AAO20 v Minister for Immigration, Citizenship and Multicultural Affairs

1. The name of the first respondent be amended to "Minister for Immigration, Citizenship and Multicultural Affairs".
2. The appeal be dismissed.
3. The appellant pay the first respondent's costs fixed in the amount of $4,000. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 This is an appeal from orders made by a judge of the Federal Circuit Court of Australia, now Division 2 of the Federal Circuit and Family Court of Australia, dismissing an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent, now the Minister for Immigration, Citizenship and Multicultural Affairs, to refuse to grant the appellant a Protection (Class XA) (Subclass XA-866) visa. 2 The primary judge summarised the appellant's background as follows, omitting court book references: [3] The relevant background to the Judicial Review Application is as follows: (a) the applicant was born in Cameroon. He belongs to the Bamileke ethnic group, is of the Catholic faith and a Francophone. His partner, children and a sister live in Cameroon. He has a brother living in Perth and another brother living in Gabon; (b) the applicant's brother living in Perth was granted a protection visa on review by the then Refugee Review Tribunal ("RRT"); (c) the applicant's claims for protection arise from his alleged involvement with an opposition political party in Cameroon - the Social Democratic Front ("SDF''). He says he attended an SDF initiated anti-government protest in 2008 ("2008 Protest") where he says he was assaulted. He fled Cameroon after the 2008 Protest, initially living in Gabon until travelling to Australia; (d) the applicant's relevant migration history is that: (i) in October 2013, before arriving in Australia, he applied offshore for a Global Special Humanitarian Visa (XB202) which was refused in January 2015; (ii) he arrived in Australia on 24 October 2016 on a Temporary Work (GA-400) Invited Participant visa on the basis that he would be competing in the World Masters Athletics Championships in Perth; and (iii) he applied for the Protection Visa on 21 November 2016; (e) on 25 July 2018 the applicant was invited by the Minister to attend an interview on 16 August 2018 to discuss his claims; (f) the Delegate's Decision was made on 16 November 2018. The Delegate found the applicant's claims to fear harm for the reasons he had provided were not credible. Importantly, the Delegate: (i) did not accept that the applicant was a member or former member of SDF; (ii) did not accept that the applicant attended or was injured in the 2008 Protest; (iii) did not accept that the applicant had provided genuine documents to support his SDF affiliation and persecution. The documents referred to were an SDF membership card, correspondence titled "Attestation of Activist" and a police summons from 2008; and (iv) did not accept that the applicant holds fears for his safety because of his political opinion; (g) on 26 November 2018 the applicant applied to the Tribunal for review of the Delegate's Decision; (h) on 26 September 2019 the Tribunal invited the applicant to attend a hearing on 14 November 2019; (i) on 6 November 2019 the applicant sent materials to the Tribunal relating to the 2008 Protest and danger in Cameroon generally; (j) the applicant attended the hearing before the Tribunal on 14 November 2019 ("Tribunal Hearing"); and (k) the Tribunal Decision was handed down on 12 December 2019. 3 The grounds of review before the primary judge were as follows: [1] The tribunal denied me procedural fairness. [2] The tribunal committed an error of law. [3] Proper consideration of country information. I will provide further particulars. 4 The first two grounds were overt grounds in the appellant's application for judicial review. The third ground was in the "orders sought" part of that application, which the primary judge considered constituted a third ground of review. 5 The appellant, who was not legally represented before the primary judge or in this Court, made no submissions at all in relation to ground 1, and did not identify any specific error in relation to ground 2. In relation to ground 3, at the hearing before his Honour, the appellant submitted that country information he provided proved the way people are treated in Cameroon. 6 The primary judge summarised the submissions by the Minister and then considered each ground of review concisely, but in some detail, concluding that none of them was made out. In doing so, his Honour considered the Tribunal's decision and process in some detail, and: (a) was satisfied that the Tribunal did deny the appellant procedural fairness as alleged by the first judicial review ground; (b) did not consider that any jurisdictional error arose as alleged by the second judicial review ground; and (c) carefully considered how the Tribunal had addressed the country information before it, including the country information furnished by the appellant, and found no jurisdictional error as suggested by the third judicial review ground. 7 The notice of appeal contains the following two grounds, neither of which suggest any error on the part of the primary judge, as opposed to the Tribunal: [1] The Tribunal made a jurisdictional error because it did not consider my case properly. [2] The Tribunal did not properly consider Country information. 8 The appellant's submissions on his appeal comprises a polite letter to me, which essentially asks me to consider his predicament and his capacity to contribute to Australia. No error on the part of the primary judge is suggested, much less identified. As I explained to the appellant, I have no power even to consider granting him a visa, with my role essentially being confined to determining whether there had been an error on the part of his Honour, which may sometimes extend to errors on the part of the Tribunal that were not raised in the judicial review application process. 9 The Minister furnished written submissions addressing concisely, but in some detail, the appellant's background, the Tribunal decision, the proceedings before the primary judge and this appeal. As to the two grounds of appeal, the Minister submits: [25] Ground one does not make any complaint about the primary judge's reasons and does not reflect any of the challenges the appellant made about the Tribunal's decision in the Court below nor does the ground have sufficient detail to be capable of being responded to in a meaningful way. On that basis alone they should be dismissed (WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35], cited with approval by the Full Court of the Federal Court in NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37]). [26] Ground two repeats the challenge made in the additional ground in the Court below. The appellant has made no attempt to explain how the primary judge erred in rejecting the ground at first instance. That is not an appropriate use of the Federal Court's appellate jurisdiction because "trials are not dress rehearsals for appeals": SZTHU v Minister for Immigration and Border Protection [2016] FCA 219 at [30]. In any event, the primary judge's reasons for rejecting the additional ground at first instance were free from error such that ground two of the appeal should be refused. [27] Accordingly, and in circumstances where no error arises in the decision of the primary judge or Tribunal, the first respondent respectfully submits that the appeal ought to be dismissed with costs. 10 I agree with the Minister that the first ground of appeal does not identify any link to the grounds of judicial review advanced before the primary judge, nor meaningfully advance any error on the part of the Tribunal that might have been discernible to his Honour. As the Full Court (Perram, Derrington and Stewart JJ) pointed out in NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37], leading to the rejection of a like ground of appeal: Ground 1 of the application for review - un-particularised error This ground was an unparticularised assertion of error in the decision of the AAT. Due to the vagueness of the application for review and the applicant's failure to file submissions, the Court is unable to ascertain what error was alleged to have been made by the AAT. The applicant was unable to articulate this ground any further during the course of the hearing. The failure to particularise a ground of review is itself a sufficient basis to dismiss it: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 [35]; SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 [21]. Moreover, the reasons of the AAT have been set out in detail above and there is nothing which suggests the existence of a jurisdictional error in the cogent reasons of the Deputy President. The Deputy President considered each of the applicant's claims, his findings were open on the evidence, and those findings demonstrated an evident, transparent and intelligible justification for the decision to affirm the delegate's decision: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 350 - 351 [26] - [28]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, 445 - 446 [44]. 11 The first ground of appeal is in the same situation as that ground of appeal in NWWJ. It follows that the first ground of appeal must fail. 12 I also agree with the Minister that the second ground of appeal repeats the challenge made in the third ground of judicial review before the primary judge, with no attempt being made by the appellant to explain how the primary judge erred in rejecting it. However, the Minister's reference to SZTHU v Minister for Immigration and Border Protection [2016] FCA 219 at [30] is inapposite. Justice Rares in SZTHU was addressing a situation in which a new ground was being raised for the first time on appeal, not a ground that had already been advanced, but for which no error was identified. 13 The second aspect of the Minister's submission holds good, because I am satisfied that the primary judge's reasons for rejecting the third judicial review ground were both comprehensive and free from any apparent error. It follows that the second ground of appeal must fail. 14 As both grounds of appeal have failed, the appeal must be dismissed with costs. 15 The Minister seeks a lump sum costs order of $4,000, upon the basis that it is considerably less than the amount that can be claimed in a short form bill for an appeal involving a migration decision that is dismissed after a hearing, being $7,241 under item 15.2 in Schedule 3 of the Federal Court Rules 2011 (Cth) [now $7,965]; and submits that this sum is reasonable and proportionate to the nature of the case, including its complexity, citing Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506; 290 ALR 288 (Kenny J) at [18]: The starting point for the fixing of costs is the charges rendered by the applicant's solicitors: Beach Petroleum at FCR 124; ALR 165 and Hamod v New South Wales [2011] NSWCA 375 at [820] per Beazley JA (with whom Giles and Whealy JJA agreed). The sum of costs fixed should also be proportionate to the nature, including the complexity, of the case: see Canvas Graphics Pty Ltd v Kodak (A'asia) Ptd Ltd [1998] FCA 23. As Beazley JA said in Hamod, at [820], citing, among others, Beach Petroleum at FCR 123; ALR 164: [820] The approach taken to estimate the costs to be ordered must be logical, fair and reasonable … This may involve an impressionistic discount of the costs actually incurred or estimated, in order to take into account the contingencies that would be relevant in any formal costs assessment … [Citations omitted.] 16 The Minister also relies upon the Court having a broad discretion in relation to costs, including being permitted to fix costs in appropriate cases, such as the present, citing BAX16 v Minister for Immigration and Border Protection [2018] FCA 181, where Griffiths J made the following apposite observations: [29] In his written outline of submissions filed shortly before the hearing of the appeal, the Minister sought an order that the appellant pay his costs fixed in the sum of $6,439. The Minister relied upon Item 15.1(d) to Sch 3 of the Federal Court Rules 2011 (Cth) (2011 FCRs). The Court's power to make an order for costs in a lump sum is to be found in r 40.02 of the 2011 FCRs. The Court has a broad discretion whether or not to make a lump-sum costs order, as is reflected in authorities such as Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority (No 2) [2014] FCA 444; 315 ALR 131 per Mortimer J and Saizeriya Co Ltd v Peregrine Management Group Pty Ltd [2005] FCA 1174 per Kenny J. There is also a relevant Practice Note - GPN-COSTS, which contains a section on lump-sum costs orders. [30] There is a specific provision in r 40.43 of the 2011 FCRs which addresses a short form bill in a migration appeal, such as the present proceedings. The effect of this provision is that, if such a proceeding is finalised after a final hearing, the successful party may claim as costs and disbursements of the appeal the amount set out in item 15.1(d) of Sch 3 to 2011 FCRs. That is what the first respondent seeks here. I am satisfied that such an order should be made, noting that a similar approach was recently taken by White J in DSR16 v Minister for Immigration and Border Protection [2018] FCA 154. 17 I adopt those observations by Griffiths J in BAX16, and am satisfied that it is appropriate to make the fixed costs order that the Minister seeks. 18 The appeal will be dismissed with an order that the appellant pay the Minister's costs fixed in the sum of $4,000. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.