BRF19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 820
•21 July 2021
FEDERAL COURT OF AUSTRALIA
BRF19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 820
Appeal from: BRF19 v Minister for Home Affairs [2020] FCCA 1065 File number: ACD 32 of 2020 Judgment of: HALLEY J Date of judgment: 21 July 2021 Catchwords: MIGRATION – protection visa application – appeal from Federal Circuit Court of Australia – review of decision of the Administrative Appeals Tribunal (Tribunal) to affirm a decision of a delegate of the Minister not to grant the appellant a protection visa – whether grounds of appeal properly characterised as new grounds not raised below – whether expedient in the interests of justice that issues be argued on appeal – whether any relevant prejudice to the respondent – whether new grounds are meritorious – whether Tribunal exercised its jurisdiction in accordance with s 65 of the Migration Act 1958 (Cth) – whether Tribunal made inconsistent findings – whether Tribunal failed to assess clearly articulated claim –– whether Tribunal properly considered whether appellant faced a “real chance” of harm – whether Tribunal decision was unreasonable, illogical or irrational due to lack of evident and intelligible justification – leave to advance new grounds on appeal refused – appeal dismissed. Legislation: Federal Court of Australia Act 1976 (Cth) s 24
Migration Act 1958 (Cth) ss 36, 65
Cases cited: AAM15 v Minister for Immigration and Border Protection and Another (2015) 231 FCR 452; [2015] FCA 804
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833
BRF19 v Minister for Home Affairs [2020] FCCA 1065
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26
Han v Minister for Home Affairs [2019] FCA 331
H v Minister for Immigration & Multicultural Affairs [2000] FCA 1348
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; [1997] HCA 22
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
O’Brien v Komesaroff (1982) 150 CLR 310; [1982] HCA 33
SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1; [2012] FCAFC 58
University of Wollongong v Metwallly (1985) 60 ALR 68; [1985] HCA 28
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158
Division: General Division Registry: Australian Capital Territory National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 97 Date of hearing: 29 June 2021 Counsel for the Appellant: Mr P Charman Solicitor for the Appellant: Sean Kikkert Counsel for the First Respondent: Ms K Hooper Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent submitted to any order of the Court, save as to costs ORDERS
ACD 32 of 2020 BETWEEN: BRF19
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
HALLEY J
DATE OF ORDER:
21 JULY 2021
THE COURT ORDERS THAT:
1.The appellant be refused leave to rely upon Grounds 1 and 2 of the notice of appeal.
2.The notice of appeal be dismissed.
3.The appellant pay the first respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
HALLEY J
INTRODUCTION
This is an appeal from a decision of the Federal Circuit Court of Australia (FCCA): see BRF19 v Minister for Home Affairs [2020] FCCA 1065. The appellant is a citizen of Albania.
On 6 May 2014 the appellant applied for a protection (Class XA) visa, claiming that if he were to return to Albania he would suffer injury or be killed due to his political views and his membership of the local Democratic Party of Albania (DPA).
On 23 March 2016, the application was refused by a delegate of the first respondent (the Minister) as the appellant did not satisfy s 36(2) of the Migration Act 1958 (Cth) (Migration Act).
Decision of the Tribunal
On 14 April 2016 the appellant applied for merits review of this decision in the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed the decision of the delegate of the Minister on 29 March 2019.
The Tribunal was not satisfied that if the appellant returned to Albania there was a real risk that he would be arbitrarily deprived of his life, that the death penalty would be carried out on him, that he would be subjected to torture or that he would be subject to cruel or inhuman treatment or punishment or to degrading treatment or punishment.
Considering the appellant’s claims and circumstances individually and cumulatively, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution pursuant to s 36(2)(a) of the Migration Act either now or in the reasonably foreseeable future if he were to return to Albania. The Tribunal was also not satisfied that there were substantial grounds to believe that, as a necessary and foreseeable consequence of the appellant being returned to Albania, there would be a real risk he would suffer harm which would amount to significant harm pursuant to s 36(2)(aa) of the Migration Act.
Appeal to the Federal Circuit Court
The appellant filed an Application to Review the Tribunal’s decision on 18 April 2019 and an Amended Application to Review on 25 September 2019. The appellant raised five grounds of review, the particulars of which are discussed below and at J[64]:
(1)The Tribunal fell into jurisdictional error by taking into account irrelevant considerations, namely whether the appellant wished to work in Australia and/or whether he could have applied in an EU country.
(2)The Tribunal denied the appellant procedural fairness by not making it clear which documents it was referring to when it stated that it did not accept the authenticity of certain documents and by not providing sufficient time for the appellant to provide evidence of how voting proceeded in the Trush/Berdice area.
(3)The Tribunal fell into jurisdictional error by failing to perform its statutory task.
(4)The Tribunal fell into jurisdictional error by failing to give “proper genuine and / or realistic consideration” to matters before it by disregarding the documentary evidence provided by the appellant on the basis that it was falsified, despite there being no evidence that the documents were falsified.
(5)The Tribunal fell into jurisdictional error in that its decision lacked evident and intelligible justification and was legally unreasonable.
The primary judge dismissed the appellant’s application. In summary, the primary judge found that the Tribunal: had not taken into account irrelevant considerations including in a manner material to its decision; did not deny the appellant procedural fairness or commit jurisdictional error in its findings as to the appellant’s documentary materials; and did not make a decision that was legally unreasonable. The primary judge concluded that “the Grounds of Review are more akin to expressions of concern about the result and are, respectfully, little more than an Application for impermissible merits review”: J[9].
Appeal to this Court
The appellant appealed the decision of the primary judge. The grounds of appeal, outlined in the notice of appeal dated 17 July 2020, are as follows:
(1)The Federal Circuit Court erred in finding that the Tribunal had exercised its jurisdiction in accordance with s 65 of the Migration Act that required the Tribunal to reach a state of satisfaction to either grant or refuse a visa;
(2)The Federal Circuit Court erred in finding that the Tribunal decision had an evident and intelligible justification; and
(3)The Tribunal failed to exercise its jurisdiction in that it constructively applied an incorrect test as to what amounts to a real chance of persecution.
LEAVE TO RELY ON NEW PROPOSED GROUNDS OF APPEAL
Counsel for the Minister submitted that the appellant is raising new grounds on appeal and that leave should not be granted to permit the appellant to raise those grounds.
The appellant’s written submissions do not address the question of leave.
During the course of oral submissions counsel for the appellant conceded that Ground 3 was an entirely new ground of appeal and submitted that the substance of the Ground was in any event covered by Ground 2 “in terms of the proper application of the test as to whether there’s an intelligible basis for the decision”. Counsel confirmed that Ground 3 was not pressed and it need not be considered any further.
Counsel for the appellant also submitted that if leave was required to advance Grounds 1 and 2, then it should be granted as it was “certainly arguable that there was no intelligible basis to explain the violence visited upon the appellant, other than that linked to the DPA”.
He submitted that the grounds flow from the primary judge’s decision, but are a “more … refined argument about the manner in which the [primary judge] considered the matter”. He stated that there was nothing unusual in grounds being different in tone from the grounds advanced below. Counsel submitted: “[T]here’s some merit to Ground 1 and 2. There’s no prejudice to the respondent. There’s no new factual basis. There’s no substantially new argument.”
When asked why the Grounds were not raised below, counsel for the appellant submitted it was because the appellant had to frame the appeal by reference to what the primary judge found rather than by reference to what the Tribunal found. Counsel submitted that the Grounds are linked very directly to the reasoning of the primary judge, and that there was no prejudice to the respondents in dealing with those matters which were dealt with by the primary judge.
Is Ground 1 of the notice of appeal a new ground?
When questioned during oral submissions, counsel for the appellant submitted that Ground 1 on appeal reflected Ground 3 below “on perhaps a clearer basis, although [the] particulars are different”.
Ground 1 of the notice of appeal is directed at a failure by the Tribunal to exercise jurisdiction in accordance with s 65 of the Migration Act, which requires the Tribunal to reach a state of satisfaction to either grant or refuse a visa. Ground 3 below was expressed more generally as the Tribunal falling into jurisdictional error by failing to perform its statutory task.
The particulars provided to Ground 3 below and Ground 1 of the notice of appeal are instructive.
The particulars provided to Ground 3 below were:
3.1 The task of a review is to form the requisite state of satisfaction.
3.2 To sufficiently undertake the statutory task of review, the Tribunal needs to be willing to hear and consider all relevant evidence.
3.3 Where an Applicant provides documentary evidence in support of his claim, the Tribunal has a duty to consider that information.
3.4 The Tribunal put to the Applicant that it is easy to falsify documents in Albania (please see par. [62] of the decision record).
3.5 The Tribunal then disregarded the documentary evidence provided by the Applicant on the basis that they were falsified, despite there being no evidence that the documents were falsified.
3.6 By failing to place any weight on this documentary evidence on the basis that it was falsified, despite there being no evidence before the Tribunal that they were falsified, the Tribunal failed to perform its statutory task of review.
Notwithstanding the generality of the way in which Ground 3 was expressed, the particulars establish that the Ground was directed at a failure by the Tribunal to place any weight on documentary evidence put before it by the appellant, on the basis that the documents were falsified.
The particulars provided in relation to Ground 1 of the notice of appeal are as follows:
1.1The Federal Circuit Court at paragraphs [40]-[46] of its reasons referred to the Tribunal’s findings at [81]; [98] and [105] as having slightly different findings and having some inconsistencies.
1.2The Tribunal findings referred to were central to the appellant’s claims and the findings were, contrary to the Federal Circuit Court’s reasoning of being merely slightly different, irrational, illogical and incapable of being construed as a coherent finding or determination by the Tribunal about the appellant’s claims.
1.3The findings by the Tribunal, in light of the further purported findings at paragraphs at [108]-[124] which the Federal Circuit Court traversed in its reasons were clearly incompatible.
1.4The Federal Circuit Court in its reasons did not explain how these are fundamentally contradictory tribunal findings were capable of evidencing a process of determination by the tribunal consistent with its statutory obligations to reach findings that had a logical, rational or probative basis.
The particulars of Ground 1 of the notice of appeal are directed at alleged inconsistencies in findings made by the Tribunal that were not capable of being construed as a coherent finding or determination of the appellant’s claim. They do not extend to any allegation that the Tribunal failed to have regard to documentary evidence on the basis that it was falsified.
I am satisfied, having regard to the particulars provided of Ground 3 below and Ground 1 of the notice of appeal, that Ground 1 of the notice of appeal advances a new ground of appeal that was not pursued below and leave would be required to rely on it.
Contrary to the submissions advanced orally by counsel for the appellant, the differences cannot be characterised as “different in tone” or more “refined” versions of grounds advanced below: they are fundamentally new grounds raised for the first time on appeal and ultimately it is the challenge to the decision of the Tribunal, not the reasoning of the primary judge, that is the critical issue.
Is Ground 2 of the notice of appeal a new ground?
Counsel for the appellant submitted that Ground 2 is an “unreasonable ground similar to Ground 5 below”.
Ground 2 of the notice of appeal is directed at an alleged absence of an evident and intelligible justification for the Tribunal’s decision. Ground 5 below alleged that the Tribunal’s decision lacked an evident and intelligible justification and was legally unreasonable.
Independently of the particulars provided for each ground, the two grounds would appear to be the same. Again, however, the particulars provided are instructive in determining whether Ground 2 of the notice of appeal raises a new ground on appeal.
The particulars provided to Ground 5 below were:
5.1. The Tribunal's finding that the 23 June 2013 elections in Albania were “competitive” with “fundamental respect for fundamental freedoms” was unreasonable in light of its acceptance that the “election was marred by the death of a DPA supporter in Lac.” (please see par. [44] of the decision record).
5.2. The Tribunal put to the Applicant that it is easy to falsify documents in Albania (please see par. [62] of the decision record).
5.3. The Tribunal disregarded the documentary evidence provided by the Applicant on the basis that it was falsified, despite there being no evidence that the documents were falsified.
5.4. The Tribunal had stated during the course of the hearing that it didn’t believe that the newspaper relied on by the Applicant existed (which is why the Applicant subsequently provided several copies of the complete newspaper over a period of many years at [67]-[68] of the decision record. The Applicant also provided multiple internet links to this newspaper).
5.5. The Tribunal’s treatment of the documentary evidence provided by the Applicant was unreasonable.
5.6. At par. [45] of the decision record, the Tribunal noted that “It was put to the Applicant that the economy of Albania is bad and that people work for low wages and often have difficulty obtaining work. This means that many Albanians work all over Europe and over the years it has been a large part of the economy for people to send money back to Albania in order to support their families. He did not agree, he said that he had a normal life and a good wage.”
5.7. At par. [59] of the decision record the Tribunal stated “. . . I put that he came to Australia to work. . .”
5.8. The recording of the hearing reveals that the Tribunal questioned the Applicant about whether he wished to work in Australia.
5.9. It was unreasonable for the Tribunal to treat the Applicant’s desire to work in Australia as a factor that weighed against the Applicant in deciding whether or not to affirm the decision not to grant the Applicant a protection visa.
5.10. The Tribunal questioned the Applicant about why he did not apply for a protection visa in an EU country.
5.11. It was unreasonable for the Tribunal to treat the fact that the Applicant did not apply for a protection visa in an EU country as an adverse piece of information that weighed against the Applicant.
The particulars are directed at findings concerning the fairness of elections in Albania (5.1), rejection of the appellants’ documentary evidence on the basis it was falsified (5.2-5.5) and the appellant’s reasons for coming to Australia (5.6-5.11).
The particulars provided to Ground 2 of the notice of appeal are as follows:
2.1 The Tribunal accepted that:
a.The appellant was a member of the DPA;
b.The appellant had been injured in December 2013 or January 2014;
c.The appellant had been visited by unknown people on 20 January 2014;
d. That a supporter of the DPA had been killed during the election process;
e.That there had previously been violence during elections; and
f.That during this election there were incidents of violence.
2.2The Tribunal’s reasoning at [81]; [98]; [105] and [108] -[124] concerned the appellant’s claims and were material to the consideration of the appellant’s application for protection.
2.3The Tribunal’s reasoning is incoherent, illogical, directly contradictory and lacked an evident and intelligible justification.
2.4The Federal Circuit Court in its reasons at [40]-[46] finds the Tribunal reason at [81]; [98] and [105] is curious, inconsistent and having slightly differing findings but does not determine how the Tribunal’s reasons can be construed, when read in their entirety, as being a decision that a rational or logical decision maker could arrive at on the same evidence.
The particulars are directed at the reasoning of the Tribunal with respect to the risk of a member of the DPA being exposed to violence in the course of elections (2.1), and alleged inconsistencies in the reasoning of the Tribunal relied upon in support of Ground 1 of the notice of appeal (2.2-2.4).
The only potential overlap is between particular 2.1 to the notice of appeal and particular 5.1 below. It is apparent, however, that particular 2.1 appears on its face to be a list of findings made by the Tribunal, including with respect to the extent of violence in Albanian elections, which are then relied upon to substantiate the alleged “inconsistencies” contentions advanced in particulars 2.2 to 2.4. By way of contrast, particular 5.1 was an unreasonableness challenge to a finding made by the Tribunal concerning the fairness of elections in Albania.
After having regard to the particulars provided in relation to Ground 2 of the notice of appeal and Ground 5 below, I am satisfied that Ground 2 of the notice of appeal advances a new ground of appeal that was not pursued below and leave would be required to rely on it.
Again, contrary to the submissions advanced orally by counsel for the appellant, the differences cannot be characterised as “different in tone” or more “refined” versions of grounds advanced below: they are fundamentally new grounds raised for the first time on appeal and ultimately it is the challenge to the decision of the Tribunal, not the reasoning of the primary judge, that is the critical issue.
Should leave be granted to rely on new grounds?
In substance the appellant seeks a fresh hearing in relation to Grounds 1 and 2, by utilising the Court’s appellate jurisdiction to overcome this Court’s lack of original jurisdiction on grounds of judicial review that could have been taken below. As explained by Bromwich J in Han v Minister for Home Affairs [2019] FCA 331 at [3]:
This means of overcoming the statutory exclusion of original jurisdiction for judicial review of this kind principally, if not exclusively, exists as a safeguard to ensure that the interests of justice are protected. That protected purpose must be approached upon a principled basis, to prevent it becoming a mere proxy for the interests of an appellant in obtaining, in substance and reality, a second trial on a different basis.
Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158 (VUAX) at [46] (Kiefel, Weinberg and Stone JJ) citing O’Brien v Komesaroff (1982) 150 CLR 310; [1982] HCA 33; H v Minister for Immigration & Multicultural Affairs [2000] FCA 1348; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 at [20]-[24] and [38] (Allsop J, Drummond and Mansfield JJ agreeing).
The Court may grant leave if some meritorious point that was not taken below is advanced and there is no real prejudice to the respondents in permitting it to be agitated. However, where there has been no adequate explanation for the failure to take the point below and the point seems to be of doubtful merit, leave should generally be refused: VUAX at [48].
In Han, Bromwich J found, at [8], that it “may be convenient, and in many cases it will be entirely appropriate, to decide the question of whether to grant leave … by giving dominant, but not exclusive, weight to the merit of the proposed ground”. His Honour noted that “[m]erit is necessary, but not of itself ordinarily sufficient” and that “[o]ther features will generally need to be absent or present”: Han at [8]. His Honour went on to say that these other features may be an acceptable explanation for the ground not being run below, the nature and extent of any injustice (beyond a merely adverse result) that may result if the issue raised is not addressed and the lack of prejudice to the opposing party.
However, his Honour emphasised at [9] that:
Care needs to be taken to ensure that a focus on merit does not have the troubling practical effect that a new ground sought to be raised is effectively heard and determined by this Court in the exercise of its appellate jurisdiction as though leave was not required. If that happens, the appellant may get to run an appeal which in truth is a new trial upon nothing more compelling that the fact that it might have succeeded if it had been run below. If the argument in support of the proposed ground finds favour, leave is then granted, and the appeal is allowed. If the argument does not find favour, leave is refused and the appeal dismissed. The grant or refusal of leave then turns on the success or failure of the new ground, making leave a mere formality. If so, an important principle in the administration of justice may be lost in the process.
In University of Wollongong v Metwallly (1985) 60 ALR 68; [1985] HCA 28 six justices of the High Court stated at p 71 (and as quoted by Bromwich J in Han at [11]) that:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
The above passage was cited in Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 at 8. The Court in that case also made the following observation, at p 7 (as quoted by Bromwich J in Han at [12]):
To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards …
In AAM15 v Minister for Immigration and Border Protection and Another (2015) 231 FCR 452; [2015] FCA 804 the framework for the judicial review of refugee determinations was explained by Perram J as follows at [14]:
… Pt 8 of the [Migration] Act, which regulates judicial review of refugee determinations, ensures that there is one substantive trial in the Federal Circuit Court followed by one substantive appeal to this Court followed by a more cursory review by the High Court. If this Court, in substance, determines a case at first instance by entertaining fresh grounds and a notice of contention this structure is thwarted because no appeal lies to the High Court other than by special leave which is rarely granted and then only on the grounds set out in s 35A of the Judiciary Act 1903 (Cth). If the matter is effectively tried in this Court then the appellant is denied a layer of appellate scrutiny.
The appellant was unable to give an acceptable explanation for the grounds not having been advanced below, submitting only that the grounds had been confined and defined by reference to the primary judge’s decision and that there was no relevant prejudice to the respondents.
I do not accept that there would be no relevant prejudice to the respondents if the appellant was permitted to rely on the two grounds that it continues to press in the notice of appeal. The appellant seeks judicial review of the Tribunal’s decision for jurisdictional error. The respondents would effectively be denied the right of appeal conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth), causing them prejudice.
MERITS OF THE PROPOSED GROUNDS OF APPEAL
I turn now to consider whether Grounds 1 and 2 of the notice of appeal can appropriately be characterised as of “doubtful merit”. In undertaking that task it is necessary that I have regard to the relevant principles as identified above, namely:
(a)the interests of justice and the potential denial of a meritorious point being advanced;
(b)that this Court should not become a de facto trial court;
(c)the statutory framework for the resolution of jurisdictional error challenges to decisions of the Tribunal; and
(d)the absence of a satisfactory explanation for the failure to advance these grounds before the primary judge.
It is convenient, given the overlap in the manner in which Grounds 1 and 2 of the notice of appeal are advanced, to commence by summarising the reasoning of the Tribunal. The summary below is relevant to a disposition of the merits of both grounds of appeal and in turn any finding that they can be characterised as having substantive or doubtful merit.
Reasoning of the Tribunal
The Tribunal accepted that (as discussed at J[36]-[57]):
(a)the appellant was a national of Albania;
(b)the appellant was a member of the DPA;
(c)the appellant was injured in December 2013 or January 2014 and he was hospitalised;
(d)the appellant was threatened in his home by unknown persons on 20 January 2014, who then came back a second time;
(e)political parties in Albania are highly polarised, and corruption and organised crime remain serious problems despite government efforts to address them;
(f)there had been violence and corruption in elections in Albania;
(g)according to the US State Department Human Rights Record 2017, civilian authorities generally maintained effective control over police, the Guard of the Republic, the armed forces and the intelligence service, although officials periodically used state resources for personal gain and members of the security forces committed abuses. It also noted that the police did not always enforce the law equitably;
(h)there was a backdrop of mutual accusations of vote buying and pressure on voters that lasted throughout polling day, which was reported by the media; and
(i)an incident that led to the death of a voter, a member of the DPA in the town of Lac, occurred at a location approximately 56 kilometres away from Shkodër and about a 55-minute drive away from the appellant’s town.
However, the Tribunal consistently found throughout its reasons that the appellant was not a witness of truth. It noted that it preferred to rely upon the Organization for Security and Cooperation in Europe report (OSCE report) regarding the voting and conduct of the 2013 election, rather than the account given by the appellant. The Tribunal noted that the OSCE report stated that the 23 June 2013 elections were competitive, there was active citizen participation and genuine respect for fundamental freedoms. Notably, as pointed out by the primary judge at J[42]:
At par. 93 of its reasons the Tribunal said that it was explained to the Applicant’s migration adviser at the second Tribunal hearing that the evidence regarding the vote counting procedures was crucial to the Applicant’s credibility. It went on to say that the Applicant had time after the second Tribunal hearing to provide any addition evidence regarding this aspect of his claim.
Relating to the circumstances of the 2013 election, the Tribunal was satisfied that the election was conducted in accordance with the Albanian Electoral Code and that voting was completed at special voter counting centres and not at ballot counting centres as claimed by the appellant. The appellant told the Tribunal that he worked at the number 23 voting centre. However, the appellant provided a DPA certificate that recorded, amongst other things, that he was a “member of the Commission at the voting centre number 219 in the village Trush commune Berdice”. The appellant claimed that this was a mistake and it was the 2011 elections.
In regard to the appellant’s claim that his family had long been targeted by the DPA, as summarised by the primary judge at J[49], the Tribunal found
[T]hat the independent evidence before it confirmed that Albania was yet to deal adequately with the gross human rights violations that had been committed between 1944 and 1991 when thousands of victims suffered from imprisonment, torture, internal exile, executions and enforced disappearances. However, the Tribunal went on to say that the independent evidence before it does not suggest that family members whose grandfathers were killed or harmed by the communist regime, or whose family members are members of the DPA, are persecuted or harmed by the Albanian government. It was of the view that, were it the situation, it would be known to independent sources such as Amnesty International, the UK Home Office, or the US State Department.
In relation to the appellant’s claims of receiving threatening phone calls after the 2011 elections and that he was a member of a group of persons who were harmed during the former communist regime and who continue to suffer harm from the socialist party, the Tribunal noted, as summarised by the primary judge at J[50]:
[T]he Applicant left Albania for Australia in February 2013 and returned to Albania in March 2013. He went to Belgium in May 2012 and returned to Albania a week later because he was invited. The Tribunal said that it was satisfied that the Applicant’s return to Albania on two occasions indicated a lack of subjective fear of persecution. It therefore did not accept that the Applicant received threatening telephone calls for his political opinion after the 2011 election.
Further, despite finding that the appellant was attacked twice, the Tribunal did not accept it was due to his political opinions. The Tribunal was not satisfied that the appellant was involved in vote counting. The Tribunal found that the appellant had not suffered Convention-related harm in Albania prior to coming to Australia, relying on the OSCE report and information from the United States Agency for International Development (USAID). Neither source suggested that any voters, or any DPA members or supporters from Shkodër or its suburbs, were harmed on the basis of their political opinion after the 2013 election or for voting irregularities.
The Tribunal was satisfied that the appellant came to Australia only in order to work. Further, it found the chances of the appellant suffering harm on the basis of his political opinion or his membership of the DPA or any organisation on his return to Albania to be remote. It said that the appellant faced no serious harm in the past for a Convention-related reason and it was not satisfied that the appellant faces a real chance of serious harm upon return to Albania for a Convention-related reason in the reasonably foreseeable future.
As summarised by the primary judge at J[63]:
In all of the circumstances, the Tribunal found that no relevant ground had been established, or evidence provided, that warranted the Delegate’s decision being changed. Accordingly, it found that the Applicant did not satisfy the criterion in s.36(2) of the Migration Act 1958. Therefore, it affirmed the Delegate’s decision not to grant the Applicant a Protection Visa.
Consideration
Ground 1 - Alleged inconsistent findings
Critical to the first limb of Ground 1 was the contention that the findings made by the Tribunal at [81], [98] and [105] were inconsistent.
At [81], the Tribunal found:
I give the [appellant] the benefit of the doubt and accept that he was a member of the DPA. I also accept that he was injured December 2013 or January 2014, he was hospitalised and subsequently unknown persons came to his home and threatened him on 20 January 2014 and came back 2nd time [sic].
At [98], the Tribunal found:
In light of the OSCE report, and the reports detailed above, I reject the [appellant’s] claims that the Electoral Code did not reflect the reality of what was happening on the ground at the 2013 elections. I am satisfied that the Albanian election was conducted in accordance with the Albanian Electoral Code and that voting was completed on the night at special Voter Counting Centres and not at the ballot voting centres. Therefore the [appellant] was not counting election ballots at the 2013 elections and it follows that he did not have an altercation with a Socialist Party member or any other person over the ballot during the count that night. It follows that I do not accept that the Socialist party have sought to and continue to seek to harm him. I do not accept the [appellant] received threatening telephone calls for his political opinion after the 2013 election or that he was assaulted, threatened or harmed for his political opinion when he resided in Albania. I do not accept that [appellant] is a witness of truth. I am satisfied that he has created his claims of being harmed by Socialist Party members in order to obtain the visa sought.
At [105] the Tribunal found:
The applicant provided an article in the Malesa newspaper that he was assaulted. His wife has provided a declaration. I have given the [appellant] the benefit of the doubt and accept that he was assaulted, as claimed, the article does not suggest that he was assaulted for reasons of his political opinion. A letter from the Editor of this newspaper, Rifat Ymeri, provided to the Tribunal after the 2nd hearing, stated that the [appellant] was hit on the face on 10 January 2014. Rifat Ymeri states that he learned that the pressures against this citizen were made by political exponents. I note that the [appellant] has provided this statement in response to the Tribunal putting to him, at hearing, that the newspaper report did not indicate his attack was caused by his political opinion. As Rifat Ymeri does not indicate when he learned that the attack was politically motivated or how he learned that the attack on the applicant was politically motivated and as he did not state in his article that the applicant was injured for political reasons, I place no weight on Rifat Ymeri’s statement as evidence that the [appellant] was injured on 10 January 2014 for a political reason.
The appellant advanced the following submissions in support of his contention that the Tribunal’s findings in these paragraphs were inconsistent.
First, the appellant contended that the primary judge found the “inconsistencies between the Tribunals reporting in general narration of the incidents of the Appellant being assaulted and hospitalised were … merely curious when they were central to the claims being made by the Appellant” (emphasis in original).
Second, the appellant further submitted that “[t]he curious inconsistencies as found by the Federal Circuit Court were in fact a failure of the Tribunal to consider the claim made by the Appellant that he would be subject to significant physical harassment or significant physical ill treatment should he return to Albania” (emphasis in original).
Third, the appellant also submitted that the Tribunal did not make any findings as to any alternative basis upon which the accepted assault and hospitalisation of the appellant could be based.
I do not accept that there is any relevant inconsistency in the Tribunal’s findings set out above or in the context of the reasons of the Tribunal as a whole.
As to [81], the findings made by the Tribunal that the appellant was injured in December 2013 or January 2014 and hospitalised and that unknown persons came to his home on two occasions did not carry with them any necessary implication that those assaults were related to the political concerns sought to be advanced by the appellant.
As to [98], given the Tribunal found that the 2013 elections in Albania were conducted in accordance with the Albanian Electoral Code and that voting was completed on the night at special Voter Counting Centres, not at ballot voting centres, the appellant was therefore not counting election ballots at the 2013 elections.
As to [105], the Tribunal accepted that the article in the Malesia newspaper demonstrated that the appellant was assaulted but the article did not suggest that the assault was due to his political opinions.
Further, the Tribunal found at [106]:
As the applicant was not involved in vote counting I do not accept that in December 2013/January 2014, some months after the election, that the applicant was attacked and harmed for his political opinion or that threatening calls were made against him for reasons of his political opinion. I also find that persons who came to his home after this incident of harm, reported in the Malesia newspaper, and who threatened him, did not do so for his political opinion.
As submitted by the first respondent, any discrepancies in the Tribunal’s narrative reflected discrepancies in the appellant’s account. These discrepancies do not amount to jurisdictional error in the Tribunal’s findings, particularly in circumstances where the Tribunal did not comment adversely on any variations in dates to the prejudice of the appellant. I am satisfied that the alleged curiosity identified by the primary judge at J[40] between [81], [98] and [105] of the Tribunal’s reasons concerned the narration of the particular events provided by the appellant and recorded in those paragraphs.
Finally, the Tribunal was not under any obligation to hypothesise or speculate as to the possible reasons why the appellant was assaulted and hospitalised. It was not satisfied that the appellant was assaulted because of his political beliefs. As the first respondent submitted, the Tribunal, in order to validly exercise its jurisdiction, was not obliged to do anything more than reach this state of non-satisfaction.
Ground 1 - Alleged failure to consider reasonable harm
The second limb of Ground 1 is the contention that the Tribunal limited its consideration to whether there was a real chance that the appellant would be killed if he returned to Albania and did not consider whether there was a real chance of the appellant suffering serious harm.
Counsel for the appellant submitted that the appellant was a member of the DPA and had been assaulted. By limiting its consideration to a definition of serious harm that was narrower than the Migration Act requires, counsel contended that the Tribunal failed to exercise its jurisdiction in assessing a claim by the appellant that was clearly articulated, relying on Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 at [24]-[25] (Gummow and Callinan JJ) and [95] (Hayne J) and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [55] (Black CJ, French and Selway JJ)
I do not accept this submission.
While the Tribunal made findings as to the likelihood of the appellant being killed for his political opinions if he returned to Albania, these findings were made in response to specific contentions advanced by the appellant to that effect.
Further, and significantly, the Tribunal expressly found at [119] that the appellant had not faced “serious harm” in the past and was also not satisfied that the appellant faced a real chance of “serious harm” in the reasonably foreseeable future.
Ground 2 – Alleged error in application of real chance of serious harm test
The first limb of Ground 2 is directed at the Tribunal’s application of the real chance of serious harm test, namely that a fear of persecution is “well-founded” if there is a real chance that the refugee will be persecuted if he returns to his country of nationality: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 427 (McHugh J) and 389 (Mason CJ).
Counsel for the appellant submitted that the “proper application of the real chance test” to the claims articulated by the appellant in relation to the factual findings made by the Tribunal, that “he would suffer serious harm (not be killed) should he return to Albania” could only have led to a conclusion “that there was a real chance that the Appellant would suffer significant physical harassment or significant physical ill treatment because of his political beliefs” (emphasis in original). There was no “evident and intelligible justification” for coming to this conclusion.
I do not accept that submission.
As submitted by the first respondent, I am satisfied that the Tribunal correctly considered whether the appellant’s fear of persecution was “well-founded” by reference to the “real chance” formulae as explained by the High Court in Chan at 389 (Mason CJ), 398 (Dawson J) and 429 (McHugh J) and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; [1997] HCA 22 at 571-3 and 575-6 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).
The Tribunal addressed the correct question, namely whether the appellant had a “real chance” of suffering Convention-related harm on his return to Albania now or within the foreseeable future.
The Tribunal, as is readily apparent from the summary of its reasoning above, did not accept that any harm suffered by the appellant was due to his membership of the DPA or his political beliefs and did not accept that he was a credible witness.
The Tribunal largely rejected the appellant’s evidence on material matters, other than giving him the benefit of the doubt with respect to his alleged assault and his membership of the DPA.
I accept, as submitted by the first respondent, that in undertaking its assessment of the likelihood of harm the appellant would face if he were to return to Albania, the Tribunal relied on its credibility findings, the absence of any past serious harm for a Convention-related reason and independent country information.
Ground 2 - Alleged absence of an evident and intelligible justification
The second limb of Ground 2 advances a contention that the Tribunal’s reasoning lacked an evident and intelligible justification, largely by reason of the alleged inconsistencies advanced in support of Ground 1.
First, counsel for the appellant submitted that the “Tribunal made findings that the Appellant was not a witness of truth, which appear[ed] incongruous in relation to the specific claims before the Tribunal”, in circumstances where the Tribunal had accepted a number of contentions advanced by the appellant that underpinned his claims he would suffer serious harm if he returned to Albania.
Second, counsel submitted that the primary judge, “having found that the Tribunals inconsistent findings in relation to the fundamental facts that applied to the Appellant claims were curious did not then determine how those inconsistencies about such fundamental matters suggested an evident and intelligible justification for the Tribunal’s decisions” (emphasis in original).
Third, counsel contended that it was instructive that the Tribunal did not make any findings as to any alternative basis to explain why the appellant had been assaulted at the time of the election against the background of election violence.
The appellant appeared to rely on an alleged absence of an “evident and intelligible justification” contention to support his unreasonableness challenge to the Tribunal’s reasoning. One of the authorities advanced by the appellant, however, in support of this contention was Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS). In SZMDS, the High Court was concerned with an alleged absence of an “evident and intelligible justification” in the context of jurisdictional error on the ground of “illogical or irrational reasoning” rather than “unreasonableness”.
In any event, the principles concerning jurisdictional error on the grounds of unreasonableness and illogical or irrational reasoning by reason of a lack of an evident and intelligible justification are well settled.
Unreasonableness is a conclusion that may be applied to a decision if it lacks an evident and intelligible justification: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76] (Hayne, Kiefel and Bell JJ).
This might arise where a decision is one at which no reasonable person could have arrived, but an inference of unreasonableness is not to be drawn only where a decision might appear to be irrational: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [10] (Kiefel CJ), see also at [82] (Nettle and Gordon JJ).
With respect to jurisdictional error on the ground of illogical or irrational reasoning, an appellant must demonstrate that the Tribunal’s decision is “one at which no rational or logical decision maker could arrive on the same evidence”: SZMDS at [130] (Crennan and Bell JJ). If logical or rational or reasonable minds might adopt different reasoning or reach different conclusions on probative evidence, a reviewing court cannot conclude that the decision was illogical or irrational “simply because one conclusion has been preferred to another possible conclusion”: SZMDS at [130]-[131] (Crennan and Bell JJ); see also SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1; [2012] FCAFC 58 at [84] (McKerracher J, Reeves J agreeing).
As explained by Crennan and Bell JJ in SZMDS at [135]:
A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
I do not accept that the Tribunal’s reasoning was unreasonable in the legal sense or lacked an evident and intelligible justification by reason of the alleged inconsistencies advanced in support of Ground 1 or on any other basis. In my view it is readily apparent from the summary above of the Tribunal’s decision that the findings it made and the reasoning it followed were findings and reasoning open on the evidence and that there was a logical connection between the evidence and the inferences and conclusions drawn by the Tribunal.
The Tribunal accepted that the appellant had suffered harm but was not satisfied by reason of the objective circumstances, including the OSCE report, that the harm to the appellant was attributable to his membership of the DPA or his political claims.
DISPOSITION
For the reasons outlined above, Grounds 1 and 2 of the notice of appeal are new grounds that were not advanced below before the primary judge.
There is otherwise insufficient merit in Grounds 1 and 2 of the notice of appeal to justify any grant of leave to permit the appellant to now rely on those grounds in this Court. Both grounds can fairly be characterised as having “doubtful merit”.
Leave to rely on Grounds 1 and 2 must be refused and the notice of appeal, given Ground 3 has been withdrawn, must be dismissed with costs.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Halley. Associate:
Dated: 21 July 2021
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