BWL16 v Minister for Immigration and Border Protection

1. Leave to amend the notice of appeal be refused.
2. The appeal be dismissed.
3. The appellants pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

YATES J: 1 This appeal is from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) given on 1 February 2017, which dismissed the appellants' amended application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal) given on 20 June 2016, following a hearing on 18 February 2016 (the Tribunal hearing). The Tribunal's decision affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), to refuse to grant the appellants Protection (Class XA) visas. 2 The first appellant is the lead appellant. The applications of the other appellants for protection visas are dependent on the success of the first appellant's application. For convenience, I will refer to the first appellant as, simply, the appellant. 3 The appellant claims to be at risk of harm from a former President of Peru, Ollanta Humala, or his supporters in the following circumstances, as recorded by the Tribunal at [44] of the decision record: The applicant claims to have learned information, while campaigning in 2005 for a politician named Mr Carlos Torres Caro in 2005, about human rights violations committed by former Colonel Ollanta Humala during his time in the army. When she told Mr Caro about what she had learned, she was told not to mention it. She claims Mr Caro subsequently fell out of favour with the Party, and she believes he spread details about the information she told him and implicated her in the process. She claims after this she began receiving threats by phone call and her family was intimidated to make sure she remained silent about this information. She claims that an attempt was made to kidnap her father in 2007 and a dead animal was left at her door. She claims to fear harm from members of the political party Union for Peru, currently known as Nationalist Party of Peru, because of her knowledge of this information or from Rondas Campesinas, who are used by politicians to intimidate and silence their opponents. She is fearful that the case against Ollanta Humala may be re-opened in future in light of recent developments in the country. She fears for the safety of herself and her children because of the lack of security in Peru and the lack of control over the actions of the Rondas Campesinas. 4 At [46] of the decision record, the Tribunal made the following findings: The Tribunal accepts that the applicant participated in 2005 in the election campaign as a campaign worker for a politician named Mr Carlos Torres Caro, who was running on a ticket with Presidential candidate Ollanta Humala for the Union for Peru party. It accepts as credible that in the course of campaigning she heard adverse stories about the Party leader, and when she tried to tell this to Mr Caro she was told to disregard the information. The Tribunal accepts the applicant's claims that subsequently Mr Caro himself fell out with Humala's Party. However, the Tribunal is not certain about the applicant's claim that Mr Caro was involved in the subsequent appearance of reports in the mass media about human rights violations from the 1990's involving Mr Humala, or that he exposed or otherwise implicated the applicant in any way as a source for information about these allegations. The applicant has provided no other evidence to support her claims about this, and when questioned by the Tribunal further she confirmed it was only a suspicion on her part, based on the fact that he was the only person she had told about what she had learned. On the applicant's own evidence the information she learned about the alleged human rights violations were told to her orally, by the sister of a person who was present, and others local community members. The applicant did not record the accounts in writing, or on film or in any other manner. Her source Teresa was not a direct victim of any human rights violation. On her own evidence one of the direct victims, Jorge Avila, spoke directly to the media but subsequently retracted his account. Even if the Tribunal were to give the applicant the benefit of its considerable doubt about whether Mr Caro specifically named the applicant as a source of this information in the context of his political fallout with Mr Humala in 2006, the Tribunal does not accept that this would cause her to face a real risk of serious or significant harm in the reasonably foreseeable future, for the following reasons. 5 In following paragraphs, the Tribunal explained its reasons for coming to this conclusion. It also explained that it had taken into account the appellant's delay in making her application for the protection visa. 6 Importantly for present purposes, the Tribunal also said at [50] of the decision record: Finally, the Tribunal takes into consideration independent information referred to above that, while Humala has been President of Peru since 2011, he is soon be replaced by the new President - elect, Pedro Pablo Kuczynski (see paragraphs 37-38). The applicant told the Tribunal that she was concerned, given that Humala was President, that they would continue to be angry with her for leaving the party. The impending expiration of Humala's reign as President (given he is constitutionally prohibited from running for consecutive terms) suggests even less reason for interest in the applicant for information she heard back in 2005. 7 The Tribunal recorded the following information at [37]-[38] of the decision record: 37. The 2016 Human Rights Watch report stated that judicial investigations into grave human rights abuses committed during the 20-year armed conflict that ended in 2000 remained slow and limited: Peru's Truth and Reconciliation Commission has estimated that almost 70,000 people died or were subject to enforced disappearance during the country's armed conflict between 1980 and 2000. Many were victims of atrocities by the Shining Path and other insurgent groups; others were victims of human rights violations by state agents. In a landmark trial, former President Alberto Fujimori's intelligence advisor, Vladimiro Montesinos, three former army generals, and members of the Colina group, a government death squad, are also serving sentences ranging from 15 to 25 years for the assassination in 1991 of 15 people in the Lima district of Barrios Altos, and for six "disappearances." Courts have made much less progress in addressing violations that occurred under the earlier administrations of Fernando Belaunde (1980-1985) and Alan Garcia (1985-1990). In a report issued in August 2013 to mark the 10th anniversary of the Truth and Reconciliation Commission's final report, the human rights ombudsman found that, despite initial efforts, Peru had failed to consolidate a specialized judicial system with sufficient staff and resources to bring most cases to court. As of November 2015, only about 2 percent of the human rights violations committed during the armed conflict had been brought to trial, according to Human Rights Trials in Peru, a project based at George Mason University that monitors human rights prosecutions. In 2015, court hearings continued into their fifth year in two emblematic cases: torture and disappearance at the Los Cabitos military base in Ayacucho in 1983 and a massacre at Accomarca in 1985 in which an army unit killed 62 peasants. 38. The 2014 US Human Rights Report stated: In 2011 Ollanta Humala Tasso assumed the presidency after two rounds of elections that were considered free and fair. Domestic and international observers declared the nationwide elections, held in April 2011, (for president, congress, and the Andean Parliament) and in June 2011 (a second round for the presidential race only), to be fair and transparent, despite some controversy over campaign financing and minor irregularities in some areas. In elections for the unicameral congress, President Humala's Gana Peru alliance won 47 of 130 seats, which constituted the largest of six legislative blocs. 8 The Tribunal went on to record, at [39]-[40] of the decision record, the then status of the leadership position in Peru: 39. Ollanta Humala was elected President of Peru in June 2011 in national elections that were widely considered free and fair. He remains president to date, but was constitutionally prohibited from running for a consecutive term, and therefore did not participate in the recently decided 2016 presidential election. 40. Peru's general elections were held on April 10, 2016. A runoff between Popular Force leader, Keiko Fujimori, and Pedro Pablo Kuczynski of the Peruvians for Change Party was held on June 5. On 10 June 2016, it was announced that Pedro Pablo Kuczynski won Peru's presidential election, by the narrowest of margins. 9 The Tribunal's statement at [40] of the decision record - that, on 10 June 2016, it was announced that Mr Kuczynski had won Peru's Presidential election - was referenced, by footnote, to a news item published on 10 June 2016 (the June 2016 news item). The publication of the June 2016 news item was after the Tribunal hearing. 10 Before the Federal Circuit Court, the appellant contended that the Tribunal's reliance on the June 2016 news item constituted a breach of ss 422B(3) and 425 of the Migration Act 1958 (Cth) (the Migration Act). 11 Division 4 of Pt 7 of the Migration Act deals with the conduct of reviews in relation to protection visa decisions. 12 Section 422B provides: (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. (2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. (3) In applying this Division, the Tribunal must act in a way that is fair and just. 13 Section 425 provides: (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 424C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. 14 Section 424A, relevantly provides: (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. … (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application for review; or (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or (c) that is non-disclosable information. 15 The primary judge rejected the appellant's case. His Honour's reasons were as follows: 52 In my opinion, and accepting that [50] of the Tribunal's reasons was in part dispositive of the review, this case can be disposed of on the basis of the second and third points raised by the Minister. Those are first, that the relevant "issue" for the purposes of s 425(1) was not whether Mr Humala was the President of Peru; rather it was whether the Peruvian authorities or paramilitary groups had any ongoing interest in the applicant on the basis of her claimed knowledge of information adverse to Mr Humala. In my opinion, the fact that Mr Humala ceased to be President of Peru and another person had replaced him was simply an item of evidence in relation to that issue. Further, and in any event, it is apparent from the submissions made on behalf of the applicant, and the discussion at the hearing, that the applicant was aware of the relevant facts. She knew that Mr Humala was constitutionally barred from serving consecutive terms and had, through her agent, submitted that Mr Humala would cease to be President in 2016. It was not suggested to me that there was any particular significance in the identity of the person who replaced Mr Humala as President. There might have been, but that is pure speculation. Significantly, the transcript at lines 785-792 discloses that, not only was the applicant aware that Mr Humala would cease to be President in 2016, but she considered that she faced an increased risk in consequence of him ceasing to be President, apparently on the basis that, once he lost the protection of office, it was more likely that he would be at risk of prosecution and hence more concerned to eliminate those with adverse information. The Tribunal did not see things that way but it is not for me to determine the merits of the Tribunal's reasoning. 53 Section 422B(3), at least in the context of these proceedings, does not add anything to s 425. There was nothing unfair about the review conducted by the Tribunal that can be divorced from the contentions in relation to s 425(1). 16 As [52] of the primary judge's reasons make clear, the appellant was aware that Mr Humala's term as President would finish in 2016. Her submissions to the Tribunal included a news item stating that fact. Further, at the Tribunal hearing, the appellant was specifically invited to comment on, and explain to the Tribunal why, she believed, as at 2016, that she would be at risk of harm in the foreseeable future. The appellant gave this answer: Because this happened in 2006 and since they continued their threats even until 2011 when I had returned to Peru for the death of my father and now also when Ollanta Humala after he finishes his Presidency he may be facing this process and his wife. I believe that due to the fact that they will be opening this process again, I think this will actually require for witnesses to come forward and since they are investigating the diary of his wife together that the Judge Cesar San Martin was paid money to close the case. So they will be opening all that. 17 As originally filed, the appellant's notice of appeal in this Court contained a single ground: 1. The Federal Circuit Court of Australia erred by considering the wrong issue. Particulars a. At [50] the Tribunal considered post-hearing information in making its final finding; b. The Tribunal held that the expiration of Humala's reign as President suggested even less reason for interest in the applicant for information she heard back in 2005; c. At [52] the Federal Circuit Court of Australia held that the fact Mr Humala ceased to be president of Peru and another person had replaced him was simply an item of evidence in relation to that issue. However, that is a different issue and the wrong issue; and d. The applicant's complaint is that the Tribunal finding at [50] is made after the hearing on 18 February 2016 by considering post-hearing information that has not been put to the applicant for comment, is unfair and in breach of s 425 of the Act. 18 At the commencement of the hearing of the appeal, the appellant sought leave to file an amended notice of appeal containing the following additional ground: 2. The Tribunal failed to comply with s 424A of the Act. Particulars a. The Tribunal took account of the results of the Peruvian General Election at 10 June 2016 [40] and failed to: i. Give the Applicant clear particulars of this information; ii. Explain why it was relevant; and iii. Give the Applicant the opportunity to comment upon it. b. The Federal Circuit Court considered s.424A of the Act [45] and [49], but failed to apply it to this case. 19 In support of the application for leave to amend, the appellant pointed to the terms in which her grounds of review before the Federal Circuit Court, on breach of ss 422B(3) and 425, had been expressed - namely, that the Tribunal had failed to put its finding at [50] of the decision record to the appellant for comment. The appellant argued that, although her grounds of review were stated to be based on a breach of ss 422B(3) and 425 of the Migration Act, these grounds were better formulated by reference to s 424A(1) which refers to the Tribunal's obligation to give a review applicant any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review, and invite the applicant to comment on or respond to it. The appellant also referred to the fact that, although she had not alleged, in terms, a breach of s 424A, the Minister had, nevertheless, advanced submissions concerning the scope of s 424A(3)(a) when dealing with the breaches of the Migration Act that had been alleged. 20 The Minister opposed the application for leave to amend on two bases. First, a breach of s 424A was not a ground of review before the Federal Circuit Court, where the appellant had been legally represented. In this connection, the Minister placed reliance on the discussion by the Full Court in Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 at [88]-[92] on the restraint that should be exercised in granting leave to amend in such circumstances. Secondly, the Minister submitted that the case which the appellant seeks to advance under s 424A is without merit. In light of that submission, I considered that the best course was to hear argument on the asserted breach of s 424A and deal with the application for leave to amend when giving judgment in this matter. 21 As presented at the hearing of this appeal, Ground 1, and proposed Ground 2, appear to be based on the same argument, namely that the Tribunal failed to disclose information to the appellant (which, the appellant says, was information that was part of the reason for affirming the decision under review) and to offer the appellant the opportunity to comment on that information or provide a response to it. 22 What is the information? Broadly speaking, the appellant's notice of appeal identifies the information as that contained in [50] of the Tribunal's decision record. In written submissions, the appellant identified the information more specifically as the outcome of the elections held in 2016. She referred in particular to the information about Ms Fujimori and Mr Kuczynski. In oral submissions, the appellant placed a different emphasis on [50] of the Tribunal's decision record. She referred in particular to the information that Mr Humala would cease, for constitutional reasons, to be President of Peru in 2016. 23 The case the appellant seeks to make on appeal is, with respect, baffling. In submissions to the Tribunal, she advanced the factual proposition that Mr Humala's term as President would end in 2016. In her oral evidence at the Tribunal hearing, she specifically advanced a fear of harm arising out of her concerns about what might happen to her when Mr Humala's term as President finished, should she be returned to Peru. This evidence was responsive to the Tribunal's invitation to the appellant to state why, in 2016, she perceived she would suffer harm in the reasonably foreseeable future if she were to be returned to Peru. 24 In oral submissions, the appellant did not dispute the fact that she had made the submissions and given the evidence to which I have referred. However, she argued that the information she gave to the Tribunal in her oral evidence should be seen as information that was relatively general in nature in that, according to her, she was not specific about when Mr Humala's term as President would end or why his term would end. 25 Pausing there, I do not accept that, when giving her oral evidence, quoted at [16] above, the appellant, when referring to Mr Humala's term as President finishing, was not addressing the state of affairs that would exist in 2016. This was the context in which she took up the Tribunal's invitation to explain why, in 2016 (as opposed to a significantly earlier time), she feared that she would suffer harm. Moreover, her evidence cannot be seen in isolation from the circumstance that her own submissions to the Tribunal relied on the fact that Mr Humala's presidency would end in 2016. 26 Given that the Tribunal accepted that Mr Humala's presidency would end in 2016, on what basis could it be said, reasonably, that, for the purposes of s 424A(1)(a) of the Migration Act, that particular information would be the reason, or part of the reason, for the Tribunal affirming the decision under review? When s 424A(1)(a) of the Migration Act refers to information that would be the reason, or part of the reason, for the Tribunal affirming the decision under review, it is directing attention to, and referring only to, information that would stand as a rejection, denial or undermining of the visa applicant's claims to be a person to whom Australia owes protection obligations under the Act: SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1; [2007] HCA 26 at [17]; Minister for Immigration and Border Protection v SZTJF (2015) 149 ALD 552; [2015] FCA 1052 at [30]-[31]; SZTNL v Minister for Immigration and Border Protection (2015) 231 FCR 204; [2015] FCA 463 at [50]. In support of her claims before the Tribunal, the appellant advanced the fact that Mr Humala's presidency would end in 2016. In those circumstances, I cannot see how the information in the 2016 news item (that Mr Humala was soon to be replaced as President) can possibly stand, for the purposes of s 424A of the Migration Act, as the reason or part of the reason for the Tribunal affirming the decision under review. It is no more than information that is confirmatory of the information which the appellant, herself, had provided and which the appellant had asked the Tribunal to accept. 27 What of the additional fact that Mr Humala was constitutionally barred from serving consecutive terms as President? The primary judge held (at [52]) that it was apparent from the appellant's submissions and evidence to the Tribunal that she also knew that Mr Humala was constitutionally barred from serving consecutive terms. This finding was not challenged on appeal. But even if, contrary to the primary judge's finding, the appellant was not aware of the reason why Mr Humala's presidency would finish in 2016, the Tribunal's reliance on that information does not make it information of the kind that attracts the obligations imposed by s 424A. Section 424A is not concerned with every matter that the Tribunal might think to be relevant to the decision. Once again, the section is only concerned with information that would stand as a rejection, denial or undermining of the appellant's claims. The precise reason why Mr Humala's presidency would end in 2016 was not information of that character. It was no more than an incidental finding by the Tribunal to explain why Mr Humala's presidency would end. 28 For the sake of completeness, the same conclusions can be reached in respect of the statement at [50] of the Tribunal's decision record that Mr Kuczynski would be the new President or, to the extent that it matters, the statement at [40] of the decision record that the runoff election for President held on 5 June 2016 was between Mr Kuczynski and Ms Fujimori. These were no more than incidental findings by the Tribunal. They did not stand as the reason, or part of the reason, for affirming the decision under review. 29 I would add that, although contending that s 424A of the Migration Act was breached in the way she had indicated, the appellant did not then say why the information in the June 2016 news item, relied on by the Tribunal, required comment or a response by her or what, indeed, her comment or response would have been beyond the concerns she had already conveyed at the Tribunal hearing. 30 The case that the appellant seeks to make based on a breach of s 424A of the Migration Act is untenable. For that reason alone, I would refuse leave to amend the notice of appeal to include proposed Ground 2. 31 In her oral submissions to this Court, the appellant advanced no different case with respect to Ground 1 of her notice of appeal. However, in her written submissions, the appellant submitted that the primary judge had failed to deal with her principal complaint that the Tribunal had made a finding based on material - the June 2016 news item - which only became available after the Tribunal hearing. 32 This submission is also untenable. At [25] of his reasons, the primary judge specifically referred to the appellant's submission that the Tribunal had relied on information that post-dated the Tribunal hearing. The submission was made in the context of an alleged breach of s 425 and s 422B(3) of the Migration Act. The primary judge considered and rejected the submission at [52]-[53] of his reasons, quoted at [15] above. For these reasons, Ground 1 of the notice of appeal cannot be made out. Moreover, I can see no error in his Honour's conclusion that no breach of s 425 or s 422B(3) has been established. 33 No appealable error has been demonstrated. The appeal will be dismissed with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.