PXYJ v Minister for Home Affairs

Should leave be given to raise grounds 2 to 5? 12 Leave is required to raise these grounds on appeal. 13 The Court must be satisfied that it is expedient and in the interests of justice for arguments which were not before the primary judge to be considered for the first time on appeal: O'Brien and Others v Komesaroff (1982) 150 CLR 310 at 319; [1982] HCA 33. 14 Matters to be considered were summarised in Sun and Others v Minister for Immigration and Border Protection and Another (2016) 243 FCR 220 at [89]-[92] (Flick and Rangiah JJ); [2016] FCAFC 52 and in Murad v Assistant Minister for Immigration and Border Protection (2017) 250 FCR 510 at [19] (Griffiths and Perry JJ); [2017] FCAFC 73. 15 Further, if a review ground is raised for the first time on appeal and leave is given to raise the point and the ground succeeds, then it is to be borne in mind that a consequence may be that the respondent is denied a right to appeal because any further appeal lies only by grant of special leave by the High Court: AAM15 and Others v Minister for Immigration and Border Protection and Another (2015) 231 FCR 452 at [14]; [2015] FCA 804 and SZUGL v Minister for Immigration and Border Protection [2015] FCA 868 at [18]. 16 In a case such as the present which may have serious consequences for children who are not parties and claims are made about the risk of harm to a person if removed to another country, the nature of the claim is a matter to be brought to account in considering the interests of justice. However, the fact that the appeal grounds were abandoned by counsel before the primary judge weighs strongly against the grant of leave. There has been no explanation proffered as to why, despite the considered position of counsel, the grounds abandoned below should now be considered. The grounds do not particularise error in the reasons of the primary judge. Rather, they advance general complaints in a form that was abandoned before the primary judge. Nothing has been advanced to demonstrate that the grounds have merit. The structure and integrity of the appellant process is an important factor in deciding whether it is expedient and in the interests of justice to allow a ground to be raised which was not argued below. 17 In the above circumstances, we refuse leave to raise the appeal grounds to the extent that they raise new matters and will deal with them only to the extent that they may be viewed as dealing with matters considered by the primary judge.

Did the primary judge make a jurisdictional error by not finding that the tribunal made a jurisdictional error by not giving primary weight to the best interests of the appellant's children? 18 For the reasons which follow, ground 1 is not made out. 19 The ground is in nearly identical terms to the terms in which the appellant finally put the equivalent ground in his written submissions to the primary judge, as may be seen from [16] of the primary judge's judgment. 20 The Tribunal, and the primary judge, noted that Direction 65 was relevant to the Tribunal's decision-making. Clause 11 made the following considerations primary considerations relevant to the question before the Tribunal: Protection of the Australian community from criminal or other serious conduct. The best interests of the minor children. The expectations of the Australian community. 21 The primary judge, at [18], expressly noted [105] and [106] of the Tribunal's reasons. The appellant suggested those paragraphs indicated a failure by the Tribunal properly to consider the best interests of minor children in Australia. 22 Those paragraphs reasoned as follows: 105. The Tribunal acknowledges that [the applicant's] wife will be in a difficult position should [the applicant] be deported. She will be the sole parent of two young children and will be solely responsible for providing for them. She will inevitably struggle. 106. On the evidence before it, the Tribunal finds that this factor weighs in favour of the Tribunal granting [the applicant] his [Partner] visa. It does not, however, outweigh the two primary considerations detailed above in relation to the safety and expectations of the Australian community. In that regard, the Tribunal notes that [the applicant's] wife does have the option of working and there is nothing to suggest that she doesn't intend to do so in the future. She also has the support of other family here, including at least one sister and brother. While life will inevitably be difficult initially for her and her children, any hardship cannot outweigh the very serious concerns for the safety of the Australian community arising from [the applicant's] very serious sexual offending against a minor and the risk of future offending. (Emphasis added by the primary judge.) 23 The primary judge noted that by referring to only two primary considerations, the Tribunal seemed to have overlooked the fact that cl 11 lays down three primary considerations. 24 The primary judge also noted the appellant's observation that the two primary considerations analysis also appeared to be contained in [113] of the Tribunal's reasons. At [20] of his reasons, the primary judge set out [113] (with his emphasis added): There are considerations that weigh in [the applicant's] favour. These include the negative consequences of his deportation on his minor children and wife. These considerations do not, however, outweigh the two primary considerations detailed above in relation to the safety and expectations of the Australian community. While life will inevitably be difficult initially for [the applicant's] wife and children, this does not outweigh the Tribunal's concerns for the safety of the Australian community arising from [the applicant's] serious sexual offending against a minor and the risk of his offending in the future. On balance, the primary considerations referred to above, which should generally be given more weight, outweigh these other considerations. (Emphasis added by the primary judge.) 25 The primary judge noted the appellant's argument that, while the Tribunal made an implicit finding about the best interests of his two children, it did not in fact treat it as a primary consideration. Rather, it treated the wife and children compendiously, as if they were a subsidiary consideration under cl 12.2 of Direction 65 concerning the "Impact on family members". 26 The primary judge, at [23], noted the appellant's contention that, at [74] of the Tribunal's reasons, there was no mention of the evidence of the appellant being a "good father", which had been noted elsewhere by the Tribunal, for example at [57] of its reasons. And that was despite cl 11.2(4)(b) of Direction 65 specifically requiring the Tribunal to consider under the "best interests of minor children", "the extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18)". 27 At [25], the primary judge noted the appellant's further contention that the Tribunal's failure to advert to the fact that the appellant's children were both Australian citizens was also an omission of significance in the context of considering the children's best interests. 28 After reference to authority, the primary judge properly observed that it must be remembered that the reasons of an administrative decision-maker are intended to inform and not be scrutinised by an overzealous eye attuned to error, as stated in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 272; [1996] HCA 6. The primary judge said that consistent with those requirements, it was important not to simply examine a summary conclusion, as at [113] of the Tribunal's reasons, without also taking into account the process of analysis in the course of quite extensive reasons. 29 The primary judge noted that in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133; [2001] FCA 568, a Full Court of this Court found jurisdictional error by reason of the failure by the decision-maker to give proper, genuine and realistic consideration to the mandatory primary consideration of the best interest of the child or children. However his Honour noted this case before him stood in marked contrast to Wan. 30 The primary judge expressly noted that, at [36] and [37] of the Tribunal's reasons, the Tribunal in this case expressly set out the three primary considerations and referred to the need to address each of them. 31 His Honour then noted that, at [74], the Tribunal stated: 74. The Tribunal agrees with this assessment [by the Minister's delegate]. On the evidence presented, the Tribunal accepts that it is in the best interests of [the applicant's] children for the decision to refuse [the applicant] a [Partner] visa to be set aside. This conclusion weighs in [the applicant's] favour. It is noted, however, that pursuant to paragraph 8(5) of Direction No 65, one or more of the primary considerations may outweigh other primary considerations. Here, the Tribunal finds that although the best interests of [the applicant's] children is indeed a consideration that weighs in favour of setting aside the decision to refuse [the applicant] a [Partner] visa, this consideration is outweighed by the other primary considerations. While it is certainly the case that [the applicant's] children will suffer to some extent if their father returns to India, there is no evidence that they will not be able to maintain contact with him if this happens. Nor is it evident that their mother will not be able to fulfil necessary parenting duties. Overall, and importantly, any disruption or negative consequences here do not outweigh the concerns raised above by the Tribunal about the risk of continuing sexual and psychological harm to the Australian community (in particular vulnerable children) if [the applicant] is granted a visa and allowed to stay in the Australian community. (Emphasis added by the primary judge.) 32 His Honour thus concluded, at [32]-[35], of his reasons, that: 32 There is no reason to conclude in this case that by reference to 'outweigh' the Tribunal was treating the best interests of the children as anything other than a primary consideration. On a fair reading, the reference to 'other' expressly includes the interests of the children as a primary consideration. 33 Consistently with this, the summary conclusion (at [113]) of the Tribunal's decision reflects the finding (at [74]), which in substance was that of the three primary considerations, the consideration of the best interests of the child was, in the circumstances of the particular case, outweighed by the other two primary considerations. 34 As to the fact that the children were Australian citizens, this is expressly recorded in the delegate's Statement of Reasons for Refusal (at [15]), which is set out (at [73]) of the Tribunal's decision and is a fact expressly agreed to by the Tribunal. The children's citizenship status is also repeated again in the Tribunal's decision (at [100]), citing the Minister's Statement of Facts, Issues and Contentions. 35 Having cited the matter twice, there is no reason to think that the Tribunal failed to take this issue into account. 33 We agree with the analysis made by the primary judge. On a fair reading of the reasons of the Tribunal, it is plain that the Tribunal did not misconstrue the task it was bound to undertake, having regard to Direction 65, and it plainly had regard to the best interests of the appellant's minor children in Australia and weighed that consideration against the other two considerations listed in cl 11. The Tribunal ultimately concluded, in light of that weighing exercise, that the appellant's application before the Tribunal could not succeed. 34 There is nothing in the reasoning of the primary judge to indicate that his Honour erred in coming to the conclusion that he came to. 35 In these circumstances, ground 1 of the notice of appeal fails.

Did the primary judge err by failing to find that the tribunal's decision was affected by apprehended and/or actual bias? 36 As may be seen from the three grounds that were advanced on the judicial review application before the primary judge, the question of bias - actual or apprehended - was not raised. 37 Indeed, ground 2, as now formulated, reflects ground 2 of the original notice of appeal before the primary judge which was amended to delete that ground. 38 We agree with the submissions of the Minister that, in the circumstances, that ground was abandoned in the Court below. 39 We refer to our reasons above concerning the question of leave. We can see no basis upon which leave should be given to now advance this ground of appeal. 40 In these circumstances, we would refuse leave to rely on ground 2.

Did the primary judge err by failing to make a finding that the Tribunal failed to take into account relevant considerations or relied on irrelevant considerations? 41 No grounds that reflect these grounds of the appeal were argued before the primary judge. Rather grounds 3 and 4 substantially reflect grounds 3 and 4 of the original notice of appeal in the Court below. 42 There is merit in the Minister's contention that these grounds were abandoned in the proceeding below and leave to advance them on this appeal is required. We refer to our reasons above concerning the grant of leave. No sufficient basis has been advanced by the appellant as to why leave should be granted to argue these grounds. 43 To the extent that, by these grounds the appellant intends to contend that the primary judge erred for these reasons in finding that neither grounds 2 or 3 of the grounds of review before him were not established, we do not consider that they are made out. 44 There is nothing in the way in which the primary judge dealt with ground 1 of the judicial review application before him, which we have just traversed in dealing with ground 1 of this appeal, to suggest that the primary judge should have made a finding that the Tribunal failed to take into account relevant considerations or relied on irrelevant considerations when it made its decision. 45 The primary judge reasonably found that the Tribunal had regard to the primary considerations set out in cl 11 of Direction 65. 46 Ground 2 of the judicial review application, as expressed in written submissions before the primary judge, asked the question whether the Tribunal had misunderstood its discretion under s 501(1) of the Act when directing itself that the appellant had to establish "an objectively well-founded fear of persecution, if he were returned to India now, or in the reasonably foreseeable future". 47 The appellant, before the primary judge, pointed to [96] of the Tribunal's reasons, which was in the following terms: The Tribunal, therefore, finds that [the applicant's] claims that he will face harm in India, taken at their highest, do not reach the level that they would constitute an objectively well-founded fear of persecution if he were returned to India now, or in the reasonably foreseeable future. 48 By reference to what the majority of the Full Court (Bromberg and Mortimer JJ) had said in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 at [48]-[49]; [2017] FCAFC 96, the appellant submitted that what the Tribunal said at [96] embodied a misunderstanding of the nature of the discretion. 49 His Honour noted, at [40], what the majority had relevantly said in BCR16, namely: 48. We also accept the appellant's submissions that the circumstances in which consideration of non-refoulement occurs are quite different as between an exercise of the revocation power in s 501CA(4) and an exercise of power under s 65 of the Migration Act. The revocation power is discretionary, and the risk of significant harm to the appellant in Lebanon (whether for a Convention reason or otherwise, both may be relevant) would be a matter to be weighed in the balance by the Assistant Minister. That returning an individual to a country where there is a real possibility of significant harm, or a real chance of persecution, may contravene Australia's non-refoulement obligations, is also a matter to be weighed in the balance of deciding whether to revoke a mandatory visa cancellation. Its place in an exercise of discretionary power is quite distinct, and is capable of playing a quite different role in the exercise of the statutory discretion. 49. In contrast, both in terms of text and of authority, s 65 involves a qualitatively different exercise. In the task required by s 65, the Minister or his delegates are to be 'satisfied' of certain criteria, some of which, if considered, may involve assessing the risk of harm to a visa applicant if returned to her or his country of nationality. The delegate, or the Minister, may or may not be 'satisfied' to the requisite level about the existence of any such risk, or about its nature or quality. Non-satisfaction requires refusal of the visa. In the discretionary exercise for which s 501CA(4) calls, as we point out elsewhere in these reasons, the nature and quality of the risks which can permissibly be considered are much broader, and are not restricted to the risks comprehended by s 36(2)(a) and (aa). In the process for the exercise of the s 501CA(4) discretion, the Minister or his delegate is able to give greater weight to a small risk, if on the material the decision-maker reasonably determines that is justified. Such is the nature of a discretionary power. It is quite distinct from the task in s 65. (Emphasis added by the primary judge.) 50 At [41], the primary judge expressly noted the way the appellant formulated his argument on this second ground of judicial review, namely: (1) although the Tribunal referred to BCR16, the Tribunal misunderstood its effect; and (2) there is no meaningful distinction for present purposes between the discretion to revoke a cancellation under s 501CA(4) and the discretion to refuse under s 501(1) of the Act. 51 At [42], his Honour noted that it was important to examine other passages in the Tribunal's reasons in order to assess this ground. He then referred to [84], [90]-[92] and [96], which were in the following terms: 84. Until recently, the Tribunal would have found that, because of his ability to apply for a Protection visa, the Tribunal was not required to assess any non-refoulement obligations owed to [the applicant]. It was generally accepted that because Direction No. 65 specifically states that it is not necessary to determine a non-refoulement issue in circumstances where an applicant can apply for a Protection visa, the Tribunal would normally rely on any non-refoulement assessment being made by another body specifically charged with determining the validity of a Protection visa claim. … 90. [The applicant] claims that he holds a well-founded fear of persecution from members of his local community in India on the basis of his child sex offences criminal conviction. In effect, he claims that his life might be in danger because India has a 'very strict culture' (G11 at 72). He states that everyone in his family and local community knows 'what he did'. This, he states, has been shameful for him and his family and will mean that he will never get job in India. In relation to persecution arising from his child sex offences, the Tribunal has almost no evidence before it in relation to whether [the applicant] will actually face harm if returned to India. Nor could [the applicant] explain why he needed to move back to his particular region - rather than elsewhere in India. 91. The Tribunal accepts that [the applicant's] criminal conviction is a matter of public record in his local community. The question, however, is whether as a result of this, [the applicant] will face harm of the sort envisaged in Direction No. 65. In this regard, the Tribunal can only rely on the evidence before it. 92. The Tribunal notes that persecution by private individuals or groups does not amount to persecution for the relevant purposes unless the State either encourages it or appears to be powerless to prevent that private persecution. … 96. The Tribunal, therefore, finds that [the applicant's] claims that he will face harm in India, taken at their highest, do not reach the level that they would constitute an objectively well-founded fear of persecution if he were returned to India now, or in the reasonably foreseeable future. (Emphasis added by the primary judge.) 52 The primary judge said that it was apparent from these passages that the Tribunal held that it could not avoid assessment of non-refoulement obligations by reason of the appellant not applying for a protection visa, but a partner visa. It proceeded to make a factual inquiry as to whether or not the appellant faced a real possibility of significant harm if returned to India, as required by BCR16. In that regard, his Honour noted, the appellant had the onus of placing material before the Tribunal to satisfy it that he faced a real possibility of significant harm if he returned to India. His Honour indicated that that proposition was supported by Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 (Heerey J); [1994] FCA 1105 and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152 at [40]; [2006] HCA 63. His Honour then added, in that regard, that the "applicant placed little material before the Tribunal in discharge of" his obligation. 53 His Honour observed, at [44], in respect of the non-refoulement obligation, the following: A non-refoulement obligation under any treaty to which Australia is a party requires an applicant to have more than a subjective fear. There must also be an objective justification or foundation for the fear: AYY15 v Minister for Immigration and Border Protection [2018] FCA 130 per Steward J (at [16] and the authorities therein cited). On the material before the Tribunal, it concluded that he did not have an 'objectively well-founded fear of persecution' (emphasis added). Consistently with any requirement in BCR16, this is a finding that there is no real possibility of significant harm on return to India. There is no reason to think that the Tribunal misunderstood BCR16 or misunderstood its discretion. (Emphasis added by the primary judge.) 54 We agree with the primary judge's conclusion, that on the material before the Tribunal, the Tribunal concluded that the appellant did not have an "objectively" well-founded fear of persecution. We also agree with his Honour that, consistently with BCR16, that was a finding that there was no real possibility of significant harm on the return to India. In those circumstances, we also agree there was no reason to think that the Tribunal misunderstood BCR16 or misunderstood its discretion. Indeed, we consider that, having regard to the line of inquiry that the Tribunal followed, it properly understood and applied what the majority had said in BCR16. 55 In those circumstances it cannot be said that the primary judge either failed to take into account a relevant consideration or made his decision having regard to irrelevant considerations. 56 Before the primary judge, reflecting ground 3 of his judicial review application, the appellant also raised the question of non-refoulement in the following terms: Did the Tribunal fail to exercise jurisdiction or deny procedural fairness in not turning its mind to Australia's international 'non-refoulement' obligations arising under treaties other than the Refugee Convention? 57 The primary judge said, at [47], that the complaint of the appellant was that the Tribunal did not address at all such obligations and that this was apparent from the fact that the Tribunal did not have regard to Australia's international "complementary protection" obligations under the relevant treaties because of what the Tribunal said at [95] of its reasons, namely: There is absolutely nothing before the Tribunal that would suggest that the Indian state would tolerate, condone or fail to control circumstances where [the applicant] might face physical harm or degradation or widespread discrimination to the extent that such conduct could either amount to a real chance of serious harm or a real risk of significant harm being occasioned to [the applicant]. Indeed, the Country Information available to the Tribunal satisfies the Tribunal that the Indian State provides an adequate level of state protection for the purposes of s 5J(2) of the Migration Act, as set out in s 5LA of the Migration Act (Department of Foreign Affairs and Trade Country Information Report: India, 15 July 2015). 58 His Honour also noted that the appellant made a similar submission by reference to the Tribunal's reasons at [90], [92] and [96], where the Tribunal specifically directed itself to "persecution". 59 His Honour noted that the relevant distinction, according to the appellant, was that the international non-refoulement obligations captured within the complementary protection umbrella did not require the involvement of the State parties, which is a requirement only in the Convention relating to the Status of Refugees. Opened for signature 28 July 1951. 189 UNTS 137 (entered into force 22 April 1954) (Refugees Convention) protection. 60 His Honour also noted, at [50] of his reasons, that the appellant complained that the Tribunal had misunderstood that s 501(1) of the Act required consideration of Australia's international non-refoulement obligations. He noted that the appellant's argument was that what appears at [90] of the Tribunal's reasons (which has been set out above), indicated that the Tribunal implicitly imposed a condition that there be evidence that the appellant could not relocate to another area of India upon repatriation. That is an express requirement of the Act's definition of "well-founded fear of persecution" under s 5J, but not an express requirement under Australia's international non-refoulement obligations under either Art 1A of the Refugees Convention or the "complementary protection" treaties. His Honour noted that the appellant contended that it is not the domestic incorporation of Australia's non-refoulement obligations under the Act, which cl 12(1) of Direction 65 points to, but rather, the international non-refoulement obligations. 61 At [51] of his reasons, the primary judge said that while there may be something in the latter argument, "at a technical level", in the circumstances of the appellant's application the argument fell away by reason of the factual findings made by the Tribunal. His Honour explained that by adding: Again, it is to be borne in mind that the applicant bears the onus of placing material before the Tribunal to satisfy it that the applicant did indeed face a real possibility of significant harm: Selvadurai and SZBEL (discussed above (at [43])). There was very limited material placed before the Tribunal and on the basis of that material, a fair reading of [96] in context is that the Tribunal reached a finding of fact that he did not have an 'objectively well-founded fear of persecution' from anybody on return to India. 62 We agree with the primary judge's analysis that the Tribunal found there was no risk of persecution by anybody on the material before it if he were to be returned to India. Thus, his Honour was correct to conclude, at [52], that that finding was sufficient to dispose of the argument that the Tribunal did not have to be satisfied of involvement of the State. 63 His Honour said that that finding was entirely open on the limited evidence before the Tribunal and on the appellant's case, as put to the Tribunal, and was clearly considered by it in the paragraphs set out. We agree, we cannot see any error in the approach taken by his Honour in disposing of the non-refoulement arguments. 64 His Honour did not fail to take into account any relevant consideration; nor did he take into account any irrelevant considerations in so finding. 65 In these circumstances, grounds 3 and 4 of the notice of appeal fail to the extent they address those issues.

Did the primary judge err by failing to make a finding that the Tribunal's decision was unreasonable? 66 As the Minister submits, this ground of the appeal reflects ground 5 of the original notice of appeal in the Court below which was abandoned in the proceeding before the primary judge. 67 We refer to our reasons above concerning the grant of leave. We can see no basis upon which leave should be given to now advance this ground. 68 In any event, having regard to the manner in which the primary judge found that none of grounds 1, 2 or 3 to the review application before him were made out, there is no basis upon which it could be said that the decision of the Tribunal was illogical or lacked an evident basis or that it was unreasonable in the sense discussed in Minister for Immigration and Citizenship v Li and Another (2013) 249 CLR 332; [2013] HCA 18. 69 We would refuse leave to rely on ground 5.

Conclusion and orders 70 As noted above, grounds 1, 3 and 4 of the notice of appeal fail. Leave to rely on grounds 2 and 5 is refused. 71 The appeal should be dismissed with costs. 72 The Court orders: (1) Leave to rely on grounds 2 and 5 be refused. (2) The appellant's notice of appeal dated 12 July 2018 be dismissed. (3) The appellant pay the respondents' costs, to be assessed if not agreed. I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Barker, Banks-Smith and Colvin.