FEDERAL COURT OF AUSTRALIA BHG15 v Minister for Immigration and Border Protection [2018] FCA 761 Appeal from: BHG15 v Minister for Immigration & Anor [2017] FCCA 3218 File number: NSD 86 of 2018 Judge: BARKER J Date of judgment: 25 May 2018 Catchwords: MIGRATION – application for a (class XA) protection visa – appeal from the Federal Circuit Court of Australia – whether judge committed jurisdictional error – whether judge applied the wrong test for complementary protection – whether the judge erred in not finding that the Refugee Review Tribunal's decision was unreasonable – certificate purportedly made under section 438 of the Migration Act 1958 (Cth) – where appeals before the High Court of Australia regarding non-disclosure certificates not yet determined – subject to determination of pending High Court appeals, grounds of appeal fail Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 48A, 438 Cases cited: BEG15 v Minister for Immigration and Border Protection and Another (2017) 253 FCR 36; [2017] FCAFC 198 CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 416; [2016] FCAFC 146 Minister for Immigration and Border Protection v BJN16 and Another (2017) 253 FCR 21; [2017] FCAFC 197 Minister for Immigration and Border Protection v CQZ15 and Another (2017) 253 FCR 1; [2017] FCAFC 194 Minister for Immigration and Border Protection v Singh and Another (2016) 244 FCR 305; [2016] FCAFC 183 Muin v Refugee Review Tribunal and Others (S36 of 1999); Lie v Refugee Review Tribunal and Others (S89 of 1999) (2002) 190 ALR 601; [2002] HCA 30 MZAFZ v Minister for Immigration and Border Protection and Another (2016) 243 FCR 1; [2016] FCA 1081 SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71 Date of hearing: 25 May 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 74 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Ms E Warner Knight Solicitor for the First Respondent: Australian Government Solicitor ORDERS NSD 86 of 2018 BETWEEN: BHG15 Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: BARKER J DATE OF ORDER: 25 MAY 2018 THE COURT ORDERS THAT: 1. This matter be stood over to a date to be fixed after the determination of CQZ15 v Minister for Immigration and Border Protection (M2/2018) and BEG15 v Minister for Immigration and Border Protection (S6/2018). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BARKER J: 1 The appellant appeals from a decision of the Federal Circuit Court of Australia dismissing his application for judicial review of a decision of the former Refugee Review Tribunal (now the Administrative Appeals Tribunal) which affirmed the decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a protection (class XA) visa under the Migration Act 1958 (Cth). His appeal comes at the end of a series of litigation and other steps under the Act. 2 The appellant is a 54 year old Indian national. He arrived in Australia in August 1996 on a tourist visa. He first applied for protection in 1997. His application was unsuccessful, including on merits review. 3 However, he then became one of the represented persons in the representative proceedings of Muin v Refugee Review Tribunal and Others (S36 of 1999); Lie v Refugee Review Tribunal and Others (S89 of 1999) (2002) 190 ALR 601; [2002] HCA 30. As a result of orders made by the High Court of Australia in those proceedings, the appellant's protection visa application was remitted to this Court. However, it was ultimately dismissed by the Full Court. 4 The appellant then unsuccessfully sought Ministerial intervention in relation to his claims in 2007, 2008 and 2013. In 2011, he became an unlawful non-citizen and, in October 2013, was detained for a period. 5 In October 2013, after his final unsuccessful request for Ministerial intervention, the appellant lodged a second protection visa application. It is this protection visa application that is the subject of this appeal. 6 In this protection application, the appellant claimed he became involved with the Radical Student Union while at university in India. He said the student union was a youth wing of the People's War Group (PWG). He claimed to have been tortured and to fear harm on the basis of his involvement in political and industrial movements promoting workers' rights; that he was targeted by the secret police; labelled a "hard core Naxalite leader"; and feared that if he returned to India he would be arrested, tortured and killed. 7 In June 2014, the delegate refused the appellant's protection visa application. He then applied for review of the delegate's decision in the Tribunal. 8 The Tribunal, however, affirmed the delegate's decision in June 2015. 9 In July 2017, the appellant filed an application in the Circuit Court for judicial review of the Tribunal's decision, which was dismissed by a judge of the Circuit Court in December 2017. 10 The appellant now appeals from the judge's judgment and orders essentially on the following two grounds: (1) The judge applied the wrong test for complementary protection. (2) The judge erred in not finding the Tribunal's decision was unreasonable. 11 To understand the appellant's grounds it is necessary to explain how his protection visa application was dealt with by the delegate, the Tribunal and the judge. 12 I should also note, at the outset, that this is a matter in which issues surrounding a s 438 non-disclosure certificate issued under the Act have arisen, to which I refer to in greater detail below. Delegate's Decision 13 The delegate noted that the appellant had previously been refused a protection visa and so, ordinarily, an applicant is prevented by s 48A of the Act from lodging a further application. However, the delegate considered, in line with the Full Court's decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71, that the appellant was not prevented from making another protection application in this case as his first application was made and refused prior to the commencement, in 2012, of the complementary protection provisions of the Act. 14 The delegate referred to the appellant's first protection application and the Tribunal's findings that he was not a credible witness and did not have a well-founded fear of persecution. The delegate said the appellant had not provided any reason why a different conclusion should be reached. Instead, he had reiterated his fear of being harmed and tortured by the authorities or the PWG on return to India. 15 In relation to the appellant's interview with the delegate, which occurred as part of his protection application, the delegate concluded that the appellant's account lacked detail regarding his participation in the PWG and the PWG's philosophies, and was "generally unconvincing". 16 The delegate did not find the appellant to be a credible witness and considered the appellant's claims to have been embellished and fabricated. 17 The delegate made the following findings of fact: the appellant was not a member of the PWG or any related organisation in India; he was not detained by Indian authorities for political activities; he would not encounter harm from the PWG or any related organisation on return to India; and he was not of adverse interest to the Indian authorities. 18 As a result, the delegate was not satisfied Australia had protection obligations with respect to the appellant, meaning he did not meet the s 36(2)(a) criteria as contained in the Act. 19 Further, the delegate noted that, having rejected the appellant's material claims due to their lack of credibility, the delegate was also not satisfied that appellant had a real chance of being subjected to significant harm if returned to India, meaning the s 36(2)(aa) complementary protection criterion was also not met. Tribunal's Decision 20 The appellant appeared before the Tribunal on 26 May 2015, at which time he provided a supporting submission in his merits review application. Post-hearing submissions were also provided on behalf of the appellant by his migration agent, attaching country information regarding the PWG. 21 In June 2015, the Tribunal affirmed the delegate's decision. Its decision was based in part on the appellant's claims regarding his involvement with the PWG being inconsistent with the independent country information he provided. 22 The Tribunal held that the information before it reinforced a finding that the PWG was not active in the area of India in the early 1990s as he had claimed. Further, the Tribunal concluded that the appellant's delay in leaving India, and his delay in applying for protection, were not satisfactorily explained by him. Also, the fact that he was thinking about returning to India was inconsistent with the treatment he claimed he suffered and the fear he stated he held of being tortured or killed on return. 23 The Tribunal considered the appellant had constructed his claims around the information he had provided in support of his application, and that his claims were not credible. 24 At [54]-[56] of its decision record, the Tribunal affirmed the decision of the delegate, in the following terms: 54. For those reasons the Tribunal does not accept that the applicant engaged in any political or industrial activity in India and does not accept that he has been harmed or detained or gaoled or complained against by police or any other Indian authority in Karnataka or [Andhra Pradesh] or anywhere else or that he will be harmed by any Indian authority in the future. It does not accept that anyone or more of PWG or the [Communist Party of India (Marxist)] or the [Communist Party of India (Marxist – Leninist)], has ever been interested in him or will have any interest in him if he returns to India. It does not accept that his parents have been harassed or that his father paid money to authorities or the PWG or that people in the PWG today know the applicant as someone who walked away from PWG. It does not accept that the management of big companies or brutal landlords have ever had any interest in the applicant or will have any interest in him in the future. 55. Because the Tribunal does not accept that the applicant's claims for protection are credible for the above reasons, it is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's being removed from Australia to India, there is a real risk that he will suffer significant harm. 56. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa). Judicial Review in the Federal Circuit Court 25 The appellant's ensuing application for judicial review in the Circuit Court advanced three bases upon which the Tribunal had committed jurisdictional error in its decision-making: (1) in not applying the real test for "significant harm" defined in s 36(2)(aa) of the Act; (2) in making its decision with a closed mind, based on assumptions and possibilities; and (3) in not properly considering the issue of relocation. 26 The appellant did not put on submissions in respect of these grounds. However, his application particularised each of his three grounds as set out below. 27 In relation to his first ground, the appellant stated: The applicant claims that the Tribunal formed the opinion based on the limited information about the possible harm to the applicant. The applicant lodged the Protection visa application under the New Regime of Migration Act s36(2)(aa) 'the Complementary Protection criteria.' The applicant claims the hearing was conducted by the Tribunal did not elaborate the fundamental principles of the complementary protection . The Tribunal conducted the hearing in the same manners of his previous application lodged in August 1997.The applicant was asked questioned in the same way and the same issues. The Tribunal used limited information for assessing the possible harm if he is compelled to back to India. In the last 20 Years time thousands of people have been killed by the Indian Authority in the name of Naxilite . The applicant's claim is based on the reality of the current situations which has been published in the media. The applicant is a truthful witness. The Tribunal fond some evidence as inconsistent. However the applicant said that in 20 years time he has forgotten may things. The Tribunal used the applicant ignorance as inconsistent. The applicant claims he was denied procedural fairness when the hearing was not conducted freely and fairly. During the hearing, the Tribunal raised several irrelevant issues related with genuine fear of persecution to discredit the applicant's oral and written evidence. 28 The Circuit Court judge considered that the appellant's particulars of ground one raised six potential claims, the first potential claim being that the Tribunal based its decisions on "limited material" and "limited information", and did not consider all of the material before it. The judge held that this assertion could not be made out as there was nothing to suggest the Tribunal did not consider all of the material before it. 29 The judge then had regard to the second potential claim, that the Tribunal did not elaborate on the complementary criterion specified in s 36(2)(aa) of the Act. His Honour held there was nothing to suggest the Tribunal had misunderstood or misapplied the criterion, stating at [24] of his reasons: It is true the Tribunal did not explicate the language of s.36(2)(aa). The Tribunal, however, was aware that the relevant criterion the applicant had to satisfy was that specified in s.36(2)(aa) of the Act; and the Tribunal applied the language of that criterion. 30 In reference to the third potential claim, that the appellant's claims were based "on the reality of the current situation which has been published in the media", the judge took this as a claim that country information raised an independent ground of protection, which the Tribunal failed to consider. His Honour said, however, that the appellant did not identify what this ground was and his particulars did not show what he meant by "current situations" or how it might expose him to harm if returned to India. 31 The fourth potential claim related to the Tribunal relying on the appellant's inconsistent statements, and not taking into account that two decades had elapsed since the events he recounted had occurred. The judge considered, however, that the Tribunal was aware of and had taken this time lapse into account and did not accept that his inconsistencies were the result of poor memory. 32 The judge said the fifth potential claim, that the Tribunal did not conduct the hearing freely and fairly, denying the appellant procedural fairness, could not be established on the materials before him. 33 Finally, the judge stated that a claim potentially arose that the Tribunal relied on irrelevant issues to discredit the appellant's evidence. Again, the judge considered there was nothing in the material before him to suggest that the Tribunal relied on irrelevant issues or matters, and so it was reasonably open to the Tribunal to conclude that the appellant's claims were not credible. 34 In regard to the appellant's second ground, the appellant provided the following particulars: The applicant claims that the Tribunal made his mind before hearing when it did not accounted the applicant's previous background of active political activities and his association and work with Redical Trade Union and the CPI-ML (Communist Party of India - Marxist-Leninist). The Tribunal discarded all the [oral] and written evidences of his grounds for possible significant harm in the foreseeable future. The [T]ribunal only used the Information supplied by the Department of Foreign Affairs which is old and not [up to date]. 35 The judge said that by this ground the appellant claimed the Tribunal was biased and relied only on information provided by the Department of Foreign Affairs and Trade, which was incorrect. Rather, the Tribunal relied to a "very large extent" on the appellant's information and found that information showed the PWG did not have any presence in the area in which the appellant lived and studied during the times he claimed to have had involvement with them. 36 In any event, the judge concluded, there was no basis for a claim that the Tribunal was biased or had predetermined the appellant's claim. 37 The appellant's particularisation of his final ground of review stated: The applicant claims that the Tribunal failed to consider the issue of relocation. The Tribunal's finding was unreasonable and uninformed .The Tribunal is unaware with the current political situation of India . The applicant claims that he has no reasonable protection from the Indian authority. The degrading treatment, way of punishment done by the Indian Police and army in Naxalite effected area, is horrible. The applicant can not trust on the Indian police for his life. If he is compelled to go India he will face a significant harm. The issue of relocation is very relevant when the application is considered in the Complementary Protection regime. The Tribunal did not discuss in detail about this issue in the hearing. The applicant has genuine fear of persecution. There is a real risk that he would suffer a significant harm on return to India. The [Tribunal] ignored the relevant consideration. 38 The judge said that the issue of relocation did not arise due to the Tribunal's finding that the appellant's claims lacked credibility, so was not satisfied there were substantial ground for believing he was at a real risk of suffering significant harm. A further potential claim contained in this ground, identified by the judge, that the Tribunal's decision was unreasonable and uninformed, was not considered to be made out. Finally, the judge said that the Court had no jurisdiction to determine whether the appellant could gain protection from Indian authorities, as to do so would be to engage in impermissible merits review. 39 At the conclusion of his reasons for dismissing the judicial review application, the judge noted that, prior to delivering judgment in the matter, on 19 October 2016, the Minister's solicitors contacted the Court notifying that a certificate, purportedly made under s 438 of the Act, had been issued, meaning an issue may arise in light of Beach J's decision in MZAFZ v Minister for Immigration and Border Protection and Another (2016) 243 FCR 1; [2016] FCA 1081. 40 The judge's chambers contacted the parties on 20 October 2016, proposing not to deliver judgment until the Full Court appeal in Minister for Immigration and Border Protection v Singh and Another (2016) 244 FCR 305; [2016] FCAFC 183 was heard. The judge stated, at [36] of his reasons, that after the email from his chambers was sent, the appeal in Singh was heard, as were appeals in other matters in which invalid s 438 certificates had been issued, citing those appeals that resulted in Minister for Immigration and Border Protection v CQZ15 and Another (2017) 253 FCR 1; [2017] FCAFC 194; Minister for Immigration and Border Protection v BJN16 and Another (2017) 253 FCR 21; [2017] FCAFC 197; BEG15 v Minister for Immigration and Border Protection and Another (2017) 253 FCR 36; [2017] FCAFC 198. 41 The judge stated that the Minister had not indicated that he wished to make any submission in respect of any s 438 certificate that may have been issued in relation to the appellant's application for review in the Tribunal, and the appellant had made no application or submission about any such certificate having been issued or purportedly issued. 42 In those circumstances, the judge decided to deliver the judgment originally intended to be delivered on 21 October 2016, on 19 December 2017. The judge dismissed the appellant's application for review and ordered that he pay the first respondent's costs in the fixed sum of $6,000. Appeal to This Court 43 On 31 January 2018, the appellant appealed to this Court from the Circuit Court judgment and orders on the following two broad grounds, namely, that the wrong test of complementary protection was applied and the Tribunal's decision was legally unreasonable, and the judge erred in not so finding. 44 The appellant chose not to file submissions to advance his grounds as set out above, and remained self-represented in the appeal at the hearing. 45 On 17 May 2018, the Minister filed written submissions in the appeal. 46 At the hearing of the appeal, the appellant sought an adjournment so that he could obtain legal advice and because his wife was ill. I refused the adjournment on the basis that the appellant had had ample time to obtain legal representation. He then relied upon the particulars to each ground of appeal and did not make any further submissions. Ground 1: Did the judge err in failing to find that the correct complementary protection test was not applied? 47 The appellant's first ground of appeal is that: Hon. Judge Manousaridis of the Federal Circuit Court failed to hold that Administrative Appeal Tribunal committed a jurisdictional error when it failed to apply the correct test in relation to the Complementary Protection Provision contained in section 36(2)(aa) of the Migration Act. The AAT did not follow Rules of Real Risk Test of Persecution and harm. AAT decision is unreasonable with regards to Complementary Protection Provision. 48 The appellant did not file any written submissions on the appeal. 49 The Minister contends that this ground corresponds with what the judge referred to as the second potential claim in the first ground in the Court below. 50 The Minister submits that the appellant has not explained how the Tribunal misconstrued or misapplied the complementary protection criterion in s 36(2)(aa) and there is no reason to doubt the judge's correctness in concluding, at [24], that the Tribunal was aware of the relevant criterion in this respect and there was nothing to suggest it had misunderstood or miscarried. 51 I accept the Minister's submissions. I agree that ground 1 raises in substance the same issue that the judge identified as the second potential claim. 52 I do not consider that any error is evident in the judge's disposition of that second potential claim. Plainly the Tribunal was applying the s 36(2)(aa) complementary protection criterion. 53 There is nothing in the Tribunal's consideration of that question, or the judge's attention to it, that reveals any error. 54 Ground 1 therefore fails. Ground 2: Did the judge err in failing to find the Tribunal's decision was legally unreasonable? 55 The appellant's second ground of appeal is: The Tribunal's assessment of the credit of the fact about the Appellant's political or industrial activity in India is, misconceived and misinformed. Being a truthful witness the appellant disclosed all about his association with PWG and how he broke out with PWG . He had been harmed and detained by the Local Authority in Andhra Pradesh. The Appellant claims that Hon .Judge made a jurisdictional error when he agreed with the respondents on all of the contents of the Appellants oral and written evidence without giving a reasonable explanation . The appellant claims that he was denied natural justice and procedural fairness when the Tribunal in making decision ignored the basic principles of assessing a claim for the Complementary Protection. 56 Similarly, the appellant did not file any written submissions in relation to this second ground. 57 The Minister submits that the first two sentences (the first part) of ground 2 in the notice of appeal take issue with the Tribunal's adverse credit findings and does not squarely correspond to any ground raised below. But to the extent that it may be read as corresponding to complaints raised in ground 1 below, leave is not required to plead it. The first part of ground 2 should, however, be rejected because it is no more than a request that the Court engage in merits review of the Tribunal's decision. No error in the Tribunal's assessment of the appellant's credit within the principles in CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 416; [2016] FCAFC 146 at [36]-[38], [59]-[61] is apparent in the reasons of the Tribunal. Nor is there any reason to doubt the correctness of the judge 's conclusion at [28] that, "It was reasonably open to the Tribunal, for the reasons it gave, to conclude the applicant's claims were not credible". 58 The Minister submits the second part of ground 2 asserts that judge erred by failing to find that the Tribunal denied him procedural fairness "when the Tribunal in making decision ignored the basic principles of assessing a claim for the Complementary Protection". The Minister says the appellant has not identified what "basic principles" were ignored by the Tribunal. There is no basis to doubt the correctness of the judge's finding at [27] that, "[t]here is nothing in the material before me that could indicate any unfairness by the Tribunal". 59 Generally, I accept the submissions made on behalf of the Minister. 60 Ground 2 contains a variety of factors or considerations that the appellant suggests undermine or reveal error in the decision of the judge. 61 One of them is that the judge simply accepted the submissions made on behalf of the respondents. The implication is that the judge did this without any critical assessment of the grounds the appellant had raised in the Circuit Court. 62 However, as I have set out above, the judge carefully considered the nature of the claims made, including the potential claims revealed in a very generally articulated set of grounds. 63 I do not consider that the judge erred in the way suggested in this ground. 64 To the extent that the appellant invites the Court to find error on behalf of the judge because the judge did not engage in a merits review of the Tribunal's decision, plainly that ground cannot succeed as it was for the judge to determine whether there was any jurisdictional error made by the Tribunal. Neither the judge nor this Court may engage in merits review. 65 Finally, as in the case of ground 1 above, the complementary protection question was appropriately considered by the Tribunal and the judge made no error in finding that the Tribunal did not commit any jurisdictional error in its treatment of that question. 66 Ground 2 should, therefore, be dismissed. Section 438 certificate issue 67 The Minister, by his written submissions, refers to the notification given to the Court as to the potential MZAFZ issue. 68 He submits at [23]-[27] of his outline of submissions: 23. The first respondent continued to notify the Court as various appeals in other matters in which invalid s 438 certificates had been issued were heard and determined. The last such communication from the first respondent's solicitor to the Court and to the appellant was an email dated 6 December 2017, which advised that the Full Federal Court had delivered judgment on 29 November 2017, allowing the Minister's appeals from the decisions of the Federal Circuit Court in Minister for Immigration and Border Protection & Anor v CQZ15 [2017] FCAFC 194 and Minister for Immigration and Border Protection & Anor v BJN16 [2017] FCAFC 197, and dismissing the appellant's appeal from the decision of the Federal Circuit Court in BEG15 v Minister for Immigration and Border Protection & Anor [2017] FCAFC 198. 24. On 13 December 2017, the Associate to the primary judge advised the parties that judgment would be delivered on 19 December 2018. 25. Judgment was handed down on 19 December 2017. 26. In light of the judgment in BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198, the first respondent considered (and continues to be of the view) that there was no longer any issue regarding the invalid s 438 certificate arising. 27. On 10 May 2018 the High Court of Australia granted special leave to the respective applicants in CQZ15 v Minister for Immigration and Border Protection (M2/18) and BEG15 v Minister for Immigration and Border Protection (S6/18) to appeal from the Full Federal Court's decisions in those respective matters. In the circumstances, it would be open to the Court to reserve judgment in this appeal, pending the determination of the High Court appeals in these matters. 69 Otherwise, the Minister contends no legal error is apparent in the reasons of the judge as there is no merit in any of the appellant's grounds before the Court. Nor is there any jurisdictional error apparent in the Tribunal's decision. 70 He states that judgment in this matter should be reserved pending the determination of appeals in the High Court of Australia in CQZ15 v Minister for Immigration and Border Protection (M2/2018) and BEG15 v Minister for Immigration and Border Protection (S6/2018), and, if those appeals are dismissed, so too should this appeal be dismissed with costs. Conclusions and Orders 71 Save for the question of the s 438 certificate, addressed by the Minister, as set out above, I would dismiss the appeal. 72 I will, however, await the outcome of the High Court proceedings referred to. 73 I will also make an order that this proceeding be adjourned pending the determination of the appeals in the High Court in CQZ15 v Minister for Immigration and Border Protection (M2/2018) and BEG15 v Minister for Immigration and Border Protection (S6/2018). 74 The Court orders: (1) This matter be stood over until a date to be fixed following the determination of CQZ15 v Minister for Immigration and Border Protection (M2/2018) and BEG15 v Minister for Immigration and Border Protection (S6/2018). I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate: Dated: 25 May 2018