FEDERAL COURT OF AUSTRALIA AZACT v Minister for Immigration and Border Protection [2014] FCA 70 Citation: AZACT v Minister for Immigration and Border Protection [2014] FCA 70 Appeal from: AZACT v Minister for Immigration & Citizenship & Anor [2013] FCCA 1221 Parties: AZACT v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: SAD 256 of 2013 Judge: BESANKO J Date of judgment: 14 February 2014 Catchwords: MIGRATION – appeal from the Federal Circuit Court of Australia – judicial review of decision of the Refugee Review Tribunal – jurisdictional error – procedural fairness – Migration Act 1958 (Cth) ss 425(1) and 36(3) – Refugee Review Tribunal conducting fresh hearing – whether the appellant was on notice of the issues arising in relation to the decision under review – whether the appellant was given the opportunity to give evidence and present arguments in relation to the issues arising in in relation to the decision under review – whether compliance with s 425(1) would affect conclusion that the appellant's case fell within s 36(3). Held: Appeal dismissed. Legislation: Migration Act 1958 (Cth) ss 36, 65, 425 Cases cited: Re Refugee Review Tribunal Another; Ex parte Aala (2000) 204 CLR 82 Stead v State Government Insurance Commission (1986) 161 CLR 141 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152 Date of hearing: 22 November 2013 Place: Adelaide Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 29 Counsel for the Appellant: Mr S Ower Solicitor for the Appellant: McDonald Steed McGrath Lawyers Counsel for the First Respondent: Mr P d'Assumpcao Solicitor for the First Respondents: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 256 of 2013 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: AZACT Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BESANKO J DATE OF ORDER: 14 february 2014 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs in the sum of $6,270. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 256 of 2013 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: AZACT Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BESANKO J DATE: 14 february 2014 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This is an appeal from an order made by the Federal Circuit Court of Australia dismissing the appellant's application for constitutional writs in relation to a decision of the Refugee Review Tribunal ("the Tribunal"). The order of the Federal Circuit Court was made on 15 August 2013 (AZACT v Minister for Immigration & Citizenship & Anor [2013] FCCA 1221). 2 The appellant arrived in Melbourne on 25 May 2012. He had what was assessed by the immigration authorities to be a fraudulent Italian passport. On 15 June 2012, he lodged an application for a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) ("the Act"). On 26 July 2012, a delegate of the Minister refused the appellant's application for a Protection visa. On 31 July 2012, the appellant lodged an application for review of the decision with the Tribunal. On 19 October 2012, the appellant attended a hearing before the Tribunal. He had the aid of an interpreter. His sister also gave evidence before the Tribunal. On 13 November 2012, the Tribunal decided to affirm the decision not to grant the appellant a Protection (Class XA) visa. 3 The appellant attempted to travel to Australia before his arrival in this country in May 2012. On 7 December 2010, he lodged an application for a tourist visa at the Australian Embassy in Berlin. His application was refused on 16 December 2010. On 28 June 2011, he lodged an application for a student or study visa at the Australian Embassy in Berlin and, on 27 September 2011, that application was refused. On 30 November 2011, he lodged a second application for a student or study visa but that application was refused on 17 February 2012. On 10 February 2012, the appellant arrived in Sydney on a passport, which was assessed by the immigration authorities as a genuine Italian passport with a fraudulently altered bio-data page. The appellant's visa was cancelled and, on 11 February 2012, he was removed from Australia. 4 The Tribunal found that the appellant is a national of Albania. The appellant's claim for refugee status was based on the following. The appellant is a Catholic. He was close to a male cousin who is also a Catholic. His cousin formed a relationship with a woman from a strict Muslim family. The woman's family was very upset about the relationship and did not want it to continue. The appellant's cousin and the woman "eloped" in around August 2011 and could not be found. The appellant had received death threats and threats to his family from the woman's family. 5 The appellant lived in Italy from 1996 to December 2010. The Federal Circuit Court Judge said that he was a permanent resident of Italy. He returned to Albania in December 2010 and lived there until May 2012. 6 The Tribunal found that the appellant's attempts to enter Australia demonstrated that, as the Tribunal put it, he was quite prepared to deal dishonestly with Australia. The Tribunal said that that was a factor which weighed heavily against him in assessing his credibility. The Tribunal found that the appellant's account of the increasing severity of the problems he faced in Albania after his cousin allegedly disappeared in August 2011 was a rehearsed story. The Tribunal found that there were aspects of the appellant's claims which were true, but that he had exaggerated the severity of the problems to further his claims for protection. The Tribunal found that the appellant's claims of threats from the woman's family were dishonestly made. The Tribunal found that the appellant's cousin may have received threats designed to scare him off and that male members of the woman's family may have gone to Italy. The Tribunal found that any threats made by the male members of the woman's family were directed at the appellant's cousin and not the appellant. 7 The Tribunal addressed the issue of the reasons the appellant returned to Albania in December 2010. The Tribunal said that the appellant was unable to give any compelling reason for his return to Albania. The Tribunal found it implausible that, if things were as the appellant claimed, he would choose to live in Albania. The Tribunal said that, although not raised by the appellant at the hearing, a post hearing submission made by his migration agent suggested that the appellant returned to Albania because tradition prevented him from being harmed in his home or on his land. The Tribunal said that it noted, however, that on his own evidence the appellant regularly travelled to Shkoder to buy things or go for coffee. The appellant said that this was when he was subjected to the threats he described. The Tribunal said that the appellant's conduct in going to Shkoder to have coffee or do some shopping, where he would be open either there or en route to attack, was not consistent with a claim that he had sought refuge at his home under tradition, and certainly not consistent with the claimed fear that he would be harmed or killed. 8 The Tribunal described the appellant's credibility as poor and it said that, taking all of the evidence into account, it did not accept his claims that there is a blood-feud in existence between him and another family, or that there was any serious family related threat from this family, or that he faced any risk of harm from an Albanian family, either in Albania or Italy. The Tribunal described the appellant's explanation of his reasons for attempting to migrate to Australia since December 2010 as vague. The Tribunal said that it did not accept that the appellant had, since "the beginning" or for five years, or, indeed, at any stage, held a genuine fear of being seriously harmed as he claimed. 9 The Tribunal then turned to consider the possible application of s 36(3) of the Act. While s 36(2) of the Act defines a criterion for a Protection visa and, among other matters, refers to the Refugees Convention as amended by the Refugees Protocol, s 36(3) provides that Australia does not have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of the right to enter and reside in, whether temporarily or permanently, any country apart from Australia. Sections 36(4), (5) and (5A) provide for circumstances in which s 36(3) does not apply. 10 The Tribunal found that, based on the Italian Permesso di Soggiorno, the appellant had a presently existing and legally enforceable right to enter and reside in Italy. Section 36(3) was engaged. 11 The Tribunal found that s 36(5) was not applicable in the circumstances because there was no evidence that Italy would remove the appellant to another country. 12 That left for consideration s 36(4), which is in the following terms: However, subsection (3) does not apply in relation to a country in respect of which: (a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country. 13 The Tribunal made the following findings relevant to the application of this subsection: 101. In the Tribunal's assessment, the chance that men from the girl's family would even visit the applicant in Italy, let alone levy threats or cause him any type of harm is remote and fanciful. As such, the Tribunal does not accept that the applicant faces a real chance of serious harm, let alone harm amounting to persecution, now or in the reasonably foreseeable future in Italy. 102. The Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself his right to enter and reside in Italy, would there be a real risk that he will suffer significant harm in relation to Italy. 14 In the result, the Tribunal concluded that Australia did not owe protection obligations to the appellant because he fell within the terms of s 36(3) of the Act. 15 On the application for judicial review to the Federal Circuit Court, the Judge said that the application raised one ground of review and that was "essentially a procedural fairness ground". The appellant contended that the way in which the Tribunal dealt with his application led to a denial of procedural fairness in that his application was rejected on account of matters that he was not given an opportunity to make submissions about, or in respect of which, he was not given an opportunity to expand upon the submissions that had already been made. 16 The Judge referred to s 425(1) of the Act and the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152 ("SZBEL"). The Judge decided that the Tribunal did not "move beyond" the issues identified by the delegate in rejecting the appellant's account. The issues identified by the delegate remained the issues for determination on review. The Judge said that those issues of which the appellant would have known were, "firstly, his credit generally; the credibility of his account of the entirety of his experiences generally was a matter that was in issue and that encompassed, of course, his multiple attempts to get into Australia in 2011 and 2012" (at [24]). The Judge said that there was no legal error, let alone jurisdictional error, and he dismissed the appellant's application. The Judge said that in view of his conclusions, it was not necessary for him to deal with the Tribunal's finding that Australia did not owe protection obligations in respect of the appellant because his case fell within the terms of s 36(3) of the Act. 17 The appellant's Notice of Appeal contains the following ground of appeal: 1. The learned Judge erred when his Honour held that, by reason of the delegate's findings concerning the Appellant's credibility (both generally and in respect of returning to Albania from Italy), the Appellant was on notice that: a. his account of going into the city of Shkoder to buy goods for his family; b. the purported inconsistency of that account with his claimed fear of persecution; and c. the purported inconsistency of that account with the post-hearing submission that stated he was required to return to Albania because he was protected on his land was or were an issue or issues arising in relation to the decision under review. The learned Judge ought to have held that, by reason of: d. the manner in which the Appellant's evidence concerning going into the city of Shkoder arose and was given during the hearing; e. the failure of the Tribunal to give any express notice during the hearing that this account or evidence was now an issue arising in relation to the decision under review; and f. the fact that one aspect of the alleged inconsistency arose from a submission made after the hearing, the Tribunal had contravened s.425 of the Migration Act 1958 (Cth) and thereby committed jurisdictional error. 18 The Minister has filed a Notice of Contention which is in the following terms: 1. There are two independent bases for the decision of the Second Respondent (the Tribunal). The first relates to a rejection of the Appellant's credibility generally: [95] of the Tribunal's reasons. The second concerns a factual finding by the Tribunal that s 36(3) of the Migration Act 1958 (Cth) was enlivened. In particular, the Tribunal found at [98] of its reasons that the Appellant 'has a presently existing and legally enforceable right to enter and reside in Italy.' Later the Tribunal found at [101] that the Appellant 'did not face a real chance of serious harm, let alone harm amounting to persecution, now or in the reasonably foreseeable future in Italy' (see also [93] of the Tribunal's reasons). 2. Neither at first instance, nor on appeal, has there been any challenge to the second basis outlined above. The First Respondent raised the contention at the hearing before the primary judge on 14 August 2013: see AB211 at [32]. 19 The arguments put to this Court were not precisely the same as the arguments put to the Federal Circuit Court and differed, at least in emphasis, from that foreshadowed in the Notice of Appeal. In essence, the appellant submitted that he had not been given the opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review within s 425(1) of the Act because the Tribunal had not identified to him as issues the fact his claim of receiving threats in Albania, the alleged inconsistency between a well-founded fear of persecution and the appellant's conduct in Albania, and in particular, his conduct in going to Shkoder for the purposes of shopping or having a coffee. The appellant's principal argument was not that these matters were not issues before the delegate and that they became issues before the Tribunal without him knowing about it, but rather that the Tribunal had indicated at the outset of the hearing before it that it was conducting a fresh or new hearing and, thereafter during the hearing, had not indicated that these two matters were issues arising in relation to the decision under review. 20 I do not accept the appellant's argument for two separate reasons. First, I do not accept that the Tribunal's statement that the hearing was a fresh or new hearing meant that the issues identified by the delegate were irrelevant in terms of the issues arising in relation to the decision under review. Secondly, even if that was the effect of what the Tribunal said, I think the Tribunal gave the appellant sufficient notice of the fact that his whole account was in issue. I turn now to elaborate on these reasons. 21 The delegate decided the following issues against the appellant: (1) the delegate was not satisfied that the appellant had been a plausible witness; (2) the delegate did not accept the appellant's claims that he had been threatened and she said it was implausible that he would, if threatened, move from Italy to Albania where those allegedly threatening him resided; (3) the delegate found that the appellant's attempts to travel to Australia were for reasons other than a fear of persecution; (4) the delegate found that there was no basis for the appellant to fear harm in Italy; (5) the delegate found that the appellant had not provided a reasonable explanation for not seeking protection in a country which is also a signatory to the UN Convention at the first available opportunity and for not seeking protection in Australia during the period he was in Australia in February 2012; (6) the delegate's concerns and the inconsistencies she perceived were such that she found that the appellant's claims were fabricated. The delegate found that the appellant has not been threatened with harm and neither he nor his family are at risk of being kidnapped or killed. He has not been a victim of persecution and he does not have a subjective fear of harm or persecution; (7) there are no substantial grounds to believe that there is a risk of significant harm to the appellant so as to engage the provisions of s 36(2)(aa) of the Act. 22 The making of threats to the appellant and his return to Albania and conduct in Albania were issues before the delegate. In fact, this seems to me to be a case where the delegate's decision is such that everything the appellant said in support of the application was in issue (SZBEL at 165, [47]). 23 The appellant's principal submission relied on the fact that the Tribunal advised the appellant that the hearing was a new hearing and that it would be considering the appellant's application from the "start again". The Tribunal explained that what it meant was that the appellant could make changes, tell the Tribunal new things, and change old things. The appellant submitted that the Tribunal's statements had the effect of advising him that the only issues were those to be identified by the Tribunal. I cannot accept that that was the effect of what the Tribunal said. I think that all the Tribunal was doing was explaining that the hearing was a new one and the appellant should not feel constrained by what had gone before. A new decision would be made. Even if that is wrong, there is an alternative answer to the appellant's submission. The Tribunal itself gave the appellant a sufficient indication that everything he said in support of his application, or at least the major elements of it, was in issue (SZBEL at 165, [47]). I refer by way of example to the evidence about the threats and the appellant's protestation that what he was saying was the truth (AB 168-169), the Tribunal's statement that it did not understand why the appellant went back to Albania "if there were these problems" (AB 170), and the Tribunal's statement to the appellant that as he knew his truthfulness was an issue in the case (AB 176). 24 In my opinion, the Tribunal did not fail to comply with s 425(1) and the appeal must be dismissed. 25 The Minister contends by way of his Notice of Contention that, even if the appellant succeeded in showing that the Judge erred in rejecting the appellant's complaint about an alleged breach of s 425(1) of the Act, his appeal must nevertheless fail because the Tribunal found quite separately that his case fell within s 36(3) of the Act. In other words, there was a separate ground for the Tribunal's decision which, the Minister submitted, was not even the subject of challenge before the Federal Circuit Court or this Court on the appeal. 26 If, as I have concluded, the Judge did not err in holding that there had been no breach of s 425(1), then the fact the appellant's case fell within s 36(3) is another reason for the Tribunal's decision. If, on the other hand, the Judge was wrong then it would be necessary to examine whether compliance with s 425(1) would or could have made any difference to the Tribunal's conclusion that the appellant's case fell within s 36(3). Compliance with s 425(1), on this assumption, would have involved the Tribunal identifying to the appellant, as issues arising in relation to the decision under review, the alleged making of threats and the appellant's reasons for returning to Albania and his conduct within Albania. 27 The question is whether, even if the Tribunal had complied with s 425(1), the Tribunal would have found that protection obligations were not owed by reason of s 36(3) of the Act (Stead v State Government Insurance Commission (1986) 161 CLR 141; Re Refugee Review Tribunal Another; Ex parte Aala (2000) 204 CLR 82). For present purposes, the critical findings are those set out in paragraphs 101 and 102 of the Tribunal's reasons. Those were findings of fact about what was likely to happen in the future. They were based, in large measure, on a rejection of the appellant's account. I do not think it is possible to say to the requisite degree of certainty that the Tribunal would have made the same findings if, contrary to my primary conclusion, s 425(1) was not complied with. 28 In my opinion, the Judge below did not err in concluding that there had not been a breach of s 425(1) of the Act by the Tribunal. In those circumstances, he did not err in dismissing the application for judicial review. conclusion 29 The appeal must be dismissed. The appellant must pay the first respondent's costs fixed in the sum of $6,270. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 14 February 2014