FEDERAL COURT OF AUSTRALIA

BIL17 v Minister for Immigration and Border Protection [2019] FCAFC 6

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 36.05 of the Federal Court Rules 2011, the time for filing a notice of appeal be extended to 4.00 pm on 8 February 2019.

2.    The notice of appeal filed pursuant to order 1 above state the following single ground of appeal:

The Tribunal constructively failed to exercise its jurisdiction because it acted on outdated country information and failed to consider current country information which was to the effect that it was possible that any person returning to Fiji who was accused or suspected of being involved in encouraging sedition (which in context was directed at Christian separatists) would be tracked down, arrested and prosecuted, thereby failing to engage with the true nature of the claim by considering in a realistic way the relevant evidence.

3.    The appeal be allowed.

4.    The orders of the Federal Circuit Court of Australia dated 8 December 2017, dismissing the application with costs, be set aside.

5.    A writ of certiorari be issued quashing the decision of the second respondent dated 10 March 2017.

6.    The second respondent is directed to reconsider according to law the application for review filed 29 March 2017.

7.    The first respondent pay the applicants’/appellants’ costs of and incidental to the appeal and of the proceedings in the Federal Circuit Court of Australia as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The applicants (“appellants”) are four members of a family from Fiji comprising father, mother and two children. The father and mother hold Christian separatist views and are active members of two organisations of mainly ethnic Fijians established by Ms Mereoni (Oni) Kirwin, the Pacific Indigenous Samaritan Association Inc (“PISAI”) and the Fiji Native Government in Exile (“FNGE”). Ms Kirwin launched the FNGE in January 2013 in Canberra. FNGE is said to be an organisation of native Fijians, who are committed and practising Christians and who support two breakaway Christian states in western Viti Levu on the main island of Fiji. PISAI is a charitable organisation, which does charitable works to assist other Pacific indigenous communities, especially Australian Aboriginal communities.

2    The father came to Australia in May 2014 and the rest of the family came later. On 29 August 2014 the family made an application for protection visas. The father’s application described the basis for the claim to protection in terms that included concern for their safety if they were to return to Fiji because the father had been identified by the brother of Prime Minister Bainimarama at a protest held in Sydney against the government of Fiji. He said that it was well known that ‘Bainimarama is someone who carries grudges and takes revenge against those whom have challenged him, using the might of the Fiji Military Forces against unarmed Fiji civilians’. He also referred to footage being broadcast widely into Fiji. The claims were described in greater detail in a letter of support provided by Ms Kirwin to the Administrative Appeals Tribunal when the appellants sought review of the refusal of their visa applications.

3    On 10 March 2017, the Tribunal affirmed the decision to refuse the protection visa applications. An application for review in the Federal Circuit Court was unsuccessful: BIL17 v Minister for Immigration and Border Protection [2017] FCCA 3092. The appellants now wish to bring an appeal against the decision of the primary judge.

4    The appellants require an extension of time to file a notice of appeal. By r 36.03(a)(i) of the Federal Court Rules 2011, a notice of appeal is to be filed and served within 21 days after the date when the judgment appealed from was pronounced. The Court may extend time under r 36.05. In light of the exclusionary effect of r 1.61(5) applying to the time between 24 December and 14 January, the 21 day period expired on 22 January 2018. The current application for an extension of time was filed on 8 May 2018. This is a delay of 3 months and 16 days.

5    The Minister submitted that the application for an extension of time should be refused and that, if time is extended, the appeal should be dismissed.

Summary

6    For the following reasons, there should be an extension of time to bring the appeal confined to the first ground which should be upheld. The other grounds lack merit. The decision of the primary judge should be set aside and the matter should be remitted to the Tribunal for determination according to law. As no reason was advanced as to why costs should not follow the event, the Minister should be ordered to pay the costs before the primary judge and on appeal.

Grounds of appeal

7    As developed during the course of oral submissions, the appellants advanced three grounds in support of the appeal.

8    First, the Tribunal constructively failed to exercise its jurisdiction because it acted on outdated country information and failed to consider current country information which was to the effect that it was possible that any person returning to Fiji who was accused or suspected of being involved in encouraging sedition (which, in context, was directed at Christian separatists) would be tracked down, arrested and prosecuted. This was said to go beyond a factual error in the evaluation of country information and was a failure to actively engage with the true nature of the claim by considering in a realistic way the relevant evidence.

9    Second, the Tribunal failed to discharge its statutory task because it dealt with the appellants’ applications as if they were based on a claim that they had a degree of prominence that meant they were at risk of harm for their Christian separatist views when, in fact, they claimed that the risk arose irrespective of whether they held a position of prominence or leadership in the PISAI or FNGE.

10    Third, the Tribunal failed to properly consider the complementary protection criterion.

Matters before the Tribunal

11    The appellants provided a lengthy submission to the Tribunal in support of their review application. The submission, dated 19 August 2016, was authored by Ms Kirwin, who described herself as the Director of PISAI, Executive President of the FNGE and ‘Advocate for indigenous peoples, Pacific Forum Member-states’.

12    The 19 August 2016 submission included the following statements by Ms Kirwin:

(1)    That the father was a registered member and active supporter of the FNGE, and that he and his family attend Thursday night members’ meetings and contribute financially.

(2)    That the FNGE had been launched on 26 January 2013 and proclaimed established on 26 January 2016, and now had close to 600 members who were all ethnic Fijians.

(3)    That the object of the FNGE was the right to self-determination, and it supported two breakaway Christian states of Nadroga-Navosa and Ra on the main island of Fiji, ‘so that we can freely determine our political status and freely pursue our economic, social and cultural development as first nation people of Fiji’. The group works to ‘promote, support and fund all self-determination efforts in the fourteen provinces of Fiji’.

(4)    Sixteen ‘executives’ from each of Nadroga-Navosa and Ra had been imprisoned in July-August 2015 because of their involvement in the breakaway process.

(5)    In August 2015, SBS World News reported that Prime Minister Bainimarama had threatened to ‘track down’ and jail Fijians living in Australia who support a Christian secessionist movement, warning of ‘severe punishment and many years in jail for anyone joining attempts to allegedly form a breakaway state or overthrow the government’.

(6)    In a conversation on 17 August 2016 (two days before the date of the submission) between Ms Kirwin and the wife of the ‘President of the Nadroga-Navosa breakaway Christian state’, Ms Kirwin was told that ‘the security forces and Military Intelligence have upped their anti and are tailing them wherever they went’. Ms Kirwin also said that the leader of the Fijian opposition party, Mr Rabuka, had on 11 August 2016 been forced to cancel a speech at an FNGE meeting because of ‘pressure and threats placed on him’. The submission said that Mr Rabuka:

… was strictly warned not to associate with [Ms Kirwin] or the group - Fiji Native Government in Exile or any of its members.

(7)    The father was ‘one of the leaders in this group, Fiji Native Government in Exile, and is often a front-liner in our protests’, including in Liverpool on 17 October 2015, in Canberra on 26 January 2016, outside the Department of Immigration earlier in 2016, and on numerous visits to the NSW Parliament. The father had also been MC at members’ meetings, that he and his wife were group leaders in their prayer-intercessory group, and as former employees in government departments in Fiji, they were also able to give professional support and advice when needed. Ms Kirwin stated that, as they had held senior positions in government they were more targeted by the Bainimarama regime, and ‘Fijian government who recognise them straight away and try to show them up whenever they are seen with me, or seen attending our meetings’.

(8)    The father’s face is ‘almost synonymous’ with the FNGE, and his whole family was involved in the organisation. She said that they are recognisable in the many photos posted on Facebook and the internet.

13    On 30 September 2016, the appellants attended a hearing before the Tribunal.

14    Following the hearing, by letter dated 12 October 2016 the father provided photographs, internet references and other documents relating to the August 2014 protest and other protests involving the FNGE in 2015 and 2016. The material included a copy article from the Fiji Sun with the headline ‘Overseas Fijians inciting violence beware: We Will Track You Down: PM’, and media reports from 2013, 2015 and 2016 of brutal treatment by the Fijian government of its perceived opponents.

The country information

15    The country information considered by the Tribunal in relation to the claims by the appellants based upon their Christian separatists views comprised:

(1)    a Department of Foreign Affairs and Trade (“DFAT”) report dated 16 June 2013;

(2)    a report entitled Freedom in the World 2015 – Fiji, which was a report as to the state of affairs in Fiji in 2014 published by Freedom House;

(3)    a DFAT Country Report for Fiji dated 14 April 2015;

(4)    news reports of statements by Prime Minister Bainimarama in August 2015; and

(5)    a DFAT report dated July 2016.

16    By the time the matter was heard by the Tribunal in September 2016, the most current information was the news reports and the 2016 DFAT report. Significantly, it was only that material that dealt with the consequences for Christian separatists as distinct from the more general position concerning political opposition in Fiji.

17    As to the 2016 DFAT advice, the Tribunal stated (para 119):

DFAT advised that the Fiji Government has demonstrated that it is willing to arrest and prosecute persons it accuses of inciting sedition or urging political violence in Fiji. In the case a person returning to Fiji was accused of or suspected to have been involved in such activities, it is possible that they would be arrested and prosecuted for such activities.

18    The submissions for the appellants placed emphasis upon the second sentence which was said to have been ignored by the Tribunal when it made its findings on the appellants’ claims. The second sentence addressed the specific circumstances of a person returning to Fiji who had been suspected of being involved in sedition and therefore was directly relevant to the basis of the claim made by the appellants. It is also important to note that the statement dealt with ‘sedition or urging political violence’ disjunctively. It was not the case that it was confined to those who were inciting violence.

19    As to the news reports, there was a reference to an SBS News report dated 31 August 2015 concerning the Christian secessionist movement. It said:

A threat by Fiji’s prime minister to “track down” and jail Fijians living in Australia and elsewhere who support a Christian secessionist movement has been dismissed as a diversionary tactic from domestic problems.

More than 60 people allegedly linked to anti-Muslim separatists have been detained in Fiji, accused of plotting to create a breakaway state on the western part of the main island of Viti Levu. Their supporters in Australia have vowed to fight on and are raising a legal defence fund.

20    The report then went on to quote Ms Kirwin:

“I’m not frightened or scared at all,” said Oni Kirwin, who describes herself as attorney-general of the Ra and Nadroga Christian state. “There is a takeover in Fiji and it is not a good one. We’re concerned by Muslims. Their influence is very, very high.”

Ms Kirwin blames the 2013 secular constitution introduced by prime minister Voreqe Bainimarama, guaranteeing equality for all Fijians. She points to Muslims holding high office in the Bainimarama government, including attorney-general Aiyaz Sayed-Khaiyum. About seven per cent of Fiji’s population is Muslim.

21    Later in the report it was said that some of those detained in Fiji ‘are also accused of being involved in “military-style” training’. We note that reference because a submission was advanced for the Minister that certain other statements were focussed upon those who had been involved in such training. In that regard, it is significant that the reference to military training is confined to ‘[s]ome of those detained in Fiji’. It is not a description of all of those to whom the threat reported at the outset of the SBS News report is directed. The opening part of the report refers to a specific threat directed to Fijians living in Australia who support the Christian secessionist movement. The language ‘track down’ is in quotation marks to indicate that it was the language used by Prime Minister Bainimarama. It was directed to supporters of the secessionist movement in Australia.

22    The Tribunal noted that the SBS News report also referred to a statement issued by Prime Minister Bainimarama which read:

Prime minister Bainimarama on Friday issued a warning to Fijians living overseas who support the Christian state movement.

“If you encourage sedition you are committing a serious offences [sic]. If you urge violence in Fiji, you are committing a serious offence. The hand of the law is very long and authorities will not rest until you are brought to justice,” he said.

“People behind this internationally don’t believe in democracy or listen to the will of the people. They want to impose their will on everyone else.

“They are enemies of the state and enemies of the Fijian people. They are enemies of investment and they are enemies of a modern Fiji. They are enemies of a prosperous Fiji and we are going to track them down and bring them to justice.”

(Footnote omitted)

23    We note that the statement attributed to Prime Minister Bainimarama refers to two activities. First, encouraging sedition. Second, urging violence.

24    There was also a strange observation by the Tribunal at the end of its consideration of country information (para 124) that was expressed as follows:

No specific information is available to the Tribunal regarding the treatment of members of Ms Kirwin’s Australian organisations, PISAI and the Fiji Native Government in Exile.

25    To the extent that the observation is directed at a lack of information about any mistreatment of Christian separatists or supporters of FNGE, it fails to recognise that the relevant activities are undertaken in Australia and the country information concerns threats from Prime Minister Bainimarama to those who are in Australia. The appellants’ claim to protection was based entirely upon those threats, not any claim that there had been members who had actually returned to Fiji in the face of the threats. Put another way, there was no suggestion that since the threats there had been supporters involved in protests in Australia who had returned to Fiji without incident.

26    It was also a statement at odds with the country information concerning the attitude of the Prime Minister to Australian supporters of the Christian separatists and squarely inconsistent with the matters stated in the 2016 DFAT report.

27    The Tribunal had also recounted other older and more general information about the expression of political views in Fiji. The Tribunal dealt in some detail with aspects of the 2013 DFAT report which were to the effect that those who had been subject to harm were ‘high-profile’, ‘prominent opponents’, ‘vocal opponents’ and those who had ‘publicly expressed opposition to or criticised the regime’. It concluded that DFAT was not aware of persons outside of those categories (that is, those who were not prominent opponents) being targeted on their return to Fiji. The older information dealt with public political criticism not the specific circumstances of those who support the secession of Christian states. It focussed upon the position of those who were political opponents of the government. The claim made by the appellants did not depend upon political profile or being identified as being part of the political opposition. Rather, it depended upon the particular treatment that might be directed at Christian separatists simply because they identified with those views. The older country information did not deal with the position of such persons at all.

Reasoning pathway of the Tribunal

28    The first two grounds raised by the appellants are to the effect that their claim was not addressed in the way the Tribunal considered the claim or it was misunderstood as a claim that depended upon demonstrating that the appellants were prominent political figures by reason of the nature and extent of their involvement in FNGE and PISAI. Having regard to the nature of these complaints, it is important to consider closely the way the Tribunal reached its conclusion.

29    The Tribunal began the main part of its reasoning by accepting the factual basis for the claims to protection that were made by the appellants. It said (at para 134):

The Tribunal is satisfied on the evidence before it that the applicants have attended several protests in Australia criticising the Bainimarama government and its policies. The Tribunal is satisfied that the applicants are active members of M[s] Kirwin’s two organisations, PISAI and the Fiji Native Government in Exile. The Tribunal is further satisfied that evidence of the applicants’ activities has been published on Facebook and in the mainstream media reporting of at least one of the protests in Australia and Fiji. The Tribunal is also prepared to accept that the applicants may have been recognised whilst undertaking such activities by close associates of the Prime Minister with whom the applicants worked in Fiji’s civil service, including Jo Bainimarama and Inia Seruiratu.

30    Next, the Tribunal described a shift in the environment in Fiji ‘for the public expression of criticism’. It dealt with those who were running for public-elected office identifying them as being at moderate risk. This was the thrust of the older country information. It did not deal at all at this point with the claim based upon professing Christian separatist views in Australia (as distinct from participating in the general political opposition in Fiji). It then found that the father and mother were not members of a political party (para 136) and did not hold elected offices in PISAI or the FNGE and had no public profile (para 137).

31    To begin to deal with the matter in this way was to approach the claim on the basis that it depended upon demonstrating some political or other prominence through membership of a political organisation or the holding of elected office that would form part of the political opposition in Fiji. However, the claim made was not of that character. Rather, the claim focussed upon the consequences of the father and mother being involved in Christian separatist protests in Australia and being identified as participants in those protests by close associates of Prime Minister Bainimarama as well as publication of photographs of the protests shared on social media.

32    Therefore, there are a number of problems with this reasoning. First, it treats the claim as if it depended upon the position in relation to general political opposition in Fiji. It did not. Second, it treated the older country information as if it was relevant to the risk of mistreatment of those returning to Fiji who had been supporting Christian separatist views in Australia. It was not. Third, it treated the claim as if it depended upon demonstrating prominence within a political organisation. It did not. The claim relied upon the recent country information concerned with Christian separatists and their activities in Australia and the consequences for those persons if they were to return to Fiji. Yet that country information was not addressed in this part of the reasoning.

33    Then the Tribunal construed the public warning given by Prime Minister Bainimarama (a reference to the threat to track down supporters in Australia of the Christian secessionist movement) as one which ‘may have been made in reference to Ms Kirwin and senior leaders of her Australian organisations’ as well as those involved in the Christian secessionist movement in Fiji (para 138). Reasoning in this way has two difficulties. First, it is to reason without any foundation that the warning ‘may have been made’ in reference to those Christian secessionists in positions of prominence. Second, it is not a finding that there is no risk to others. It is just to identify the possibility that the warning may have been directed at leaders only. Given that the actual basis for the appellants’ protection claim did not depend upon demonstrating that they had a leadership role, the failure to specifically address whether there was a risk to all Christian secessionists when returning to Fiji is telling. This is especially so when the relevant part of the 2016 DFAT information was to the effect that it was possible that ‘a person returning to Fiji’ (emphasis added) suspected or accused of being involved in sedition or urging political violence would be arrested and prosecuted for expressing those views when returning to Fiji. It is also revealing that, as noted below, the relevant sentence in the 2016 DFAT report is not referenced at this point.

34    As a result, the Tribunal did not engage at this point with the actual claim made which was to the effect that those Fijians who were living in Australia who had identified as Christian separatists would be treated as being involved in sedition and were at risk of harm if they returned to Fiji irrespective of whether they were in positions of leadership or prominent figures in the political opposition in Fiji.

35    The Tribunal then found:

Nonetheless, the Tribunal accepts that the Fiji government has demonstrated that it is willing to arrest and prosecute persons it accuses of inciting sedition or urging political violence.

36    This language is taken from the 2016 DFAT report quoted earlier by the Tribunal (para 119). Significantly, as we have noted, the Tribunal also stated that the 2016 DFAT report in dealing with ‘a person returning to Fiji’ who had been accused or suspected of having been involved in inciting sedition or urging political violence stated that ‘it is possible that they would be arrested and prosecuted for such activities’. Therefore, the country information that was accepted by the Tribunal was to the effect that people returning to Fiji who were accused or suspected of inciting sedition (in context, supporting Christian secession) were at risk of possible arrest and prosecution. The concern advanced for the appellants before the Tribunal was that they were such people because they were known to those associated with senior leadership in the Fijian government and they had a social media profile.

37    The Tribunal then said:

The Tribunal is not satisfied that the applicant’s activities in connection with Ms Kirwin and her organisations, including their presence at protests and social media activities, are of a nature that would lead to a real risk or chance of them being of [sic] suspected of inciting sedition or urging political violence in Fiji.

38    This statement appears without any prior reasoning to support it. In context, the reference to the ‘nature’ of the participation must be a reference to a lack of prominence or leadership involvement. It treats the application as depending upon a degree of prominence in the governance of an opposition political organisation. In context this a reference to the old country information. The new and the relevant country information is not expressed in those terms.

39    To this point the whole reasoning depends upon the assertion (unsupported by any of the country information) that the risk to those associated with supporting Christian secessionists may be confined to Ms Kirwin and senior leaders of her organisations as well as those involved in the movement in Fiji. As we have noted, the country information provided by DFAT and quoted by the Tribunal at the relevant point in its reasons was not confined in this way.

40    In those circumstances, it could only be the Tribunal’s reasoning in the following paragraphs that provides the support for the approach that there needs to be prominent leadership involvement in the Christian secessionist cause before there is any risk. However, the following paragraphs deal with the matter on the basis that the appellants claim to protection depends upon demonstrating a degree of prominence of a kind that will expose them to harm (paras 139 to 142). The reasons emphasise the reference in the older country information (which does not deal with Christian secessionists) as applying to ‘prominent individuals who have publicly criticised the government’ (emphasis in Tribunal’s reasons). They include the following statement (at para 139):

The Tribunal is not satisfied on the country information that ordinary Fijians, even if they are known to oppose the government or its policies, face a real chance or risk of serious or significant harm.

41    The above reasoning reflects the earlier focus upon whether the father and mother held elected offices or had a public profile. Those who are not prominent are ‘ordinary’. Notably, the only reference in the country information to ‘ordinary Fijians’ is a reference in the 2013 country information quoted by the Tribunal (para 111) which refer to ‘ordinary individuals’ and ‘ordinary … members of political parties’ not being subjected to harm. However, that information is not concerned with the Christian separatists. The position for separatists when returning to Fiji is expressed separately in the 2016 DFAT report. It is not possible to deal with the claim made by the appellants by referring to irrelevant and out-dated information.

42    The result is that the Tribunal never engages in a meaningful way with the claim based upon recent country information that there is a risk to all those who are suspected of being Christian separatists who are returning to Fiji. The claim is not addressed by the approach adopted by the Tribunal which rests upon irrelevant older information and by the asserted possibility that the threats by Prime Minister Bainimarama only apply to Ms Kirwin and senior leaders.

43    The Tribunal’s analysis concludes (at para 142):

The Tribunal does not accept, having regard to the evidence, that the applicants have a sufficiently prominent or public political profile to cause them to be of interest to the Fijian authorities, should they return to Fiji now or in the reasonably foreseeable future.

44    In effect the Tribunal finds that the father and mother do not have sufficient prominence to be exposed to risk.

Reasoning of the primary judge

45    The primary judge noted aspects of the Tribunal’s reasons, without critical analysis. His Honour did not identify any of the difficulties set out above instead finding, at [28] of his Honour’s reasons:

On the face of the Tribunal’s reasons, the Tribunal engaged in orthodox review of the applicants’ claims and evidence and made findings dispositive of the applicants’ claims that were open on the material before the Tribunal for the reasons given by the Tribunal summarised above. Those adverse findings cannot be said to lack an evident and intelligible justification. On the face of the material before the Court, the Tribunal complied with its obligations under the statutory regime. …

46    None of the observations in this passage was relevant to the ground of review purportedly under consideration by the primary judge, which was whether the Tribunal had considered irrelevant considerations or failed to take into account relevant considerations.

47    In MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [68], the Full Court noted that it was entitled to have the benefit of the reasons for judgment of the Court at first instance in respect of all arguments. That benefit is limited where the primary judge’s reasons are expressed in general terms, not directed to the case made by the parties.

48    There is another matter of concern about the primary judge’s reasons. At [22] and following, his Honour addressed an adjournment application made by the appellants’ lawyer.

49    The background to the application is that, at a hearing on 5 May 2017 at which stage the appellants were not legally represented, a different judge had listed the proceeding for a callover on 16 March 2018. The appellants did not comply with orders requiring them to file and serve any evidence and any amended application by 8 August 2017. On 26 September 2017, the matter was listed administratively before the primary judge, who vacated the order made on 5 May 2017 listing the proceedings for a callover and fixed the proceeding for a final hearing on 8 December 2017.

50    On 29 November 2017, the appellants filed an application seeking to vacate the 8 December 2017 hearing. In a supporting affidavit, the applicant claimed that he had only found out about the new hearing date when he received an email from the Minister’s solicitor on 15 November 2017. In submissions filed on 6 December 2017, the appellants’ solicitor identified proposed amended grounds of review, including that the Tribunal had placed reliance on outdated country reports, grounds which were argued in the submissions.

51    At [22] and [23] of his Honour’s reasons, the primary judge said, relevantly:

[22]    That application was supported by an affidavit that failed to candidly identify the circumstances in which the lawyer had been identified and retained, or explain any reason why the matter was not able to be prepared in time for today’s hearing.

[23]    The application on its face, and the affidavit in support, was, on its face, an endeavour to delay proceedings. Legal practitioners owe a duty to this Court which is higher than their duty to the client. To attempt to delay or protract proceedings is a breach of that duty. The application in a case should not have been filed by a legal practitioner. The Court received submissions in support of the application which were in writing. Mr Chaudhry also sought to advance that his clients wanted more time. The application advanced by Mr Chaudhry should not have been advanced in that fashion. The Court was not satisfied that an adjournment was warranted in the interests of the administration of justice in the circumstances of the present case. It was for these reasons that the Court made an order for the application in a case to be dismissed.

52    The primary judge permitted the appellants to rely on the grounds argued in the 6 December 2017 submissions.

53    The primary judge’s criticisms of the appellant’s solicitor were not called for. On its face, the adjournment application reflected the recent retainer of Mr Chaudhry, who wished (not surprisingly or unreasonably) to seek leave to raise four grounds of review as set out in his outline of written submissions, as opposed to the single (and patently inadequate) ground of review in the originating application. In those circumstances, it was unfair to characterise the application and the supporting affidavit as ‘an endeavour to delay proceedings’, with the evidently intended implication was that they were nothing more than that. Mr Chaudhry did not deserve the criticism made of him.

Ground 1: Failure to engage with the evidence concerning the claim

54    For the appellants it was submitted that the consideration that was undertaken by the Tribunal was so focussed upon old and irrelevant country information and a need to demonstrate some form of prominence as part of the political opposition (and to disregard the more updated country information which was the only information that dealt with the risk of harm to Christian separatists returning to Fiji) that the Tribunal failed, as a matter of substance, to perform its statutory function of undertaking a review of the refusal of the application by the delegate of the Minister. The failure was alleged to amount to jurisdictional error.

55    In Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1, at [24], Kiefel CJ, Gageler and Keane JJ described jurisdictional error in a statutory decision-making process as referring to ‘a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it’. Accordingly, the appellants must demonstrate that the manner in which the Tribunal dealt with the country information meant that, in fact, the decision lacked the characteristics of a review of the kind required by the statute.

56    In considering whether the Tribunal has undertaken a review of the kind required by the statute in order for the review to be given force and effect by the statute there must be consideration of the nature of the task entrusted to the Tribunal and the nature of the Tribunal itself.

57    As to the nature of the statutory task, this appeal concerns an application for a protection visa. Whether a protection visa is to be granted under the Migration Act 1958 (Cth) depends upon whether the Minister is ‘satisfied’ of the requisite matters in s 36. If a review is sought of the Minister’s decision in the Tribunal then Pt 7 of the Migration Act applies with the effect that the statutory criterion to be met becomes the satisfaction of the Tribunal: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [29], [37], [132]. Importantly, it is for the Tribunal to be satisfied, not the Court. However, the required state of satisfaction is formed by a consideration of the claims made by reference to the material advanced to support those claims.

58    As to the nature of the Tribunal, the requirements expressed in the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) indicate the nature of the decision-making task entrusted to the Tribunal by Pt 7 of the Migration Act. Members of the Tribunal must be a judge or a legal practitioner who has been enrolled for at least five years or a person with special knowledge or skills relevant to the duties of a member: s 7 of the AAT Act. They must take an oath to faithfully and impartially perform the duties of the office of a member of the Tribunal: s 10B of the AAT Act. They are independent of any other part of the Executive and do not form part of a Ministerial department. Having regard to the provisions of the AAT Act, the review to be undertaken by the Tribunal must have the quality and character generally to be expected of a decision by an independent statutory tribunal the members of which are appointed due to their legal or other relevant specialist expertise. A tribunal of that character is to be expected to reach the required state of satisfaction on the basis of an independent and reasoned consideration of the claims by reference to the material relied upon.

59    Some cases have referred to a failure by the Tribunal to give proper, genuine and realistic consideration to the evidence advanced to support a protection claim as constituting jurisdictional error. However, a formulation of that kind is best avoided because it tends to distract from the proper inquiry and invite a descent into merits review: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [30], Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 at [24] and Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [42]-[45].

60    Also, it must be accepted that a finding that the decision-maker has not engaged in the active intellectual process required to constitute the required statutory review is a finding that will not be lightly made and must be supported by clear evidence: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [48] (a case concerned with a decision by the Minister, not the Tribunal). Further, the Tribunal may act on any probative material. It need not reason from that material in the way a court would reason. As to these matters, see: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 282.

61    So, the question to be asked is whether, on the available materials and a proper consideration of the reasons (that is, with an eye that is not attuned to the discovery of error) there has been a performance of the statutory task of undertaking a review, by reference to the available evidence, of the merits of the claims made by the appellants before the Tribunal.

62    Having regard to the reasoning pathway adopted by the Tribunal, it did not pay attention to the relevant country information concerning the likely treatment of people who were known to be or suspected of being Christian separatists on their return to Fiji. In substance, it did not consider that information. It did no more than assert without any foundation, and contrary to the terms in which the more recent country information was expressed, that the information about the risk of harm to Christian separatists returning to Fiji may be confined to certain identified leaders.

63    Therefore, this is a case where there has not been the requisite statutory review. The active intellectual engagement has been misdirected in a way that has resulted in a failure to undertake the review that was invited by the nature of the claim advanced and the material before the Tribunal concerning that claim. By focussing upon aspects of the country information that were peripheral or irrelevant, the Tribunal has not dealt with the country information germane to the nature of the claim advanced.

64    Importantly, this is not a case where the Tribunal has taken conflicting country information concerning the same subject matter and formed a view after weighing all the relevant material. It is not a case where the Tribunal has rejected particular country information as not being a reliable or fair and reasonable assessment of the conditions in that country. It is not a case where the Tribunal has reached a reasonable view that the country information does not have the meaning or character that is advanced. In all those instances, it is properly a matter for the Tribunal to make the judgments required to reach the state of satisfaction to undertake the review. Rather, for reasons given, the country information relied upon has not been substantively addressed by the Tribunal. It has therefore not undertaken the required review.

Ground 2: Mischaracterisation of the claim

65    This is not a case where there has been a failure to respond to a substantial, clearly articulated argument in the sense identified in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24]. The grounds raised were addressed. However (for reasons already expressed), they were not addressed by reference to the evidence relied upon to support them. So, the present case is not like Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [45] and similar cases. Here, there was a consideration of the claim based upon the involvement in the demonstrations in Australia, the identification of the father by known associates of Prime Minister Bainimarama and the publication of information on social media. The reasons do deal with the statements attributed to Prime Minister Bainimarama about tracking down those in Australia who are involved in supporting the Christian separatists in Fiji. The structure of the reasons is consistent with a view that some form of political prominence or leadership as part of an opposition to the government is required in order for there to be a risk of harm, rather than a view that the claim was confined to a claim of that kind. Therefore, the reasoning does not misunderstand the claim in the sense submitted.

66    Accordingly, the second ground is not made out.

Ground 3: Complementary protection

67    The Tribunal dealt with the complementary protection claim by relying upon the same basis upon which it had dismissed the claim to protection as refugees. The submissions advanced for the appellants failed to identify a respect in which the alleged harm relied upon a matter that did not form part of the refugee based claim to protection. If, contrary to the view expressed above concerning ground 1, the Tribunal had been properly satisfied that there was no risk of the relevant harm by reason of those matters then there was no additional claim to consider for the purposes of the claim to complementary protection. Therefore, the third ground is not made out.

Extension of time to file notice of appeal

68    The primary judge delivered ex tempore reasons on 8 December 2017, and published his judgment on 29 May 2018, after the application to this Court was filed.

69    In considering whether to exercise the discretion to extend, and recognising that the Court’s discretion is unconfined and that each case turns on its own facts, relevant considerations generally include: the length of the delay; the explanation for the delay; whether the appeal would have any prospects of success if an extension of time were granted; and the prejudice, if any, which the respondent might suffer if an extension were granted: BUD17 v Minister for Home Affairs [2018] FCAFC 140 at [82].

70    The delay in filing the application was substantially explained by the primary judge’s delay in publishing his judgment. The proposed appeal has merit to the extent that we have identified above. As properly conceded, there is no material prejudice to the Minister arising out of the grant of an extension of time in connection with ground 1 as identified above. In those circumstances, we are satisfied that the appellants should be granted leave to file an appeal raising that ground of appeal only.

Associate:

Dated:    31 January 2019