AZU16 v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellant pay the costs of the first respondent, such costs to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

DAVIES J: 1 The appellant has appealed the decision of the Federal Circuit Court of Australia ("FCC") which dismissed his application for judicial review of a decision of the Administrative Appeals Tribunal ("the Tribunal") affirming a decision of a delegate of the first respondent ("the Minister") not to grant the appellant a Protection (Class XA) visa. 2 This matter has a long procedural history which is set out at [9]-[15] of the decision of the Tribunal ("the 2016 Tribunal decision"). It is sufficient for present purposes to note that in 2015 the Tribunal affirmed the decision of a delegate of the Minister ("the 2015 Tribunal decision") with respect to an application for a protection visa that was made by the appellant in 2014 relying upon the complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth) ("the Act"), making claims to fear harm in India due to his homosexuality. The Tribunal accepted the appellant's claim that he is a homosexual, but it was not satisfied that the appellant had suffered any significant harm in India for the reasons of his sexuality, nor was it satisfied that there was any real risk of the appellant suffering significant harm for reasons of anything he had done in India, should he now return. However, the Tribunal did accept that he would face a real risk of significant harm if he returned to his home region in India for reasons related to his homosexuality. The Tribunal then considered and found that he could safely relocate to another region in India. 3 By consent, the 2015 Tribunal decision was quashed by order of the FCC on 2 December 2015, and a writ of mandamus issued directed to the Tribunal requiring it to determine the application for review according to law. A note attached to the consent order stated that the Minister had conceded that the 2015 Tribunal decision was affected by jurisdictional error with respect to the application of the statutory test in s 36(2B)(a) of the Act as to whether it would be reasonable for the appellant to relocate to an area of India other than his home state. 4 The rehearing of the appellant's application for review was before a differently constituted Tribunal. The 2016 Tribunal decision affirmed the delegate's decision. In short, the 2016 Tribunal rejected the credibility of the appellant's protection claims, including his underlying factual assertions. The 2016 Tribunal did not accept that the appellant was homosexual, that he had ever been involved in homosexual relationships, or that he had been attacked in India because he is or was suspected of being homosexual. The 2016 Tribunal therefore concluded that the appellant did not satisfy the complementary protection criterion. 5 The appellant sought judicial review of the 2016 Tribunal decision. The appellant, who represented himself at the FCC hearing, relied on several grounds. It is not easy to ascertain the precise grounds that were relied upon, as the appellant, in his judicial review application, identified the grounds by reference to attachments, which contained within them reference to considerable material. However, it appears from the reasons for decision of the FCC that the grounds, in substance, amounted to the following: (1) a challenge to the correctness of the findings below; (2) a claim that the appellant had been denied procedural fairness, in that in the 2015 Tribunal decision it was accepted that he was homosexual but the 2016 Tribunal decision recorded a different conclusion; and (3) a claim that the Tribunal had failed to consider a claim or misunderstood his evidence at the hearing. 6 The FCC found no jurisdictional error in the 2016 Tribunal decision. The primary judge carefully went through each of the complaints made by the appellant concerning the findings of fact that were made by the Tribunal and, in a carefully reasoned decision, considered whether there was any basis for a finding of jurisdictional error with respect to the adverse credibility findings made by the Tribunal. At [31] of the reasons, the FCC stated that the appellant had acknowledged that he disagreed with the conclusion of the 2016 Tribunal and correctly stated that that did not, of itself, establish jurisdictional error. The FCC acknowledged that credibility findings and other findings of fact are not immune from challenge. However, the FCC concluded that it had not been established that the Tribunal reached its credibility findings without any logical or probative basis or that there had been legal unreasonableness. The FCC concluded that the Tribunal's credibility findings were reasonably open to it on the material before it for the reasons which it gave. 7 With respect to the claim of procedural fairness based upon the inconsistent outcomes between the 2015 and the 2016 Tribunal decisions, the primary judge, at [34], noted that the differently constituted Tribunal was not bound by the findings of the earlier Tribunal and that the reconsideration was a reconsideration de novo. Further, it was noted that in its decision the Tribunal had regard not only to the appellant's evidence before the previously constituted Tribunal, but also to the evidence he gave in the two hearings before it and to the implausibilities, inconsistencies and other difficulties with his evidence that emerged in those hearings. 8 With respect to the third ground, the primary judge referred to part of the Tribunal's description of the appellant's evidence with which the appellant took issue. The primary judge stated that: It appears this paragraph takes issue with part of the Tribunal's description of the [appellant's] evidence, including, relevantly: In April 2007 the [appellant] was travelling on his motorbike to the city. He lived in a small town and would go to the city in the afternoons and return about 7 or 8. His family had a house in the city. He would go there and have his dinner outside in the hotels with a couple of friends. When he is home with his parents he cannot drink beer or whisky. If they catch him drinking they stop giving him money. So he would go to the city and buy beer or whisky and drink and then use a mouth freshener before he went home to his parents. He loves beer so much. (Errors in original.) 9 Paragraph [46] of the primary judge's reasons records that the appellant appeared to have suggested that, at the hearing, the Tribunal asked the appellant why he went to the city when he was in India, and he told the Tribunal that he probably went "every day afternoon time drive motorbike or car myself", that he "didn't tell with friends" as he "didn't have any friends there", that he always went by "myself alone or with my parents" and that he "just sit myself in the corner and go back home". 10 At [48], the primary judge noted that the appellant appeared to be contending that the Tribunal misunderstood, or perhaps did not record as fulsomely as it might have, his evidence at the hearing in relation to his activities in India. At [49], the primary judge stated that, in the absence of a transcript, there was no evidentiary basis for any contention that the Tribunal failed to consider a claim or misunderstood the appellant's evidence at the hearing in a way that constituted jurisdictional error or that the assertions made by the appellant otherwise went to demonstrate jurisdictional error. 11 The primary judge further reasoned that there was no clear particularisation or indication in the appellant's statement of any such misunderstanding, and the Tribunal's account of what occurred in the Tribunal hearing did not establish any such misunderstanding. The primary judge found that nothing in the appellant's oral or written submissions established jurisdictional error but rather amounted to inviting the Court to engage in impermissible merits review. 12 In addition to responding to the issues raised by the appellant, the Minister brought to the attention of the primary judge that two certificates under s 438 of the Act had issued but had not been disclosed to the appellant by the 2016 Tribunal. Neither the existence of the certificates or the material covered by either of the certificates was brought to the appellant's attention by the Tribunal. The FCC concluded there was no denial of procedural fairness, having reviewed the documents the subject of the certificate, reasoning that, whether or not either certificate was valid, the disclosure of the certificates and/or the information covered by the certificates would not have made any difference to the outcome of the review, having regard to the nature and content of the documents. 13 The appellant's notice of appeal raises three grounds. Ground 1 is that the 2016 Tribunal decision was not in accordance with procedure and fairness and was not to fact. Ground 2 is that the appellant will be prosecuted, suffer violence and be attacked if he is sent back to where he came from. Ground 3 is that the FCC, on 2 December 2015, had already made an order that the appellant has suffered significant harm in India. 14 Grounds 1 and 3 can be considered together, as they essentially raise the same issue. Both grounds misunderstand the order that was made by the FCC on 2 December 2015 with respect to the quashing of the 2015 Tribunal decision. Whilst the 2015 Tribunal did accept that the appellant would face a real risk of significant harm if he returned to his home region in India for reasons related to his homosexuality, that decision was quashed by the FCC and the application for review was remitted to the Tribunal for determination according to law. The FCC correctly reasoned that on remittal to a differently constituted Tribunal, the subsequent Tribunal was not bound by the findings of the earlier decision maker, and the hearing was a de novo hearing. In those circumstances, it was not bound by the finding made by the earlier Tribunal, and it was open to the later Tribunal, for the reasons it gave, to reach a different conclusion, taking into account not just the evidence that the appellant gave before the previously constituted Tribunal but also the evidence that he gave before the later Tribunal. 15 Ground 2 also has no merit as it amounts to no more than an invitation to the Court to engage in impermissible merits review of the Tribunal's decision and urges this Court to reach a different conclusion. This Court does not have that jurisdiction. 16 For the sake of completeness, although not an appeal ground, the primary judge was correct to find no jurisdictional error arising out of the non-disclosure of the certificates covered by s 438 of the Act. It is noted that the FCC decision was handed down before the recent High Court decision in Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252; [2019] HCA 3 ("SZMTA"), which is authority that the non-disclosure does amount to a denial of procedural fairness, contrary to the decision of the FCC that there was no denial of procedural fairness. However, as made clear in SZMTA at [2], the breach does not amount to jurisdictional error unless the breach was material, in the sense that there was a realistic possibility that the outcome might have been different had the certificates been brought to the attention of the appellant. There is nothing in the material to indicate that would be the case. The primary judge considered the nature of the documents covered by the certificate, and nothing emerged from the primary judge's consideration that indicated that the information contained in those documents could have made a difference to the outcome of the review, in that they had no bearing upon the matters that gave rise to the adverse credit findings. It follows that there was no practical injustice to the appellant. 17 Accordingly, the appeal must be dismissed. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.