BGN16 v Minister for Home Affairs

Federal Court of Australia|2019-02-08|Before: Griffiths J

The appeal be dismissed.
The appellant pay the first respondent's costs, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GRIFFITHS J 1 This is an appeal from a judgment and orders dated 14 September 2018 by the Federal Circuit Court of Australia (FCCA). The judgment is reported as BGN16 v Minister for Immigration and Border Protection [2018] FCCA 2567. The FCCA dismissed the appellant's application for judicial review of a decision by the Administrative Appeals Tribunal (AAT), which affirmed the delegate's decision not to grant her a protection visa.

Summary of background facts 2 The appellant is a citizen of Jordan. Her application dated 15 April 2014 for a protection visa, which was prepared with the assistance of a migration agent, was accompanied by a statement signed by the appellant which set out the basis for her claim for protection. In essence, she claimed to fear persecution because of her Christian faith. She added that the fact that she was a single woman who lived on her own in a small town in a Middle Eastern society added to her "plight". Nowhere in the appellant's application or statement did the appellant explicitly claim to fear persecution because of her membership of a particular social group. The appellant declined an offer to attend the interview with the Department to discuss her protection visa. Her legal representative said that the appellant wanted her application to be assessed based on her written claims because of her "health conditions". Various medical certificates were provided, which included a request by the appellant's doctor that the assessment be done without the appellant's "attendance physically". That report, which the primary judge assumed to be a letter dated 11 October 2014 by the appellant's apparent general practitioner, stated that she suffered from multiple medical conditions, which included major depression and anxiety disorder. Reference was made to the doctor investigating whether the appellant suffered from "possible dementia". 3 As noted above, the appellant sought a review of the delegate's decision to refuse her application for a protection visa. The AAT invited the appellant to appear before it on 29 February 2016 to give evidence and present arguments. The appellant responded to the invitation with a letter dated 19 February 2016, in which she stated that she did not wish to attend the hearing and she asked the AAT to assess her case on the basis of the documents submitted alone. She did not seek an adjournment, nor did she state that she would not attend the hearing because of her health condition. 4 The AAT's reasons for rejecting the appellant's case are adequately summarised at [19] of the primary judge's reasons for judgment (omitting footnotes): 19. The Tribunal proceeded to review the applicant's case. After setting out the claims the applicant made in her application for a Protection visa, and noting that the applicant did not attend an interview with the delegate and declined to attend the hearing before the Tribunal, the Tribunal considered the applicant's claims as follows: a) The information contained in the applicant's written claims for protection was not sufficiently detailed to enable the Tribunal to be satisfied the applicant faces a real chance of persecution for a "Convention reason" in Jordan, or that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Jordan, there is a real risk the applicant will suffer significant harm. b) The Tribunal did not accept the applicant has been harassed, or verbally abused in the streets, or had stones thrown at her house, or that bearded men tried to invade her home and the neighbour had to shoot in the air to scare them away. The Tribunal found that given the seriousness of the incident it is reasonable to expect the applicant would have reported this to the police, but there is no indication the applicant approached the Jordanian security authorities. c) Although there might be isolated incidents involving Christians in Jordan, country information indicates the Jordanian government places security officers outside churches of some Christian denominations which indicates a willingness to provide protection if required. d) Country information does not support the applicant's claims of harassment of Christians. e) There is no country information to support the claim that Christians suffer discrimination in employment. In any event the applicant was employed throughout her working life as a nurse, and now is retired. f) Despite arriving in Australia on 30 June 2013 the applicant did not submit a Protection visa application until 15 April 2014; and this was not indicative of someone who fears serious harm in Jordan. 5 It should be noted that, at [6] of its decision record, the AAT made express reference to the appellant's claim that she had been "harassed, threatened and vilified in her home town" and that this "was exacerbated by the fact that she was a single woman living alone". The AAT also referred to her claims that stones had been thrown on her house and that young fundamentalists swore at her because she did not wear a veil. The appellant's claims that unidentified bearded men had tried to invade her home and that she had stopped wearing a crucifix because of harassment, as well as other claims made by the appellant, were set out in [7] of the AAT's decision record. 6 Having extended time for the appellant to bring her judicial review challenge, the primary judge gave extensive reasons why he rejected each of the appellant's four grounds of judicial review as raised by the second amended application. 7 The first ground, which is fully set out at [29] of the reasons for judgment, raised the question whether the AAT fell into jurisdictional error by not providing the appellant with either a meaningful invitation to participate in the hearing or a meaningful hearing itself. These matters related to the appellant's health issues. 8 The primary judge concluded that ground 1 was neither arguable nor sufficiently arguable for reasons which are set out at [32] to [37] of the reasons for judgment. 9 Ground 2 of the second amended application in the FCCA, which claimed that the AAT fell into jurisdictional error because it failed to consider whether the appellant had a well-founded fear of persecution as a member of a particular social group, was also rejected. The primary judge found that this ground was reasonably arguable after concluding that the appellant had raised a distinct ground based on her being a single woman and living alone in a small town in a Middle Eastern society and that this distinct claim was not dealt with by the AAT. The primary judge's finding that ground 2 was reasonably arguable underpinned his decision to extend time. 10 The primary judge rejected judicial grounds 3 and 4 which related respectively to whether the AAT had acted unreasonably or irrationally, or denied the appellant procedural fairness. Both grounds were found to be unarguable. 11 The primary judge then focused attention on whether ground 2 should be upheld. At [52], the primary judge stated that this issue turned on whether in fact the appellant had made a distinct claim that she feared for her safety because she is a single woman who lived alone in a small town in a Middle Eastern society. The primary judge referred to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 (NABE) and NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 160; 135 FCR 567 as stating the relevant principles as to whether a particular claim has been made. 12 The primary judge referred to the claim in [15] of the appellant's statement that being "a single (sic) and living alone in a small town in a Middle Eastern (sic) Society has also added to my plight". The primary judge noted the following two things about that statement: (a) the context in which it was made, namely the growing intolerance by Islamic fundamentalists of Christians, with specific reference inter alia to the claim that the appellant had been the subject of ridicule and harassment because she wore a cross; and (b) the statement was described as something which "added to" the appellant's plight. 13 Having regard to those two aspects of the statement, the primary judge then concluded at [56]: 56. When these two matters are considered, the applicant's stating that she was a single woman living in a small town in a Middle Eastern Society could reasonably have suggested no more to the Tribunal than that the applicant claimed that her being a single woman living in a small town in a Middle Eastern Society exposed her to greater risk of harm that arose from her being a Christian than to which she would otherwise have been exposed had she been a single woman not living in a small town in a Middle Eastern Society. That claim, however, is necessarily predicated on the applicant's claim that she suffered past harm, and feared future harm, because she is a Christian. It could not reasonably have been viewed by the Tribunal as raising a separate claim based on the applicant's being a single woman living in a small town in a Middle Eastern Society, divorced from the claim that she has a well-founded feared harm because she is a Christian. The Tribunal considered but did not accept the applicant's claim that she had a well-founded fear of harm because she was a Christian. Having not accepted that claim, the Tribunal necessarily did not accept the applicant's claim that her plight, which could only be taken to have been a plight based on her claim she was a Christian, was added to because she is a single woman living in a small town in a Middle Eastern Society. 14 For these reasons, although extending time for the appellant to make her judicial review application, the Court dismissed the proceeding after determining that the only arguable ground, namely ground 2, failed.

Notice of appeal 15 The appellant was represented by counsel. Her original grounds of appeal were set out in an annexure to the notice of appeal. Originally, there were four grounds, however, grounds 1(a) and (b), 3 and 4 were abandoned prior to the hearing of the appeal. Accordingly, it is necessary only to set out in ground 1(c) and ground 2 (without alteration): Ground 1 The learned primary Judge erred in failing to find that the Tribunal made jurisdictional error in that the Tribunal breached s425, s427 and s428 by not providing (a) a meaningful invitation to the hearing; and/or (b) a meaningful hearing to the applicant … (c) His Honour erred by finding that at [35] that the medical and other evidence before the Tribunal could not reasonably have suggested to it that the applicant's deciding not to attend the hearing was due to some medical or mental impairment, rather than to a genuine and informed consent Ground 2 The learned primary Judge erred in failing to find that the Tribunal made jurisdictional error in that it failed to consider if the applicant has well-founded fear of persecution as a member of a particular social group Particulars (a) At [56] his Honour appears to mis-chracterise the issue. his Honour started with the correct issue as stated below: the applicant's stating that she was a single woman living in a small town in a Middle Eastern Society could reasonably have suggested no more to the Tribunal than that the applicant claimed that her being a single woman living in a small town in a Middle Eastern Society exposed her to greater risk of harm [than] that arose from her being a [just a] Christian But then erred by adding: than to which she would otherwise have been exposed had she been a single woman not living in a small town in a Middle Eastern Society.

(a) The appellant's submissions 16 The essence of ground 2 is that the primary judge failed to find that the AAT fell into jurisdictional error in failing to consider if the appellant has a well-founded fear of persecution as a member of a particular social group because it did not consider that she would be persecuted as a Christian, single woman, living alone in a small town in a Middle Eastern society. The appellant contrasted the AAT's reasons with those of the delegate, who found that "the Convention grounds of religion and membership of a particular social group (Jordanian women; Jordanian single women; Jordanian single Christian women) are the essential and significant reasons for the harm feared as outlined in subdivision AL of the Migration Act". 17 The appellant pointed to various paragraphs in her written statement in support of her protection visa application in which she set out her claim ([12], [16], [20], [23], [29] and [31]) and not just in [15], where she referred to being a single person living alone in a small town in a Middle Eastern society. 18 The appellant submitted that the primary judge's mischaracterisation of her claim is evident in [56] of his Honour's reasons for judgment (see [13] above). The error was said to be contained in the part of that paragraph where the primary judge used the comparator "than to which she would otherwise have been exposed had she been a single woman not living in a small town in a Middle Eastern Society". The appellant submitted that this description was just one of a possible combination of the following various factors: (a) a single woman, (b) living alone, (c) in a small town, and (d) in a Middle Eastern Society, which made her situation worse than other Christians. 19 The appellant submitted that the primary judge erred in not recognising that her claim was not that she had a well-founded fear of harm simply because she was a Christian. This was the way in which the AAT erroneously described her claim. Rather, she said that her claim was based on her membership of a narrower social group. 20 The appellant relied upon Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 (Dranichnikov), where the Refugee Review Tribunal viewed the relevant social group as "businessmen in Russia", whereas the relevant group was in fact businessmen who publicly criticised and sought reform of the law enforcement authorities so as to prevent crime in Vladivostok and to protect Russian businessmen who protested. 21 The appellant submitted that it was insufficient for the AAT merely to address a broader claim relating to her Christianity and not deal with the specific claim she made which focused on several characteristics which were present in her case. In particular, the appellant submitted that the AAT failed to consider that, as a single woman living alone, if she reported any incidents to the police she would be subjected to revenge attacks and her situation would only become worse because there was no one to protect her. 22 The appellant cited NABE at [53] and [63], in support of her claim that the AAT failed to respond to the case as advanced by her and the primary judge also erred by not accepting that contention. 23 In support of ground 1(c), the appellant submitted that the AAT's invitation to attend the hearing was not a "genuine" invitation because the AAT should have been aware of the appellant's mental health problems. Moreover, she submitted that it was legally unreasonable for the AAT not to use its power under s 428 to reschedule the hearing or appoint a person such as a psychologist to take the appellant's evidence. She submitted that s 426A did not prevent the AAT from taking such a course. The appellant cited Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li).

(b) The Minister's submissions 24 In respect of ground 2, the Minister submitted that the AAT did not fail to consider the appellant's claims as advanced expressly by her or which squarely arose on the material before the AAT. The Minister emphasised that the appellant claimed to fear harm because she was a Christian. It was because she was a Christian that she claimed that she had been targeted previously and feared that she would be targeted in the future. She did not claim that she was at risk of harm for being a member of a particular subset of Christians. Rather, her references to the fact that she was single and lived alone in a Middle Eastern society were particular attributes of her circumstances which added to her plight. Those characteristics were not, however, the reasons why the appellant claimed that she had been targeted or feared that she would be targeted in the future. 25 The Minister also submitted that Dranichnikov is distinguishable. That is because the protection visa applicant there had been found to be a credible witness by the AAT, who accepted that he was a businessman and had suffered the violence claimed by him. The AAT's error there lay in its finding that it was not satisfied that businessmen in Russia were a cognisable particular social group for the purposes of the Refugees Convention. That is to be contrasted with the circumstances here, where the appellant failed to appear at the AAT hearing, meaning that it was unable to be satisfied of her claims even before turning to consider the Convention-basis of the harm she claimed to fear. The Minister submitted that this approach was consistent with cases such as MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632 at [18], [25] and [26] per Finkelstein J (MZXDQ); SZJRU v Minister for Immigration and Citizenship [2009] FCA 315 at [49]-[50] per Besanko J and SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 (SZNOE) at [78] per Greenwood J. 26 The Minister made submissions as to why ground 1(c) should be rejected. They are substantially reflected in my reasons below.

Consideration and determination 27 For the following reasons, the appeal should be dismissed. 28 The AAT made a clear finding at [14] that the information provided by the appellant in support of her application was not sufficiently detailed to enable the AAT to be satisfied that she faced a real chance of persecution for a Convention reason in Jordan. The AAT also made a positive finding at [15] that it did not accept that the appellant had been harassed, vilified, threatened or verbally abused etc. Those findings provided a sufficient basis to dismiss that aspect of the appellant's review application. It was not necessary for the AAT to consider whether the appellant was at a risk of persecution for a Convention-reason, such as because she is a Christian, and/or a single woman who lived alone in a small town in a Middle Eastern society. That is because, where "the factual findings relating to one asserted basis for protection necessarily and inevitably denied any other basis for protection", it was not necessary for the AAT to go further (see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [95] per McHugh, Gummow and Hayne JJ). As Greenwood J said in SZNOE at [78]: 78. Further, as Burnett FM correctly notes, there is clear authority for the proposition that the principles exposed by Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 do not require the Tribunal to consider whether the particular social group of which the appellant claims to be a member (either expressly or implicitly by reason of the material) is a "social group" for the purposes of Art 1A(2) of the Refugees Convention (and the Act), in circumstances where the Tribunal has found that the appellant does not hold a well-founded fear of persecution as contemplated by s 91R(1) of the Act for any Convention reason (MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632 at [18], [25] and [29] per Finkelstein J; SZJRU v Minister for Immigration and Citizenship [2009] FCA 315 at [49]- [50] per Besanko J; and BRGAE of 2008 v Minister for Immigration and Citizenship [2009] FCA 543 at [21]-[25]). Unless the Tribunal makes a jurisdictional error, on the question of fact of whether the applicant holds a well-founded fear of persecution for any one of the contended reasons, no jurisdictional error arises by the mere failure to indentify (sic) and consider the precise social group to which the applicant claims membership. 29 These principles apply here. As noted above, the AAT found that the written information provided by the appellant in her protection visa application was not sufficiently detailed to enable the AAT to be satisfied that she faces a real chance of persecution for a Convention reason in Jordan or that her case attracted complementary protection. Because the appellant declined to be interviewed by either the Department or the AAT, the AAT was confined to considering her review application on the basis of the written material before it. The AAT considered the appellant's claims of risk of persecution and rejected them. Having rejected the appellant's claim at that level, it was unnecessary for the AAT to descend into a greater level of particularity and to respond to any claim by the appellant that she was a member of a particular social group. 30 The appellant's case is different from that in Dranichnikov. As is evident from the reasons for judgment of Gummow and Callinan JJ at [18], the delegate determined the protection visa application on the basis that the visa applicant there was claiming that he belonged to a particular social group, namely businessmen who organised anti-crime meetings and spoke out in public against the inability of relevant authorities to defeat crime. The Tribunal's error was that it rejected the protection visa application on a different and erroneous basis, namely that the applicant was claiming to be a member of a broader social group, namely Russian entrepreneurs and/or businessmen. 31 As Finkelstein J stated in MZXDQ at [25], it is entirely proper to avoid identifying the appropriate "particular social group" if it is unnecessary to do so and Dranichnikov does not demand otherwise. Having regard to the AAT's rejection of the appellant's claim that there was a real chance that she would be persecuted, there was no need for the AAT to address the test set out in Dranichnikov. 32 Ground 1(c), which was only faintly pressed, is also rejected. The AAT was obliged by s 425 of the Act to invite the appellant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Such an invitation was extended, but the appellant declined to accept it. There is no basis for the appellant's contention that the invitation was not "genuine". 33 The AAT's decision to proceed to make a decision on the review notwithstanding the appellant's non-appearance was well open to it under s 426A(1). It may be accepted that the AAT had a discretion under s 426A(2) to reschedule the hearing but it was not legally unreasonable within the Li sense for it to proceed as it did in circumstances where: (a) the appellant made no application for the AAT to exercise that power; and (b) the appellant provided the AAT with no explanation for her decision not to attend the hearing and, instead, urged the AAT to determine the matter on the papers (bearing also in mind that the appellant had representation). 34 For similar reasons, the appellant has failed to establish legal unreasonableness in respect of the AAT proceeding as it did and not use its power under s 428 so as to appoint a psychologist to take the appellant's evidence. No such request was ever made by the appellant and she provided no explanation to the AAT for her decision not to attend the hearing as conveyed in her letter dated 19 February 2016. 35 No appealable error has been established in relation to the primary judge's finding at [35].

Conclusion 36 For these reasons, the appeal will be dismissed, with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

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