SZSNN v Minister for Immigration and Border Protection

1. INTRODUCTION 1 By an application filed on 11 July 2013, the applicant seeks leave to appeal from a judgment of the Federal Circuit Court of Australia ('the Court below') in SZSNN v Minister for Immigration & Anor [2013] FCCA 836 given on 27 June 2013 summarily dismissing his application for judicial review under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) ('FCC Rules'). Rule 44.12(1)(a) provides that the Federal Circuit Court at a hearing of an application for an order to show cause "may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed - dismiss the application". The Court below convened a show cause hearing on 27 June 2013 pursuant to rule 44.12. 2 The grounds of the application to the Court below were that: 1. "The RRT committed Jurisdictional error in faillng to compel with Migration Act. 2. The RRT deprived me of Natural Justice 3. The decision does not relate to the subject matter of the legislation." [Errors in original] 3 The relief sought was: 1. "In coming & making decision to affirm minister delegate decision not to granto protection visa, the RRT denied me the applicant. 2. An order to redirect the RRT decision and order, the department to take this matter for further consideration. 3. An order that not to remove applicant from Australia." [Errors in original] 4 As the Court below held at [23] of its reasons, the decision from the Minister's delegate is a primary decision which the Court below lacked jurisdiction to review by virtue of ss 476(2) and 476(4) of the Migration Act 1958 (Cth) ('the Migration Act'). It was only the validity of the decision of the Refugee Review Tribunal ('the Tribunal') which fell for consideration by the Court below. 5 Otherwise, fairly read, it can be assumed that the applicant sought orders to quash the Tribunal's decision on the ground of invalidity and to remit the matter to the Tribunal for reconsideration according to law: reasons of the Court below at [24]. 6 The application for leave to appeal to this Court and the draft notice of appeal identify the following grounds of appeal in the event that leave is granted: 1. "The RRT committed jurisdictional error in facing to compels with migration Act. 2. The RRT deprived me natural justice. 3. The decision does not relate to subject matter of the legislation. 4. The RRT did not act to assessing the complementary protection visa." [Errors in original] 7 These grounds essentially mirror those considered by the Court below save for the fourth ground which was not raised below. 8 The Minister appropriately took no issue with the applicant seeking to raise the fourth and new ground. However, the Minister contended that all grounds lacked sufficient merit to warrant the grant of leave to appeal to this Court. 9 Read in a strictly literal way, the grounds identified in the application for leave to appeal and the draft notice of appeal seek to challenge only the decision of the Tribunal, as the Minister submitted. However, fairly read, I consider that the draft notice of appeal in substance seeks to challenge the decision of the Court below on the ground that it ought to have found that the decision of the Tribunal was invalid on the enumerated grounds. 10 The application for leave to appeal was accompanied by an affidavit of the applicant dated 8 July 2013 annexing various documents. I deal with the issues relating to the documents in due course. At this stage, I note that at the hearing of the application for leave to appeal, the applicant sought to tender these documents and an additional bundle of documents that had been separately sent by the applicant to the Court but not filed. Some of those documents had been before the Tribunal, but the bulk of the documents were documents which the applicant said ought to have been received in evidence by the Court below or had been created after the hearing in the Court below. 11 The hearing proceeded on the basis that the parties would make all of the submissions that would be made on the appeal if leave were granted, as well as hearing the application for leave to appeal. Both parties were agreed as to the adoption of this course. 12 I note at the outset that this Court's jurisdiction on appeal from the Federal Circuit Court under s 24 of the Federal Court of Australia Act 1976 (Cth) ('Federal Court Act') is concerned with the correctness of the decision of the Federal Circuit Court. The Federal Circuit Court, in turn, is seized with jurisdiction under s 476 of the Migration Act to determine only the legality of the decision by the Tribunal refusing to grant the applicant a visa, that is, whether the decision of the Tribunal is tainted by jurisdictional error. As set out by the High Court in Craig v South Australia (1995) 184 CLR 163 at 179, 'jurisdictional error' in the context of an administrative tribunal such as the Refugee Review Tribunal is established where, for example, the tribunal: "…falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely upon irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers." 13 Accordingly, as I endeavoured to explain to the applicant during the hearing, neither this Court nor the Federal Circuit Court has power to undertake a review of the merits of the Tribunal's decision to refuse to grant the applicant a protection visa or to otherwise grant the applicant a visa. 14 For the reasons that I set out below, I refuse the grant of leave to appeal against the decision of the Court below on the basis that an appeal would not have any reasonable prospects of success. The grounds on which the applicant seeks to appeal the judgment below are ultimately concerned with the merits of the applicant's claim to protection or allege errors that are not established on the evidence or could not give rise to jurisdictional error. Nor does the new ground alleging a failure to consider whether the applicant was a person to whom Australia has protection obligations under the complementary protection regime in s 36(2)(aa) of the Migration Act have any merit as that issue was expressly considered by the Tribunal.

2. IS LEAVE TO APPEAL FROM THE DECISION OF THE Federal Circuit COURT REQUIRED? 15 Prior to the hearing, the Court wrote to the legal representatives for the Minister requesting that the Minister address the preliminary question of whether leave to appeal was in fact required and, in particular, whether the exemption from seeking leave to appeal in s 24(1C)(a) of the Federal Court Act applied to the present case. 16 Jurisdiction is conferred on this Court by s 24(1) of the Federal Court Act to hear and determine appeals from judgments of the Federal Circuit Court exercising original jurisdiction subject to certain exceptions not presently relevant. Section 24(1A), however, provides that in the case of an interlocutory judgment, an appeal shall not be brought without leave. 17 While s 24(1D) of the Federal Court Act provides that certain judgments are taken to be interlocutory, including a decision of this Court granting or refusing summary judgment under s 31A of the Federal Court Act, it makes no mention of an order summarily dismissing an application for judicial review under rule 44.12(1)(a) of the FCC Rules. However, the list is not an exhaustive one: Peng Gao v Fair Work Ombudsman [2013] FCA 754 at [21] (Bromberg J). The proper characterisation of a decision for summary dismissal under rule 44.12(1)(a) is determined by rule 44.12(2) which provides that, "To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory." In my view, both s 24(1D) and rule 44.12(2) reflect the position at common law in any event in providing that an order for summary dismissal of an application is interlocutory, as the Minister submitted: Re Luck (2003) 203 ALR 1 at 4 [10] (McHugh ACJ, Gummow and Haydon). 18 However, s 24(1C) of the Federal Court Act creates an exception from the requirement that leave be sought in certain cases. The section provides that: "Leave to appeal under subsection (1A) is not required for an appeal from a judgment referred to in subsection (1) that is an interlocutory judgment: (a) affecting the liberty of an individual; or (b) in proceedings relating to contempt of the Court or any other court." 19 Section 24(1C) was inserted by s 3 and Schedule 2 of the Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth). 20 At the time of the hearing, the applicant was being held in migration detention pursuant to the obligation to detain him under s 189(1) of the Migration Act. Section 189(1) provides that: "If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person." 21 An "unlawful non-citizen" is a non-citizen in the migration zone who is not a lawful non-citizen (Migration Act s 14(1)) while a lawful non-citizen is a non-citizen in the migration zone who holds a visa that is in effect (Migration Act s 13(1)). As a consequence, if the applicant were successful in his application for a visa, there would no longer be an obligation under s 189(1) to detain him and he would be liable to be released. 22 It is important, however, to bear in mind that the jurisdiction vested in the Federal Circuit Court under s 476 of the Migration Act is the same original jurisdiction in relation to migration decisions as is vested in the High Court under s 75(v) of the Constitution and is limited to determining the legality of a decision by the Tribunal. The Court below had no power to grant the applicant a visa or to determine whether a visa should be granted. The power to decide whether or not to grant the applicant a protection visa resides in the Minister or his delegate in the first instance, and in the Tribunal on an application for review. 23 It follows that the Federal Circuit Court cannot make an order that directly affects the liberty of the applicant. The orders made by the Court below, in summarily dismissing the application for judicial review, did not require the applicant to remain in detention. Nor if that Court had upheld his application for judicial review could that Court have ordered his release from detention. The Court below could only have ordered that his application for a visa be remitted to the Tribunal to be determined according to law. As such, the decision of the Federal Circuit Court could only affect the liberty of the applicant indirectly, that is, the Court determines whether or not the Tribunal is required to reconsider the application for a visa which, if granted, would lift the obligation to detain the applicant imposed by s 189 of the Migration Act. 24 While there appears to have been no consideration of the question of whether s 24(1C) might apply to judicial review of decisions refusing to grant a visa, the section has been considered in other contexts. In Talacko v Talacko [2010] FCA 239, the applicant debtor contended that leave to appeal was not required in relation to orders operating to prevent him from travelling overseas by virtue of s 24(1C). That submission was rejected by Ryan J at [43] of his reasons on the ground that: "…the exception from the need to obtain leave to appeal is confined to orders which subject an individual to direct incarceration or other total deprivation of his or her physical liberty." (emphasis added). 25 In so holding, Ryan J followed earlier decisions that had construed the expression "liberty of the subject" in analogous provisions under State law. This aspect of the reasoning in Talacko was more recently applied by Bromberg J in Peng Gao v Fair Work Ombudsman [2013] FCA 754 at [18] where on no view could the decision appealed against have been regarded as impacting on the liberty of the individual. 26 Applying the interpretation of s 24(1C) adopted in these authorities, I hold that the exception in s 24(1C) does not apply in this case. The orders made by the Court below did not subject the applicant to direct incarceration for the reasons I have explained. As such, I hold that the applicant was required to seek leave to appeal. 27 Absent, however, the authorities to which I have referred, I would have considered that there was a real question as to whether or not an indirect affection of the individual's liberty in circumstances such as the present might suffice to attract the exception in s 24(1C) of the Federal Court Act. The Act itself uses only the phrase "affecting the liberty of an individual" unqualified by such terms as 'direct' and 'indirect'. Moreover, the inclusion of the exception recognises the importance that the common law attaches to protection of the liberty of the individual. The right to liberty and not to be subject to arbitrary detention, together with the entitlement of those deprived of their liberty to take proceedings without delay on the lawfulness of his or her detention, are also fundamental human rights recognised in article 9 of the International Covenant on Civil and Political Rights to which Australia is a party, among other international treaties and instruments. The purpose, therefore, of s 24(1C) of the Federal Court Act would seem to be to ensure that in matters affecting these basic common law and human rights, the procedural impediment of seeking leave to appeal would not apply. However, these are questions for another day for the reasons that I have explained and I express no view on how they might ultimately be resolved.

3. factual background 28 The background to the application for judicial review is set out in detail in the reasons of the Court below and can be briefly summarised as follows.

3.1 The applicant's claims 29 The applicant is a citizen of Nepal. He applied with the assistance of a migration agent for a protection (Class XA) visa on 18 July 2012, almost five years after he arrived in Australia on 22 October 2007. The applicant claims to fear persecution in Nepal because he fears Maoists in Nepal. In particular, he claimed that he and his family had been attacked in 1998 by Maoists and had subsequently been threatened if they did not provide financial support to Maoists. He claims to have received threats through relatives in his home village if he refused to support the Maoists from the time of the attack until October 2007 when he left Nepal. 30 The applicant also claims to fear persecution if returned to Nepal because he claims to be homosexual. He claims that homosexuality is taboo in Nepal and as a Hindu Thankuri he would not be accepted because of his sexual orientation and would be the subject of discrimination in education, employment and in society generally. He also claimed that he told his family that he is homosexual in August 2008, as a consequence of which his family disowned him. He claimed to fear harm and mistreatment by reason of his sexual orientation.

3.2 The decision by the Refugee Review Tribunal 31 The Minister's delegate refused the applicant's application for a protection visa on 23 August 2012. Subsequently, the applicant applied to the Tribunal for review of that decision. 32 On 7 January 2013, the Tribunal made a decision affirming the initial decision not to grant the applicant a protection visa. The Tribunal's reasons may be summarised as follows: (a) The Tribunal had serious concerns relating to the applicant's subjective fear of persecution given the lengthy delay in lodging his protection visa application (Tribunal reasons at [72]). (b) In relation to the claims of a fear of persecution at the hands of the Maoists, the Tribunal accepted that the applicant's family faced extortion at the hands of the Maoists in his home village in the late 1990's and early 2000's (at [73]). However, it found that he did not have a well-founded fear of persecution in Nepal from the Maoists. In particular, it found at [74]-[75] that "there is no real chance that the applicant would face persecution at the hands of the Maoists in Nepal" given that: i. the country information disclosed that circumstances had changed substantially in Nepal from 2004 to 2010 with a sharp reduction in extortion activities in Nepal by the Maoists and Young Communist League ('YCL') being the youth wing of the Unified Communist Party of Nepal ('Maoists'); ii. the country information did not indicate that the applicant was or will be a person with the political profile or background to attract the adverse interests of Maoists or the YCL in Nepal in the foreseeable future; iii. the applicant's evidence about the situation predated 2007 and the Tribunal preferred the country information from external sources; and iv. the applicant's evidence that he last had contact with the Maoists in the early 2000's. (c) Even if the Tribunal were to find that the applicant faced a real chance of persecution in his local area, it would find that he could safely relocate to Kathmandu (Tribunal reasons at [76]-[77]). (d) The Tribunal found that the applicant had not been involved in homosexual relationships and his evidence regarding these relationships was not credible given, among other matters, his lack of knowledge in relation to homosexuality, the gay community in Australia, his superficial understanding of same sex relationships, and the absence of any corroborating evidence that he had been involved in same-sex relationships (Tribunal reasons at [90]). Nor did the Tribunal accept as credible his claims to be homosexual (Tribunal reasons at [91]). The Tribunal also found that, given that he was not homosexual, he would not be perceived as homosexual and harmed as a result. As a consequence, the Tribunal concluded that there was insufficient credible evidence before it upon which to find that there is a real chance that the applicant would face persecution in Nepal as a homosexual man (Tribunal reasons at [93]). (e) Finally, the Tribunal considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that he will suffer significant harm as defined in s 36(2A) of the Act, and did not accept that the applicant was a person to whom Australia owed protection obligations under the complementary protection provision, namely, s 36(2)(aa) of the Act.

3.3 The decision by the Federal Circuit Court 33 The applicant appeared in the Court below (as he did in this Court) without legal representation and was assisted by an interpreter in the Nepalese language at both the directions hearing on 27 March 2013 in the Federal Circuit Court and at the hearing of the application to show cause in that Court on 27 June 2013. At the directions hearing on 27 March 2013, the applicant indicated that he wished to participate in the Court's 'RRT Legal Advice Scheme'. The Court below also made orders affording him the opportunity to file any amended application and evidence in support of that application. 34 The applicant confirmed at the hearing of the application to show cause that he had met with a lawyer on the panel of the RRT Legal Advice Scheme and was provided with some legal advice (reasons of the Court below at [37]). 35 The Court below dismissed the application for judicial review summarily pursuant to rule 44.12(1)(a) of the FCC Rules, finding that nothing identified by the applicant raised any arguable case of jurisdictional error by the Tribunal and that, in essence, he sought impermissible merits review of the Tribunal's decision.

4.1 General principles 36 While not exhaustive criteria, the primary considerations to which the Court will have regard in determining whether to grant leave to appeal from an interlocutory judgment are first, whether in all of the circumstances the decision is attended with sufficient doubt to warrant its reconsideration and secondly, whether substantial injustice would result if leave were refused assuming the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

4.2 Should leave to appeal be granted? 37 In his submissions which were set out in the body of his affidavit in support of the application for leave to appeal, the applicant gave particulars of the four grounds of appeal. Those particulars complained that the Tribunal did not trust what the applicant said; that he was nervous and forgot to mention certain facts, the circumstances which led to him overstaying on his earlier visa; personal reasons as to why he had been unable to obtain all of the evidence before the Tribunal hearing, including that he was not in contact with his parents and other men with whom he had a relationship; and various issues pertaining to his health in detention. 38 At the hearing before me, the applicant submitted that he had been unable to put the documents, which he had sought to tender in the Federal Circuit Court, before the Tribunal in time for that decision by reason of being out of contact with his family for the last two years. He further contended that he was unaware of the type of documents that would be relevant to the hearing before the Tribunal and for this reason had not put them before the Tribunal. Finally, he contended that the migration agent did not give him good advice and because of that, he submitted only the statement of his brother as a result of which the Tribunal had refused his application for a visa on the ground that there was insufficient evidence to support his claims. He submitted that the failure to consider that evidence showed error in the reasons of the Court below and that the Tribunal had failed to give him natural justice, and that he should be given the opportunity to have his case reviewed by the Tribunal considering the new evidence. If that evidence was considered by the Tribunal, he contended that his case for a visa was very strong. 39 It was submitted by the Minister that leave to appeal should be refused on the ground that the proposed grounds of appeal were said to be without merit. 40 I do not consider that the applicant has established sufficient doubt as to the correctness of the decision below to warrant a grant of leave to appeal by this Court to consider the correctness of that decision. 41 First, the applicant's submissions about his circumstances in Australia and his fears of returning to Nepal seek to take issue with purely factual findings by the Tribunal and, as such, seek impermissibly to challenge the merits of the Tribunal's decision (see, also, Court below at [41]). Findings of fact, including findings as to matters of credit, lie within the Tribunal's jurisdiction and the findings that were made were reasonably open to it on the material before it for the reasons that it gave. Equally, I do not consider that the Court below erred in ruling that the documents which the applicant sought to tender on the question of his fear of harm if he were to return to Nepal were inadmissible. The bundle of documents consisted of "statements, copies of certificates, letters, information that the applicant appears to have obtained from various websites, and a copy of a particular magazine" (Court below at [30]), none of which had been before the Tribunal. As the Court below held, these documents were not relevant to a fact in issue before that Court which lacked power to undertake a review of the merits of the Tribunal's decision (Court below at [32]). Equally, and for the same reason, they are not relevant on the appeal. 42 Secondly, there was no evidence of a failure to accord natural justice to the applicant. He did not lead any evidence that challenged the account of the hearing contained in the decision-record of the Tribunal. That record revealed that the applicant was given a hearing with the opportunity to give his evidence and make his arguments, and to respond to the issues that the Tribunal considered dispositive of the appeal, and that the applicant's migration agent made submissions and provided evidence in support of the claims before and after the hearing (Court below at [43]-[45]). In this regard, as the Court below also held, any negligence or mistake on the part of the migration agent in failing to advise the applicant as to the provision of evidence before the Tribunal does not establish jurisdictional error on the part of the Tribunal, there being no evidence of fraud (Court below at [34]-[35]). As such, there was no failure to afford the applicant natural justice, even leaving aside the fact that by s 422B of the Migration Act, Division 4 of Part 7 of that Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals. Nor was there any material that indicated a failure to comply with Division 4 of Part 7. 43 The third ground of appeal that the Tribunal's decision does not relate to the relevant subject matter of the Act, is unarguable. The Tribunal's decision manifestly addressed and determined the application for review of the delegate's decision to refuse a visa within the statutory framework. As the Court below held: "Such relevance is dictated by the type of application made by the applicant himself, and the statutory path, with regulatory prescription that is consequential on of the making of such an application. On the evidence before the Court, the Tribunal complied with that path and prescription." 44 The applicant's final ground of appeal, that the Tribunal did not act to assess the question of whether the applicant was a person in respect of whom Australia owed complementary protection obligations for the purposes of s 36(2)(aa) of the Migration Act, was unarguable. The issue was squarely addressed by the Tribunal at [94] of its reasons.

4.3 The further evidence upon which the applicant sought to rely 45 Finally, the applicant submitted that he wished to rely upon fresh evidence which had not been before the Tribunal or sought to be tendered in the Court below. That evidence was material which the applicant apparently wished to be considered on the appeal in the event that leave were granted, and which he wished this Court to have regard in determining whether the proposed grounds of appeal had sufficient merit to warrant a grant of leave to appeal in the first place. 46 The further evidence consisted of documents which the applicant sought to tender for the first time on this appeal which had come into existence after the decision of the Court below. The documentation comprised country information that had apparently been obtained from the internet after the decision of the Court below; client medical request forms relating to the applicant's health while in detention; and a letter to the Commonwealth Ombudsman. 47 Section 27 of the Federal Court Act permits the court to receive fresh evidence on an appeal in the exercise of its discretion. In Guss v Johnstone [2000] FCA 1455 at [30], Sackville J, with whom Drummond and Dowsett JJ agreed, emphasised that "it is ordinarily necessary for the party seeking to adduce further evidence to demonstrate that the evidence relied on is cogent; that is, the Court exercising appellate jurisdiction needs to be satisfied that the proffered evidence would be likely to have produced a different result had it been available at the trial.": see, also, Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236 at 240 [7]. Further, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial: NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 at [42] (Beaumont, Lindgren and Tamberlin JJ). 48 The potential relevance and weight of the proposed evidence, and therefore whether it could have affected the result of the decision of the Court below, must be assessed having regard to the subject-matter of the appeal to this Court. In this case, the subject-matter of the appeal is the decision of the primary judge on an application for judicial review of the decision of the Tribunal, which was immune from review otherwise than on the ground of jurisdictional error. The jurisdiction of this Court is similarly confined. 49 The proposed evidence is relied upon in support of the same contentions as those made by the appellant in relation to the further evidence sought to be admitted before the Court below, which fail to raise any possible jurisdictional error by the Tribunal. The further evidence would be relevant only to a consideration of the merits of the Tribunal's decision which this Court cannot review. As such, the proposed fresh evidence would not satisfy the requirement that it be of such relevance and weight that, if admitted, the evidence would be likely to lead to a different result being reached by the Court below. Accordingly, it does not change my view that an appeal would not enjoy any realistic chances of success, if leave were granted.

5. conclusion 50 For the reasons set out above, the application for leave to appeal should be dismissed with costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.