FEDERAL COURT OF AUSTRALIA AJJ16 v Minister for Immigration and Border Protection [2017] FCA 132 Appeal from: AJJ16 v Minister for Immigration & Anor [2016] FCCA 2627 File number: WAD 535 of 2016 Judge: LOGAN J Date of judgment: 15 February 2017 Catchwords: MIGRATION – protection visa application – judicial review – review of decision of Federal Circuit Court of Australia – fears of harm upon return to India – whether s 36(3) of Migration Act applicable because of ability to enter and live in Nepal – no basis for concluding appellant's evidence not taken into account because of his homosexuality – whether the Federal Circuit Court of Australia erred by failing to find that Tribunal did not consider appellant's evidence on this subject – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 36, 65 Cases cited: Associated Picture House Limited v Wednesbury Corporation [1948] 1 KB 223 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Sathiyanathan v Minister for Immigration & Multicultural Affairs [2000] FCA 210 SZJHE v Minister for Immigration & Citizenship [2008] FCA 1771 Date of hearing: 15 February 2017 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 18 Counsel for the Appellant: The appellant appeared in person with assistance of an interpreter Counsel for the First Respondent: Mr R French Solicitor for the First Respondent: Australian Government Solicitor Counsel for the second respondent: The second respondent filed a submitting notice ORDERS WAD 535 of 2016 BETWEEN: AJJ16 Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: LOGAN J DATE OF ORDER: 15 FEBRUARY 2017 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of and incidental of the appeal to be taxed, if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) LOGAN J: 1 As the Administrative Appeals Tribunal (Tribunal) found, the appellant is a citizen of India. On 19 December 2014, he applied in Australia under the Migration Act 1958 (Cth) (the Act) for that class of visa known as a protection visa. The appellant's earlier entry into Australia on 2 July 2009 had been pursuant to a student visa. There had been after the expiry of that visa other unsuccessful visa applications by the appellant which it is not necessary to relate. On 2 November 2015 a delegate of the Minister for Immigration and Border Protection (Minister), the only active party respondent to the present appeal, decided to refuse the appellant's protection visa application. 2 As was his right under the Act, the appellant sought the review on the merits of the Minister's delegate's decision by the Tribunal. On 20 January 2016, for reasons given that day, the Tribunal affirmed the Minister's delegate's decision not to grant a protection visa. 3 The appellant then sought the judicial review of the Tribunal's decision by the Federal Circuit Court of Australia (Federal Circuit Court). On 21 October 2016, the Federal Circuit Court dismissed the appellant's application. It is from that judgment that the appellant now appeals to this Court. The grounds of appeal are these: 1. Return back to my country of origin may result in life imprisonment. 2. I would not be able to live safely and openly as a gay man in the third country Nepal. 3. The evidence provided by me was totally overlooked by the Administrative Appeals Tribunal. 4 These grounds of appeal repeat the grounds of review specified in the appellant's judicial review application. 5 Before turning to the merits of the appeal, and particularly having regard to the contents of the grounds of appeal, it is necessary to give a little more detail as to the claim that was made by the appellant for a protection visa, and particular findings of fact which the Tribunal made. The Tribunal had the benefit of hearing from the appellant both in evidence and submissions. The Tribunal concluded that the appellant was a credible witness. The appellant's claim centred around an asserted fear of persecution in India on the basis of his sexual preference namely, homosexuality, and thus his membership of a particularly social group comprised of such persons. Influenced by her conclusion as to the appellant's credibility, the Tribunal found that the appellant did have a well-founded fear of persecution because he is a homosexual male. The Tribunal found in respect of any return by the appellant to India, and looking into the foreseeable future, that there was a real chance that the authorities would not provide adequate protection for him against the harm which he feared. 6 If that were the only relevant consideration in respect of the appellant's protection visa application, that application would on the findings of fact which the Tribunal made, necessarily have resulted in the granting to him of a protection visa because of satisfaction that the appellant was a person to whom Australia owed a protection obligation. The appellant's case, though, was one which necessarily required the Tribunal to address whether another consideration, namely, that set out in s 36(3) of the Act, was applicable, or at least whether the Tribunal was satisfied that that provision was applicable. That subsection provides: (3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. 7 The Tribunal found that the appellant did have a right to enter and reside in Nepal. It is not necessary because that finding of fact, which in turn entailed a consideration of matters arising under treaty as between India and Nepal, to set out the Tribunal's detailed reasoning about the existence of that right. That is because the conclusion reached by the Tribunal about the right itself is not in the appeal, and never has been, under challenge. Rather, the challenge before the Federal Circuit Court centred around the particular view on the facts which the Tribunal reached in respect of the position if that right were availed of by the appellant. 8 The Tribunal's conclusion, at [77], was that the applicants and hence the appellant "do not have a well-founded fear of being persecuted for a Convention reason in Nepal and that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants availing themselves of the right in s. 36(3), there would be a real risk of the applicant suffering significant harm in Nepal. 9 The evidence before the Tribunal in relation to the position in Nepal was not all one way. The appellant furnished detailed evidence, in particular, a lengthy written statement, about the position in Nepal with respect to a person of his particular preferred sexual orientation living openly. The Tribunal had other information particularly general country information as to that position before it. That other information was not in complete agreement with the position as related by the appellant. 10 Quite fairly, the Tribunal member at the hearing put the substance of that other information to the appellant for comment. The conclusion ultimately reached by the Tribunal reflected the Tribunal's assessment of all of the information before it. The body of information which the appellant provided was referred to expressly by the Tribunal at [54] to [56] of the Tribunal's reasons. It is not necessary to set out those paragraphs, only to highlight that it is obvious from the Tribunal's reasons that the Tribunal member did not at all ignore the considerable body of material placed before her by the appellant. 11 Appreciating this, the learned Federal Circuit Court judge on the hearing of the judicial review application reached the conclusion, at [22], that the appellant's assertion that the Tribunal had failed to consider the information provided by him was without merit. As to the other grounds of review, the conclusion of the Federal Circuit Court was that these were a solicitation to conduct impermissibly a review of the protection visa application on the merits. It was for these reasons that the judicial review application was dismissed. 12 In respect of the appeal, the Minister, not unreasonably, put at the forefront of his submissions the proposition that the grounds of appeal did not engage with the judgment under appeal, namely that of the Federal Circuit Court. Instead, so the submission went, those grounds did nothing more than point at alleged deficiencies on the part of the Tribunal. It may readily be accepted, and the position is, that, in a case such as the present, the Court exercises not original but appellate jurisdiction and that it is subversive of that role to promote original jurisdiction under the guise of an appeal or what is, in effect, a review on the merits of a Tribunal decision: see Sathiyanathan v Minister for Immigration & Multicultural Affairs [2000] FCA 210. It is certainly possible to read the specified grounds of appeal as a mere solicitation to merits review, or as to ground 3 at least, a request to exercise an original judicial review jurisdiction. 13 It is also necessary to recall what may be in prospect for the appellant, if it were to turn out that the merits evaluation was wrong. For these reasons, and in the same way as did Flick J in SZJHE v Minister for Immigration & Citizenship [2008] FCA 1771, I do not propose to dispose the appeal just on the footing that there has, having regard to the grounds of appeal, been no engagement at all of appellate jurisdiction; in other words, no engagement with alleged error on the part of the Federal Circuit Court. There is a more benign way of reading the grounds of appeal, in my view. It is possible, benignly, to read grounds 1 and 2 as asserting that the conclusion reached by the tribunal with respect to Nepal when considering s 36(3) was unreasonable. 14 The Tribunal was required under the Act to be satisfied as to certain matters. The structure of s 65 and s 36 makes that satisfaction a jurisdictional fact: see the discussion in this regard by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 (Eshetu). That means as his Honour was, with respect, astute to highlight in Eshetu that to describe unreasonableness as "Wednesbury unreasonableness" (by reference to Associated Picture House Limited v Wednesbury Corporation [1948] 1 KB 223) is strictly inaccurate. That is because that case concerned the exercise of a discretionary power, not a state of administrative satisfaction. Nonetheless, having regard to the joint judgment of Hayne, Kiefel and Bell in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, there is an affinity between the concept of unreasonableness in relation to the exercise of a discretionary power, and unreasonableness in relation to administrative satisfaction. It is further the case, having regard to that joint judgment, that the limits of unreasonableness are not delineated by a Wednesbury formulation. Even accepting all this, and that the first two grounds of appeal ought to be regarded as raising for consideration that the Federal Circuit Court should have determined that the s 36(3) conclusions reached by the Tribunal with respect to the right to enter and reside in Nepal were unreasonable, the case is one without merit. That is because, as I have already highlighted, the Tribunal made an evaluative judgment about the position with respect to Nepal, and that evaluative judgment was made on the basis of a body of material before the Tribunal. 15 There is no doubt, and an observation of the appellant today made it plain, that the appellant genuinely disagrees with the evaluation made by the Tribunal. Unfortunately for him, even though some use the term "unreasonable" to describe emphatic disagreement, that is not the way our law tests whether or not an administrative decision, based on a state of administrative satisfaction was unreasonable. What is fatal to a conclusion that the Federal Circuit Court should have found that the Tribunal's decision was unreasonable is that it was reasonably open to the Tribunal on the basis of some of the material before it to reach the conclusion which it did in relation to the position in Nepal. 16 That then leaves, again reading the ground benignly, the question as to whether the Federal Circuit Court should have concluded that the Tribunal had "totally overlooked" the evidence provided by the appellant. I accept that a failure on the part of the Tribunal to consider an integer or an aspect of a protection visa claim amounts to jurisdictional error. Where a tribunal does that, it fails to discharge its statutory function of reviewing the claim on its merits as made on the merits. 17 But that is not this case. As I have already highlighted, the Tribunal's reasons make it patent that the evidence presented by the appellant was not overlooked. It is just that, faced with competing conclusions that could be made on all of the evidence before it, including that of the appellant, the Tribunal happened to reach a conclusion on the merits which was not that promoted by the appellant. It necessarily follows that the Federal Circuit Court was not in error in concluding that the Tribunal had not ignored the appellant's evidence and thus had not failed to discharge its statutory review function. 18 For these reasons, then, the appeal must be dismissed. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 22 March 2017