FEDERAL COURT OF AUSTRALIA

BAL17 v Minister for Immigration and Border Protection [2018] FCA 792

ORDERS

THE COURT ORDERS THAT:

1.    The notice of appeal be treated as a combined application for leave to appeal and draft notice of appeal.

2.    The application for leave to appeal be dismissed.

3.    The appellants pay the first respondent’s costs of and incidental to the application for leave to appeal, as taxed or agreed.

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

REASONS FOR JUDGMENT

Revised from transcript

BROMWICH J:

1    This is a purported appeal from orders made by a judge of the Federal Circuit Court of Australia. His Honour dismissed an application for reinstatement of an application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent – then known as the Minister for Immigration and Border Protection, now the Minister for Home Affairs – to refuse the grant of protection visas to the appellants. For reasons that will become apparent, leave to appeal was required. The notice of appeal should therefore be treated as a combined application for leave to appeal and a draft notice of appeal. However, it will be convenient still to refer to the applicants for leave to appeal as the appellants.

2    The three appellants are a married couple from India and their child. The Tribunal accepted that the husband is a Christian and his wife was a Muslim who converted to Christianity. They claimed a fear of persecution by the wife’s stepbrother and associates from his mosque. The Tribunal, while having some doubts about the credibility of the claims made, was apparently prepared to give the appellants the benefit of the doubt and accepted their claims of a fear of persecution for the reasons advanced. However, the Tribunal found that, in all the circumstances, the risk of harm was localised and relocation to a part of India where there would not be a real chance of suffering serious harm was reasonable. The reasons advanced by the appellants for not being able to be relocated were considered by the Tribunal in some detail, including by reference to country information.

3    The key dates leading to the proceedings in this Court are as follows:

(1)    16 March 2016 – protection visa applications lodged, dated 10 March 2016;

(2)    21 September 2016 – delegate of the Minister refused the grant of protection visas; application for merits review by the Tribunal lodged the same day;

(3)    3 February 2017 – hearing before the Tribunal at which the first and second appellants gave evidence; an attempt was made take evidence from the second appellant’s mother; the appellants declined an offer to provide her evidence in writing; further documents were provided at the hearing;

(4)    14 February 2017 – the Tribunal affirmed the delegate’s decision to refuse the grant of protection visas;

(5)    10 March 2017 – application for judicial review by the Federal Circuit Court of Australia, without any grounds of review being pleaded, supported by affidavits which also did not identify any grounds of review;

(6)    28 August 2017 – hearing date for judicial review; the appellants did not appear and the application was dismissed by a registrar;

(7)    29 August 2017 – application made for reinstatement supported by affidavit evidence as to the reasons for non-appearance

(8)    8 September 2017 – evidence filed by the Minister;

(9)    6 October 2017 – medical evidence filed by the appellants;

(10)    19 October 2017 – reinstatement application heard by a registrar and refused;

(11)    6 November 2017 – the appellants filed an application for judicial review by the Federal Circuit Court of the registrar’s decision to refuse their reinstatement application;

(12)    4 December 2017 – the primary judge heard the reinstatement refusal review application de novo and dismissed it. His Honour did so upon the basis of lack of merit in the application for judicial review of the Tribunal’s decision.

Before the primary judge

4    As noted above, the primary judge considered the reinstatement application de novo. The power to reinstate is discretionary as provided in r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth). His Honour considered the following factors relevant to the exercise of the discretion to reinstate    :

(1)    the explanation for non-appearance;

(2)    the extent of the delay in seeking reinstatement;

(3)    the prejudice that the Minister would suffer if the application were to be reinstated; and

(4)    the merits of the application in respect of which reinstatement was sought.

5    The primary judge was satisfied that there was no delay in seeking reinstatement. His Honour noted that the Minister did not contend that there would be any prejudice arising from the mere fact of reinstatement. His Honour also concluded that the appellants had provided a reasonable explanation for their non-appearance. His Honour then considered the merits of the application for judicial review, noting that this was to be conducted at a “relatively impressionistic level”.

6    The primary judge was not satisfied that the application for judicial review had sufficient merit to warrant reinstatement. In reaching that conclusion, the primary judge noted that the application for judicial review did not plead any grounds and that the appellants had been unable to identify error other than to say that the Tribunal did not accept some of their claims. The primary judge conducted his own detailed analysis of the Tribunal’s reasons, but could not see any jurisdictional error. His Honour was also satisfied that there was no error in the Tribunal’s treatment of a non-disclosure certificate issued under s 438 of the Migration Act 1958 (Cth) that it had found to be invalid. The Tribunal’s approach, consistent with authority, was to advise the appellants of the existence of the certificate, that it had found the certificate to be invalid, and that the subject documents were not relevant to the review because they were of a purely administrative nature.

7    The primary judge noted that, in oral submissions, the appellants had raised matters going to the reasonableness of relocation within India. However, his Honour was satisfied that the Tribunal had considered those matters. The appellants also asserted that there were interpreter errors before the Tribunal, but were unable to identify any particular errors. His Honour could not see how any error as to interpretation could have affected the Tribunal’s decision. His Honour therefore concluded that the application for judicial review lacked sufficient merit to warrant reinstatement.

The purported appeal

8    The Minister correctly submits that the appellants required leave to appeal to this Court because the primary judge’s decision was interlocutory in nature: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The Minister’s written submissions pointed to the well-established test that, on an application for leave to appeal, the guiding principles are whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal and whether substantial injustice would result if leave were refused, citing Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9. Reference was also made to Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 at [25], in which the High Court made it clear that a decision of this kind is interlocutory, notwithstanding that it has a final effect as a matter of practicality. That characterisation is what gives rise to the need for the appellants to seek leave to appeal.

9    The Minister pointed out that the notice of appeal raises, in narrative form, the potential impediments to the appellants’ internal relocation within India. That is, no error is identified in the assessment of the primary judge as to the lack of merit in their original application for judicial review.

10    The Minister submitted that the primary judge correctly understood the principles relevant to the discretion to reinstate, being the principles stated by Ryan J in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 at [7]. Of particular relevance presently is the third of those principles, requiring consideration of whether the appeal, or, as in this case, the application for judicial review, has a reasonable chance of success. If it does not, there is no purpose in reinstatement. Ryan J also observed in MZYEZ at [10] that the decision whether or not to reinstate is essentially discretionary, so as to attract the well-known principles guiding and limiting appellate intervention in discretionary decision-making that were expressed in House v The King (1936) 55 CLR 499 at 504-5.

11    In support of the conclusions reached by the primary judge, the Minister pointed to the following:

(1)    Given that the application for judicial review pleaded no grounds and no grounds were set out in the affidavit filed in support, there is no room to doubt that the primary judge was correct to find that the judicial review application itself did not raise any grounds of sufficient merit to warrant reinstatement.

(2)    Before the primary judge, the appellants raised allegations of error with respect to the Tribunal’s decision. They asserted that there were impediments to their internal relocation within India which made relocation unreasonable, namely inter-caste marriage and language difficulties. The Minister submitted that the primary judge was correct to find that the Tribunal considered the facts going to the reasonableness of relocation that were raised by the appellants before the Tribunal, including language difficulties. The Minister further submitted that the primary judge was correct to find that, on the evidence before him, the appellants did not raise with the Tribunal inter-caste marriage as an impediment to relocation.

12    The Minister submissions as to the lack of any discernible error on the part of the primary judge in relation to the matters raised by the appellants in support of their reinstatement application should be accepted.

13    The Minister also submitted that the primary judge was correct to find that this case was distinguishable from the certificate cases of MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1; and Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; 244 FCR 305, because the Tribunal disclosed the existence of the certificate to the appellants at the hearing, found the certificate to be invalid and did not regard have regard to the documents the subject of the certificate, not because of the invalid certificate, but because the documents were merely administrative in nature and were not relevant to any of the dispositive issues arising on the review. The Minister’s submissions in relation to the certificate issue should also be accepted.

14    In relation to the sole ground raised in the present notice of appeal, which, as noted above, is to be treated as an application for leave to appeal and draft notice of appeal, the Minister submitted that this ground did not demonstrate any error in the primary judge’s reasons for finding that the appellants’ judicial review application lacked sufficient merit to warrant reinstatement. Thus, it was submitted, his Honour’s decision was not attended with sufficient doubt to warrant reconsideration on appeal. The Minister pointed out that the sole appeal ground as pleaded raises a number of factors relevant to the reasonableness of relocation, but they are all in the nature of challenging the merits of the Tribunal’s decision. The appellants had not demonstrated that any of the additional factors now relied upon were raised with the Tribunal.

15    The Minister submitted that, in considering internal relocation, the Tribunal was required to identify an area to which the appellants could safely relocate and determine whether it was reasonable, in the sense of practicable, to expect the appellant to relocate there, citing SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18. The Minister submitted that what is reasonable, in the sense of practicable, must depend upon the particular circumstances of the protection visa applicants and the impact upon them of relocating within their country: see SZATV at [24]. Relevant factors may include, but are not limited to, such things as the appellants’ ability to earn an income, which may in turn involve consideration of their skills, and educational, professional and work backgrounds and opportunities. The Minister cited, by way of contrast, Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; 254 CLR 317.

16    The Minister also pointed to long-standing authority to the effect that the range of factors that may be relevant in any particular case on the question of whether relocation is reasonably available will largely be determined by the case made by the applicant for a protection visa, citing the Full Court decision in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 443 and 453. A decision-maker may need to consider matters arising implicitly from the evidence in respect of location, but a decision-maker is not required to “elaborate on every aspect of its practical application”: see SZBJI v Minister for Immigration and Multicultural Affairs [2006] FCA 216 at [22].

17    In light of the foregoing authority, the Minister submitted that the matters raised in the appeal ground in the notice of appeal were not raised before the Tribunal by the appellants. Nor were they sufficiently obvious that it could be said to have risen implicitly from the evidence in respect of relocation, such that the Tribunal was required to have regard to those matters. The Minister therefore submitted that the Tribunal did properly have regard to the reasonableness of relocation in light of the matters that were raised by the appellants on the material that was before the Tribunal.

18    During the course of the hearing, the appellants handed up three documents in support of their appeal/application for leave to appeal as follows:

(1)    a document headed “statement of [first appellant’s name]”, which was in the form of a submission;

(2)    eight pages of printouts from the internet, including from a publication entitled “The Indian Express”, referring to honour killings and related acts of violence, especially arising out of cross-caste marriages or relationships; and

(3)    an extract of pages 3 to 8 of the primary judge’s reasons, with highlight markings to various paragraphs and quotes.

19    The solicitor for the Minister submitted that none of the material could make any difference to the outcome of these proceedings because they raise matters that were not raised before the Tribunal, raise matters that were dealt with by the Tribunal or raise issues that were not relevant to the present application. The last aspect of those submissions is to be understood as contending that the material handed up does not implicitly or explicitly identify any error on the part of the primary judge. Those submissions should be accepted. The additional material sought to be relied upon raises problems with relocation arising from a cross-caste relationship, which does not appear to have been raised at all before the Tribunal. Moreover, a number of the events referred to post-date the Tribunal decision in that they took place after 14 February 2017.

20    Both the first appellant and the second appellant said that they were frightened to go back to India. They made a plea to be allowed to remain in Australia, referring in particular to ongoing problems standing in the way of safe relocation in India. Although it is difficult not to feel sympathy for the appellants, none of that raises any doubt as to the correctness of the primary judge’s decision.

21    The submissions for the Minister should be accepted. No error on the part of the primary judge has been demonstrated, nor does it appear that any error on the part of the Tribunal has been overlooked by his Honour. In those circumstances, leave to appeal must be refused with costs. Even if leave had been granted, the appeal would, in any event, have been dismissed.

Conclusion

22    The application for leave to appeal should be dismissed. The applicants for leave to appeal, styled as the appellants, are to pay the Minister’s costs.

Associate:

Dated:    30 May 2018