FEDERAL COURT OF AUSTRALIA

AHL16 v Minister for Immigration and Border Protection [2017] FCA 626

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

YATES J:

1    The appellant appeals from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) given on 23 May 2016, which dismissed the appellant’s application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal) given on 8 January 2016. In that decision, the Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), to not grant to the appellant a Protection (Class XA) visa. At the hearing of the appeal, the appellant was not legally represented. He was assisted by an interpreter.

2    The appellant’s claims for protection are somewhat difficult to summarise. He is a citizen and national of Slovenia. He appears to have been involved in criminal activities involving illegal transportation (of some kind) on the border of (then) Yugoslavia and Austria from about 1986. He says that, in the course of these activities, he came into contact with personnel of the Yugoslavian Secret Service. It seems that, some later time, the appellant extricated himself from these activities. But he claims that his previous criminal associates, and possibly elements of the Secret Service, are unhappy that he broke off his relationship with them. The appellant also claims that his former criminal associates are jealous of his wealth. The appellant asserts that, as a consequence of these matters, he has suffered harm. He related various instances of this harm to the Tribunal. The appellant did not claim to have been involved in criminal activity in the years before he left Slovenia.

3    The Tribunal did not accept that the appellant’s claims for protection were genuine. Indeed, the Tribunal found that his claims had been fabricated. The Tribunal therefore concluded that it was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Slovenia, there was a real risk that he would suffer significant harm. The Tribunal was not satisfied that the appellant was a person in respect of whom Australia owed protection obligations under s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (the Migration Act).

4    The appellant’s grounds of judicial review before the Federal Circuit Court were stated as follows:

1.     The Tribunal was in error because it had made the decision in denial of procedural fairness and denial of natural justice to me.

2.     The Tribunal had failed to take into account relevant materials and considerations.

3.    The Tribunal had constructively failed to exercise jurisdiction.

4.     The Tribunal had failed to ask relevant question (sic) prescribed by law and its decision was beyond power.

5    At the hearing of the appellant’s application for judicial review, the primary judge granted leave to rely on the following additional grounds:

5.     The Tribunal failed to make relevant enquiries into critical facts the existence of which was easily ascertained under the Migration Regulations.

6.     That the Tribunal and the delegate failed to engage and invoke Australia’s International Obligation under the International Covenant for Civil and Political Rights (ICCPR) and its second Optional Protocol aiming at the abolition of the Death Penalty and the Covenant against Torture.

6    The primary judge rejected each ground.

7    As to Ground 1, the primary judge noted that it had not been particularised and there was no evidence that the appellant had been denied procedural fairness or that the Tribunal had acted in breach of natural justice.

8    As to Ground 2, the primary judge noted that it had not been particularised and that there was nothing in the Tribunal’s reasons that indicated that it had failed to take into account relevant materials and considerations.

9     As to Grounds 3 and 4, the primary judge noted, once again, that they had not been particularised. His Honour also noted that they had not been amplified by the appellant at the hearing. The primary judge found that there was no evidence to suggest that the Tribunal failed as the appellant had alleged.

10    As to Ground 5, which was also not particularised, the primary judge noted that the appellant had made no attempt to identify the “relevant inquiries into critical facts” which, the appellant said, the Tribunal had failed to make. The primary judge noted that there was no requirement for the Tribunal to make out the appellant’s case for him. It is implicit in the primary judge’s reasons, having regard to his Honour’s reference to Minister for Immigration v SZIAI (2009) 259 ALR 429 at [25] and SZNZH v Minister for Immigration [2010] FCA 1286 at [36], that his Honour rejected any suggestion that the Tribunal failed to make an obvious inquiry about a critical fact, such that it could be said that the Tribunal had failed to carry out its essential review role.

11    As to Ground 6, the primary judge noted that aspects of the ICCPR and its Second Optional Protocol had been incorporated and embodied in Australian law by certain provisions of the Migration Act. The primary judge concluded that this ground failed because the Tribunal did engage with s 36(2)(aa) of the Migration Act dealing with complementary protection. The primary judge noted that the Tribunal had not accepted that the appellant’s protection claims were genuine and it was for that reason that the Tribunal was not satisfied that the appellant was a person in respect of whom Australia owed protection obligations under that provision.

12    The appellant’s notice of appeal in this Court contained the following grounds (errors in the original):

1.    The Federal Circuit Court erred by not properly consider whether the Administrative Appeal Tribunal failed to consider all the evidence before it and/or all the elements of my claim.

2.    The tribunal made a jurisdictional error when it failed to recognised that relocation is not possible and the harm feared is not remote.

3.    The Federal Circuit Court of Australia erred in law for concluding and dismissing my application. Given the fact that the Tribunal in coming to its decision misconstrued and misapplied section 36(2A)(a)(aa), of the refugee protection and the Complementary legislation and other parts of the Migration Act 1958. This is a denial of procedural fairness and natural justice.

4.    The Federal Circuit Court erred by agreeing with Tribunal and misapplying the test of whether there was a real risk of significant harm to me if returned to my home country of nationality.

Particulars

I)    The Tribunal made a legal error in failing to consider the full integers of my claim with respect to the complimentary protection criteria.

II)    Further, in coming to its decision on 8 January 2016, the tribunal failed to have regards to relevant materials and relevant considerations by not given proper weight to some of the evidence. This failure is a denial of procedural fairness and natural justice.

III)    The Tribunal erred in making a qualitative assessment of the serious harm faced by me, beyond a de minimus consideration of the harm that I faced

5.    Further, in coming to its decision, the tribunal failed to have regards to relevant materials and relevant considerations. This failure is a denial of procedural fairness and natural justice. The judgment of the Federal Circuit Court of Australia is attended by sufficient doubt.

6.    The Federal Circuit Court erred with Tribunal and misapplying the test of whether there was a real risk of significant harm to me if returned to Europe. The Tribunal made a legal error in failing to consider the full integers of my claim with respect to the complimentary protection criteria under 36(2)(a) and (aa).

13    These grounds are either not particularised or, in the case of Ground 4, not appropriately particularised. The appellant informed me that the notice of appeal had been drafted by a friend at Villawood Detention Centre, who is no longer in Australia.

14    I asked the appellant a number of questions about the grounds in the notice of appeal. His answers led me to conclude that he has no real understanding of their content. His answers also led me to conclude that he has no real understanding of the nature of his appeal to this Court or, moreover, no real understanding of the nature of the judicial review proceeding that was before the Federal Circuit Court, or the basis on which that proceeding had been determined adversely to him. It is little wonder then that, when asked to do so, the appellant was unable to articulate any argument in support of his grounds of appeal. In pre-hearing orders, the appellant had been directed to file a written outline of his submissions. However, the document he filed comprises:

    a letter, in the nature of a reference, from someone claiming to be the appellant’s adopted son;

    some photographs; and

    a letter dated 10 October 2016 from his compensation lawyers dealing with work injuries suffered by the appellant in the course of his employment in Sydney on 10 October 2013.

15    Suffice it to say, this material did not deal with the appellant’s grounds of appeal and, therefore, was of no assistance in determining the issues before this Court on the appeal.

16    I should also mention that, on 10 January 2017, the appellant had filed an affidavit he had made. The affidavit purports to identify errors made by the Tribunal. The Minister was content for me to treat the affidavit as having been read in the appeal subject to a limitation under s 136 of the Evidence Act 1995 (Cth) that the statements made in the affidavit be treated only as submissions.

17    In oral submissions, the Minister dealt with each of the grounds stated in the notice of appeal taken in conjunction with the appellant’s affidavit, which might be thought to contain grounds of appeal in addition to those set out in the notice of appeal. A common submission made by the Minister was that the grounds, as expressed in the notice of appeal and the affidavit, are so broad that they really lack any meaningful content with which the Minister or the Court could engage. Further, the Minister argued that the appellant had made no contribution, by way of submissions, that would illuminate these grounds in any meaningful way.

18    As to Ground 1 of the notice of appeal, the Minister submitted that there was nothing to suggest that the Federal Circuit Court had not properly considered whether the Tribunal had failed to consider all the evidence before it and all the elements of the appellant’s claim. The Minister noted that the primary judge’s consideration of Ground 2 of the application for judicial review before the Federal Circuit Court showed that the primary judge had directed his attention to that matter and had rejected the appellant’s similarly unparticularised assertion that the Tribunal had failed to take into account relevant materials and considerations.

19    As to Ground 2, the Minister submitted that the appellant had not raised any issue before the Tribunal concerning the impossibility of relocation. Further, the Minister submitted that, as the Tribunal had concluded that the appellant’s claims were not genuine, and had been fabricated, there was no occasion for the Tribunal to consider the question of relocation.

20    As to Ground 3, the Minister submitted that there was no basis on which the Court could conclude that the Tribunal had either misconstrued or misapplied the complementary protection provisions of the Migration Act, in particular s 36(2)(aa). The same ground appears to have been raised by the appellant in Ground 6.

21    As to Ground 4, the Minister submitted that it was not clear what the appellant was referring to when he said that the Federal Circuit Court had agreed with the Tribunal and misapplied the test of whether there was a real risk of significant harm to him if he were to be returned to Slovenia. The Minister submitted that the particulars which had been provided with respect to Ground 4 were not meaningful and appeared to be a repetition of aspects of certain other grounds pleaded by the appellant. For example, particular I) appears to be reflected in Grounds 3 and 6; particular II) also finds expression in Ground 5 which, in turn, includes aspects of Ground 1.

22    The Minister identified paragraphs in the appellant’s affidavit which appeared to overlap with the grounds in the notice of appeal. The Minister identified two contentions in the appellant’s affidavit which did not appear to overlap with the grounds in the notice of appeal, namely:

    “The Tribunal constructively committed jurisdictional error when it made it decision on 8 January 2016”; and

    “The Tribunal made erroneous findings, reached mistaken conclusions on material questions of fact in breach of Section of the Migration Act 1958”.

23    The Minister submitted, with respect to these contentions, that they were too broad to establish jurisdictional error on the part of the Tribunal.

24    I accept the Minister’s submissions. I accept, in particular, that the broad brush way in which the notice of appeal has been drafted points to no identifiable appealable error in the judgment below. As I have noted, the appellant was unable to provide any assistance in that regard.

25    Having considered the primary judge’s reasons, read and considered in light of the Tribunal’s decision record, I am unable to discern any appealable error or, indeed, any jurisdictional error on the part of the Tribunal.

26    For these reasons, the appeal must be dismissed, with costs.

Associate:

Dated:    2 June 2017