the Act provide that:
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
3.2 The application for protection visas
30 Mr [BEG] applied for a protection visa on 8 August 2013. Mrs [BEG] applied on the basis that she was a member of the same family unit (AB12 and 40 respectively). Their son was born in 2014 after the application was lodged but before the delegate made his decision.
31 In his statement received by the Department on 14 August 2013 (AB50), Mr [BEG] claimed that he and his wife could not return to India due to threats from both of their families that once they landed in India they would be killed. He also claimed that their families were bitterly opposed to their marriage. In the case of Mr [BEG]’s family, he claimed that this was because Mrs [BEG] is a divorcee, and in the case of Mrs [BEG]’s family, he said that it was because Mr [BEG] was not from the same caste. Mr [BEG] also claimed that Mrs [BEG]’s family had threated his family on numerous occasions and, while his parents had lodged cases with the police, the complaints were thrown out because Mrs [BEG]’s family were powerful and politically connected. Mr [BEG] further claimed that, while in other cases families who oppose a marriage may separate the couple and see them remarried according to their families’ wishes, this was not possible in their case because Mrs [BEG] was (then) pregnant with their first child and her family were conservative. Mr [BEG] also described an incident said to have occurred in 2009 where Mrs [BEG]’s aunt (Mrs [T]), who also married without the consent of her family, was called back to India on a false pretext and kidnapped, and her husband, Mr [T], was arrested on false charges on arriving in India even though he was ultimately able to get the charges dismissed. Mr [BEG] relied upon a substantial body of documentary evidence including in particular, extensive country information about honour killings in India and court documents in the case of Mrs [BEG]’s aunt and uncle’s experience.
32 Mr [BEG] was invited to attend an interview by the Department on 21 January 2014.
33 On 28 February 2014, the Department wrote advising Mr [BEG] that his application for a protection visa had been refused. In his reasons, the delegate found that Mr [BEG] did not have effective protection in a third country for the purposes of s 36(3) of the Act for the reasons that:
The applicant claims to be a citizen of India. The applicant claims not to hold any other citizenship or have a current right to enter and reside in a third country. There is no material evidence presently before me that contradicts these claims.
34 It was common ground that the question of Nepal was not raised by the delegate or addressed by the delegate in his reasons.
35 However, the delegate found that there was “cause for concern about the applicant’s claims” (AB134). First, the delegate accepted that Mr [BEG] no longer had a fear of harm from his side of family on the basis of Mr [BEG]’s evidence that his family no longer had an issue with their marriage. Mr [BEG] gave evidence that only Mrs [BEG]’s family were still threatening them. Secondly, the delegate did not accept on credibility grounds that the first appellant had been threatened by his wife’s family in India because of his inter-caste marriage. Accordingly, the delegate was not satisfied that Mr [BEG] had any fear of returning to India due to threats of being killed by anyone from his wife’s family because of opposition to their inter-caste marriage (AB136). Thirdly, the delegate found that:
Notwithstanding the above credibility concerns, after analysis and discussion of his protection visa claims, I find that his claims do not fall under one of the Refugee Convention grounds of race, religion, nationality, membership of a particular social group or political opinion. Such claims would be considered to be of a civil nature, that is, a civil dispute between the applicant and three members of his wife’s family, that is, two aunts and an uncle. As such, if the applicant was to return to India and he is threatened by one of these three people or anyone else, it would be a matter to be handled by the Indian authorities and therefore there is no convention nexus.
(AB 138)
36 (I note that there are doubts as to the correctness of this reasoning, with it being at least arguable that Mr and Mrs [BEG] feared persecution by reason of their membership of a particular social group, namely, an inter-caste couple who married against their family’s wishes.)
37 In any event, the delegate accepted that the significant harm claimed by Mr [BEG] is significant harm for the purposes of s 36(2A) of the Act (AB139). However, the delegate was not satisfied that there were substantial grounds for believing that there was a real risk of significant harm if Mr [BEG] were to return to India so as to satisfy s 36(2)(aa) because his claims to fear harm from his wife’s family by reason of their marriage were not credible (AB140). In addition the delegate found that Mr [BEG] could safely and reasonably relocate to another part of India (AB140).
3.4 The hearing before the Tribunal
38 A transcript of the hearing before the Tribunal on 13 October 2014 was in evidence before the primary judge (AB340-372). There was no suggestion that the transcript did not accurately record what was said at the hearing. The appellants each gave evidence to the Tribunal with the assistance of an interpreter in English and Punjabi, NAATI Level 2 (AB258). The appellant’s representative was not present in circumstances which I presently explain (AB258).
39 At the hearing, the Tribunal began by interviewing Mr [BEG] in the absence of Mrs [BEG] after explaining to them both the purpose of the hearing (AB341-342). After questioning Mr [BEG] about the appellants’ claims to fear harm from Mrs [BEG]’s family, the Tribunal member raised the question of whether they could enter and reside safely in Nepal in the following passage. (I note that, given the importance to what transpired at the interview, I have set out the relevant passages in full.)
PM Oh, okay. Alright, the other issue then that I have to talk about with you is this. If you have, if you need protection from serious harm or significant harm in India, I have to consider whether you have protection in another country, other than Australia. Now, there is, this is probably something you have not thought about before, but I need to talk about it with you. That is the treaty between India and Nepal, the Treaty of Peace and Friendship.
It allows people who are citizens of either country to enter and live in the other country, without a visa. So in other words, you, it seems to me that you have an existing right to enter and live in Nepal.
TR for [Mr [BEG]] We have been here seven years, living in Sydney. The baby is born here as well. They are well settled here now with family. Even if they go to Nepal, if they find them there, then they can go to India as well.
PM How would they find out you were there?
TR for [Mr [BEG]] Because the airport has links to Australia
01:05:12
PM Okay, but they won’t know you’re in Nepal.
TR for [Mr [BEG]] We have to get another visa, if it’s for India or Nepal.
PM Well, okay, they might, you don’t mean the uncle is sympathetic to you? You mean the husband of the woman?
[Mr [BEG]] Yes.
PM Even so, they have got no influence over, and no contacts in the Nepalese police force.
TR for [Mr [BEG]] The police in Nepal are the same, they are corrupt. They are all the same.
PM They are corrupt, yes, there’s a lot of corruption, but nevertheless, your wife’s relatives in India wouldn’t have any contacts there. They wouldn’t be able to do in Nepal what they have done in India.
TR for [Mr [BEG]] No, but they can go through the police, and they have got contacts there in Nepal.
PM Maybe. I think it’s less likely, don’t you? It’s probably much more difficult for them to get away with that.
01:06:41
TR for [Mr [BEG]] But that’s risky.
PM Yes. The fact is, if you flew to Nepal, then okay, they might find out at some point that you’ve done that, but you would have already entered the country. So you wouldn’t be picked up at the airport there.
TR for [Mr [BEG]] [Unclear] What if they find out afterwards. Then what? What will happen to our child.
PM Okay, that’s something that I will have to think about. I know it’s not something you have thought about before, so this is new to you. But anyway, it’s something I will think about.
(AB at 359-360)
40 The Tribunal then asked Mr [BEG] if there was anything he had not told the Tribunal that he thought was important, to which Mr [BEG] responded “Just that we’ve been here seven or eight years and we’ve got a child here as well. It’s going to be very, very difficult” (AB360). An exchange then occurred during which the Tribunal Member advised Mr [BEG] that if he found that Australia did not owe him protection, Mr [BEG] could ask the Minister to allow him to stay in Australia anyway. The Tribunal member also advised Mr [BEG] that he did not have to use the migration agent who Mr [BEG] said gave him poor advice and could change the address for correspondence. The Tribunal member also referred Mr [BEG] to a list of free immigration services (AB361-362).
41 Mr [BEG] was then told to stay outside with their son while the Tribunal questioned Mrs [BEG] (AB362). The Tribunal member also questioned Mrs [BEG] about her and her husband’s claims to fear harm if returned to India, before questioning her on whether they could live in Nepal as follows:
PM All right. Well, the third issue is one which you and your husband may not have thought about, but I’m required to consider this issue, and that is whether you already have protection in another country, and whether you have an existing right, a current right, to enter and live in that country.
Now, the country that I’m thinking of is Nepal. Because India and Nepal – as you probably know – have a treaty which allows citizens to go backward and forwards to live in each other’s country without a Visa. And so, discuss this with your husband, but I will have to consider – even if it might cause you a lot of hardship to go and live in Nepal – I will have to consider if you could live there without being seriously harmed.
00:24:55
TR for [Mrs [BEG]] I don’t think that if we return there we can escape them. And even so, Nepal’s sort of close and a part of India as well. Even if we go, but we would always be in fear.
PM Well, just tell me what problems do you think you might have if you were in Nepal. You said you’d always be in fear, what do you think might happen?
TR for [Mrs [BEG]] We can’t live their [sic] openly… There will always be a fear in our minds that we would be located and harmed.
PM And how might you be located there?
TR for [Mrs [BEG]] They can find us, it’s very nearby.
PM Well, you know, the thing is that you’ve talked, and so has your husband talked about their contacts with the police in Punjab, and that they’re rich; so yes, the police is corrupt in India, so… but your relatives don’t have any contacts with the police in Nepal, it’s a different country.
And they wouldn’t even know that you were in Nepal.
TR for [Mrs [BEG]] The world’s a small place and if someone was [inaudible].
PM Well, if they didn’t suspect… or say, if they thought you were in Australia, for example, they wouldn’t be looking for you in Nepal.
TR for [Mrs [BEG]] It’s about their honour, someday they’ll find out.
PM Yes, I understand it’s about their honour, and I understand they might be quite motivated to do something bad to you; the question is whether they could if you were in Nepal. I mean, tell me, if you think that they could, you need to tell me how could they.
TR for [Mrs [BEG]] [Sound slip] parents are also in Amritsar. My husband also cannot now go to Punjab, and he hasn’t been back to India because of me. You can’t get a fake ID, you’ve got to get a proper one.
PM To do what?
TR for [Mrs [BEG]] If my husband wants to talk to his parents, for anything, for a phone or a SIM Card, you need an ID, you need an ID for work.
PM Yes, but if you were in Nepal, what would you need.
TR for [Mrs [BEG]] But we can’t take that risk whether it’s Nepal or anywhere else. If it was just the two of us, but we’ve got a little baby who is only eight months old.
00:29:05
(AB370-371) (emphasis added)
42 After also explaining to Mrs [BEG] that even if not owed protection obligations, they might ask the Minister to allow them to remain in Australian on humanitarian grounds, the Tribunal member then brought Mr [BEG] back into the interview saying:
PM: … I wanted to give you some time to think about whether there was anything more you wanted to say?
TR for [Mrs [BEG]] Just everything … all these questions about what’s happened to us.
PM Yes, was there anything else that you want to say?
TR for [Mrs [BEG]] No.
(AB372) (emphasis added)
43 The interview closed with the Tribunal member explaining that they could advise reception about what they want to happen with their mail and ask for a recording of the hearing if they want it, and that:
… I will carefully consider everything you’ve said. I appreciate your situation. I don’t see any reason to doubt what you’ve said is the truth, so I’ll really be thinking about what your circumstances might be if you go back to India and I’ll also have to consider that issue about Nepal that I’ve discussed with both of you.
(AB372) (emphasis added)
44 Importantly for present purposes, while the Tribunal member was appropriately concerned to advise the appellants about what steps they could take to change the address for correspondence given their difficulties with their agent and to raise with them the possibility of requesting intervention by the Minister on humanitarian grounds if the delegate’s decision was affirmed, there was no suggestion by the Tribunal that they could or might put on any submissions or evidence concerning the Nepal issue after the hearing. To the contrary the member stated that she would have to consider that issue which she had discussed at the interview with them, giving the impression that it was not a matter in which the appellants could have further input.
45 The Tribunal gave its decision nine days later on 22 October 2014 (AB265). The Tribunal accepted the claims to fear harm from honour killings by members of the wife’s family:
56. “Honour killings” continue to occur in India, especially in Punjab and Haryana, where up to 10[%] of all killings reportedly are honour killings. The most common justification for the killings by those accused or by relatives is that the victim married against her family’s wishes. In 2011 India’s Supreme Court ruled that people convicted of honour killings should face the death penalty. In April 2011 the Supreme Court told the states to stamp out honour killings. Nevertheless reports of honour killings involving couples from different castes in Punjab continue. Expert and media sources indicate that inter-caste couples could face honour killings, assault, threats, social ostracism, family confinement or having false charges filed against them.
57. As to the adult applicants, I accept that they are genuinely frightened about the intentions of the two aunts and the uncle of the female applicant towards them. Their accounts were internally consistent in all important respects, the only minor exception being the point at which threats from the relatives ceased (whether before or after the couple had commenced living together). I do not infer from that minor difference that they had not been truthful in all other respects.
…
59. I accept that threats were made towards both adult applicants, initially through the contact with the applicant wife and subsequently in 2010 via her uncle, Mr [T], during his trip to India.
60. Both plausibly claimed that the three individuals who made the threats are very wealthy landowners in Punjab with contacts in the police force to the highest level in that state. Each referred to corruption within the police force which enabled individuals to influence the police, and each claimed that Mr [T] and his wife were identified and detained by corrupt police who had been paid off.
61. That claim is consistent with evidence from many sources. …
62. Further, citizens report that judicial corruption is widespread. …
63. The applicants provided evidence from numerous sources about the serious ill-treatment and killings of individuals in Punjab who have breached conservative cultural standards by marrying without the approval of family. The applicants fear, but do not know with certainty, that the family members in Punjab have used their influence or money to ensure that the applicants are identified as soon as they re-enter India. I am unable to establish with any confidence whether this has occurred. However I note evidence that there is a high prevalence of corruption at India’s international ports, including airports and accept that it is possible the relatives could arrange this through payments to the right officials.
46 However, the Tribunal found that the risk of harm if the appellants were to enter and reside in Nepal was remote. It is helpful to set out in full the Tribunal’s reasoning on this issue in full:
64. Under the 1950 Treaty of Peace and Friendship between Nepal and India, which remains in force, citizens of India can enter Nepal without a visa, and may reside, work and access services such as schooling and health. The treaty states that nationals of India have the same privileges as Nepal nationals in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature. According to Nepal’s official visa information website, Indian citizens need only show their Indian passport to gain entry.
65. The Nepal Immigration website (a Nepali government website) provides a list of documents including Indian passports, required for Indian citizens to travel to Nepal. Eight official entry and exit points into and out of Nepal are also provided on the website, according to which they are open 24 hours a day.
66. In 2002 Asia Times cited an independent research scholar who stated that Nepal “does not have even a record-keeping system for those entering Nepal from India. There is no way of knowing how many of India’s more than a billion population currently live and work in Nepal”. A Hindu report cites an estimate that around four million Indians had moved to Nepal in the 35 to 40 years up to 2001.
67. When the issue of their right to enter and reside in Nepal was raised with them during the hearing the applicants did not suggest that there might be any practical barriers for Indian citizens travelling to Nepal. On the assumption that they may face Convention related persecution or alternatively significant harm in India it is most straightforward to consider their circumstances in relation to Nepal.
68. The above evidence satisfies me that the applicants have an existing right to enter and reside in Nepal, and that they can enter Nepal through the international airport regardless of the departure point (such as Australia). Relying on this evidence I find that the applicants have an existing right to enter and reside in Nepal, through a ‘liberty, permission or privilege lawfully given’ which has not been withdrawn.
69. The adult applicants have expressed a fear that the relatives in Punjab will find out through the husband of one of them in Australia that the applicants have gone to Nepal, and that the relatives will be able to harm them there. I consider the chance remote that this will happen. It requires firstly that the husband here manages to obtain and pass on that information, then that the relatives in Punjab will have the ability to locate the applicants in Nepal and then that they will either harm them directly or have contacts in the police force in Nepal willing to harm the applicants on their behalf. It is only in circumstances where all these steps were implemented that the applicants might be said to have a well-founded fear of being persecuted or facing a real risk of suffering significant harm in Nepal.
(emphasis added)
47 On 21 March 2017, the appellants filed an application for judicial review of the Tribunal’s decision made on 22 October 2014. By a decision given on 31 January 2018, the primary judge granted an extension of time under s 477(1) of the Act within which to institute the application for judicial review: BEG17 v Minister for Immigration and Border Protection [2018] FCCA 216 (BEG17 (No. 1)). In granting the extension, the primary judge held that there was an explanation for the delay, namely, the appellants were awaiting the outcome of a reference instigated by the Tribunal for Ministerial intervention, being a process not completed by the Minister for a period of more than two years. It was not a case where the appellants had made a forensic decision to apply for Ministerial intervention rather than for judicial review, contrasting the decision in DNH16 v Minister for Immigration and Border Protection [2017] FCCA 2630 (BEG17 (No. 1) at [30]). The primary judge also held that, considered at a generally impressionistic level, the proposed grounds of judicial review had some merit (at [57]).
48 The substantive application for judicial review was dismissed on 26 October 2018: BEG17 v Minister for Immigration (No. 2) [2018] FCCA 3022. The appellants were represented at the hearing by counsel. Only four of the nine grounds of judicial review were pressed before the primary judge, being expressed in broad and general terms as follows:
1. The second respondent misinterpreted s 36(2), s 36(2A), s 36(3) and s 36(4) of the Migration Act 1958.
2. The decision of the second respondent was unreasonable.
3. The second respondent did not conduct a proper review in accordance with Division 3 and 4 of Part 7 of the Migration Act.
…
8. The second respondent did not conduct a proper review in accordance with the Migration Act.
49 As to ground 1, the primary judge rejected the appellants’ submission that the Tribunal was required to make a positive finding that s 36(3) did not apply to the appellants (at [29]). The primary judge also rejected the submission that the Tribunal in effect found that the persons who sought to harm the appellants “would not be able to go to Nepal and harm them”, holding that the Tribunal accepted that the relatives (or others on their behalf) might go to Nepal to harm them but thought that the risk was remote (at [31]-[32]). The primary judge’s rejection of ground 1 was not challenged on the appeal.
50 As to ground 2, the appellants submitted that the Tribunal’s finding that they would not face a real chance of significant harm was unreasonable because, to live in Nepal, they would have had to live there in secret (FCC reasons at [39]). They also submitted that the Tribunal’s decision on the Nepal issues was “based on a ‘gut feeling’” (relying upon WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74; (2004) 80 ALD 568 at [21] (Lee and Moore JJ)) (FCC reasons at [40]). I note that this ground finds reflection in particular (1)(c) of the amended notice of appeal. The primary judge rejected those submissions. In rejecting this ground, the primary judge held first that the Tribunal considered the possibility that Mrs [BEG]’s relatives might find and harm them in Nepal but considered the chance of that happening to be remote (FCC reasons at [41]). Secondly, the primary judge held that the Tribunal’s decision was based on a number of considerations set out at [69] of its reasons which had logical force (FCC reasons at [41]-[44]).
51 The primary judge considered grounds 3 and 8 together. In support of these grounds, the appellants submitted that the Tribunal’s finding that there was a remote chance only that Mrs [BEG]’s relatives would harm them in Nepal:
(1) was a conclusion reached on the basis of other unstated facts;
(2) was a “very generalised sweeping statement”;
(3) failed to address the ease with which the appellants’ relatives might pass from India and Nepal; and
(4) was based on assumptions not borne out by the evidence.
52 These assumptions included that harm would only befall the appellants if:
a) the husband here manages to obtain information that the [appellants] have left Australia and gone to Nepal;
b) he passes that information to [Mrs [BEG]’s] relatives in Punjab; and
c) they have the ability to locate the applicants in Nepal.
(FCC reasons at [46])
53 The primary judge rejected those submissions, finding that the Tribunal’s focus was rather upon the likelihood that the appellants’ relatives would find out that they were in Nepal and where in Nepal they might be, and that those findings were based upon the reasoning earlier explained (FCC reasons at [48]-[50]).
4.1 Were the appellants afforded an invitation to a real and meaningful hearing for the purposes of s 425 of the Act?
54 First, s 425(1) of Division 4 of Part 7 of the Act, relevantly provides that the Tribunal must invite the review applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Having regard to the terms of s 422B(3), s 425(1) must be applied in a way that is fair and just: BZAID v Minister for Immigration and Border Protection [2016] FCA 508; (2016) 242 FCR 310 at [49]. The evident purpose of s 425 is to “provide an applicant with the opportunity to present evidence and argument relating to the issues arising in connection with the decision under review”: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) at [60] (by analogy). As such, the invitation must be “meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case”: Li at [61]. In other words and as the Minister accepted, the invitation under s 425(1) to the review applicant is to a “real and meaningful” hearing: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 (SCAR) at [37]; Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 (Singh) at [61]-[63]; First Respondent’s Further Supplementary Outline of Submissions filed on 8 November 2019 (Minister’s FSOS) at [3].
55 Secondly, this obligation is an objective one. As the Court explained in SCAR:
37. … it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a ‘real and meaningful’ invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.
56 Thirdly, as Logan J explained in BXK15 v Minister for Immigration [2018] FCAFC 76; (2018) 261 FCR 515 to which the Minister’s counsel drew the Court’s attention:
77. It was, rightly, common ground that the hearing to which an applicant was invited under s 425 of the Act had to be “real and meaningful” (Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [37]) and that this may entail an obligation on the part of the Tribunal to bring to the attention of an applicant any issue arising in the review that was not obvious in the circumstances (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [32]-[43]).
57 Fourthly, as the Minister submitted, s 425 of the Act did not require the Tribunal to actively assist the appellants in putting their case, or undertake an inquiry in order to identify what that case might be: SCAR at [36] (the Court). Nor was the Tribunal required to conduct an inquiry to ascertain whether the appellant's case might be better put or supported by other evidence: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 at [36] (Keane CJ) and [49] (Emmett J).
4.1.2 No real and meaningful invitation to a hearing was given
58 The appellants submitted that they had not been provided with a real and meaningful invitation for the purposes of s 425 of the Act in all of the circumstances including that:
(1) unbeknownst to the appellants, the Tribunal had researched the Nepal issue before the hearing and “kept them in [the] dark about it until halfway through the hearing and then, even worse, separated the appellants so that they could not confer about the Nepal issue or even know what the other had said about the Nepal issue” (Appellants’ further supplementary submissions dated 26 November 2019 (AFSS) at [2]);
(2) the Tribunal was aware from the hearing that the appellants had severed their relationship with their representative;
(3) “No where does the transcript reveal that the member offered the appellants an adjournment nor does the member advise the appellants that, later, they could supply further evidence or further submissions” (AFSS at [9]);
(4) the appellants were “left in the dark as to whether they could have more time and the opportunity to marshal their evidence and properly present a case about this Nepal issue” (AFSS at [11]); and
(5) it was unfair to raise the Nepal issue with each appellant separately without giving them an opportunity to confer or reflect on the issue (AFSS at [12]).
59 While accepting that the Tribunal was under an obligation to provide a real and meaningful invitation to a hearing to give evidence and present arguments, the Minister contended that they were afforded such an invitation, submitting that:
The Appellants were invited to attend a hearing. They chose to do so without their representative. They attended a hearing on 13 October 2014 at which the Nepal Issue was raised and the Appellants were given the opportunity to present arguments and give evidence, being aware of that issue. Despite being represented, the Appellants did not make further submissions about the Nepal Issue before the Tribunal’s decision of 22 October 2014. At the end of the hearing, the member of the Tribunal asked the Appellants whether there was anything else they wished to say, stated that they could ask for a recording at the hearing if they wanted it and that the member would have to consider the issue about Nepal.
Although the Appellants may feel that they could have better presented their case (although there is no evidence to that effect), the Minister submits that this is not sufficient to amount to jurisdictional error.
60 In my view, the Minister’s submissions must be rejected. The appellants correctly submit that in all of the circumstances of this case, there was no invitation to a “real and meaningful” hearing.
61 First, as the Minister’s counsel correctly accepted, whether the hearing is real and meaningful depends on the circumstances. While this does not mean that the Tribunal must ensure that a party presents all of their arguments as best they can, it was not necessarily sufficient for the Tribunal merely to raise the Nepal issue orally at the hearing, contrary to the respondent’s submission. The question remains whether, in all of the circumstances, an invitation was given to a real and meaningful hearing, having regard to the need to apply s 425 in a fair and just manner.
62 Secondly, the issue which was dispositive of the review by the Tribunal was not raised by the delegate. Indeed the delegate expressly found that Mr [BEG] did not have effective protection in a third country for the purposes of s 36(3) of the Act. The Nepal issue was therefore a new issue raised for the first time at the Tribunal hearing. Nor was the issue an obvious one in the circumstances, as the Tribunal member properly acknowledged at the hearing in stating that she did not expect that either of the appellants had considered the issue before.
63 Thirdly, the issue was raised separately only with Mr and Mrs [BEG], as the appellants emphasised, despite the fact that this was a case where both had a well-founded fear of harm from Mrs [BEG]’s family at least if returned to India. Furthermore their infant child also potentially stood to lose his parents if those fears were realised. Moreover while the Tribunal recognised during the hearing that Mrs [BEG] might wish to discuss the Nepal issue with her husband (AB370), the Tribunal did not provide for any such opportunity at the end of the hearing. Nor did the Tribunal raise with the appellants whether they wished to apply for an adjournment in order to provide further submissions or evidence after the hearing and indeed gave the impression that there was no scope for further input on the Nepal issue. This was despite the appellants’ representative not being present at the hearing and the Tribunal member, not only being appraised of the fact that they no longer wished that representative to act for them, but advising them as to how to give effect to that desire and arrange for correspondence to be sent directly to them. In effect, the appellants were, to the Tribunal’s knowledge, in the position of having no migration representative at all and therefore no-one to advise them that they could apply for an adjournment so as to have an opportunity to provide further submissions and evidence on the Nepal issue.
64 Fourthly, in the circumstances, it is no answer to say that the Tribunal was not required to give the appellants an opportunity to better their evidence. Given the lateness and unexpected nature of the issue coupled with the lack of any opportunity to rely upon further submissions or evidence, the appellants had no opportunity to provide evidence to corroborate or supplement their oral answers in response to the Tribunal’s brief questioning on the critical issue on which the Tribunal’s decision turned and if need be to obtain advice. In effect, it is scarcely surprising that their evidence about the risk of harm if sent to Nepal failed to rise above bare assertion as they had no opportunity to lead evidence which might establish a real risk of harm or to reflect on and discuss potential risks. In this regard, the questioning of Mr [BEG] took less than six minutes and approximately 5 minutes in the case of Mrs [BEG], with the evidence in both cases being given with the assistance of the interpreter. Nonetheless even in that brief period of questioning, the appellants raised means by which they considered that Mrs [BEG]’s relatives might potentially learn of their presence in Nepal and seek to harm them there. These included Mr [BEG]’s evidence that his wife’s family “can go through the [Indian] police, and they have got contacts there in Nepal” and the existence of corruption in both police forces (AB360), and Mrs [BEG]’s evidence that “Nepal’s sort of close and a part of India as well … We can’t live their [sic] openly. … its very nearby” (AB370). In this regard, it will be recalled that the Tribunal accepted the existence of corruption in the police force and judiciary in India and in India’s international airports in accepting the claim that Mrs [BEG]’s family’s may have used their influence or money to ensure that the appellants would be identified as soon as they sought to re-enter India (Tribunal reasons at [59]-[63]). The Tribunal also expressed agreement with Mr [BEG]’s evidence that the police in Nepal were also corrupt (see the passage quoted above at [39]). Nor, for example, was there any opportunity for the appellants to address the issues raised by Mr and Mrs [BEG] at the end of each of their evidence about the risks posed in having a little baby: see above at [39]-[40].
65 In short, this was a case where the invitation was not meaningful because the appellants were not provided with a real chance to present their case: Li at [61].
4.2 Was the Tribunal’s decision legally unreasonable?
66 Legal reasonableness or an absence of legal unreasonableness is an essential element of lawfulness in decision-making, it being implied that Parliament intended that a discretionary power, statutorily conferred, must be exercised reasonably: Li at [26], [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J); Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 (Eden) at [58] (the Court).
67 In determining whether an administrative decision is vitiated by legal unreasonableness it is, first, important to emphasise that the Court’s jurisdiction is strictly supervisory: Li at [66]. As the Full Court of the Federal Court explained in Eden at [59]:
It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision-maker: … Nor does it involve the Court remaking the decision according to its own view of reasonableness…
68 Secondly, as the Full Court explained in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44] with reference to the High Court’s decision in Li, “[l]egal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process… However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error” (see also Eden at [60]).
69 Thirdly, an evaluation of whether an administrative decision is legally unreasonable and therefore outside the range of possible lawful possible outcomes must be made having regard to the terms, scope and policy of the statutory source of the power: see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 (Stretton) at [11] (Allsop CJ, with whose reasons Wigney J agreed at [90])). As the Full Court explained in Eden at [63]:
The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making: Stretton at [7] and [11] (Allsop CJ). The evaluation is also likely to be fact dependant and to require careful attention to the evidence: Singh at 445 [42].
70 With respect to the values of the common law to which Allsop CJ referred in Stretton, his Honour explained at [9] that:
The terms, scope and policy of the statute and the fundamental values that attend the proper exercise of power – a rejection of unfairness, of unreasonableness and of arbitrariness; equality; and the humanity and dignity of the individual – will inform the conclusion, necessarily to a degree evaluative, as to whether the decision bespeaks an exercise of power beyond its source.
71 Fourthly, in assessing whether a particular outcome is unreasonable, the Court held in Eden at 171 [62] that “…it is necessary to bear in mind that within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion… Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness… Such a decision falls within the range of possible lawful outcomes of the exercise of the power…” (citations omitted).
72 Finally, findings of unreasonableness ought not to be “lightly” made (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at 625 [40]-[41]).
4.2.2 The decision was legally unreasonable
73 Applying these principles, the question of unreasonableness has to be assessed having regard not only to the fact that Division 4 of Part 7 creates a code defining the extent to which the natural justice hearing rule applies with respect to the matters with which Division 3 deals. It also falls to be considered having regard to s 422B(3) requiring the Tribunal to act in a way that is fair and just, and the requirement to extend a real and meaningful invitation to a hearing in s 425.
74 In that context, while (as I find below) the obligation in s 424A was not engaged, this is a case where the Tribunal’s failure in all of the circumstances outlined at [61]-[64] above to advise the appellants that they might apply for an adjournment and seek to rely on further evidence and submissions on the Nepal issue was manifestly unfair and rendered the decision an arbitrary one. It was also unreasonable in the sense of arbitrary for the Tribunal, in all of the circumstances, to rely upon the absence of any suggestion by the appellants at the hearing that there may be practical barriers for Indian citizens travelling to Nepal (at [67]). Equally, it was unreasonable in this sense to assume that the only way in which Mrs [BEG]’s relatives could find out that they were in Nepal and harm then was through the speculative, three step process outlined at [69] of its reasons (quoted at [46] above) when the appellants had no real opportunity to consider their situation if sent to Nepal and that of their infant child or to substantiate their claims that they would still be a real risk of harm.
75 Finally, I note with disquiet the age of the source (2002) relied upon by the Tribunal at [66] to find that Nepal had no record-keeping system for those entering Nepal from India, albeit that it was not said that this revealed jurisdictional error.
76 The decision of the Tribunal will be invalid by reason of jurisdictional error only if the breaches established by the appellant were material in the sense that “compliance could realistically have resulted in a different decision”: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (SZMTA) at [45] (Bell, Gageler and Keane JJ). As their Honours further explained in SZMTA:
46. Where materiality is in issue in an application for judicial review … 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.
77 Contrary to the Minister’s submission, in this case the appellants have established that the breaches were material. It can properly be inferred first that if advised that they could request an opportunity to give considered reflection to the Nepal issue and put on further submissions and evidence, the appellants would have requested that opportunity. It is difficult to see how in the circumstances the Tribunal could reasonably have refused any such request. Furthermore it can be inferred that if the appellants had been afforded an opportunity to discuss the matter and put further material before the Tribunal on the Nepal issue, they would have done so. The provision of further material, whether by way of further elaboration of the claims briefly averted to at the hearing or possibly by way of corroboration of those or other claims relevant to the Nepal issue, may have resulted in a different decision given in particular:
(1) the Tribunal’s acceptance of the appellants’ claims to fear harm from Mrs [BEG]’s family;
(2) the fact that the total questioning of the appellants on this complex and new issue of fact and foreign law took less than 11 minutes, including for the questions and answers to be interpreted; and
(3) the appellants raised a number of objections which might have been the subject of considered submissions and further evidence but were left undeveloped at the level of bare assertion, given the circumstances in which the issue was raised.
4.4 Did the Tribunal fail to comply with s 424A of the Act?
78 Given the conclusions that I have reached, the question of whether there was a breach of s 424A of the Act can be dealt with briefly.
79 First, by virtue of s 422B of the Act, Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters with which they deal. Division 4 provides for the conduct of reviews by the Tribunal of a decision by the Minister or her or his delegate refusing to grant protection visa.
80 Secondly, at the time that the Tribunal made its decision, s 424A provided that:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
…
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non disclosable information.
(emphasis added)
81 Section 424AA in turn provided for the Tribunal to give oral particulars to an applicant at a Tribunal hearing of any information which it considered would be the reason (or part of the reason) for affirming the delegate’s decision, together with an opportunity to respond to the information in accordance with the provision.
82 However, the obligation under s 424A does not require the Tribunal to give particulars of, and an opportunity to respond to, its subjective appraisal of the evidence. As Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ held in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) ALJR 1190 (SZBYR):
18. … if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [(2004) 206 ALR 471 at 476 477] that the word "information"
"does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc".
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
83 Rather, for information to be the reason, or part of the reason, for affirming a decision under review, the information should contain in its terms a rejection, denial, or undermining of an applicant’s claim to be a person to whom Australia owes protection obligations: SZBYR at [17].
84 The appellants submitted that the Tribunal was required in accordance with ss 424A and 424AA to give clear particulars of the following “information”:
(a) how corrupt the police in Nepal were;
(b) the extent those wishing to harm the appellants, being their relatives in India find out that the appellants might have moved to Nepal;
(c) the extent those relatives either by themselves or through their agents, from a base in India, still harm the appellants if the appellants were to move to Nepal;
(d) the conditions the appellants would have to live under in Nepal in order to escape detection from the relatives;
(e) the pathways of information the relatives might have in order to find out that the appellants had moved to Nepal;
(f) the interaction of all of the above;
(Appellants’ Supplementary Submissions dated 14 June 2019 (ASS) at [6])
85 The appellants also submitted that this information was specifically about the appellants, that is, whether in their specific circumstances they could live safely in Nepal as opposed to Indian citizens in general (ASS at [9]). As such, the appellants submitted that the exception in s 424A(3)(a) to the requirement to give particulars did not apply (ASS at [15]-16]). Nor in the appellants’ submission did s 424(2A) apply because, in its submission, the Tribunal had not raised the Nepal issue in a “fair and just” way (referring to s 422B(3)) and given the appellants a “real chance” to present their case. In particular, it did not, as required by s 424AA(b) advise the appellants that they may seek additional time to comment on or respond to the information or adjourn the review.
86 The Minister accepted that the Nepal issue was not dealt with according to the steps set out in s 424A and s 424AA (First Respondent’s Supplementary Outline of Submissions (RSS) at [14]). However the Minister submitted that the matters listed at paragraph 6(a) to (f) of the appellants submissions did not amount to “information” supplied by the Tribunal for the purpose of ss 424A and 424AA. Rather, the Minister submitted that those matters:
(a) were raised by the Appellants were provided by the Appellants in response to questioning of the Tribunal (which is excluded by section 424A(3)(b) of the Act). For example: at page 359 of the Appeal Book, the First Appellant first stated that the police in Nepal were corrupt (cf. [6(a)]; at page 370 of the Appeal Book, the Second Appellant stated “I do not think that if we return there [referring to Nepal] that we can escape them”; at page 370 of the Appeal Book, the Tribunal asked “And how might you be located there?” (referring to Nepal). The Appellants did not provide contradictory evidence that prejudiced or undermined each other’s application, which meant that there was no adverse information in this respect there was required to be put according to these provisions;
(b) formed part of the Tribunal’s questioning and testing of the Appellants’ evidence. Even in inquisitorial proceedings, evidence may need to be tested vigorously;
(c) involved the Tribunal’s hypothetical analysis as to what would occur in the future (cf. [6(b)] to [6(f)]). The prospective reasoning process is not information for the purpose of sections 424A and 424AA of the Act [referring to SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 229 FCR 90 at [18] (the Court)]; and/or
(d) similarly, may not properly be classed as “information” for the purpose of sections 424A and 424AA of the Act, but rather aspects of the Tribunal’s subjective appraisals, identification of gaps and thought processes.
(RSS at [16])
87 I agree with the Minister’s analysis. Furthermore, as the Minister also submitted, the only information of its nature which could be said to undermine the appellants’ claims and be a reason to affirm the delegate’s decision was the information that the appellants, by reason of their Indian citizenship, had the right to enter and reside in Nepal. However that information was not information specifically about the appellants but rather about a class of persons of which they were members. As such, that information fell within the exception in s 424A(3)(a) of the Act.
88 It follows for these reasons that the appellants did not establish a breach of s 424A.
89 The appeal must be allowed. As the appeal has been allowed on grounds at least in part not argued below, or at least developed in the same way as on the appeal, the parties should be given the opportunity to make submissions on the costs of the appeal and in the Federal Circuit Court, if they are unable to reach agreement as to the appropriate order as to costs.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. |
Associate:
