FEDERAL COURT OF AUSTRALIA

CPW15 v Minister for Home Affairs [2018] FCA 1919

Appeal from:

CPW15 & Anor v Minister for Immigration & Anor [2018] FCCA 1307

File number:

NSD 972 of 2018

Judge:

MCKERRACHER J

Date of judgment:

28 November 2018

Date of publication of reasons:

29 November 2018

Catchwords:

MIGRATION – protection visa applications – appeal from the Federal Circuit Court of Australia – where the primary judge concluded the appellants son should not be joined as a party – where the primary judge concluded the application sought impermissible merits review – consideration of duties owed to accord procedural fairness

Held: appeal dismissed

Legislation:

Migration Act 1958 (Cth) ss 412(2), 425

Cases cited:

Coulton v Holcombe (1986) 162 CLR 1

Hamod v New South Wales [2011] NSWCA 375

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

OBrien v Komesaroff (1982) 150 CLR 310

R v Zorad (1990) 19 NSWLR 91

Shrestha v Migration Review Tribunal (2015) 229 FCR 301

SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445

VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588

Date of hearing:

28 November 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

38

Counsel for the Appellants:

The Appellants appeared in person with the assistance of an interpreter

Counsel for the First Respondent:

Ms K Evans

Solicitor for the First Respondent:

Sparke Helmore

Counsel for the Second Respondent:

The Second Respondent submits to any order of the Court, save as to costs

ORDERS

NSD 972 of 2018

BETWEEN:

CPW15

First Appellant

CPX15

Second Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

MCKERRACHER J

DATE OF ORDER:

28 NOVEMBER 2018

THE COURT ORDERS THAT:

1.    The appeal be dismissed

2.    The appellants pay the costs of the first respondent, 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

REVISED FROM THE TRANSCRIPT

MCKERRACHER J:

1    This is an appeal from a decision made by the Federal Circuit Court of Australia on 25 May 2018: CPW15 & Anor v Minister for Immigration & Anor [2018] FCCA 1307. By that decision the Federal Circuit Court dismissed the appellants’ application for judicial review of a decision of the Administrative Appeals Tribunal. That decision had been given some time before on 18 November 2015 and the Tribunal there affirmed the decision of the delegate of the Minister for Home Affairs to refuse to grant the first and second appellants Protection (Class XA) visas (protection visas).

BACKGROUND

2    The appellants are both citizens of India. The first appellant arrived in Australia on 19 December 2012, as a tourist. The second appellant, his wife, arrived in Australia on 12 May 2013. She did not make any claims for protection in her own right, but her claim is dependent upon the first appellant’s claims.

3    On 24 February 2014, the first appellant applied for the protection visas. In his visa application, the first appellant claimed to fear harm on the basis of the following:

(a)    he feared being killed by anti-Sikh parties such as ‘Congress’;

(b)    in October 1984, Indira Gandhi was killed by Sikh guards and, in the ensuing anti-Sikh riots, the first appellants father was burned alive and killed by anti-Sikh mobs, the familys house and property were burned and the rioters tried to kill the first appellant (who was a child at the time); and

(c)    his family gave testimonials against Congress leaders who had a role in the anti-Sikh riots. The leaders were very powerful and his family were at risk.

4    The delegate of the Minister refused to grant the appellants protection visas on 2 October 2014. The appellants applied to the Tribunal for review of the decision of the delegate but, for reasons which I will examine, the Tribunal affirmed the delegate’s decision.

IN THE TRIBUNAL

5    It was accepted that the first appellants father was killed and his familys property burned in anti-Sikh riots in 1984. But the Tribunal asked the first appellant several times if he had experienced any harm in India since the 1984 riots. The first appellant referred to a general fear, discriminatory reporting and treatment of Sikhs, a clash in August 2013 in his home neighbourhood involving Sikhs, and the lack of prosecution of those responsible for the 1984 anti-Sikh riots. Nonetheless, he acknowledged that neither he nor his mother had been harmed for speaking out in the past. He provided little detail about the basis of his ongoing fears and did not articulate any other specific fears if returned to India.

6    The Tribunal accepted that, being a minority in India, Sikhs issues may get less media and political attention than issues involving the Hindu majority. However, it was not satisfied that the lack of media and political attention to some Sikh issues gave rise to a real chance of serious harm or a real risk of significant harm to the appellants. It was not satisfied there was a real chance of serious harm or a real risk of significant harm merely for being Sikh, because of the events of 1984, due to the lack of prosecution of those responsible for the 1984 riots or for speaking out against Hindus or the Congress Party.

7    The Tribunal did accept that in August 2013, there was a violent street clash in the first appellants home neighbourhood between Sikh and Valmilki/Dalit residents; it was not, however, satisfied that this formed a basis for ongoing fear for Sikh residents in the area. The Tribunal was also not satisfied that the August 2013 street clash gave rise to a real chance of serious harm or a real risk of significant harm to the appellants.

8    It considered that the appellants did not have a well-founded fear of persecution or that there was a real risk they would be subjected to significant harm.

IN THE FEDERAL CIRCUIT COURT

9    The appellants then sought review in the Federal Circuit Court. They relied on three grounds of review:

1.    I AM NOT HAPPY WITH DECESION [sic].

2.    SIKHS ARE STILL UNDER THREAT.

3.    NO JUSTICE FOR SIKH’ IN INDIA.

I PROVIDE THE REAL DOCUMENT BUT I DONT KNOW WHY IMMIGRATION REFUSE MY APPLICATION.

10    By grounds 1 and ground 2, the appellants expressed dissatisfaction with the Tribunals decision and asserted that Sikhs are still under threat in India. By ground 3, the appellants contended that there is no justice for Sikhs in India and that the appellants provided the real document, but do not know why their applications were refused.

11    A Registrar of the Federal Circuit Court, on 11 February 2016, made orders by consent, adding the appellants Australian-born son as a party before the Court and appointing a litigation guardian for him. This is somewhat incidental to the appellants’ oral submissions today before this Court, but at the hearing of the application on 26 February 2018, the primary judge raised a question as to whether the appellants son could be a party to the proceeding. The primary judge concluded that the Tribunal had no jurisdiction to consider any application other than the appellants and, therefore, the son could not be a party to the judicial review proceeding. His Honour consequently vacated the Registrars orders joining the appellants’ son as a party to the proceeding.

12    The primary judge then proceeded to consider each of the three grounds of review, but concluded they were only bare assertions of error and sought impermissible merits review. His Honour went on to find that there was no jurisdictional error arising from the appellants grounds or their submissions.

THE NOTICE OF APPEAL

13    In the proceeding before this Court, the first appellant has raised six grounds of appeal, as follows:

1.    The Honourable Federal Circuit Court Judge made an error by holding that the Registrar was in error in making the order adding the "third applicant" as a party before the Court and appointing a litigation guardian for him. The Registrar's orders one, two and three made on 11 February 2016 are therefore vacated" [at para 29 of the Reasons for judgement].

2.    The Federal Circuit Court Judge should have found that the [Tribunal] erred in applying the "real chance" test when assessing whether the [appellants’] fear of persecution was well-founded.

3.    In Minister v Rajalingam (1999) 93 FCR 220 Sackville J states at [60], [62], [63] and [67]: [60] It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur ... The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring. [63] ... In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute: an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found". The Federal Circuit Court Judge failed to hold the [Tribunal’s] failure to do so may constitute an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found.

4.    "The Tribunal acknowledges that the killing of the first named [appellant’s] father in 1984 was part of tragic events at the time" [at para 39] of its decision. "The Tribunal also notes the first named applicant's evidence that both he and his mother are some of the people who continue to speak out and seek justice for the events of 1984" [at para 41] of its decision. "The Tribunal accepts that in August 2013 there was a violent street clash in the first named applicant's home neighbourhood, between some Sikh residents and Valmilki/Dalit residents" [at para 42] of its decision.

Particulars:

a)    Federal Member for Leichhardt voiced concerns over human rights violations in India in news SBS on 14 December 2017 and demands recognition of 1984 Sikh massacre as genocide. He has requested Foreign Minister to address the issue of safety for 47 Sikh detainees held in custody in Punjab. He considers these detainees as the social campaigners who are committed to raise awareness against anti-Sikh atrocities in India.

b)    Successive Indian governments' failure to prosecute those most responsible for killings and other abuses during the 1984 anti-Sikh violence highlights India's weak efforts to combat communal violence. The new Indian government should seek police reforms and to enact a law against communal violence that would hold public officials accountable for complicity and dereliction of duty (Human Rights Watch October 29, 2014). This report was available at the time the Tribunal made its decision.

5.    The appellants contend that the failure to put the [appellants] on notice that, in contrast to the delegate's decision the first [appellant’s] credibility concerning some of his claims was in issue, unreasonable such that the Tribunal committed a jurisdictional error. The Federal Circuit Court Judge failed to hold that the Tribunal committed a jurisdictional error.

Particulars:

a)    In Minister v Li (2013) 249 CLR 332 at [29], [47] and [63] that the High Court stated:

"When a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably".

b)    In DZU16 v Minister [2017] FCCA 851 at [116]-[124] Judge Driver applied this principle to s473DC of the Migration Act 1958.

6.    The Federal Circuit Court Judge failed to ensure that the hearing is fair. The duty requires that a litigant does not suffer a disadvantage from exercising his or her right to be self-represented (NSWCA in Hamad v New South Wales [2011] NSWCA 375).

Particulars:

a)    His Honour also failed to take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the Court [SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445].

b)    It is a requirement in Shrestha v Migration Review Tribunal (2015) 229 FCR 301 that the Court must explain in plain terms to unrepresented applicants that they must identify why the Tribunal's decision was not made lawfully and by a fair process. It is not enough to merely say that they must demonstrate jurisdictional error.

14    Grounds 2-5 raise issues which were not before the primary judge and require the leave of the Court to be raised.

AT THE HEARING

15    In the course of the hearing today, I have made it clear to the first appellant that my role is to consider on the grounds of appeal and the materials clearly before me as to whether or not there was an error of law in the process of the Federal Circuit Court. Secondly, the Federal Circuit Court in turn was obliged to consider whether there was any jurisdictional error in the process conducted in the Tribunal. I made it clear to the first appellant that it was not open to me to consider the facts or merits of the decision, because that was not within the ambit of my jurisdiction or power.

16    Notwithstanding this, the first appellant did stress that he considered that it was not safe for him or his family to return to India and that his case had not been considered carefully or properly and that he was simply asking for his case to be considered again from the start. He emphasised that his difficulty had been due to him not having the representation of a lawyer and, in the absence of a lawyer assisting him, the grounds of appeal on which he was relying were simply grounds that he had effectively cobbled together after consulting various people who were not necessarily both lawfully trained and intimately aware of his particular case. However, his central submission was that, if his case were reconsidered from the start, he believed that it would be concluded that it was not safe for him to return to India.

17    As I have made clear to the first appellant, those grounds are not set out in the appeal. There is no application to amend the appeal to include those grounds and it is not within my province to reach conclusions other than on the basis of errors of law that may have arisen.

GROUNDS 1 AND GROUND 6

18    By ground 1, the appellants contend that the primary judge erred in holding that it was not appropriate that the appellants son be party to the proceeding and vacating the Registrars orders. I should say that, in relation to this ground, understandably, the first appellant made no specific submissions and, indeed, made no specific submissions to any of his grounds of appeal other than the general request that his matter be reconsidered from the start in the manner that I have outlined above.

19    As noted, in the Federal Circuit Court, the primary judge accepted the Ministers submission that pursuant to s 412(2) of the Migration Act 1958 (Cth), the appellants son had no standing to seek review of the delegates decision by the Tribunal. Section 412(2) relevantly provides that [a]n application for review may only be made by the non-citizen who is the subject of the primary decision.

20    In the present case, the primary decision was the decision of the delegate not to grant the first and second appellants protection visas. The appellants child was born on 31 May 2015, which was after the date of the delegates decision on 2 October 2014 and he was, therefore, not the subject of the primary decision.

21    There is no error in the determination of the primary judge in that regard. His Honour was correct to conclude that the Tribunal had no jurisdiction to consider an application from the son and that the son should not be a party to the proceeding

22    Ground 6 contends that the primary judge failed to ensure that the unrepresented appellants were afforded a fair hearing. In support of this ground, the appellants rely on three authorities: Hamod v New South Wales [2011] NSWCA 375; SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445; Shrestha v Migration Review Tribunal (2015) 229 FCR 301.

23    In Hamod, the New South Wales Court of Appeal considered the courts duty to unrepresented litigants. The Court observed that in the context of an unrepresented litigant, the courts duty to ensure that a trial is fair requires that a person does not suffer a disadvantage from exercising the right to be self-represented: at [309] citing R v Zorad (1990) 19 NSWLR 91 (at 94-95). The Court of Appeal went on to make the following observation (at [311]):

Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case: Jae Kyung Lee v Bob Chae-Sang Cha per Basten JA at [48]. See also Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd (2004) 63 IPR 54; Pezos v Police (2005) 94 SASR 154.

24    The main issue in SZRUR was whether the appellant was denied procedural fairness in the Federal Circuit Court when the appellant was unrepresented and the primary judge did not explain to the appellant that the Court would not act on statements from the bar table and that his allegation of migration agent fraud would fail in the absence of evidence as such. In considering this issue, the Full Court considered the Court of Appeals observations in Hamod about the Courts duty to unrepresented litigants: per Robertson J (at [37] with whom Allsop CJ and Mortimer J agreed). The Full Court concluded that the primary judges failure to explain the procedure to the appellant was not fair, and importantly, in light of the allegations, it could have affected the outcome: at [43].

25    The Full Court in Shrestha considered whether the primary judge failed to accord procedural fairness to the appellant in exercising the power summarily to dismiss the application for judicial review.

26    It is worth stating in summary form only, what I consider Shrestha (at [37]-[55] and the cases therein cited) establishes:

(1)    It is axiomatic that the primary judge or any judge is obliged to accord procedural fairness to the appellant.

(2)    It is equally axiomatic that the requirements of procedural fairness include the provision of a reasonable opportunity for the appellant to present evidence in an appropriate case and to make submissions.

(3)    The power of a court to summarily dismiss is subject to that obligation.

(4)    A central element of the system of justice is that it should be fair. This means that it must be open, impartial and even-handed.

(5)    Procedural fairness or natural justice lies at the heart of the judicial function. In the federal constitutional context, it is an incident of the judicial power exercised pursuant to Ch III of the Constitution. It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard.

(6)    The rules of procedural fairness do not have immutably fixed content, but procedural fairness nonetheless is an immutable characteristic of a court.

(7)    It is always necessary to assess whether a process meets the necessary standards of fairness by examining the particular circumstances in which that process occurs.

(8)    The pressure of high volume decision-making, such as that undertaken by the Federal Circuit Court in the migration jurisdiction, should be recognised, but that circumstance does not obviate the need to consider the material before the Tribunal (rather than simply its reasons), nor to explain in plain terms to unrepresented applicants that they must identify to the Court why the Tribunal’s decision was not made lawfully and by a fair process.

27    In this appeal, and not unsurprisingly, the first appellant has not filed a transcript of the hearing before the Federal Circuit Court. The best available evidence of the procedures actually adopted by the primary judge is therefore, his Honours reasons for judgment dated 25 May 2018.

28    As noted in those reasons, the matter first came before a Registrar on 11 February 2016. On that date, the Registrar made orders giving the appellants the opportunity to file any amended application and evidence by way of affidavit. As the primary judge observed, no further documents were filed in this regard. The matter again came before a Registrar on 21 April 2016 and, on that date, the Registrar made orders setting the matter down for final hearing on 28 August 2018 and giving the parties the opportunity to file written submissions. The final hearing was subsequently relisted on 26 February 2018; the appellants filed no written submissions. At the hearing of the matter on 26 February 2018, the appellants appeared in person and were assisted by an interpreter in the Punjabi language.

29    In his reasons, the primary judge considered the grounds raised in the application as well as a number of other matters raised by the appellants before the Court. The primary judge recorded that the first appellant repeated the bare assertions made in the grounds of the application to the Court, but concluded that none of the assertions in the appellants grounds revealed jurisdictional error. The primary judge went on to observe that the appellants also raised a number of other matters before the Court; namely, that the Tribunal did not consider the first appellants circumstances with reference to the riots of 1984 and a later incident in 2013 and that the Tribunal overlooked a DVD. I note the primary judge observed the evidence that the first appellant had given a ‘CD’ to the delegate, presumably meaning a DVD, as well the second appellants submissions that there is nothing left for the appellants in India and that there are problems with their child. The primary judge found that there was no jurisdictional error arising from these additional matters.

30    The power of a judge in the Federal Circuit Court is confined to considerations of jurisdictional error. The primary judges reasons strongly suggests that the appellants were in fact afforded an opportunity to make submissions with respect to the grounds raised in the application and took the opportunity to raise a number of other matters, which the Court duly considered. There is no evidence of any failure by the primary judge to explain a procedure to the appellant or that any such failure could have affected the outcome. The circumstances in which the present matter was dismissed are patently different to those in which the Federal Circuit Court exercised the power summarily to dismiss the application in Shrestha.

31    As the application to show cause was filed on 7 December 2015, the matter had been on foot for over 2 years when it came on for final hearing. In that time, the appellants appeared before a Registrar on two occasions at which procedural orders were made to prepare the matter for hearing. The primary judge in the present case clearly considered not only the Tribunals reasons, but also the material before the Tribunal. The reasons for judgment indicate that the primary judge afforded the appellants procedural fairness and took appropriate steps to ensure that they had sufficient information about the practice and procedure of the court to ensure a fair process.

GROUNDS 2-5

32    I turn then to the new grounds 2-5.

33    In ground 2, the appellants contend that the Tribunal erred in applying the real chance test. While the Tribunal accepted that Sikh issues may get less media and political attention, it was not satisfied that this gave rise to a real chance of serious harm to the appellants. The Tribunal was also not satisfied on the evidence before it that there was a real chance the appellants would face serious harm merely for being Sikh, because of the events of 1984, due to the lack of prosecution of those considered responsible for the 1984 riots or for speaking out against Hindus or the Congress Party. Further, while the Tribunal accepted that in August 2013 there was a violent street clash in the first appellants home neighbourhood between residents, it was not satisfied that this gave rise to a real chance of serious harm to the appellants. There is no error in the Tribunal simply not being satisfied on the evidence before it that there was a real chance that the appellants will suffer serious harm.

34    As to the contention in ground 3 that the Tribunal erred in failing to ask what if I am wrong?, an expression derived from Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 (at [66]-[67]), the question is not applicable to this case. In the present matter, the Tribunal was not in any doubt as to its conclusions and accordingly was not required to ask itself that question.

35    By ground 4, the appellants contend that the Tribunal erred in failing to consider relevant country information; namely, a Human Rights Watch report dated 29 October 2014. The Minister contends, and I accept, that there is no evidence in the available material that the appellants provided the Human Rights Watch report to the Tribunal for consideration and, in any case, the choice and assessment of country information is a factual matter for the Tribunal: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (at [11]-[13]). Insofar as the appellants seek to rely on a news article from SBS dated 14 December 2017, this article post-dates the Tribunals decision by nearly 2 years. The Tribunal could not be said to have erred in failing to consider material that was not before it.

36    The final contention by ground 5 is that the Tribunal, as distinct from the primary judge, did not afford the appellants a real and meaningful invitation to appear before it to give evidence and present arguments relating to the issues arising from the decision under review. This ground is unparticularised like the other grounds. The appellants have not identified any particular aspect in which they contend the Tribunal failed to give them the opportunity to address the Tribunal’s concerns. Like the Tribunal, the delegate also accepted the first appellant’s father had been killed in 1984, but it did not accept that the first appellant had any genuine fears as a Sikh in India since that incident.

37    As the basis for that delegate’s decision was also the delegate’s lack of acceptance that the first appellant had any genuine fears as a Sikh in India, the appellants were on notice of this being a determinative issue on review. This ground could not succeed and leave to rely on the new grounds generally must be refused.

CONCLUSION

38    I must conclude that notice of appeal fails to establish any appellable error in the decision of the primary judge or jurisdictional error in the decision of the Tribunal. It follows that the appeal must be dismissed with costs.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate:

Dated:    29 November 2018