Contrary to Minister for Home Affairs v Omar, did the Tribunal fail to consider a substantial or significant claim concerning the risk of harm to appellant if returned to his country of nationality independently of Australia’s non-refoulement obligations?

CVRZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 205 (22 November 2021)

Intro:-

This is an appeal from a judgment of a judge of the Court delivered on 24 February 2021, dismissing an application for judicial review of a decision made by the Administrative Appeals Tribunal on 17 August 2020. By this decision, the Tribunal affirmed the decision of a delegate of the respondent Minister not to revoke the cancellation of the appellant’s protection visa.

Facts:-

The appellant, CVRZ, is a citizen of Zimbabwe. He arrived in Australia in December 2007 on a visitor visa. He has lived in Australia continuously since then, except for about two weeks in July 2009 when he returned to Zimbabwe. He was granted a Class XA Subclass 866 Protection Visa (“protection visa”) on 4 February 2009.

Between 2009 and 2018, while living in Australia, CVRZ was convicted of numerous criminal offences. It suffices to note here that, on 17 July 2018, the Magistrates Court of Queensland convicted him of assaults occasioning bodily harm, in respect of which he was sentenced, concurrently, to twelve months imprisonment. CVRZ’s protection visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on 27 September 2018.

Section 501(3A) mandated the cancellation of CVRZ’s visa in the circumstances that existed at the time. CVRZ sought revocation of the cancellation decision under s 501CA(4) of the Act and was subsequently notified, by letter dated 25 May 2020, that he had failed. On 28 May 2020, CVRZ applied to the Tribunal for review.

On 17 August 2020, the Tribunal affirmed the non-revocation decision and, as indicated, CVRZ sought judicial review of the Tribunal’s decision in this.

The Tribunal's decision

Before the Tribunal, CVRZ, who was legally represented, argued that, although he did not pass the character test as contemplated by s 501CA(4)(b)(i) of the Act, there was another reason why the original cancellation decision should be revoked, as contemplated by s 501CA(4)(b)(ii). CVRZ submitted that he belonged to the Ndebele group, an ethnic minority group in Zimbabwe; that he supported the Movement for Democratic Change (“MDC”), a political party in Zimbabwe whose supporters were subject to violent attacks; and that he would be persecuted for his political views, ethnicity and time spent in Australia if he were returned to Zimbabwe. CVRZ also submitted that he had two minor children in Australia, both of whom were citizens, and that he intended to re-establish a relationship with one of them. He submitted that this child would lose the emotional and financial support that he could provide if the cancellation decision were not revoked. CVRZ also submitted that these matters meant that his visa cancellation constituted “extremely severe punishment” disproportionate to his previous offending history, such that the Australian community would expect the cancellation decision to be revoked.

The Tribunal found inter alia, that CVRZ’s claims concerning the risk to him of harm if returned to Zimbabwe were contrary to information in the relevant DFAT Country Information Report for Zimbabwe (“DFAT Country Information Report”): TR, [271]-[272]. It stated (TR, [274]-[275]):

"... Having regard to the Country Information Report’s specific reference to the “voluntary assisted return and reintegration program” for returnees, it is difficult to attribute any level of credibility to the Applicant’s claim that he would be adversely dealt with at or shortly after his arrival in Zimbabwe. Similarly, it is difficult to accept the Applicant’s analysis of the political situation in Zimbabwe and how, according to him, it adversely impacts members of the Ndebele ethnic minority, when the Country Information Report tells us that Ndebele people have participated at all levels of Zimbabwean society, commerce and government, and otherwise “have played prominent roles in public life, including as Vice Presidents, Ministers, and key opposition figures.”

Ultimately, doubt must be cast on the Applicant’s claims of harm upon a return to Zimbabwe in view of the findings in the Country Information Report, which makes it clear that the Ndebele and Shona generally coexist harmoniously in daily life, and, with relative commonality, intermarry. As mentioned in the Country Information Report, DFAT has no knowledge of any recent cases “in which Ndebele have been harassed or physically attacked on the basis of their ethnicity.” To my mind, these claims of harm by and on behalf of the Applicant amount to little more than bald and unsupported statements. Apart from the Applicant’s own self-serving version, there is no detailed and independently verified explanation or particularisation of how this risk of harm would crystallise or manifest in reality.

The Tribunal rejected CVRZ’s claims that, with respect to him, Australia had international non-refoulement obligations. The Tribunal noted that “[t]he author of the ITOA reaches similar conclusions to mine in terms of the absence of any current evidence that the Applicant’s involuntary return to Zimbabwe as a known supporter of the MDC would place him at any level of measurable risk”: TR, [288] (italics in original). The Tribunal stated (at [297]) that:-

"... [f]or reasons I have sought to outline, I place significant weight on the findings expressed in the ITOA, bearing in mind its very close proximity in time to the instant hearing and in circumstances where the Applicant acknowledges that procedural fairness was afforded to him in terms of having the opportunity to make submissions in response both prior to and after its publication to the parties."

The Tribunal thus placed no weight on the consideration identified in cl 14(1)(a) of Direction 79, being “international non-refoulement obligations”: TR [308].

Leave to raise new grounds

Each of the appeal grounds upon which CVRZ sought to rely was, incontestably, new in the sense that none had been raised before the primary judge. The appellant clearly required the Court’s leave to raise them on appeal.

It may be accepted that the Court may grant leave to raise a new ground on appeal where it considers this to be expedient and in the interests of justice. As the Full Court said in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [48], “[t]he Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated”. The Full Court added that, “[w]here, however, there is no adequate explanation for the failure to take the point, and it seems of doubtful merit, leave should generally be refused”. The need to show that the grant of leave is, in the circumstances of the case, expedient and in the interests of justice endeavours to strike an appropriate balance between securing the role of the court at first instance, protecting the integrity of the appellate process, and meeting the needs of justice as understood within the judicial process.

The appellant had legal representation until shortly before the hearing before the primary judge. In our view, there has been no adequate explanation for the failure to raise the three entirely new grounds at that earlier date. Most importantly, for the reasons explained below, it seems to us that the proposed grounds have insufficient merit to justify a grant of leave. In these circumstances, leave to raise them should be refused.

Issues:-

The appellant submitted that there had been a constructive failure by the Tribunal to exercise its jurisdiction because:

(a) contrary to Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 (“Omar”), the Tribunal failed to consider a substantial or significant claim concerning the risk of harm to him if returned to his country of nationality independently of Australia’s non-refoulement obligations, being a claim that was clearly raised by him before the Tribunal;

(b) the Tribunal made two findings of fact that were not open on the evidence before it, being errors that were, relevantly, material to its decision; and

(c) the Tribunal’s decision was legally unreasonable, illogical and irrational as it was dependent on legally erroneous reasoning and involved a failure to engage with relevant evidence before the Tribunal.

Consideration:-

Ground 1 - The Omar ground

It may be accepted that, in conducting a review of a non-revocation decision under s 501CA(4) of the Act, the Tribunal must give meaningful consideration to a clearly articulated and substantial or significant representation concerning the risk of harm to the former visa holder if returned to his country of nationality independently of a claim concerning Australia’s international non-refoulement obligations, and that a failure to do so may give rise to jurisdictional error: see Omar.

Reading the Tribunal’s reasons as a whole, we would not conclude that the Tribunal failed to consider the appellant’s claims concerning the risk of harm that he faced if returned to Zimbabwe independently of his claim concerning Australia’s non-refoulement obligations. We do not consider that the fact that the Tribunal’s reasons include some possibly inapt headings is sufficient to qualify the significance of the substance of the Tribunal’s reasons.

First, the Tribunal’s reasons for its decision  show that the Tribunal understood the effect of the Full Court’s decision in Omar, including its implications for the Tribunal in making its own decision on review of a decision under s 501CA(4)(b)(ii) of the Act.

Secondly, the Tribunal’s reasons demonstrate that the Tribunal acknowledged and understood the appellant’s claims about the risk of harm he faced in Zimbabwe because of his Ndebele ethnicity, affiliation with the MDC, and the time he had spent in Australia. The Tribunal specifically referred to CVRZ’s SFIC, noting that it “contain[ed] ... commentary in relation to [CVRZ’s] fear of harm in the event of his removal to Zimbabwe”. In this context, the Tribunal set out that part of the SFIC that relevantly concerned “the human consequence” for the appellant of his return to Zimbabwe.

Thirdly, the Tribunal’s reasons demonstrate that it assessed CVRZ’s claims about human consequences by reference to the evidentiary material before it. As it happened in CVRZ’s case, this material was not only relevant to those consequences, independently of any international non-refoulement obligations that Australia might owe, but was also relevant to the existence of those international obligations. The result was that the Tribunal’s assessment of the cogency and effect of this particular evidentiary material was relevant not only to the Tribunal’s consideration of whether CVRZ would face the personal risks of harm as he claimed but also whether, as regards CVRZ, Australia owed any international non-refoulement obligations. As Omar indicates, the determination of both these issues might bear on whether CVRZ’s claims gave rise to “another reason” within s 501CA(4)(b)(ii) of the Act as to why the visa cancellation decision should be revoked.

CVRZ failed to satisfy the Tribunal that the relevant evidentiary material supported the case he sought to make about the human consequences for him of return to Zimbabwe such as to provide “another reason”, within the meaning of s 501CA(4)(b)(ii).

Having regard to the way in which this and the non-refoulement claims were made by CVRZ and considered by the Tribunal, the Tribunal did not offend any aspect of Omar, the effect of which the Tribunal clearly recognised. That is, the Tribunal properly considered the evidentiary material relevant to the different claims, concluding first that the factual basis of the human consequences claim was not made out, and secondly, by reference to additional material, that Australia did not owe any non-refoulement obligation with respect to CVRZ.

For the foregoing reasons, the appellant’s first proposed ground has no merit.

Ground 2 - No evidence ground

As will have been seen, this ground turned on the appellant’s submission that there was no probative evidence to support the Tribunal’s statement of its reasons that “[a]s a citizen of [Zimbabwe], [CVRZ] will have access to social, medical and/or economic support in the context of what is generally available to other citizens of Zimbabwe” in so far as that statement related to “economic support”. Paragraph [324] was in the following terms:-

"The Applicant arrived in Australia from Zimbabwe in his mid-20s. There are no significant or substantial language or other cultural barriers to the Applicant’s return and reestablishment in Zimbabwe. As a citizen of that country, he will have access to social, medical and/or economic support in the context of what is generally available to other citizens of Zimbabwe."

A footnote at the end of the second sentence referred to cl 14.5(1)(b) of Direction 79 and another footnote at the end of the last sentence referred to cl 14.5(1)(c).

Reference to the place of [324] in the Tribunal’s reasons and to cl 14.5(1) of Direction 79 supports the view that, notwithstanding the differences noted by the appellant, the last sentence in the above passage was substantially the same in force and effect as the like statement considered in Guclukol. That is, in the last sentence of [324] the Tribunal was not saying that there would be any particular level of economic support available to CVRZ on his return to Zimbabwe. Rather, the Tribunal was doing no more than affirming that the appellant would have access to such economic support as was “generally available to other citizens of Zimbabwe” at the relevant time.

The Full Court in Guclukol saw no difficulty in the Tribunal’s approach with respect to the similar finding in that case. While we accept that each case depends on its particular circumstances, we too can discern no difficulty with the challenged finding in this case; and, indeed, the appellant accepted that part of his argument in support of this ground fell away if we reached this view of the effect of that finding. The present case is relevantly different from Viane in which the Tribunal made the much more specific finding that that Mr Viane and his family would have access to health and welfare services in American Samoa or Samoa although there was no objective evidence about their availability: see Viane.

As we have seen, the appellant’s further submission was that, even if we interpreted the last sentence of [324] in this way, there remained the difficulty that there was no evidence that the appellant would have access to economic support “at the same level as other citizens of Zimbabwe”. As already noted, counsel for the appellant sought to sow the seeds of doubt about this latter proposition by referring to evidence that the appellant might be treated differently because of his ethnic background and his mental health issues. It is relevant to note at this point, however, that the Tribunal rejected the appellant’s analysis of the political situation in Zimbabwe, particularly the appellant’s narrative of its adverse effect on the Ndebele. It should also be borne in mind that, although the DFAT Country Information Report referred to the lack of adequately resourced mental health services and the fact that “many persons with mental health issues suffer from extremely poor living conditions”, there was no suggestion that whatever economic support was generally available to other Zimbabwean citizens was not also available to such people. In any event, what this discussion demonstrates is that the appellant’s submission at this point invites the Court to second guess the merits of the Tribunal’s decision: this would be to pursue a forbidden path, which we cannot do.

Ground 3 - The unreasonableness ground

It must be borne in mind that as French CJ stated in Li:-

"The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker." This principle was mentioned again in Stewart.

In effect, the appellant’s complaint under this ground is about the evaluative judgment made by the Tribunal, which depended on the weight it gave various items of evidence. In this case, it cannot be said that the Tribunal’s evaluation was not reasonably open to it, given that the weight to be given to the evidentiary material is generally a matter for the Tribunal. It was for the Tribunal, within the bounds of legal reasonableness, to weigh the evidence that it considered relevant to the appellant’s employment prospects in Zimbabwe. We are not persuaded that it exceeded those bounds in this case.

For these reasons, there is no merit in proposed ground 3.

Conclusion:-

For the foregoing reasons, we would order that CVRZ’s application for leave to raise grounds 1, 2 and 3 of the further amended notice of appeal be refused, and that the appeal be dismissed, with costs.