FXF18 v Minister for Immigration and Multicultural Affairs

1. The appeal be dismissed.
2. The interlocutory applications filed 9 July 2024 and 17 July 2024 be dismissed.
3. The appellants pay the first respondent's costs of the appeal and of the interlocutory applications.
4. The name of the first respondent be amended to read "Minister for Immigration and Multicultural Affairs". Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JACKMAN J: 1 By way of a notice of appeal filed on 6 June 2024, the appellants appeal a judgment of the Federal Circuit and Family Court of Australia delivered on 27 May 2024: FXF18 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 475 (the substantive FXF18 judgment). The primary judge dismissed the appellants' application for judicial review of a decision of the second respondent (the Tribunal) not to grant the appellants protection visas. The notice of appeal states that the appellants also seek to appeal from a number of other orders and judgments. The first respondent (the Minister) has filed a notice of objection to competency in relation to the purported appeal from those decisions. 2 When the matter was called this morning, there was no appearance by the appellants. My associate was informed by the Melbourne Registry that the first appellant was present in the Melbourne Registry, although my associate's attempts to find out more about the whereabouts of the first appellant have not been successful. Last week, my associate sent an email to the parties indicating that if any party wished to appear remotely, then that party would be able to do so, and provided a link for the purpose. Another email was sent this morning to the same effect. That opportunity has not been taken up by the appellants. The Minister is represented today by Mr Reilly of counsel. An interpreter is also present for the benefit of the appellants, and the Court is grateful to the interpreter for having made himself available today. 3 The appellants are mother (the first appellant) and daughter (the second appellant). They are citizens of the Russian Federation. The first appellant first entered Australia on 26 April 2013 as the holder of a tourist visa. She most recently entered Australia on 5 April 2014 as the holder of a tourist visa, together with the second appellant. The first appellant applied for a protection visa on or about 2 May 2014. The first appellant claimed to fear harm in Russia because of her bisexuality, her political activities, and her Jewish religion. 4 The second appellant entered Australia on 5 April 2014 on a tourist visa. She applied for protection on or about 2 May 2014. The second appellant claimed to fear harm by way of bullying at school owing to her mother's claimed circumstances and her Jewish religion. She further claimed that she had been threatened with separation from her mother and forced to sign a false statement, and that she was perceived to be different because of her mother's circumstances. 5 On 24 February 2016, a delegate of the Minister refused the second appellant's visa application. On 23 March 2016, the second appellant sought review in the Tribunal. 6 On 23 June 2016, a delegate of the Minister refused the first appellant's visa application. On 20 July 2016, the first appellant sought review in the Tribunal. The second appellant was included in the application to the Tribunal. 7 The second appellant's Tribunal hearing was rescheduled twice at her request. However, the second appellant did not attend the rescheduled hearing on 5 December 2017. The Tribunal dismissed her application under s 426A(1)(b) of the Migration Act 1958 (Cth) (the Act) on that date. The second appellant sought reinstatement of her review application, and the Tribunal granted that application on or about 21 December 2017. In her application for reinstatement, the second appellant relevantly requested that her and her mother's files "be processed and dealt with as two cases". 8 Both appellants attended a hearing in the second appellant's review on 1 February 2018, and both gave evidence. They also attended a hearing jointly on 27 July 2018, and again both gave evidence. The appellants submitted a large amount of documentary material to the Tribunal. On 15 October 2018, the Tribunal affirmed the decision of the delegate and issued one decision with respect to both applicants. 9 With respect to the first appellant, the Tribunal did not accept that she genuinely identified as a Jew. The Tribunal found that she had not suffered persecution for reason of having adopted a Jewish name. While she may be imputed in Russia to be Jewish, the Tribunal gave weight to independent reporting of a decrease in anti-Semitism in Russia and the reported lack of anti-Semitic violence there in recent years. The Tribunal was not satisfied that the first appellant faced a real chance of persecution in Russia in the reasonably foreseeable future for reason of her actual or imputed Jewish identification or identity: [110]. 10 The Tribunal accepted that the first appellant was anti-Putin and sided with his opposition and that this was in part due to her opposition to legislation banning LGBTI propaganda in Russia: [111]. The Tribunal also accepted that the first appellant had attended a particular protest in May 2012 and her subjective fear arising from this event had caused her to be reluctant to participate publicly in manifestations of opposition to the Putin regime. 11 However, the Tribunal found that the first appellant was not of interest to the Russian authorities. The Tribunal was satisfied that the first appellant was able to continue to express her political opinion and solidarity with other opponents of Putin in Russia without facing a real chance of serious or significant harm: [112]. 12 The Tribunal accepted that the first appellant had had relationships with other women and that there may have been a sexual aspect to those relationships. The Tribunal was prepared to accept that she genuinely identified as bisexual: [114]. The Tribunal found that the law in Russia allowed the first appellant to engage in consensual sexual relations with other adult women. She had not been persecuted by the State for such relations, and the Tribunal was not satisfied that there was a real chance of the first appellant being persecuted by the authorities for reason of her bisexuality or imputed lesbianism in the reasonably foreseeable future: [121]. 13 With respect to the second appellant, the Tribunal accepted that she genuinely identified as a Jew and that she would be imputed in Russian society as being Jewish. The Tribunal accepted that she was bullied at school in Ivanovo. The Tribunal gave weight to various matters, including the localised nature of the bullying, the second appellant's nearing adulthood, the development of the Jewish community in Ivanovo, and certain country information. The Tribunal found that the second appellant was free to worship as a Jew in Russia and to engage in related studies, traditions and activities. The Tribunal was not satisfied that the second appellant faced a real chance of being persecuted in Russia in the reasonably foreseeable future for reason of her Jewish identity: [134]. 14 The Tribunal was not satisfied that the second appellant faced a real chance of persecution in Russia in the reasonably foreseeable future for separate or cumulative reasons of having attended LGBTI events in Norway, Sweden, Denmark, Australia or anywhere outside of Russia: [137]. The Tribunal accepted that the second appellant had a highly developed sense of justice and a genuine interest in the protection and advancement of human rights. It accepted that she would be genuinely inclined to manifest her opposition to the Putin regime by joining demonstrations in Russia such as were demonstrably permitted by the authorities, albeit under somewhat overregulated conditions, and by involving herself with local and foreign-sourced non-government organisations: [138]. 15 The Tribunal found that whereas new laws in Russia unfairly discredit foreign-funded and even partially foreign-funded Non-Governmental Organisations (NGOs) in the public domain as "foreign agents", and whereas such laws were arguably harsh and discriminatory, the Tribunal was not satisfied on the evidence before it that their implementation would give rise to a real chance that the second appellant, in the event of joining an NGO in Russia, would be persecuted: [139]. The Tribunal was not satisfied that the second appellant faced a real chance of persecution in Russia in the reasonably foreseeable future for reason of her political opinions: [140]. 16 On 13 November 2018, the appellants filed an application for judicial review in the (then) Federal Circuit Court of Australia. On 22 July 2019 and 19 April 2023, the appellants filed amended applications. The matter proceeded to a hearing on 19 April 2023. On 16 May 2023, the appellants filed two applications in the proceedings. On 15 August 2023, the matter proceeded to an interlocutory hearing on those applications. On 18 August 2023, the primary judge delivered a written judgment and made orders dismissing the applications with costs: FXF18 v Minister for Immigration, Citizenship & Multicultural Affairs [2023] FedCFamC2G 729 (interlocutory FXF18 judgment). 17 On 5 September 2023, the appellants filed an application for an extension of time and leave to appeal in the Federal Court. On 24 May 2024, Halley J delivered judgment and made orders granting an extension of time for the appellants to file an application for leave to appeal, and dismissing the application for leave to appeal with costs: FXF18 v Minister for Immigration, Citizenship & Multicultural Affairs [2024] FCA 549 (FXF18 FCA judgment). 18 On 27 May 2024, the primary judge delivered written judgment and made orders dismissing the substantive application with costs, that being the substantive FXF18 judgment to which I have referred above. 19 The application for judicial review of the Tribunal's decision raised a single ground of appeal which had been prepared by qualified legal practitioners, namely that the Tribunal erred by constructively failing to exercise jurisdiction. This was expressed in the particulars as being based on the proposition that the Tribunal did not properly consider or make clear findings on three matters. The first was why it was said to be "mere bald speculation" that the second applicant would publicly engage in human rights activism in Russia but for the fear of being persecuted. The primary judge at [62]-[67] reviewed in detail the reasons of the Tribunal and the material before the Tribunal and found ample logical and evidential bases for that finding. In essence, the Tribunal reasoned that because she had not actively engaged in human rights activism in Australia (beyond being amenable to accompanying her mother to certain events), the second applicant was unlikely to do so in Russia. 20 The second matter was why laws which discredit foreign-funded NGOs in the public domain as "foreign agents" would not result in persecution towards the second applicant in the event that she were to join an NGO in Russia. The primary judge again reviewed the Tribunal's decision. The primary judge accepted at [78] that the second applicant's socially-minded values may be at odds with the Putin regime such that she might attend permitted demonstrations in Russia or even involve herself with an NGO, but said that the Tribunal understood the difference between the characterisation of the NGOs and the treatment of its members. 21 The third matter was whether anti-propaganda laws in Russia would operate such that they would have a discriminatory impact on the second applicant. The primary judge at [69]-[74] reviewed the relevant country information summarised by the Tribunal, which the applicants' argument had mischaracterised, but which the Tribunal was found to have properly understood. 22 Accordingly, the primary judge was not satisfied that the errors contended for by the applicants were made out, and the applicants had failed to establish jurisdictional error by the Tribunal. 23 On 6 June 2024, the appellants filed a notice of appeal which runs for some 42 pages. The appellants filed an interlocutory application on 9 July 2024, and filed a second interlocutory application on or about 17 July 2024. 24 The notice of appeal states that the appellants seek to appeal against the following decisions: the judgment of Halley J of 24 May 2024, the judgment of Halley J of 16 May 2024, the judgment of Judge Given of 18 August 2023, the judgment of Judge Given dated 27 May 2024, the judgment of Judge Given dated 19 April 2023, and the judgment of Judge Given dated 15 August 2023. The Minister accepts that the proposed appeal is competent in relation to the substantive FXF18 judgment. That concession is well made. However, for the reasons set out in the Minister's notice of objection to competency filed on 18 June 2024, the Minister submits, and I accept, that the Court does not have jurisdiction to hear an appeal from any of the other decisions pursuant to s 24 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). 25 In relation to the FXF18 FCA judgment, that was a judgment dismissing the appellants' application for an extension of time and leave to appeal from the judgment of Judge Given delivered on 18 August 2023. The aspect of that judgment concerning the application for an extension of time is interlocutory in nature and thus cannot be brought without the grant of leave to appeal, which has not been sought, pursuant to s 24(1A) of the FCA Act. In relation to the aspect of Halley J's FXF18 FCA judgment concerning leave to appeal from the judgment of Judge Given, there is no ability to appeal from a decision concerning leave to appeal made by a single judge: Reid v Nairn (1985) 60 ALR 419 at 421 (Fox and Forster JJ), 426 (McGregor J); Thomas Borthwick & Sons (Pacific Holdings) Limited v Trade Practices Commission (1988) 18 FCR 424 at 433 (Bowen CJ, Lockhart and Sheppard JJ); Hamod v New South Wales [2002] FCA 424; (2002) 188 ALR 659 at [15] (Gray, Carr and Goldberg JJ). 26 In relation to the judgment of Halley J on 16 May 2024, which granted the first appellant's application to file additional submissions and affidavit evidence, followed by a substantive judgment on 24 May 2024, those matters were also interlocutory in nature and thus required leave to appeal pursuant to s 24(1A) of the FCA Act. 27 The judgment of Judge Given dated 18 August 2023 was interlocutory in nature within the meaning of s 24(1A) of the FCA Act, and has already been subject to an application for an extension of time and leave to appeal that was determined in the FXF18 FCA judgment. 28 On 19 April 2023 and 15 August 2023, Judge Given made interlocutory orders within the meaning of s 24(1A) of the FCA Act, and those matters accordingly require leave to appeal. 29 The Minister submits that most of the assertions in the very lengthy notice of appeal do not give rise to any appellable error in the substantive FXF18 judgment. The matters raised by the appellants in their notice of appeal that could conceivably be regarded as being relevant to this appeal are as follows. 30 In the first place, the appellants raise issues with the interpreter and allegations of bias against the primary judge, as well as concerns regarding her Honour's competency to hear the application. Both of these matters were traversed in the application for an extension of time and leave to appeal filed in the Federal Court and heard by Halley J. For the reasons set out at [66]-[71], [86]-[95] and [111]-[118] of the FXF18 FCA judgment, these contentions cannot succeed. 31 The next matter is an allegation of breach of natural justice and errors of law and fact by her Honour as follows: (a) at page 15 of the notice of appeal, the appellants contend that the case was handled without proper consultation or communication with the first appellant, and that her Honour discussed mostly procedural forms which were irrelevant to the main issues; (b) the appellants contend that her Honour did not adequately consider the legal documents and affidavits; (c) at page 16 of the notice of appeal, the appellants contend that the first hearing before Judge Given was marred with irrelevant considerations; (d) at page 19 of the notice of appeal, the appellants contend that her Honour prevented the second appellant from speaking and made orders limiting submissions to two pages; (e) the appellants further contend that they asked for additional time to speak for themselves after their pro bono barrister resigned, and they were asked no questions by her Honour; (f) refusing the appellants leave to rely on the proposed further amended application filed on 19 April 2023 was an error; (g) failure to take into account relevant legal criteria and misapplying the principles of administrative and constitutional law; and (h) failure to consider relevant facts and evidence presented by the appellants. 32 In relation to these contentions, there is no error in how the primary judge dealt with the application in the substantive FXF18 judgment, and it is plain that her Honour considered all relevant material. As Halley J noted in the FXF18 FCA judgment at [92]: "on no view was the primary judge required to review submissions or evidence that was irrelevant to a judicial review application". 33 The next matter contended for by the appellants is the form of the costs order, and in particular the imposition of unspecified costs. This contention appears to take issue with order 2 of the orders of the primary judge dated 18 August 2023 and order 3 of the orders made by the primary judge on 27 May 2024, that costs be agreed or taxed. Pursuant to subrule 22.02(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), in making a costs order, the Court may set the method by which costs are to be calculated and refer the costs for taxation under Part 40 of the Federal Court Rules. Accordingly, the costs orders were open to the primary judge to make. 34 The next matter is an alleged lack of legal representation. In fact, the appellants were legally represented by counsel at the hearing, as noted at [35] of the substantive FXF18 judgment. In any event, even if the contention were factually correct, this would not give rise to any appellable error. 35 The next matter is a contention that barriers were put in the appellants' way for the filing of documents electronically. In fact, the appellants filed a number of documents in the Federal Circuit and Family Court proceedings, including a number of affidavits, amended applications and two applications in the proceeding. This contention cannot succeed. 36 The final matter concerns errors by the Tribunal of the following alleged kinds: (a) interviews were conducted without legal representation; (b) an illegal religious test was imposed; and (c) it was unfair for the Tribunal to rely on the word of a child of age 14. 37 In relation to these matters, the appellants are raising new grounds which were not raised in the court below. Accordingly, the appellants require leave to rely on those grounds: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48] (Kiefel, Weinberg and Stone JJ). In that case, it was held at [49] that where "there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused". 38 In relation to the first of the contentions set out above, it is not clear to me which interviews are being referred to. If the proposition is that the Tribunal hearings were conducted without legal representation, a person appearing before the Tribunal to give evidence is not entitled to be represented before the Tribunal by any other person, as set out in s 427(6)(a) of the Act: AFD16 v Minister for Immigration and Border Protection [2020] FCA 964 at [111]-[117] (Perry J). In any event, there is no evidence that the appellants sought to be assisted by a legal representative at the Tribunal hearings but were refused that opportunity. 39 In relation to the second of the contentions, namely that the Tribunal conducted an illegal religious test, this may be a reference to the fact that the Tribunal was not satisfied that the first appellant genuinely identified as a Jew and gave some weight to the first appellant giving her evidence at the Tribunal under an oath on the Bible (at [110]). Where an applicant applies for a protection visa on the ground of a well-founded fear of persecution by reason of religion, it is permissible for the Tribunal to explore the level of his or her knowledge and understanding of the religion: SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at [45] (French, Lander and Besanko JJ). Further, the Tribunal considered whether the first appellant would face harm for reasons of her actual or imputed Jewish identification or identity. Accordingly, no error arises. 40 In relation to the third of the contentions, namely that it was unfair for the Tribunal to rely on the word of a child of age 14, this contention is at odds with the fact that the second appellant was 16 years old when she attended the first Tribunal hearing on 1 February 2018 and 17 years old when she attended the second Tribunal hearing on 27 July 2018. The contention seems to suggest that it was problematic for the Tribunal to rely on the evidence of the second appellant, who was under 18 years old at the time. The second appellant's mother, being the first appellant, was also in attendance at both hearings. Further, the Tribunal accepted most of the second appellant's claims but found that those claims did not give rise to a real chance of harm. Accordingly, there was no error in the Tribunal relying on the evidence of the second appellant. 41 The appellants' contentions do not give rise to any error, and leave to rely on these contentions should be refused. 42 As to the appellants' interlocutory applications filed on 9 July 2024 (of some 21 pages) and the other dated 17 July 2024, the Minister opposes the orders sought on the basis that the Court does not have power to make a number of the orders and that the orders sought are irrelevant. To the extent that the orders sought are worthy of comment, my reasons for dismissing the interlocutory applications are as follows. 43 In relation to the order sought to have the case moved to Canberra, I note that the appellants filed the notice of appeal in the NSW District Registry and their address for service is in Sydney. There is no basis shown for the matter being moved to the Canberra Registry. The Minister indicated consent to the appellants appearing via video if they requested it, but that opportunity has not been taken up by them, despite my associate sending emails last week and again this morning reminding the appellants that they have the capacity to appear remotely if they so desired and providing them with the relevant link. 44 In relation to the order sought to have the matter referred to a Full Court, I do not consider the matter is appropriate for a Full Court. In particular, this matter does not raise an issue of statutory construction or a general principle of law that warrants consideration by a Full Court. 45 In relation to the order sought that names instead of numbers or pseudonyms be used, the appellants are taking issue with the use of pseudonyms in the proceeding, which is mandated by s 91X of the Act. Pursuant to that provision, the Federal Court must not publish the person's name if the proceeding relates to a person in the person's capacity as a person who applied for a protection visa. Accordingly, the appellants' names must not be published. 46 Finally, concerns are raised about a perception of apparent bias against me hearing the case. However, the notice of appeal and the written submissions do not articulate any proper basis for any concern in that regard. 47 The interlocutory application of 9 July 2024 also raises a contention concerning the Tribunal combining the appellants' cases without their consent and a contention concerning the Tribunal not applying the Convention on the Rights of the Child. These contentions were not raised in the court below, and accordingly the appellants require leave to rely on these contentions, which I would not be prepared to grant if it were sought. 48 In relation to the first of those contentions, namely that the Tribunal combined the appellants' cases, in the first appellant's protection visa application, she listed the second appellant as a person included in the application. In a letter from the second appellant to the Tribunal on 11 December 2017, she stated that she wanted her and the first appellant's files to be processed and dealt with as two cases. However, both appellants appeared and gave evidence at both hearings, as noted at paras 7 and 9 of the Tribunal decision. While the Tribunal wrote one decision, it is clear that it separately considered and made findings on each of the appellants' claims and only considered claims together to the extent that the claims overlapped. Accordingly, there was no error in the Tribunal making one decision in the above circumstances. 49 In relation to the second contention, namely that the Tribunal did not consider the Conventions on the Rights of the Child, the Tribunal considered and applied the relevant law as set out in the Act. It is well established that the Tribunal is not required to take into account unenacted treaty obligations: Azaff v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 176 at [69]-[72] (Collier, Farrell and Abraham JJ). 50 Accordingly, the interlocutory applications and the appeal should be dismissed with costs. The orders which I make are therefore as follows: (1) The appeal be dismissed. (2) The interlocutory applications filed 9 July 2024 and 17 July 2024 be dismissed. (3) The appellants pay the first respondent's costs of the appeal and of the interlocutory applications. (4) The name of the first respondent be amended to read "Minister for Immigration and Multicultural Affairs". I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman.