BUL15 v Minister for Immigration and Border Protection

Federal Court of Australia|2018-05-03|Before: Moshinsky J

The appeal be dismissed.
The first and second appellants pay the costs of the first respondent, to be fixed by way of a lump sum.

Subject to paragraph 4, within 14 days from the date of these orders, the parties file any agreed minute of proposed orders fixing a lump sum in relation to the first respondent's costs.
In the absence of any agreement pursuant to paragraph 3 of these orders, within 21 days from the date of these orders the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court's Costs Practice Note (GPN-COSTS).
Within a further 14 days, the first and second appellants file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).
In the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent's costs be referred to a Registrar for determination. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

The Second Tribunal's Decision 13 The Second Tribunal outlined the background to the application for review at [1]-[3] of the decision record. The Tribunal outlined the first appellant's claims at [2]. The Tribunal indicated, at [3], that it had assessed the first appellant's claims only against the complementary protection provisions. 14 At [4]-[6], the Tribunal summarised the relevant law. The decision of the Full Court of this Court in SZGIZ was referred to. The Tribunal stated that, as the first appellant had previously had his claims for protection assessed under s 36(2)(a), the Tribunal was required to confine its consideration to whether he satisfied the requirements of s 36(2)(aa), and whether the second and third appellants satisfied the criteria in s 36(2)(c). The complementary protection criteria were summarised at [6] as follows: The Complementary Protection provisions (see attachment for the full text of these provisions) in s.36(2)(aa) essentially require that the applicant is a non citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer 'significant harm'. Significant harm is defined in s.36(2A) of the Act to include that the non citizen will be arbitrarily deprived of his or her life; the death penalty will be carried out on the non-citizen; the non citizen will be subjected to cruel or inhuman treatment or punishment; or the non citizen will be subjected to degrading treatment or punishment. 'Cruel or inhuman treatment or punishment', 'degrading treatment or punishment', and 'torture', are further defined in s.5(1) of the Act. 15 The Second Tribunal summarised the first appellant's claims and the evidence. The first appellant's first application for a protection visa was summarised at [7]-[12]. The Second Tribunal referred, at [12], to the First Tribunal's Decision. It was noted that the findings of the First Tribunal were summarised in the decision record of the delegate in relation to the current application. It was noted that the First Tribunal: had not accepted that the first appellant's father-in-law was connected to the New People's Army (NPA) (as claimed); and had found that nothing had happened to the first appellant between 2003 and 2006 (ie, he had not been the subject of threats or violence during that period as claimed). It was also noted that the First Tribunal had given no weight to certain police reports that had been made in 2010, when the first appellant was in Australia, or to certain letters (purportedly from school friends) that were identical in content. (It is convenient to note at this point that this is an accurate statement of findings made by the First Tribunal: see the First Tribunal's Decision at [71] and [76].) 16 The Second Tribunal summarised the claims and evidence in relation to the current application at [13]-[26]. This included a summary, at [13], of the first appellant's statutory declaration dated 19 February 2014. As noted at [14] of the Second Tribunal's Decision, the first appellant provided a more detailed submission of his claims in a further statutory declaration. (Although the Tribunal refers to this being dated 19 March 2004, it is clear that this is a typographical error and should refer to 19 March 2014.) After setting out a detailed summary of the first appellant's evidence, the Tribunal referred, at [19], to the process before the Second Delegate. The first appellant had been sent a "Natural Justice letter" following the hearing before the delegate, in which the first appellant was given an opportunity to comment on certain information. As noted in [20], the first appellant had provided a further statutory declaration in response to that letter. This statutory declaration was summarised by the Tribunal. As noted in [23], the first appellant provided a copy of the Second Delegate's Decision to the Tribunal. At [24]-[26], the Tribunal summarised the evidence given by the first appellant at the hearing before the Tribunal. 17 The Second Tribunal's consideration of the first appellant's claims was set out at [27]-[36] of its decision record. I note the following: (a) At [27], the Tribunal accepted some aspects of the first appellant's evidence. While the Tribunal accepted those aspects, it stated that it "does not accept any of the [first appellant's] claims in relation to the NPA and considers that he has manufactured these claims in an attempt to establish that his father in law has powerful connections with the NPA". The reasons for reaching this conclusion were set out in the following paragraphs. (b) At [28], the Tribunal stated that it considered that the first appellant's evidence as to the harm he suffered from his father-in-law had become increasingly elaborate since his initial application. At [29], the Tribunal stated that it did not accept the first appellant's "various explanations" as to why the additional matters were not raised until 2014. The Tribunal stated that it considered that these matters had been raised for the first time in 2014 "because the [first appellant] has previously been refused the grant of a Protection visa and he has added claims in an attempt to establish that he is entitled to Australia's protection". (c) The Tribunal, at [30], considered the first appellant's evidence in relation to an attempt to see his children in the Philippines in February 2006. The Tribunal accepted that the first appellant's father-in-law did not permit him to see his children. The Tribunal accepted that the father-in-law continues to "harbor acrimony" towards the first appellant, but did not accept that the event indicated that his father-in-law had or would attempt to harm the first appellant. (d) At [31], the Tribunal expressed the view that "the inconsistencies and significant embellishments since the first application are indicative of the fact that the [first appellant] has fabricated his claims to fear harm at the hands of his father-in-law". The Tribunal also stated that it considered that the considerable delay in the lodgement of the first application was "further indicative of the fact that the [first appellant's] claims have been fabricated". The Second Tribunal referred to the first appellant's explanation for the delay, in response to a question posed by the First Tribunal. The Second Tribunal referred to the first appellant's evidence before the Second Tribunal in relation to the delay in lodging his initial application. At [32], the Tribunal indicated that it had had regard to the reasons put forward by the first appellant to explain the delay. The Tribunal stated that it considered that, if the first appellant was in genuine fear of threats and harm from his father-in-law and other persons associated with the NPA, he would have applied for a protection visa prior to January 2011. (I note for completeness that, in the appellants' outline of submissions for the appeal they state that the first application was made on 1 November 2010. However, the correct date would appear to be 25 January 2011. That date is referred to in the First Tribunal's Decision at [2] and the first appellant's statutory declaration dated 19 December 2014 at [1]. In any event, even if the date was 1 November 2010, I do not consider the difference in the date to be material for the purposes of the Second Tribunal's Decision.) (e) The Tribunal stated, at [33] of the decision record, that it was "not satisfied, having considered all of the evidence, that the [first appellant's] account of his reasons for leaving the Philippines is truthful". The Tribunal indicated that it did not accept substantial parts of the first appellant's evidence "[g]iven the serious concerns in relation to the [first appellant's] credibility". (f) At [34], the Tribunal stated that it was not satisfied that there was a real risk that the first appellant would suffer significant harm upon his return to the Philippines. The Tribunal gave no weight to police reports that were made in 2010, when the first appellant was in Australia. The Tribunal also gave no weight to certain documents from the first appellant's friends as there described. (g) The Tribunal referred, at [35], to the fact that the first appellant had told the First Tribunal that he was concerned that his Australian born child would be unable to obtain medical help. The Tribunal noted that the first appellant had also claimed that, as he had been away from the Philippines for six years, he would have difficulty finding a job. The Tribunal set out its response to these matters. (h) The Tribunal concluded, at [36], as follows: "Accordingly, having considered all of the evidence, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the [first appellant] being removed from Australia to the Philippines, that there is a real risk that he will suffer significant harm." The Tribunal found, therefore, that the first appellant did not satisfy the criterion set out in s 36(2)(aa). It followed that the first appellant's family members were unable to satisfy the criteria set out in s 36(2)(c).

The proceeding in the Federal Circuit Court 18 The appellants applied to the Federal Circuit Court for judicial review of the Second Tribunal's Decision. The appellants' application went through a number of iterations. Ultimately, the appellants relied on a further amended application dated 11 May 2017, which contained a single composite ground (labelled "ground 4") as follows: The Administrative Appeals Tribunal (the Tribunal) applied the incorrect test in determining the complementary protection criteria in s36(2)(aa) of the Migration Act 1958 (Cth) (the Act). The Tribunal relied on earlier evidence, materials and findings referred to an earlier Administrative Appeals Tribunal decision record in determining that the applicant did not satisfy s.36(2)(aa) of the Act. In not considering the evidence before it, the Tribunal denied the applicant procedural fairness. This constitutes jurisdictional error. Particulars The test for whether there is within the meaning of s.36(2)(aa), a real risk of significant harm is the same as the test of whether there is a real chance of persecution (as that is defined in s.36(2A)) were he to be returned to the Philippines: Minister for Immigration v SZQRB [2013] FCAFC 33; 210 FCR 505 AT [246]. At (CB147 [5]), the Tribunal stated: "As the applicant has previously had his claims for protection assessed under s.36(2)(a), the Tribunal must confine its consideration to whether he satisfies the requirements of s.36(2)(aa, and whether the second and third named applicants satisfy the criteria in s.36(2)(c).["] The applicant submits that the Tribunal did not do anything to address the issues that, as a necessary and foreseeable consequence of the applicant being removed from Australia to return to the Philippines, there would be a real risk that the applicant will suffer significant harm. At (T18 (29) to (T19 (15) the Tribunal asks the applicant the question as to what he felt would happen if he returned to the Philippines. The applicant states that he will be tortured and his life will be in danger and that he "has been posted by the MPA (sic) to be eradicated.". The applicant later in the exchange states, "…as I told you, the risk in my life, that there is a possibility of a significant harm coming to me. So I made this appeal again. I made a detailed statutory declaration which I have submitted detailing these fears of mine." The above passage shows that this was the only discussion on the significant harms aspect of the applicant's case; and that too was brought up by the applicant. The Tribunal at no time specifically addressed the applicant's significant harm fears. At various parts of the Tribunal's Decision Record, it is plainly obvious that the Tribunal relied on the earlier evidence, materials and findings of an earlier Administrative Appeals Tribunal rather than determining the evidence before it. The Tribunal did not put the applicant on notice that it was not going to consider his claims based on the significant harm he may face on return to his country. Rather than considering the evidence before it, the Tribunal's Decision record shows that the Tribunal relied on the previous decision. In not considering an essential integer of his claim to fear significant harm, the Tribunal committed jurisdictional error. This Further Amended Application in relation to Ground 4 will be elaborated in detail in the applicant's Further Amended Outline of Submissions. (Errors in original.) 19 On 20 July 2017, the primary judge handed down the Reasons and made orders that: the proceeding be dismissed; and the first and second appellants pay the costs of the Minister. 20 The primary judge set out the background to the application at [4]-[12] of the Reasons. The primary judge set out the legislative framework at [13]-[18] of the Reasons. At [19]-[20], the primary judge summarised the first appellant's application for a protection visa. The Second Delegate's Decision was summarised at [21]-[25] and the Second Tribunal's Decision was summarised at [26]-[36]. 21 After setting out the ground in the further amended application, the primary judge considered this ground at [40]-[62] of the Reasons. The primary judge stated, at [41], that at the heart of the appellants' complaint was a contention that the Second Tribunal erred in its reliance on findings made by the First Tribunal. The appellants' solicitor relied, in particular, on [31], [34] and [35] of the Second Tribunal's Decision. The primary judge rejected the appellants' submissions in relation to those particular paragraphs. 22 The primary judge referred, at [50], to SZKOX v Minister for Immigration and Border Protection [2015] FCA 990 (SZKOX) at [29] for the propositions that: the Tribunal was permitted to have regard to the findings of a previously constituted tribunal, but was still required to properly consider all the evidence and submissions duly placed before it; and the Tribunal must exercise its independent judgment when considering the application for review before it. The primary judge stated, at [54], that a "fair reading of the Tribunal's decision record makes clear that the Tribunal understood the claims being made by the [first appellant] and explored its concerns with the [first appellant] at a hearing and noted [the first appellant's] responses". The primary judge concluded, at [60], that the Tribunal "brought an independent mind to its consideration of the [first appellant's] claims in its consideration of whether the [appellants] met the complementary criterion in s.36(2)(aa)".

The appeal to this Court 23 The appellants' notice of appeal contains the following four grounds: 1. The primary judge erred when it failed to consider that the Administrative Appeals Tribunal (the Tribunal) applied the incorrect test in determining the complementary protection criteria in s.36(2)(aa) of the Migration Act 1958 (Cth) (the Act). The Tribunal relied on earlier evidence, materials and findings considered by a previously constituted Tribunal and in not considering the evidence before it, denied the Appellant procedural fairness. The primary judge erred when it failed to find that the Tribunal had applied an incorrect test in assessing the risk to the Appellant in suffering serious or significant harm. By accepting the over reliance of the Tribunal relying on the previous evidence of the previous Tribunal, the primary judge failed to determine whether the relevant law in relation to the refugee criterion and complementary protection criterion had been engaged. This constitutes jurisdictional error. 2. Section 416 of the Act makes clear reference to the fact that when considering a further application, the Tribunal is not required to consider any information considered in the earlier application, however, it may have regard to and take to as correct any decision that a review body had made about or because of information considered in the earlier application. While s.416 allows or permits the Tribunal to have regard to the findings of the previously constituted Tribunal, it is still imperative that the Tribunal consider all the evidence and submissions duly placed before it - SZKOX v Minister for Immigration and Border Protection (2015) FCA 990 at [29] per Reeves J. The Tribunal has a duty to exercise its independent judgment when considering the application for review before it. The primary judge wrongfully made a finding that the Tribunal was permitted to overwhelmingly rely on the earlier Refugee Review Tribunal decision. In doing so, the primary judge failed to make a finding that there was impermissible reliance on the earlier decision. This constitutes jurisdictional error. 3. It is accepted that the weight to be attributed to evidence is generally a matter for the Tribunal. However, the primary judge failed to accept that what the Tribunal did in determining the matter at hand was to embark on an impermissible over-reliance on the previous material, findings and observations of the previous Tribunal. The primary judge failed to find that the Tribunal did not act independently in reaching the decision it did. This constitutes jurisdictional error. 4. The primary judge erred when it failed to consider that the Tribunal embarked on a procedurally incorrect path in importing large parts of the previous finding of the previously constituted Tribunal, and failed to put the Appellant on notice as to the significance it placed on that information. The Appellant was entitled to know any and every adverse matter that was going to be considered by the Tribunal, and by the Tribunal not raising these with the Appellant with any degree of certainty and specificity, prejudiced the Appellant from knowing what was going to be adverse considerations of the Tribunal. Simply to state that the Appellant had fabricated his claims without challenging him, denied him procedural fairness. The Appellant had no way of knowing the case against him. A reading of the transcript of the Tribunal's hearing will show that there was just a cursory approach to his matter. The primary judge in not recognising that an essential integer of the Appellant's claims had not been addressed committed jurisdictional error. (Errors in original.) 24 I will consider each of these grounds in turn.

Ground 1 25 The first ground is that the primary judge erred in failing to conclude that the Second Tribunal applied an incorrect test in determining the complementary protection claim. It is also contended, by this ground, that the Second Tribunal relied on earlier evidence and materials considered by the First Tribunal and findings of the First Tribunal, and so denied the appellants procedural fairness. As this appears to be the main thrust of the appellants' contention, I will deal with this first, before addressing the more general question of whether the Second Tribunal applied an incorrect test. 26 I do not accept the contention that the Second Tribunal denied the appellants procedural fairness by relying on material before, or findings of, the First Tribunal. First, it does not appear that the Second Tribunal relied on findings of the First Tribunal. 27 Secondly, to the extent that the Second Tribunal relied on material that was before the First Tribunal, it is important to note the way in which the Second Tribunal relied on such material. The Second Tribunal described the first application for a protection visa at [7]-[12] by way of background and context for its consideration of the current application. The Tribunal then set out, in considerable detail, the first appellant's claims and evidence in relation to the current application (at [13]-[26]). The Second Tribunal's consideration of the current application was at [27]-[36]. In the course of this section, the Tribunal stated, at [28], that the first appellant's evidence as to harm suffered from his father-in-law "has become increasingly elaborate since the initial application". This did not involve impermissible reliance on the materials before the First Tribunal; rather, it involved a legitimate process of reasoning in which the evidence in support of the current application was contrasted with that in support of the initial application. 28 At [31] of the decision record, the Second Tribunal stated that it considered "the inconsistencies and significant embellishments since the first application" to be "indicative of the fact that the [first appellant] has fabricated his claims to fear harm at the hands of his father in law". This did not involve the Second Tribunal impermissibly relying on material before the First Tribunal; rather, again, it involved a legitimate process of reasoning by which the first appellant's current evidence was contrasted with that in support of the first application. 29 At [31]-[32], the Second Tribunal relied on delay in making the initial application. This aspect of the reasoning involved the Second Tribunal forming its own view, rather than it relying on previous findings. 30 At [33]-[34] of the decision record, the Second Tribunal indicated that it did not accept substantial aspects of the first appellant's evidence and said that it had serious concerns in relation to his credibility. These findings were not expressed in terms of the First Tribunal's Decision. Rather, they were expressed as the Second Tribunal's findings. 31 At [35], the Second Tribunal referred to the fact that the first appellant had told the First Tribunal that he was concerned that his Australian born child would be unable to obtain medical help. The Tribunal also referred to the first appellant having claimed that, as he had been away from the Philippines for six years, he would have difficulty finding a job. The Tribunal then responded to these matters. In referring to these statements made to the First Tribunal, the Second Tribunal was merely, for completeness, ensuring that it addressed all relevant matters, including these matters that had been raised by the first appellant before the First Tribunal. 32 Thirdly, insofar as the Second Tribunal relied on materials before the First Tribunal, the decision record of the Second Tribunal makes clear that the first appellant was given adequate notice of these matters. For example, insofar as the Second Tribunal found, at [28], that the first appellant's evidence had become "increasingly elaborate since the initial application", it is clear from [28]-[29] that this was raised with the first appellant during the hearing. Further, insofar as the Second Tribunal relied, at [31], on the first appellant's delay in lodging his first application, it is clear from [31]-[32] that this matter was raised with the first appellant. 33 For these reasons, I do not accept the contention that the Second Tribunal denied the appellants procedural fairness. 34 The appellants also contend, by the first ground, that the Second Tribunal failed to consider the evidence before it. In their outline of submissions, the appellants point to parts of the transcript of the hearing before the Second Tribunal (in particular, transcript pp 3, 18-19). It is submitted that the Second Tribunal "did not do anything to address his significant harm fears in returning to the Philippines". I do not accept this submission. The Second Tribunal described in considerable detail the evidence provided by the first appellant in support of his current application: see the decision record at [13]-[26]. The first appellant had provided a detailed statutory declaration, dated 19 March 2014, setting out his claims. This was summarised by the Second Tribunal at [14]-[17] of the decision record. These claims were considered by the Second Tribunal in the later part of its reasons, particularly at [27], [30], [33] and [34]. Thus, I do not accept the submission that the Tribunal failed to consider the evidence before it in determining whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the first appellant being removed from Australia to the Philippines, there was a real risk that he would suffer significant harm. 35 The first ground also includes the broader contention that the Second Tribunal applied "the incorrect test" in determining the complementary protection claim. Apart from the matters already dealt with, the appellants do not point to any other alleged error. The Second Tribunal set out the relevant principles at [4]-[6] of the decision record. There does not appear to be any error in its statement of the applicable principles or in its application of those principles. 36 For these reasons, I reject the first ground.

Ground 2 37 This ground refers to s 416 of the Migration Act and the decision of this Court in SZKOX. In substance, the appellants contend that the Second Tribunal did not consider the evidence and submissions before it and failed to exercise its independent judgment. 38 It may be accepted that the Second Tribunal was required to consider the evidence and submissions before it and to exercise its independent judgment: SZKOX at [29]-[30]. However, in my view, the decision record of the Second Tribunal, read as a whole, makes plain that the Tribunal did so. I refer to the description of the Second Tribunal's Decision set out at [15]-[17] above. I refer also to [27]-[31] above. It is apparent from these descriptions of the Second Tribunal's Decision that the Second Tribunal: considered the evidence and submissions before it; and made its own findings and exercised its independent judgment. The primary judge's conclusion to the same effect was, in my view, correct. It follows that I reject this appeal ground.

Ground 3 39 This ground is substantially the same as grounds one and two. The appellants contend that the Tribunal impermissibly relied on the materials before and findings of the First Tribunal, and that it did not act independently in reaching its decision (and that the primary judge erred in not so concluding). For the reasons given above in relation to grounds one and two, I do not accept this contention.

Ground 4 40 By this ground, the appellants contend that the primary judge erred in failing to conclude that the Second Tribunal denied the appellants procedural fairness by "importing large parts of the previous finding of the previously constituted Tribunal", and by failing to put the first appellant on notice as to the significance it placed on that information. This contention has already been dealt with in ground one, above. For those reasons, I reject the contention. It follows that I also do not accept the contention that the Second Tribunal failed to address an essential integer of the first appellant's claims.

Conclusion 41 For the reasons set out above, the appellants have not established error in the decision of the primary judge. Accordingly, the appeal is to be dismissed. 42 There is no apparent reason why costs should not follow the event. I will therefore make an order that the first and second appellants pay the Minister's costs of the appeal. The Minister in his submissions sought an order that the costs be fixed. I will make a lump sum costs order and will also make directions to facilitate the determination of the lump sum. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky.

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