BIE15 v Minister for Immigration and Border Protection

Background 5 The appellant is a citizen of Nepal. She arrived in Australia on 16 October 2004, at 32 years of age, on a 456 Business (Short Stay) visa and applied for a protection visa on 12 November 2004. The basis for the application was that she had a well-founded fear of being persecuted for reasons of her political opinion. She said that, in Nepal, she had refused to cooperate with demands of Maoist insurgents that she teach Maoism at a school where she and her husband were teachers. She claimed that her husband had thereafter been abducted by Maoists. She said that she was suspected by the authorities of being a Maoist collaborator. 6 The appellant's application for a protection visa was refused by a delegate of the Minister and the delegate's decision was subsequently affirmed by the Tribunal in a decision dated 10 March 2005. The essential reason for the rejection of her claim for protection was that her evidence was not accepted as being credible. 7 The appellant filed a proceeding for judicial review which was decided against her in the Federal Magistrate's Court of Australia (SZGEU v Minister for Immigration and Anor [2006] FMCA 1731) and then on appeal to this Court (SZGEU v Minister for Immigration and Citizenship [2007] FCA 261). Her application for special leave to appeal to the High Court of Australia was refused by that Court on 6 December 2007 (SZGEU v Minister for Immigration and Multicultural Affairs [2007] HCATrans 731). 8 The appellant then made a request to the Minister under s 417 of the Act for the Minister to intervene and substitute a more favourable decision for the decision of the Tribunal, but that application was refused by the Minister on 30 July 2008. 9 The appellant then on 27 August 2008 made a request to the Minister for intervention pursuant to s 48B of the Act supported by a statutory declaration. Section 48B allows the Minister to except an applicant for a protection visa from the prohibition in s 48A against an applicant making another protection visa application after a previous application has been refused. The s 48B application was made on the basis that the appellant had a fear of suffering from domestic violence if she was returned to Nepal which was not raised in her previous application. The s 48B application was refused on 11 October 2008. 10 As will be seen, the appellant's s 48B application, and in particular the statutory declaration that she submitted in support of it, assumes some importance in this appeal. 11 The appellant filed a further application for a protection visa dated 26 February 2013. It was stated to be for complementary protection under s 36(2)(aa) of the Act which had been introduced with effect from 24 March 2012. It was submitted on the appellant's behalf in her application that s 48A did not prevent the further application being made because it was made on a basis that was not available under the Act at the time that her previous application was made. 12 The Department of Immigration and Citizenship advised the appellant that her application was not valid because it was prohibited under s 48A. However, following the decision of the Full Court of this Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235 on 3 July 2013, the appellant's application was accepted as valid. That was on the basis that s 48A does not prevent a subsequent complementary protection claim being made as long as it is made under a different criterion, even where the previous protection visa application was made at a time prior to the introduction of the complementary protection provisions. 13 The appellant submitted a further detailed statement, dated 23 April 2014, in support of her protection visa application. 14 By a decision dated 2 May 2014, the delegate refused the application. The appellant then sought review of the decision by the Tribunal. The appellant appeared before the Tribunal on 18 May 2015. Thereafter a copy of the audio recording of the hearing was provided to her. By letter dated 2 June 2015, the appellant submitted a further statement to the Tribunal. It appears from the Tribunal's reasons that that was pursuant to s 424AA of the Act which allows the provision of further information after an appearance before the Tribunal to comment on or respond to information put to a visa applicant by the Tribunal. 15 On 11 June 2015, the Tribunal decided to affirm the decision of the delegate not to grant the appellant a protection visa.

The Tribunal's decision 16 As the appellant had previously claimed protection to be assessed under s 36(2)(a) (i.e. because Australia owes her protection obligations as a refugee), which application was refused, the Tribunal confined its consideration of the protection visa application to her claim for complementary protection as provided for in s 36(2)(aa) and (c). 17 In respect of paragraph (aa), the Tribunal was required to be satisfied that the appellant is a non-citizen in Australia in respect of whom there are substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to a receiving country, there is a real risk that she would suffer significant harm. In respect of paragraph (c), the Tribunal was required to be satisfied that the appellant is a member of the same family unit as a non-citizen who satisfies the requirements of paragraph (aa). 18 The Tribunal analysed the appellant's claims. They were in essence that she feared harm from Maoists because she was a supporter of the Nepalese monarchy. She also feared harm arising from her inter-caste marriage in Nepal and an extra-marital relationship that she had in 2007 after she arrived in Australia. Also, the appellant claimed that on her return to Nepal she would be extorted because criminals would believe she had earned a lot of money while living in Australia. 19 The Tribunal rejected the appellant's claims. It did so principally because of adverse findings concerning the appellant's credibility based on inconsistencies in the appellant's evidence, the appellant's failure to raise certain claims earlier and the reasons given by her as to why those claims were not raised earlier. The Tribunal accepted that the appellant had spent a long time in Australia but did not accept that she was at risk of extortion or other harm.

Review in the Circuit Court 20 By application filed on 10 July 2015, the appellant sought the review and quashing of the Tribunal's decision in the Circuit Court as an exercise of that Court's jurisdiction under s 476 of the Act. 21 The grounds advanced by the appellant in the Circuit Court are recorded in her further amended application filed on 21 October 2016. As those grounds are the same as the grounds advanced in this Court, I propose dealing with each of them by considering how the Circuit Court dealt with them and then considering them on appeal.

Ground 1: jurisdictional error by failing to consider a claim that was made 22 The appellant noted that in her statement dated 23 April 2014, she had made the following claim in support of her protection visa application: Having stayed here in Australia without a family member for more than 9 years despite being a married woman with a son, I would be considered as infidel, so I hold a grave fear that I will be tortured and killed if I am forced to go back to Nepal. Mothers like me have a moral responsibility to look after a child well. [Emphasis added.] 23 The appellant relied on the following passage from the Tribunal's reasons (at [27]), which omits the words "without a family member" from what she had put to the Tribunal: [The appellant] claims she would be considered an infidel for living in Australia for nine years as a married woman with a son in Nepal and holds grave fears she will be tortured and killed, if forced to return to Nepal. 24 The Circuit Court considered that the relevant enquiry is whether the Tribunal read the appellant's claim that contained the words "without a family member"; if so, what meaning the Tribunal gave to the appellant's claim; whether the meaning the Tribunal gave to the appellant's claim was a meaning that was reasonably open to it to give; and whether the Tribunal considered the claim. 25 With reference to a particular passage of the Tribunal's reasons, the Circuit Court concluded that the Tribunal interpreted the appellant as claiming she would be considered an infidel because she has lived in Australia for 11 years as a married woman with a son in Nepal. The Circuit Court reasoned that the effect of the Tribunal's description of the claim is not only one that is, or can reasonably be considered to be, consistent with the effect of the words by which the appellant stated her claim, but that it may reasonably be regarded as equivalent to the effect of the words by which the appellant described her claim. 26 The Circuit Court also concluded that it was implicit in the Tribunal's statement of her claim, i.e. that the she resided in Australia as a married woman with her son in Nepal, that she lived in Australia "without a family member". The Circuit Court reasoned that there is nothing to suggest the Tribunal was of the view that the appellant claimed she was living in Australia with a family member, or that the Tribunal found or assumed that the appellant lived in Australia with a family member. 27 The Circuit Court concluded that the Tribunal considered the appellant's claim based on the assertion that she had been living in Australia for 11 years without a family member, and that the first ground therefore failed. 28 There is nothing in the material before the Tribunal, to the extent that that material is before the Court, which might have suggested to the Tribunal that the appellant lived in Australia with a family member. Moreover, there is nothing in the reasons of the Tribunal to suggest that it understood the appellant to have lived in Australia with a family member. Indeed, it is apparent from the Tribunal's reasons (at [30]) that the Tribunal understood that the appellant claimed that her husband had died in Nepal and thus that she was not only in Australia without her son but also without her husband. 29 It is thus reasonably clear that the Tribunal understood that the appellant lived in Australia without a family member. The substance of her claim that she would be considered an infidel is that she was a married woman living away from her husband and not chaperoned or otherwise accompanied by a family member. That was the claim that was considered by the Tribunal and rejected, not because it was not understood, but because the appellant was disbelieved. 30 I can find no error in the reasoning of the Circuit Court, with the consequence that ground 1 in the appeal fails.

Ground 2: unreasonable, illogical or irrational 31 The appellant submitted to the Circuit Court that the Tribunal's decision is infected with jurisdictional error because it is unreasonable, illogical or irrational. There are four steps to the appellant's argument in support of this ground. 32 First, the appellant points to the Tribunal's conclusion that it did not find the appellant to be a credible, truthful and reliable witness as to the reasons she claims she left Myagdi and travelled to Kathmandu and then to Australia, and that the Tribunal was of the view that the appellant had fabricated claims and concocted evidence to achieve an immigration outcome. 33 Second, one of the reasons relevant to the Tribunal's finding was that, despite claiming that she fears return to Nepal because she and her husband were monarchists and refused to teach students about the Maoists instruction, she did not indicate that her husband was abducted in her statutory declaration for ministerial intervention made on 27 August 2008, rather claiming that she feared return to Nepal because she feared being physically and sexually assaulted by him. 34 Third, the ministerial intervention referred to by the Tribunal was the request made by her pursuant to s 48B of the Act on 27 August 2008. 35 Fourth, the Tribunal expected the appellant to have made a particular claim under s 48B of the Act (namely that her husband had been abducted by the Maoists) when the Minister's guidelines prohibited the consideration of such a claim for the purposes of s 48B of the Act because it had been raised in her first protection visa application made on 11 November 2004. In those circumstances, and given that her failure to raise that claim went to the Tribunal's adverse assessment of her credibility and her claims, the Tribunal's decision was unreasonable, illogical or irrational. As such, she submitted that it was infected with jurisdictional error. 36 The Circuit Court analysed the Minister's Guidelines and rejected the contention that they prohibited the appellant from making a request under s 48B of the Act in relation to the previous claims she made which had been rejected. The Circuit Court went on to reason that there is a further difficulty with the appellant's submission, namely that it assumes that the appellant (or a person advising the appellant) was aware of the Minister's Guidelines and believed or considered that they prohibited her from making the claims that she had made in her first protection visa application in her s 48B application. The Circuit Court found that there was nothing in the material that was before the Tribunal that could reasonably support those assumptions. 37 The appellant's point goes to the process of reasoning by the Tribunal by which it found that her claims lacked credibility. The provisions of the Minister's Guidelines could have no bearing on that question, save to the extent that they were known or understood by the appellant (or anyone advising her) so as to explain why she had not included in her August 2008 statutory declaration the fact of her husband having been abducted. 38 Notably, in that statutory declaration she did reiterate the central grounds of her first protection visa application, namely that there were Maoist threats against her life and liberty. It is thus quite apparent that neither the appellant nor those advising her considered that they were prohibited from mentioning in the s 48B application matters that had been relied on in her first protection visa application. 39 But more fundamentally, the Tribunal's criticism of the appellant for not having stated in her August 2008 statutory declaration that her husband had been abducted is not at the heart of the credibility finding relating to the abduction of her husband. Rather, the Tribunal's reasoning (at [46]) was that there is an inconsistency between her original protection visa claim that her husband was abducted when she and he worked at Myagdi as teachers and that she fled from Nepal in fear of the Maoists, and her claim in support of her s 48B application that she fled from Nepal because she was in fear of abuse from her husband and his family. 40 While these claims are not mutually exclusive, providing two differing claims as the central reason for leaving in two separate statements was enough for the Tribunal to come to an adverse credibility finding. The Tribunal reasoned that if the appellant indeed continued to fear return on account of the Maoists she would have at least mentioned in her August 2008 explanation of her escape from Nepal the fact that her husband had been abducted by Maoists given its centrality to her earlier account. Further, if domestic abuse was what she feared upon returning to Nepal, the abduction by Maoists of her primary abuser years earlier would have warranted a mention in her account. Either way, not mentioning the abduction of her husband in the August 2008 statement put in stark light the glaring differences in her reasons provided for leaving and fearing to return to Nepal. 41 When the Tribunal raised the above concern with the appellant it was recorded that she stated that she had intended to refer to the Nepalese man she had had a relationship with while living in Australia as her abuser. The Tribunal found that this response was not consistent with the August 2008 statutory declaration and this added to its finding that the appellant was not a credible witness. The Circuit Court considered (at [27]) that this was a finding reasonably open to the Tribunal. I cannot fault that conclusion. 42 In the circumstances, there is no jurisdictional error on the part of the Tribunal as asserted in review ground 2, and appeal ground 2 accordingly fails.

Ground 3: failure to take into account a relevant consideration 43 The appellant asserted that the Tribunal failed to take into account a relevant consideration, and repeated the process of reasoning in relation to ground 2, i.e. the Tribunal failed to take into account the Minister's Guidelines relating to s 48B of the Act. 44 The Circuit Court reasoned that there is nothing in the material that was before the Tribunal that could reasonably have suggested to the Tribunal that the appellant had in any way relied on the Minister's Guidelines in considering what information she should or should not include in her statutory declaration, or that the appellant was aware of, or if she was aware, she relied in any way on the Minister's Guidelines when she made the request under s 48B of the Act. The Circuit Court concluded that the Minister's Guidelines were not a relevant consideration and that ground 3 therefore also fails. 45 The Minister's Guidelines, which were in evidence before me, are expressly said to apply to s 48A cases and requests for s 48B ministerial intervention. They state that they are to be used by decision-makers when considering whether to forward to the Minister cases that the Minister may wish to consider using the ministerial non-compellable and non-delegable power to allow a person to make a further protection visa application. Thus, by their own terms, they have no application to the decision that was before the Tribunal. 46 The only way that they might then have become relevant would have been if the appellant had sought to rely on them in some way, but, as the Circuit Court observed, she did not do this. 47 In the circumstances, there is no error in the Circuit Court's decision on this issue and ground 3 of the appeal fails.

Ground 4: error of law in not considering s 36(2)(a) claim 48 This ground asserts that the Tribunal misinterpreted the law in concluding that it was precluded from considering grounds for the protection visa under s 36(2)(a) (i.e. Australia's protection obligations) because of the prohibition in s 48A. The ground asserts that the Tribunal misinterpreted s 48A, which operates only to determine whether an application for a protection visa is valid, and not what the Tribunal may and may not consider when making its determination. 49 The Circuit Court stated that the appellant accepted that the ground cannot be made out in light of the decision of the Full Court in Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127; 244 FCR 366. The Circuit Court, however, recorded that the appellant nevertheless formally submitted that the Full Court had erred in doing so. 50 Neither in written or oral submissions before this Court did the appellant articulate on what basis it might be contended that the Full Court's decision in SZVCH is wrong. Sitting as a single judge, albeit in the Court's appellate jurisdiction, I am bound by SZVCH. I am also bound by SZGIZ in which the Full Court (Allsop CJ, Buchanan and Griffiths JJ) found that, on a proper construction, s 48A(1) and s 48A(2) meant that the words "further application" in s 48A(1) did not prevent an applicant who had already made an application for a protection visa under s 36(2)(a) of the Act from making an application under s 36(2)(aa) of the Act (at [28]-[50]). The Full Court noted that the word "further" in s 48A(1) was to be construed such that it referred to an "application relying upon the same criterion as an earlier application" (emphasis added) (at [32]). 51 It is nevertheless open under s 25(1AA)(b) of the Federal Court of Australia Act 1976 (Cth) for this matter to be referred to a Full Court; that power subsists during the pendency of any appeal: SZOBI v Minister for Immigration and Citizenship [2010] FCA 1026 at [6]. The terms of s 25(1AA)(b) state that a judge must consider it "appropriate" for the appellate jurisdiction to be exercised by a Full Court. In the absence of any submissions contending why SZVCH (or indeed SZGIZ) is wrong, and in the absence of me seeing any reason why it might be said that those decisions are wrong, it would not be appropriate for a referral to a Full Court to be made. 52 Further, SZVCH was the subject of an application for special leave to appeal to the High Court; the application was dismissed on the basis that it did not "raise any reason to doubt the correctness of the decision": per Bell J and Gageler J in SZVCH v Minister for Immigration and Border Protection [2017] HCASL 78 at [1]. That is a relevant matter to be considered: Charan v Secretary, Department of Social Services [2019] FCAFC 134 at [4] and [20]. 53 In the circumstances, ground 4 must fail.

Ground 5: s 438 certificate 54 This ground asserts that the Tribunal constructively failed to exercise its jurisdiction and/or failed to accord the appellant procedural fairness. 55 In particular, it is asserted that the Tribunal acted on an invalid certificate dated 11 February 2015 purportedly issued pursuant to s 438(1)(a) of the Act, thereby following a process contrary to law. It is also asserted that the Tribunal failed to accord the appellant procedural fairness by failing to do one or more of the following: disclose the existence of the certificate to the appellant; give the appellant the opportunity to make submissions on the validity of the certificate if she so chose; disclose to what extent, if any, the Tribunal was going to take into account information covered by the certificate and as a part thereof at least whether the information was favourable, unfavourable or neutral to the appellant; and give the appellant at least an opportunity to seek a favourable exercise of discretion under s 438(3)(b). 56 The question of the obligation on a Tribunal to disclose to a visa applicant the existence of a certificate under s 438, and what procedural fairness implications may follow, was dealt with by the High Court in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 363 ALR 599. Judgment in that case was handed down after the judgment of the Circuit Court in the present case. Indeed, the appeal in this case was delayed pending delivery of that judgment. 57 It was disclosed by the Minister in the Circuit Court proceeding that a s 438 certificate had been issued and a copy of the certificate was tendered. The certificate is dated 11 February 2015. The delegate of the Minister certified that s 438(1)(a) of the Act applied to the information in 18 folios within file CLF2014/68233. The delegate stated that the disclosure of the information within the folios would be contrary to the public interest because they "contain information relating to an internal working document and business affairs". The Tribunal's use and disclosure of this information was said to be subject to the provisions of ss 438(3) and (4) of the Act. 58 In the Circuit Court the appellant submitted that the certificate was invalid (Circuit Court judgment at [64]). The Minister did not submit that the certificate was valid, but rather submitted that it played no role in the manner in which the Tribunal exercised its power (Circuit Court judgment at [65]). 59 The Circuit Court analysed the documents covered by the certificate and concluded that they contained no information that could reasonably have been considered by the Tribunal to be relevant to the appellant's claims. There is nothing before me to indicate that that conclusion is wrong. 60 In SZMTA, Bell, Gageler and Keane JJ held (at [2]) that the fact of notification of a certificate under s 438 to the Tribunal triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review. Breach of that obligation of procedural fairness constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal, and thereby to deprive the applicant of the possibility of a successful outcome. 61 Given the conclusion of the Circuit Court with regard to the nature of the documents and their little, if any, relevance to the issues considered by the Tribunal, and that the appellant has not identified in what way the documents are relevant or what submissions she might have made in response to the documents that might have made a difference to the Tribunal's conclusion, the requirement of materiality is not met in this case. 62 Ground 5 therefore also fails.

Disposition 63 In the circumstances, the appeal must be dismissed with costs. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stewart.