Federal Court of Australia

BXA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 739

ORDERS

THE COURT ORDERS THAT:

1.    Leave to file the amended notice of appeal is granted.

2.    Leave to rely upon the new grounds alleging jurisdictional error is refused.

3.    The appeal be dismissed.

4.    The appellant pay the first respondent’s costs of the appeal to be assessed on a lump sum basis, if not agreed.

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

REASONS FOR JUDGMENT

HESPE J:

1    This is an appeal from a decision of the Federal Circuit and Family Court (Circuit Court) dismissing an application for review of a decision of the Administrative Appeals Tribunal. The Tribunal affirmed a decision of a delegate of the first respondent refusing to grant the appellant a protection visa under s 65 of the Migration Act 1958 (Cth).

BACKGROUND

2    The background facts are set out at paragraphs [5] to [17] of the reasons of the primary judge (PJ).

3    For present purposes the following facts are relevant.

4    The appellant, a citizen of India, arrived in Australia on 25 October 2016 as the holder of a Subclass 572 Vocational Education and Training Sector visa. That visa was cancelled on 14 March 2017.

5    The appellant applied to the Tribunal for review of that cancellation decision (First Tribunal). On 30 November 2017 the First Tribunal affirmed that decision (First Tribunal decision). In the First Tribunal’s reasons for decision, the Tribunal stated:

Whether any international obligations would be breached as a result of the cancellation

[64]    I asked the applicant if there were any reasons he could not return to India. He said that he liked Australia. I explained this factor and asked again and he responded again that he did not wish to return to India because he liked Australia and wanted to live here. Having considered the applicant’s response, and the absence of any reasons or evidence that any international obligations would be breached if he were to be returned to India, I give this factor no weight towards the visa not being cancelled.

6    The appellant applied for a protection visa on 11 December 2017. On 17 January 2018, the delegate of the first respondent refused to grant the visa on the basis that he was not satisfied the applicant was a person to whom Australia has protection obligations.

7    On 23 January 2018, the appellant applied to the Tribunal for review of that refusal decision (Second Tribunal). The issue for the Second Tribunal’s determination was whether the appellant satisfied the criteria for a protection visa provided for in s 36(2) of the Migration Act and in particular whether:

(a)    The appellant is a person in respect of whom the Tribunal was satisfied Australia has protection obligations because he is a refugee; or

(b)    The appellant is a person in respect of whom Australia has protection obligations because the Tribunal has substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to India, there is a real risk that the appellant will suffer significant harm.

8    The appellant appeared before the Second Tribunal (differently constituted from the First Tribunal) on 21 February 2018 to give evidence and present arguments. The appellant was self-represented and the Tribunal hearing was conducted with the assistance of an interpreter. The appellant claimed to fear harm if returned to India on the basis of his religious beliefs and in particular his claim to be a long time devotee of Dera Sacha Sauda (DSS), a spiritual organisation led by the Guru, Gurmeet Ram Rahim Singh.

9    Following the Second Tribunal hearing, on 23 February 2018 the Tribunal wrote to the appellant pursuant to s 424A of the Migration Act. That letter invited the appellant’s comments or response to information the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. The letter relevantly stated:

You attended a tribunal hearing on 25 October 2017 in relation to the review of the decision to cancel your student visa. At that hearing, you were asked about any compelling need you had to remain in Australia, any hardship you would suffer if your visa was cancelled and whether there was any reason you could not return to India. You stated that your life was now in Australia, you had friends here and went to Sikh temple, that you had got a liking for Australia and you wanted to live here. You stated you did not want to return to India because you liked Australia and wanted to live here. You stated you were seeing a psychologist and your parents were stressed about the visa cancellation. However you did not suggest in your evidence that you or your family were experiencing difficulties in India because of your involvement with DSS, nor that you feared harm for any reason if returned to India or that your family were receiving threats in India. This is despite your evidence at hearing that people had been coming to your home looking for you and threatening your parents starting about fifteen days after Gurmeet Ram Rahim Singh’s conviction on 25 August 2017.

This information is relevant because your failure to mention your protection claims at your Tribunal hearing on 25 October 2017 may cause the Tribunal not to accept that you or your family members have received threats in India related to your activities with Dera Sacha Sauda or that you have a fear of harm if returned to India. It may also cause the Tribunal to doubt the truthfulness of your evidence and to consider that your claims lack credibility. This may cause the Tribunal not to accept you have a well-founded fear of persecution if you return to India or that there is a real risk that you will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India. This would be the reason, or part of the reason, why the Tribunal would affirm the decision under review.

You are invited to give comments on or respond to the above information in writing.

10    The applicant responded in writing to the Tribunal’s letter on 2 March 2018. He relevantly wrote:

During the hearing about the cancelation of student visa. I was not aware that if I mentioned the threat of life back home in India would assist in any way. A friend who could gather information from Internet told me about the Protection visa very late. I was not aware that there is any visa that can protect me from persecution. Undoubtedly, I would like to live in Australia to keep safe. Now when I have number of friends here and I consider Australia home. I am afraid of going back to my own country of birth. I mentioned that I was stressed about visa cancelation, as I was aware that I would be mistreated in my home country. I did not mention the threats made to family because I did not know what to do and what would help my visa application or can adversely affect my visa under consideration.

11    On 8 March 2018 the Tribunal affirmed the refusal decision (Second Tribunal decision). The Tribunal accepted the appellant’s claim to have been involved in DSS prior to travelling to Australia but did not accept his claims that he or his family had been targeted or threatened as a result of work with DSS. The Tribunal was not satisfied that the appellant had a well-founded fear of persecution if he returned to India, now or in the foreseeable future. Nor was the Tribunal satisfied that it had substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm.

12    In its reasons for its decision, the Second Tribunal stated:

[25]    Firstly, the applicant’s evidence as to threats he and his parents have been subjected to in India is vague and unpersuasive…

[26]    Secondly, the applicant’s claims that the Indian authorities are targeting or failing to protect DSS supporters is inconsistent with the independent sources before me.

…

[28]    Thirdly, the applicant attended a hearing before the Tribunal (differently constituted) on 25 October 2017 when it was conducting a review of the decision to cancel his student visa. At that hearing, he was asked among other things about any compelling need he had to remain in Australia, any hardship he would suffer if his visa was cancelled and whether there was any reason he could not return to India. He responded that his life was now in Australia, he had friends here and went to the Sikh temple, he had got a liking for Australia and he wanted to live here. He stated he did not want to return to India because he liked Australia and wanted to live here. He stated he was seeing a psychologist and his parents were stressed about the visa cancellation. However he did not suggest at any time in his evidence that he or his family were experiencing difficulties in India because of his involvement in DSS, that he feared harm for any reason if returned to India or that his family were receiving threats in India. This is despite his evidence that people had been coming to his home looking for him and threatening his parents starting about 15 days after Gurmeet Ram Rahim Singh’s conviction on 25 August 2017.

[29]    When this was discussed with the applicant at hearing, he stated he forgot to mention those things at the hearing. In response to the Tribunal’s letter pursuant to the provisions of s 424A of the Act, he stated he was not aware that mentioning the threat to his life or his family in India would assist in any way and he only found out about the protection visa much later. While I accept the applicant may not have been aware he could apply for a protection visa at the time he attended the hearing for his student visa cancellation, I do not consider this explains his failure to mention the claimed threats to his life and his family in India when questioned about any compelling need he had to remain in Australia, any hardship he would suffer if his visa was cancelled and whether there was any reason he could not return to India.

[30]    The combination of these matters causes me not to accept the applicant or his parents have been threatened by any person or group for reasons of the applicant’s involvement with the DSS…

13    On 10 April 2018 the appellant sought judicial review of the Tribunal’s decision in the Circuit Court, raising 11 grounds of review. These are set out at PJ [20].

14    On 23 June 2020 the Circuit Court dismissed the appellant’s application for review.

15    The appellant filed a notice of appeal to this Court on 8 July 2020. The appeal was delayed due to restrictions on in-person hearings during the COVID-19 pandemic.

16    The matter was listed for hearing in September 2022 and a few days prior to hearing, a notice of acting was filed on behalf of the appellant. The appellant sought, and with the first respondent’s consent, was granted an adjournment to be afforded his legal representatives the opportunity to review material, advise and prepare for hearing. Orders were made requiring the appellant file any amended notice of appeal and submissions by 30 October 2022. That date was subsequently extended to 14 March 2023 and then to 19 April 2023. The matter was relisted for hearing on 1 June 2023.

17    On 19 April 2023, the appellant filed an amended notice of appeal together with written submissions.

18    On the day the matter was listed for hearing, 1 June 2023, legal representatives for the appellant notified the Court that they were no longer engaged by the appellant. The Court was unable to arrange an interpreter for the appellant for hearing that day. The hearing was adjourned to 26 June 2023.

19    At the hearing on 26 June 2023, the appellant was once again self-represented. He appeared with an interpreter. In response to questions from the Court, the appellant sought to rely upon the grounds set out in both his original notice and amended notice of appeal.

Original NOTICE of appeal

20    The appellant was self-represented before the Circuit Court and at the time he filed his original notice of appeal to this Court. That notice of appeal contained seven grounds of appeal. The first ground of appeal is expressed as:

(1)     The Second respondent’s decision on 8th MARCH 2018 be quashed.

As the first respondent correctly observed, ground one is not a proper ground of appeal but a prayer for relief.

21    Ground two is expressed as follows (verbatim):

(2)     …[T]he errors made by the tribunal are as follows:

(a)     The decision was unreasonable.

(b)    The Court [read as the Tribunal] took into account irrelevant considerations.

(c)     The Court [read as the Tribunal] in making the decision did not comply with rules of natural justice and I the applicant was denied procedural fairness.

(d)     The Court [read as the Tribunal] failed to take into account relevant considerations.

(e)     The Decision was in breach of the as Australia’s Non Refoulement International Obligations as it were not properly considered in making the decision.

(f)     The Decision was completely given no weight in relation to the (The strength, nature and duration of ties to Australia).

(g)     The decision was completely biased by overlooking the (Extent of Impediments if removed) by not giving the weight on consequences if repatriate of significant harm [the appellant] would face.

These grounds are considered further below.

22    Ground 3 is expressed as follows (verbatim):

(3)     By taking in consideration all the grounds stated above and [the fact that the appellant was] self-represented. I highly believe that these grounds are reasonable to believe that this migration litigation has reasonable prospect for success.

As the first respondent correctly observed, this is not a proper ground of appeal.

23    The remaining grounds are expressed as follows (verbatim):

(4)     The court [read as the Tribunal] also made an error by finding that [the appellant] did not engage the protections afforded at s 36 (2)(a) of the act therefore misapplying and misconstrued the s 36(2)(a) and s 36(2)(aa).

(5)    The court [read as the Tribunal] had not considered each of the integers of my claims of the serious harm discussed with respects to my claims for refugees protection in the context of the complementary protection criterion regarding the real of significant harm at s 36(2)(aa).

(6)    The decision is the breach of the article 12 of ICCPR.

(7)    There was insufficient evidence or no evidence to support various findings made by the respondent [read as the Tribunal].

24    The appellant did not put on any written submissions in support of the grounds set out in his original notice of appeal.

25    The grounds of appeal are similar to the grounds advanced in the Circuit Court. The appellant did not file or serve any written submissions in the Circuit Court proceedings.

26    At the hearing before this Court, the appellant did not elaborate on any of the grounds of appeal but reiterated that he could not return to India because his life would be in danger. He claimed that he faced threats from his ex-wife’s family (a claim not previously made).

27    As the primary judge held:

(1)    For the reasons given at PJ [30], there is no basis to conclude that the appellant was not afforded procedural fairness or natural justice consistent with the obligations in s 424A of the Migration Act in the manner in which the Tribunal dealt with the application. The appellant has not discharged the onus of establishing a procedural fairness error: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at 524 [39].

(2)    For the reasons given at PJ [32], there is no basis to conclude that the Tribunal failed to take into account relevant considerations or took into account irrelevant considerations. The “impediments if removed” and “strength, nature and duration of ties to Australia” considerations identified by the appellant are not relevant considerations in determining whether the criteria in s 36(2) of the Migration Act are satisfied in the sense found in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24.

(3)    As explained further below in consideration of the amended notice of appeal, the rejection of the appellant’s claims was made on a reasoned basis and the decision was not legally unreasonable.

28    Contrary to the appellant’s assertion, the Tribunal considered Australia’s non-refoulement obligations to the extent those obligations are enacted in Australia’s domestic law, when it considered the appellant’s claims for protection. As the High Court explained in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 at [18]:

Australia’s non-refoulement obligations, to the extent enacted as domestic law, are addressed in the Migration Act in provisions concerning the grant of protection visas, being a class of visa created specifically to allow decision-makers to grant visas to persons who cannot be removed from Australia consistently, but not co-extensively, with Australia’s non-refoulement obligations under international law. There are relevantly two criteria for the grant of a protection visa: “that the applicant is a non-citizen in Australia ‘in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee’ under s 36(2)(a); and, if the applicant does not satisfy that criterion, that the applicant meets the complementary protection criterion under s 36(2)(aa), which gives effect to some of Australia’s non-refoulement obligations under international instruments”…

(footnotes omitted.)

29    Section 65 of the Migration Act requires that the Minister must grant a visa if satisfied that the criteria are met, and must refuse to grant a visa if not so satisfied. The appellant’s claims as made to the Tribunal were that he faced a real risk that he will suffer significant harm on returning to India or had a well-founded fear of persecution. The Tribunal assessed those claims against the criteria for protection in subss 36(2)(a) and 36(2)(aa) of the Migration Act, and they were considered and rejected on a reasoned basis. The appellant was essentially seeking merits review which is not the role of this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259.

30    The remaining grounds of appeal, including the claim that the Tribunal was biased, were unparticularised. In response to an invitation from the Court to orally explain the matters the appellant was seeking to rely upon in his appeal, the appellant said that “these are the technical case which I don’t know how to explain you.” In these circumstances, the Court is unable to discern any basis for these grounds of appeal. Those grounds are dismissed.

Amended Notice of Appeal

31    Having secured representation, the amended notice of appeal narrowed the grounds to two:

1.    The Tribunal relied upon the evidence given at the Tribunal on 25 October 2017 when it conducted a review of the decision to cancel his [temporary] visa, it took into account an irrelevant consideration, and fell into jurisdictional error.

2.    The Tribunal made an adverse credibility finding in relation to evidence given by the Appellant to the Tribunal on 25 October 2017, and in doing so, acted irrationally and illogically.

32    Leave to file the amended notice of appeal is granted so that the issues that the appellant seeks to now raise are before the Court in a formal way. Having regard to the representations made to the Court at the hearing, the amended notice is construed as supplementing the appellant’s original notice of appeal.

33    There is a separate question as to whether the amended notice seeks to raise grounds not advanced below and if so whether the appellant should be granted leave to raise on appeal claims not raised below.

34    The appellant was not represented below and the grounds of appeal raised below were expressed at a high level of generality. It is nonetheless apparent that the claims now made were not made below. The question of leave therefore arises.

35    Leave to rely on grounds not raised below will be granted where it is in the interests of justice to do so: Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125. The first respondent is unable to point to any prejudice if leave were granted and “[t]here is a particular sensitivity to whether the interests of justice favour a grant of leave in refugee cases, because an adverse decision may have very serious consequences for an appellant”: CGA15 v Minister for Home Affairs [2019] FCAFC 46; (2019) 268 FCR 362 at [36] (Murphy, Mortimer and O’Callaghan JJ). The merits of a proposed new ground is therefore important because it is likely to be in the interests of justice to ensure that an administrative decision affected by jurisdictional error and capable of depriving a person of liberty is not carried into effect: Fualau v Minister for Home Affairs [2020] FCAFC 11 at [16] (Murphy, Davies and O’Bryan JJ), citing ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25].

36    It is for this reason that the Court now turns to consider the merits of the amended grounds of appeal.

AMENDED NOTICE OF APPEAL Ground 1

37    The appellant contended that the Tribunal fell into jurisdictional error by taking into account an irrelevant consideration, being the evidence given by the appellant in the hearing before the First Tribunal. That evidence was said to be so unreliable as to be irrelevant. There was no sound recording or transcript of the evidence of the appellant and the record of the evidence in the Tribunal’s reasons cannot be relied upon as establishing that the applicant did not make viva voce submissions about his fears of returning to India. It was contended that the adverse credibility finding was made in reliance on this irrelevant evidence.

38    The appellant’s contentions in relation to the first ground are rejected.

39    The fact that the Tribunal had regard to the evidence given and submissions made at the First Tribunal hearing does not demonstrate error. As the Full Court said in MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133; (2015) 328 ALR 433 at [67] (Tracey, Murphy and Mortimer JJ):

…it is legitimate, and indeed in many cases, necessary, for a differently constituted tribunal to have regard to what occurred during any hearing or process previously conducted by a tribunal in relation to the same applicant.

40    Furthermore, as the Minister submitted, it is the appellant who bears the onus of establishing jurisdictional error: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at 616 [67], 623 [91]–[92]; MZAPC at [39]. By s 430 of the Migration Act, the Tribunal is required to set out its reasons and material findings of fact. The appellant pointed to no evidence that he had made oral submissions to the First Tribunal which were not reflected in the Tribunal reasons. He made no such submission in response to the Second Tribunal’s letter of 23 February 2018. There is no basis for finding that the First Tribunal’s reasons misrepresented the submissions or evidence provided to it. The appellant had been invited to make submissions on the evidence he had given to the First Tribunal. He did not submit that the First Tribunal had not accurately recorded in its reasons the submissions he had made to it. It was open to the Second Tribunal to take into account the reasons of the First Tribunal in making its credibility findings.

AMENDED NOTICE OF APPEAL Ground 2

41    The appellant contended that it was illogical or irrational for the Second Tribunal to rely upon the evidence and submissions made to the First Tribunal in making its adverse credibility finding. It was submitted that the Second Tribunal had failed to have regard to the appellant’s circumstances at the time of the First Tribunal hearing, including that the appellant was in immigration detention and had been charged with several offences. It was submitted that he “was unlikely to turn his mind to what was occurring with his parents, or how it may influence him if he were returned, especially given the surrounding circumstance” [sic].

42    The following principles are relevant:

(1)    A finding on credibility is a function of the Tribunal to determine as a question of fact: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 at [67] (per McHugh J); CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [37].

(2)    A finding as to credibility is amenable to judicial review on jurisdictional error grounds: CQG15 at [37].

(3)    A finding of fact made without a logical or probative basis may expose jurisdictional error: CQG15 at [38]; WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74; (2004) 80 ALD 568 at [22]; Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [145] (per Gummow J).

(4)    However, a suggestion of illogicality may be no more than an expression of emphatic disagreement with a decision which was in fact logically, rationally and reasonably made: Eshetu at [40] (per Gummow J).

43    The matters relied upon by the appellant do not establish legal unreasonableness. The Second Tribunal’s adverse credibility finding was based on logical and coherent reasoning as set out in the Tribunal reasons extracted above. The appellant’s submission to this Court was that it might have been open to the Second Tribunal to make a different finding on a basis that did not form part of the submissions put to it. That is not legal unreasonableness.

Conclusion

44    For the above reasons, leave to raise on appeal the new grounds alleging jurisdictional error is refused. The appellant has not established that the Tribunal fell into jurisdictional error. It follows that the appeal will be dismissed.

Associate:

Dated:    3 July 2023