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[2020] FCA 297
Federal Court of Australia
2020-02-19
Bromwich J
Original judgment source is linked above.
(Revised from transcript) BROMWICH J: 1 This is a proceeding by which unsuccessful applicants for protection visas seek to overturn a decision of a judge of the Federal Circuit Court of Australia to summarily dismiss their application for judicial review. That application followed a decision of the second respondent, the Administrative Appeals Tribunal, to affirm a decision of a delegate of a Minister responsible for the administration of the Migration Act 1958 (Cth), now known as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. 2 The visa applicants are a family from Indonesia, being a husband/father, a wife/mother, and their daughter who is now 11 years of age. They were granted tourist visas on 15 June 2015, and came to Australia on 2 July 2015. After their tourist visas expired on 3 August 2015, they ultimately lodged valid protection visa applications on 21 September 2015. All of the protection visa claims arise from the claimed political activities of the husband. No claims independent of those arising from the activities of the husband were made by the wife or daughter. On 10 December 2015, the delegate refused to grant the protection visas sought. 3 On 7 December 2018, the Tribunal affirmed the delegate's decision, following a hearing on 26 June 2018 at which both adult visa applicants gave evidence. In short, the Tribunal was not satisfied that there was any credible information furnished by the husband or the wife that established the claims upon which the protection visa applications depended. This meant that the refugee criteria were not met and there was nothing factually left for the complementary protection criteria to be met. 4 The proceeding has been commenced in this court by way of a purported notice of appeal. Because the primary judge decided to summarily dismiss the application for judicial review at a show cause hearing on 9 September 2019, which is an interlocutory process, the visa applicants required leave to appeal. The Minister therefore filed a notice of objection to the competency of the purported appeal. The husband affirmed an affidavit on 19 September 2019 by which he sought leave to appeal. The Minister quite properly did not object to this Court treating paragraph 3 of that affidavit as constituting an application for leave to appeal, and paragraphs 4 to 7 of that affidavit and the filed notice of appeal as a draft notice of appeal. Indeed, the Minister's written submissions effectively and prudently were expressed in terms that facilitated that pragmatic approach. 5 Also, prior to the hearing before the primary judge, a registrar appointed the first applicant husband as the litigation guardian of his third applicant daughter. Prior to the commencement of the application for leave to appeal in this Court, I made similar orders appointing the first applicant husband as the litigation representative of his third applicant daughter under Part 9, Division 9.6 of the Federal Court Rules 2011 (Cth), varying or dispensing with such rules in Division 9.6 as are necessary to facilitate that appointment. Prior to doing so, I ascertained from the first applicant husband that he consented to that appointment and confirmed that he has no interest in the proceeding adverse to the interest of his daughter. 6 It is convenient to refer to the first applicant husband in these reasons simply as the applicant. 7 The primary judge concisely summarised the applicant's claims in support of the grant of protection visas as follows (at [5]): The first applicant claimed that he left Indonesia as he became the target of political supporters of President Joko Widodo, after they accused him of betraying the President. The second applicant claimed that she worked as a midwife and that the applicants resided in government housing. She claimed that after the first applicant withdrew his support for the President, supporters of President Widodo came to the applicants' home under the pretence that they were seeking medicine from the second applicant. When the supporters were granted access to the applicants' home, the supporters attempted to strangle the first applicant and stamped on him, causing a back injury. The third applicant witnessed this attack and was traumatised by it. The applicants also claimed that this attack was reported to the police and the second applicant's employer, however no firm action was taken by the police in relation to the alleged attack. 8 Prior to turning to the pleaded grounds of review, the primary judge considered and rejected additional claims made orally and in writing as follows: (1) his Honour found that a claim that the Federal Circuit Court should give the applicants the "benefit of the doubt" may have been misdirected, viewed that as a proposition that the Tribunal should have given them that benefit, but noted that the Tribunal was in no doubt about the lack of credibility of the applicants' claims so as to give rise to that principle in refugee law; (2) his Honour found that a claim that complimentary protection had not been considered was not made out, because, having rejected the factual assertions upon which all claims were based, the Tribunal effectively found there was nothing else for the complementary protection claims to bear upon. 9 The grounds of review before the primary judge asserted that the Tribunal failed to comply with s 424 of the Migration Act (review ground 1) and that the Tribunal made a jurisdictional error by reason of taking irrelevant factors into consideration and failed to give proper consideration to the applicant's circumstances (review ground 2). 10 As to review ground 1, s 424 provides that "the Tribunal may get any information it considers relevant", but "must have regard to that information". The primary judge identified the information that the Tribunal obtained and identified where and how regard was had to that information in the Tribunal's reasons. His Honour therefore concluded that the requirements of s 424 had been met. 11 For more abundant caution, the primary judge also considered whether s 424A of the Migration Act had been complied with. That section required the Tribunal to give a merits review applicant "clear particulars of any information that the Tribunal considers would be the reason, or part of the reason", for affirming the delegate's decision. His Honour found that this obligation was complied with by way of a letter sent to the applicants on 12 July 2018. 12 As to the first aspect of review ground 2 (irrelevant considerations), no particulars were provided as to what the applicants were referring to. The primary judge considered what might have been intended to be referred to, namely a visitor visa file that suggested that in the months before coming to Australia, the adult applicants had been able live and work in a place in East Java and send their third applicant daughter to school there. The Tribunal considered this may have been relevant to the conclusion that none of the applicants were at risk of harm at that place and also cast doubt on claims that they had relocated to avoid harm. His Honour considered this information was therefore relevant. Similar reasoning and conclusions were reached as to the Tribunal considering whether prior applications for visitor visas suggested that there may have been other motivations for travelling to Australia. These prior applications reinforced the concerns that the Tribunal had as to the truth of the claims made. His Honour therefore considered this material was also relevant. 13 As to the second aspect of review ground 2 (failure to give proper consideration to the applicant's circumstances), the primary judge referred to the Tribunal's summary of, and consideration of, the applicants' claims, and found there was nothing to indicate a claim had not been considered. 14 The primary judge was not satisfied that any arguable case for jurisdictional error had been identified and therefore summarily dismissed the application for judicial review, with costs. 15 The discretion to grant leave to appeal in s 24(1A) of the Federal Court of Australia Act 1976 (Cth) is unfettered: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399 per the Court. However the Full Court in Decor at 398-399 accepted a line of authority as to the general guidance to be applied and which a court should normally accept in the exercise of the discretion. That guidance comes down to two tests: (1) first, "whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered" on appeal; and (2) secondly, "whether substantial injustice would result if the leave were refused," supposing the impugned decision to be wrong. 16 Those two tests are not in separate compartments, but are cumulative and also bear on each other, so that the degree of doubt which is sufficient in one case may be different from that required in another: Decor p 399, quoting Burchett J in Sharp v Deputy Commissioner of Taxation (Cth) (1988) 88 ATC 4184 at 4186. "There will continue to be cases raising special considerations, and accordingly a court should not regard its hands as tied" by the guidance in the two tests: Decor at p 399. No special consideration has been suggested as applying to this case, and none is apparent. 17 The grounds of appeal in the notice of appeal, treated as a draft notice of appeal, are as follows: The Court below made a jurisdictional error in dismissing the appeal from the Administrative Appeal Tribunal who failed to uphold the notion of procedural fairness in the process of making its decision in relation to his application for a protection visa. This decision evidently constitutes a breach of natural justice. Particulars a. Section 24 of the Federal Court of Australia Act 1976 (Cth) gives the Federal Court the power to hear appeals from the Federal Circuit Court. Further, the jurisdiction conferred by Section 5 of the Administrative Decisions (Judicial Review) Act 1977 allows the Federal Court of Australia to hear the appellant's appeal. b. Under paragraph 31 of the Decision of the Federal Circuit Court, it was stated: "To the extent that is put forward to support a proposition that the Tribunal did not consider complementary protection separately, the short answer is that, having rejected the applicant's factual claims, there was nothing else for the complementary protection assessment to bear upon". However, we respectfully submit that the criterion in Section 36(2)(aa) referred to as "complementary protection", being additional to Australia's obligations under the 1951 Convention relating to Refugee. It applies to non-citizens in Australia other than a non-citizen mentioned in paragraph (a). Hence, it can only be met once the decision maker is satisfied that the non-citizen is not a person in respect of whom Australia has protection obligations as a refugee in accordance with Section 36(2)(a) of the Migration Act. This constitutes a jurisdictional error. (errors in original). 18 Additionally, in his 19 September 2019 affidavit, treated as part of a draft notice of appeal, the applicant states (at [4]-[7]): By way of background, the main issues concern the doctrines of procedural fairness and natural justice. I am aggrieved because the Administrative Appeals Tribunal erred in its finding of facts I will not be harmed by the relevant parties if I am returned to my home country. I believe the Federal Circuit Court have erred in its decision to dismiss my appeal as I was not given a fair opportunity to present my case. I feel that I have not been fairly treated and have been denied access of procedural fairness. (errors in original). 19 The Minister furnished and relied upon written submissions addressing the draft grounds identified in the applicant's affidavit and in the (draft) notice of appeal. 20 On the day before the hearing of the application, the applicant filed written submissions which address particular (b) in the (draft) notice of appeal, concerning the Tribunal's treatment of complementary protection as follows (at [13]-[17]): The applicants claimed before the Tribunal that they had a well-founded fear of persecution because they were the target of political supporters of Indonesian President, Joko Widodo, after they accused him of betraying President Widodo and should be afforded complementary protection. The Federal Circuit Court (hereafter FCC) however, found the applicants not to be a credible witness and much of the evidence they have advanced in support of their protection claims were not accepted and that the applicants should not be afforded complementary protection assessment. We respectfully submit that the FCC erred in refusing to consider complementary protection. In relation to the applicant's claims, the FCC concluded that the applicant will not be harmed if they return to their Country of origin, however this was done without properly examining their circumstances, hence a jurisdictional error. After considering the applicant's claims against the refugee criterion, the decision-maker must, before drawing a conclusion, consider the claims relevant to the complimentary protection regime, and leave alive a basis for applying the complementary protection criterion, against the criterion in s.36(2)(aa). The FCC's refusal to apply complementary protection criteria to the applicant's case constitutes a jurisdictional error. In light of the above evidence, it is open to this court to conclude that the Federal Circuit Court erred in making this finding. (errors in original). 21 The applicant, speaking on behalf of all three applicants, adverted orally to the merits of the protection visa applications before the Tribunal, and took issue with the factual findings that were made, but did not otherwise make any oral submissions. 22 The Minister supplemented his written submissions by drawing the Court's attention to two additional decisions: SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; 138 ALD 26. These decisions bear upon the need for any detailed separate consideration of complementary protection in circumstances in which the factual substratum satisfying Refugees Convention-based criteria for a protection visa has been found to be absent. I return to those cases below. 23 The Minister's written submissions conveniently categorise and then address each of the proposed grounds identified in the applicant's affidavit and in the draft notice of appeal. The proposed grounds as so categorised are as follows: (a) that the Federal Circuit Court erred in its finding on the Tribunal's assessment [relating to] complementary protection; (b) that the Tribunal denied the applicants procedural fairness; (c) that the Federal Circuit Court did not give the applicants a fair opportunity to present their case, and that therefore there was a denial of procedural fairness; and (d) that the Tribunal erred in its findings of [fact] that the applicants will not be harmed by the relevant parties if they return to their home country.
Proposed ground 1 - alleged failure to address complementary protection 24 The Minister submits that: the Tribunal did make a separate finding on complementary protection at [59] to [60] and it was open to the Tribunal to find at [60] that there were no claims on which it could assess complementary protection in circumstances where the Tribunal rejected the applicants' claims for protection based on adverse credibility findings. Accordingly, the [Minister] submits that the primary judge did not err in finding that there was nothing else for the complementary protection assessment to bear upon … . 25 The Tribunal made the following findings as to refugee status and as to complementary protection (at [58]-[60], citations omitted): The Tribunal has considered each of the applicants' claims singularly and cumulatively. On the evidence before it, the Tribunal is not satisfied that there is a real chance that any of the applicants will be subject to serious harm or significant harm at the hands of supporters of Widodo or any other persons or groups in Indonesia if they return to Indonesia now or in the reasonably foreseeable future. The Tribunal finds that there is not a real chance that any of the applicants will be persecuted for any reason (including race, religion, nationality, membership of a particular social group or political opinion) if they return to Indonesia. The applicants' claimed fear of persecution is not well-founded as required by s.5J of the Act. Therefore the applicants are not refugees within the meaning of s.5H.Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the complementary protection criteria in s.36(2)(aa). In MIAC v SZQRB, the Full Federal Court held that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear' in relation to the 'refugee' criterion. 'Significant harm' is exhaustively defined in s.36(2A) and s.5(1) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of life, the death penalty will be carried out, or the person will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. 'Torture', 'cruel or inhuman treatment or punishment' and 'degrading treatment or punishment' require intentionally inflicted severe mental or physical pain and suffering or extreme humiliation. The Tribunal has found that the applicants' claims are not credible. Having regard to the evidence before it and its findings of fact, the Tribunal does not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed to Indonesia, there is a real risk they will suffer significant harm as defined in the Act for any reason. The Tribunal finds, based on the evidence before it, that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Indonesia there is a real risk that any of the applicants will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicants are persons to whom Australia has protection obligations under s.36(2)(aa). 26 The primary judge made the following findings as to the Tribunal's treatment of complementary protection (at [31]): In their written submissions, the applicants take issue with [60] of the Tribunal decision, being its complementary protection assessment. To the extent that that is put forward to support a proposition that the Tribunal did not consider complementary protection separately, the short answer is that, having rejected the applicants' factual claims, there was nothing else for the complementary protection assessment to bear upon. 27 In SZSGA, cited with approval by the Full Court in SZSHK at [35], Robertson J made the following observations (at [55]-[56]): I reject the appellant's submission that the Tribunal's "dealings" with the complementary protection claim was "bound up" in Refugee Convention-related thinking. In the paragraphs I have set out, the Tribunal did specifically address the complementary protection claim by reference to the language of the statute and by reference to its particular findings of fact. There is in my opinion no jurisdictional error in the Tribunal referring to its previous findings of fact in this case as the claim under the complementary protection provisions as articulated could not survive those findings of fact that there were no relevant loans and therefore no threats of the nature claimed by the appellant and no factual basis for the appellant's other claims. 28 Those observations are equally apposite in this case. The Tribunal in this case did much the same thing. While the primary judge's treatment of this topic was brief, it was adequate for the task at hand. Once the applicant's factual claims were not accepted by the Tribunal, there was no separate material to which the criteria for complementary protection could apply. There was no occasion for the lesser criteria for complementary protection to apply when refugee claims fell short of what was required in this case. The primary judge's decision is not attended with any doubt, let alone sufficient doubt, to warrant it being reconsidered on appeal and nothing has been identified to indicate that any injustice would result upon leave being refused even if that was not so, let alone substantial injustice. Leave to appeal on proposed ground 1 must be refused.
Proposed ground 2 - alleged denial of procedural fairness in the Tribunal 29 To the extent that the applicants may be understood as re-agitating the errors asserted before the primary judge concerning s 424 or s 424A of the Migration Act, no error has been suggested, let alone arguably raised. The statutory regime for procedural fairness was apparently observed. No other basis for asserting any denial of procedural fairness by the Tribunal has been identified. It is evident that the applicants take issue with the fairness of the outcome as they see it, rather than taking any real issue with the fairness of the process by which that outcome was reached. In those circumstances, it is neither necessary nor appropriate to endeavour to identify some other hidden basis for any denial of procedural fairness when none is apparent. Again, no arguable case has been established for the grant of leave to appeal on this proposed ground because it has not been demonstrated that the primary judge's decision is attended with any doubt, let alone sufficient doubt, to warrant it being reconsidered on appeal and nothing has been identified to indicate that any injustice would result upon leave being refused if that was not correct, let alone substantial injustice. Leave to appeal on proposed ground 2 must be refused.
Proposed ground 3 - alleged denial of procedural fairness in the Federal Circuit Court 30 In the absence of any particulars, this ground appears to take issue with the summary show cause process applied to the application for judicial review before the primary judge. As the Minister points out, "[u]nlike the Tribunal, the Federal Circuit Court proceeding is not subject to an exhaustive statutory prescription of the natural justice hearing rule". Rather, the general law applied, with the rules of procedural fairness being flexible but generally requiring a decision-maker to afford a person an opportunity to be heard before making a decision affecting their interests. This took place because the applicants were given the following opportunities: (1) to file an amended application months after the date the original application was first filed, an opportunity which was not taken up; (2) to read in advance of the hearing the Minister's submissions, and have these submissions translated to the adult applicants prior to the hearing with the assistance of an interpreter; (3) to file written submissions 10 days out of time which raised new assertions that were not in the application, and which were accepted by the primary judge despite the matter being listed for a show cause hearing and the applicants, strictly speaking, being confined to the grounds mentioned in the application pursuant to r 44.13 of the Federal Circuit Court Rules 2001 (Cth); (4) to make oral submissions which raised further issues not raised in the written application, with the assistance of an interpreter; (5) to hear the Minister's oral submissions, with the assistance of an interpreter; and (6) to make oral submissions in reply to the Minister's oral submissions, with the assistance of an interpreter. 31 No case has been advanced which suggests any foundation for there having been any denial of procedural fairness on the part of the primary judge or of the Federal Circuit Court. There is simply no basis for a grant of leave to appeal on proposed ground 3.
Proposed ground 4 - alleged error in finding that the applicants would not be harmed 32 This ground does not rise above a bare assertion of factual error. It does not in terms suggest any jurisdictional error on the part of the Tribunal, nor any error on the part of the primary judge. Again, there is simply no basis whatever for a grant of leave to appeal on proposed ground 4.
Conclusion 33 As no aspect of the primary judge's decision is attended with any doubt, let alone sufficient doubt to warrant it being reconsidered on appeal, and no other arguably appealable error or conduct has been identified, and no injustice in refusing leave has been identified, the application for leave to appeal must be refused. The adult applicants must pay the Minister's costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.
GPC18
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs