Federal Court of Australia

AZR20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 107

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant must pay the first respondent’s costs of the appeal, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal from a decision of a judge of this Court dismissing the appellant’s application for judicial review of a decision of the second respondent (Tribunal) made on 23 August 2022. The Tribunal had affirmed a decision made under s 501CA(4) of the Migration Act 1958 (Cth) (Act) not to revoke the mandatory cancellation of the appellant’s visa. For reasons that follow, we dismiss the appeal.

The approach taken to this appeal

2    Before setting those reasons out, it is appropriate that we explain the approach we have taken. This judgment is short. In framing it that way, we intend no disrespect to the appellant or his lawyers. But despite the competent way in which they put his case, we have reached two basic conclusions. First, the primary judge gave thorough reasons for decision (PJ) which described the factual background and the submissions fully, and which comprehensively addressed all the issues raised before him. Second, the grounds of appeal and the submissions advanced before this Court do not, in substance, identify any putative error in his Honour’s reasoning; rather, they merely re-ventilate the arguments that were unsuccessful before his Honour.

3    The second of these conclusions engages the following well-established principles concerning the exercise of appellate jurisdiction in this Court. Although an appeal to this Court is not an appeal in the strict sense but is rather an appeal by way of rehearing (Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 at [71] (Gleeson CJ, Gaudron, Gummow and Hayne JJ)), in such an appeal the appellant must demonstrate error by the primary judge: Norbis v Norbis [1986] HCA 17 (1986) 161 CLR 513 at 519 (Mason and Deane JJ); Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [23] (Gaudron, McHugh, Gummow and Hayne JJ); Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [18] (Kiefel CJ), [30] (Gageler J), [153] (Edelman J). It is fundamental to the Court’s jurisdiction to hear appeals under s 24 of the Federal Court of Australia Act 1976 (Cth) that it is a jurisdiction for the correction of error: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [21]-[22] (Allsop J). Hence it is, in general, impermissible on appeal to seek to relitigate the issues canvassed and resolved at first instance, in the absence of grounds of appeal that purport to identify specific errors committed by the primary judge: see Giddings v Australian Information Commissioner [2017] FCAFC 225 at [9] (Collier, Flick and Charlesworth JJ).

4    In the present appeal, we have carefully considered the arguments advanced by the appellant and the reasons and conclusions of the primary judge reached on the same arguments. As already noted, the grounds of appeal and the submissions advanced before this Court do not, in substance, identify any error in his Honour’s reasoning. We consider that his Honour was correct for the reasons that he gave. That being so, it is unnecessary for this Court to traverse in detail the background to the matter, the submissions put to the primary judge, or his Honour’s reasons for decision, as all of those matters are set out in the reasons of the primary judge, which we adopt.

Disposition of the appeal

5    The background to the appeal is set out at PJ [1]-[8]. It is relevant to note that the application was for review of the decision of a second Tribunal, after the decision of the Tribunal as originally constituted had been set aside by orders of this Court made by consent.

6    A summary of the reasons for decision of the Tribunal is set out at PJ [9]-[24].

7    The appellant relies upon two grounds of appeal which reflect two of the grounds raised before the primary judge. As his Honour observed at PJ [9], the grounds concern the Tribunal’s treatment of the appellant’s representations concerning harm that he might suffer should he be returned to Iraq. It was open to the Tribunal to consider that matter in light of Australia’s international obligations and/or domestically enacted laws concerning non-refoulement: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [29]-[30] (Kiefel CJ, Keane, Gordon and Steward JJ).

Ground of appeal 1

8    The first ground of appeal (and ground 1 before the primary judge) concerns [125] of the Tribunal’s reasons, which states:

It should be emphasised that in expedited hearing processes such as this, the Tribunal cannot make an assessment of protection obligations in the way that would occur were the applicant to make an application for a protection visa.10 Nor is the Tribunal required to conduct an extensive assessment of the applicant’s claims to fear harm should he return to Iraq.

9    Footnote 10 is in the following terms:

Reference should be made at this juncture to the provisions of paragraph 9.1(6) of Direction 90 which provides as follows:

“It may not be possible at the section 501/501 CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection Visa application.”

10    The nub of the first ground is that the primary judge should have found that the Tribunal misunderstood its review jurisdiction, and so fettered it by proceeding on the incorrect basis that it was required to expedite its review and so could not conduct a full assessment of the appellant’s protection claims. When in fact, as a second review of the delegate’s decision by the Tribunal, the Act (in particular s 500(6L)) imposed no time constraint on completion of the review: see Khalil v Minister for Home Affairs [2019] FCAFC 151 at [64] (Logan, Steward and Jackson JJ).

11    Nevertheless, as foreshadowed, the ground does not identify how the primary judge erred in dealing with this ground; it merely contends that his Honour should have found that the Tribunal erred, and asserts in general terms that the paragraphs where his Honour found to the contrary were erroneous. Consistently with that, the appellant’s submissions on the ground of appeal merely re-ventilated the submissions about the proper construction of the Tribunal’s reasons that he made below.

12    For the reasons given by the primary judge, the Tribunal did not misconceive its statutory function by unlawfully fettering its discretion. The Tribunal’s reference to “expedited hearing processes” was, as the primary judge observed at PJ [42], infelicitous. But for the reasons his Honour gave (at PJ [33]) the infelicitous reference was not reflected in the review process that the Tribunal undertook in fact.

13    The statement that the Tribunal “cannot” make an assessment of protection obligations in the way that would occur were the applicant to apply for a protection visa was not a statement that the Tribunal considered itself legally precluded from undertaking an assessment of a comprehensive nature but, in context, was a statement that the review was being undertaken in the context of s 501CA of the Act and Direction No 90. As the primary judge explained at PJ [45], that was qualitatively different to the task of determining an application for a protection visa. Considered in context, including the context of the Tribunal’s reference to [9.1(6)] of Direction 90, that is all the Tribunal meant. The Tribunal accurately described its task at [126] of its reasons.

14    Although the first respondent was granted leave to rely upon a notice of contention in relation to the first ground, as we agree with the reasons given by the primary judge for dismissing the ground, it is unnecessary to consider the notice of contention.

Ground of appeal 2

15    By the second ground of appeal (and ground 2 before the primary judge) the appellant contends that the Tribunal failed to properly engage with his representations in relation to being owed non-refoulement obligations. Again, the ground merely contends that his Honour should have found that the Tribunal erred and says that the paragraphs where he found to the contrary were wrong.

16    The representations identified before the primary judge are set out at PJ [50]. The appellant sought in this Court to draw attention to some additional materials that were not put to the primary judge, but that cannot support a finding of error on his Honour’s part. The representations which, the appellant maintains, the Tribunal did not address properly were based on country information showing that Chaldean Christians, of whom the appellant was one, faced moderate risk of societal violence. That was violence of a kind that would fall short of the killing and kidnapping that had also been identified in the appellant’s representations, which was the risk on which the Tribunal focussed.

17    Despite that focus, for the reasons given by the primary judge at PJ [70]-[75], the Tribunal still read, identified, understood and evaluated the representations made to it. That was consistent with its obligations as articulated in Plaintiff M1 at [24] and [36] (Kiefel CJ, Keane, Gordon and Steward JJ); see also ECE21 v Minister for Home Affairs [2023] FCAFC 52; (2023) 297 FCR 422 at [8] (Mortimer, Colvin and O’Sullivan JJ).

18    The fact that the Tribunal’s reasons dealt with some of the appellant’s representations at a higher level of generality than others reflected the relative length, clarity and emphasis of the various representations made to it. The Tribunal accepted at [136] that Christians in Iraq face low levels of official discrimination and moderate levels of societal discrimination and violence, similar to that faced by other religious communities in areas where they are a minority. The Tribunal said that it did “not doubt that it would be difficult for him over there due to his Christian beliefs” and observed that “there are an estimated 250,000 Christians continuing to live in Iraq including two sisters of the applicant”.

19    The appellant contends that, nevertheless, the Tribunal’s acceptance of those claims was not reflected in the Tribunal’s ultimate conclusion on this subject (at [148]) that “due to the prospect of indefinite detention, the Tribunal places some weight” on the consideration of non-refoulement. But having read, identified, understood and evaluated the particular representations, the weight to be accorded to them was a matter for the Tribunal. The appellant did not otherwise contend that the Tribunal failed to have regard to any consideration made mandatory by Direction 90.

Conclusion

20    The appeal is dismissed with costs, to be taxed if not agreed.

Associate:

Dated:    23 August 2024