GPC18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The first applicant be appointed as litigation representative of his third applicant minor daughter and for that purpose the rules in Part 9, Division 9.6 of the Federal Court Rules 2011 (Cth) be varied or dispensed with as necessary.
2. Paragraph 3 of the affidavit of the first applicant affirmed 19 September 2019 be treated as an application for leave to appeal.
3. The notice of appeal filed on 23 September 2019 and paragraphs 4 to 7 of the affidavit of the first applicant affirmed 19 September 2019 be treated as a draft notice of appeal.
4. The application for leave to appeal be dismissed.
5. The first applicant and the second applicant, being the adult applicants, pay the first respondent's costs as assessed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

(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.