FEDERAL COURT OF AUSTRALIA

CZE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1405

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as assessed or agreed.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This proceeding commenced as an application for an extension of time within which to bring an appeal against orders made by a judge of the Federal Circuit Court of Australia, with reasons given by an ex tempore judgment delivered on 9 June 2017. For the reasons given below, at the hearing in this Court, an extension of time and leave to file a notice of appeal was granted confined to one ground of appeal. These reasons will therefore refer to the “appellant” rather than the “applicant”.

2    With the grant of an extension of time, this is an appeal from the primary judge’s orders, dismissing an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent, now known as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to refuse the grant of a protection visa.

3    The appellant is from Fiji. She initially did not make any protection claims herself, but rather relied upon such claims made by her husband, so was originally a secondary visa applicant. Her husband claimed to fear harm if he was made to return to Fiji. On 8 October 2014, a delegate of the Minister refused the grant of protection visas. She and her husband applied for merits review of the delegate’s decision by the Tribunal. The appellant subsequently advised the Tribunal of allegations of domestic violence perpetrated by her husband and that she wished to make claims for her own protection. As a result, her independent protection claims were heard separately by the Tribunal. On 6 September 2016, the Tribunal affirmed the delegate’s decision to refuse to grant her a protection visa. As noted above, an application for judicial review of that decision was unsuccessful.

Before the Tribunal

4    The appellant raised three sources for her asserted fear of harm, being from her husband arising from his history of domestic violence towards her, from the Fijian military arising from harm directed towards her husband, and by reason of an article published in a local newspaper concerning her allegations that she had fled Fiji because of threats made by the Fijian military.

5    Only the domestic violence aspect is pressed in this Court. That claim was considered in some detail by the Tribunal. The Tribunal accepted that the appellant had experienced domestic violence at the hands of her husband, but found that she did not face a real chance of harm from her husband in Fiji, including, but not only, because they were separated and would not be living on the same island. The Tribunal made a finding that police protection was inadequate in certain respects, but fell short of finding that she would be unable or unwilling to obtain effective protection.

Before the Tribunal

6    The Tribunal’s consideration of the appellant’s claims regarding her former husband were summarised by the primary judge as follows (at [6]-[11] and [14]):

At the time of the Tribunal hearing, the applicant had been separated from her former husband for about a year. The applicant identified that she came to Australia in 2003 to visit her father, from whom she had long been estranged. The applicant came to Australia for about two months. The next visit, in 2011, was also for about two months, and, in 2013, she came for the first time with her former husband, for a holiday for two months. The applicant then returned to Australia on 18 December 2013 and has not since left.

The Tribunal identified the applicant’s claim to fear of harm from her husband, on the basis of a history of domestic violence and that she was fearful of the military because of what they did to her former husband in the past, and she was fearful because of the publication of an article since she came to Australia, which referred to her having fled the military in Fiji. The applicant confirmed that these were the claims that she made and reiterated that, if she goes back to Fiji, she is afraid her former husband will chase her wherever she goes in Fiji.

The Tribunal accepted that the applicant had been separated from her former husband in circumstances in which she was in fear of her safety and obtained an AVO, but the Tribunal found that the applicant had now left the relationship and accepted that the applicant has a reasonable fear for her safety from him in Australia, as evidenced by the AVO currently in place. The Tribunal found that there was no reason to believe that the applicant will not remain separated from her husband upon returning to Fiji in the future.

The Tribunal was not satisfied there is a real chance, in the sense of more than one that is remote, that the applicant will face serious harm from her former husband were she to return to Fiji in the reasonably foreseeable future. The Tribunal found that, even accepting that the former husband were to return to Fiji, the Tribunal was not satisfied that there is more than a remote chance that he would track her down to her home area and threaten, intimidate, physically harm or otherwise cause her serious harm.

The Tribunal considered whether if the former husband did return to Fiji the availability of the requisite level of protection. The Tribunal concluded that the level of state protection was such that it was not satisfied that the applicant was unable or unwilling to avail herself of the protection of her country in the event she faces harm from the former husband.

The Tribunal also considered but rejected the applicant’s claim that she is more at risk from her former husband because of her decision to support her daughter in her complaint against her former husband. The Tribunal was not satisfied that there is a real chance that the applicant will face serious harm because of reconciliation with her former husband or continuation of the domestic abuse. The Tribunal was not satisfied that the applicant faces a real chance of persecution as a result of her fear of harm from her former husband.

…

The Tribunal was not satisfied there are substantial grounds to believe that there is a real risk the applicant will suffer significant harm from her former husband if she returns to Fiji. The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act. The Tribunal accordingly affirmed the decision of the delegate.

7    In affirming the delegate’s decision, the Tribunal was not satisfied that the appellant met the criteria either for protection obligations, or for complementary protection, under s 36(2)(a) or (aa) of the Migration Act 1958 (Cth). The Tribunal:

(1)    accepted that the evidence established a “substantially consistent account of the history of domestic violence” and that the appellant’s relationship with her now estranged husband was “characterised by a history of verbal and physical abuse, mistreatment and infidelity on his part”;

(2)    accepted that she had left her husband and that her obtaining an apprehended domestic violence order against him in Australia demonstrated that she had a reasonable fear for her safety;

(3)    accepted her evidence that if she returned to Fiji, she would return to the island where family members still lived, being a different island to the one where she and her husband had lived since the beginning of their relationship, and that this was a significantly different situation to when she was previously in Fiji;

(4)    found that her husband no longer had any family or other contacts within the police on her home island;

(5)    noted that her husband was still in Australia and there was no information to indicate that he had plans to return to Fiji in the foreseeable future;

(6)    after noting High Court authority to the effect that effective protection does not entail a guarantee in a country of origin any more than it does within Australia, considered the alternative of what would happen if her husband did return to Fiji, finding that:

(a)    it was not satisfied that there was more than a remote chance that the appellant’s husband would track her down to her home area, on an island where she had family (and at least implicitly he did not), and threaten, intimidate, physically harm or otherwise cause her serious harm; and

(b)    if he did locate her, although there was country information that police protection in Fiji was reported to be inadequate to provide protection to women at risk of violence, it was unable to conclude that the level of protection that was available justified her being unable or unwilling to avail herself of the protection of her country; and

(c)    noted that she had successfully resisted pressure to reconcile with her husband and was not satisfied that there was a real chance that she would face serious harm due to reconciliation and a continuation of domestic abuse; and

(7)    concluded that it was not satisfied that she faced a real chance of persecution as a result of her fear of harm from her husband.

Before the primary judge

8    The appellant represented herself before the primary judge. Her grounds of review in the Federal Circuit Court were reproduced by his Honour (at [24]):

The grounds in the application are as follows.

1. Incorrect assessment by Member of the Administrative Appeals Tribunal

2. Error of law and fact

9    The primary judge relevantly summarised the conduct of the proceedings before his Honour as follows (at [22]-[23]):

… Nothing said by the applicant from the bar table identified any jurisdictional error by the Tribunal. The applicant addressed the Court on the subjective merits of her case and repeated her desire to stay in Australia, where she was, she believed, safe.

The Court explained to the applicant on four occasions that the Court could not revisit the merits and had no power to make fresh findings of fact. The applicant identified the reasons for her claims and took issue with the adverse findings by the Tribunal. The adverse findings by the Tribunal were the subject of rational and logical reasons, and, taking into account the applicant’s migration history, there is no basis to say that the adverse findings were unreasonable, irrational, or illogical. The adverse findings were open on the material before the Tribunal.

10    The primary judge’s consideration of the grounds of review advanced was sparse. That is understandable in light of the lack of detail in the grounds of review. His Honour found, as follows:

(1)    As to ground 1 (at [25]):

The bare allegation in Ground 1 that the assessment was incorrect is a disagreement with the adverse findings by the Tribunal. For reasons already given, those adverse findings were open. Ground 1 fails to make out any jurisdictional error.

(2)    As to ground 2 (at [26]-[27]):

Ground 2 is a bare assertion of error of law and fact. No error of fact has been demonstrated by the applicant in the course of her submissions, and no error of law has been identified in the reasons of the Tribunal.

On the face of the material before the Court, the Tribunal correctly identified the relevant law and complied with its statutory obligations. On the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness. Nothing said by the applicant or in the application identifies any jurisdictional error.

Extension of time application and proposed grounds of appeal

11    The appellant is represented by an experienced migration law solicitor in this Court. His written submissions annex a draft notice of appeal containing the following two proposed grounds of appeal:

1.    The primary judge of the Federal Circuit Court erred by finding that the Tribunal’s decision was not affected by jurisdictional error, that being that the findings of the Tribunal in relation to s 36(2)(aa) of the Migration Act 1959 (Cth), are irrational, illogical and/or not based upon findings or inferences of fact supported by logical grounds.

2.    The primary judge of the Federal Circuit Court erred by failing to give ‘proper, genuine and realistic’ consideration to the applicant’s case.

12    The proceeding in this Court was required to be filed within 21 days from the primary judge’s orders made on 9 June 2017, expiring on 30 June 2017. The appellant filed the application for an extension of time on 10 July 2017. The only reason given for the lateness in commencing appeal proceedings, in an affidavit also made on 10 July 2017, was that she was not made aware by his Honour that the period for filing an appeal in this Court from the Federal Circuit Court was 21 days (since 2 May 2019, increased to 28 days).

13    The submissions in support of the application point to the fact that the primary judge’s reasons were not made available in writing until 18 July 2017, argue that the delay of 10 days was relatively short, and assert that there was no evidence of prejudice to the respondents. The appellant therefore submitted that the question of the grant of an extension of time should turn on the merits of the appeal grounds sought to be relied upon.

14    The Minister, conceding there is no prejudice, opposed the grant of an extension of time because:

(1)    The appellant did not disclose when she took steps to inform herself of the next steps that she had to take and apart from expressing ignorance of the legal requirements, does not satisfactorily explain the delay. The Minister points out that the reason given has been held not to be a satisfactory explanation, citing MZZYV v Minister for Immigration and Border Protection [2016] FCA 957 at [25] (noting that the delay in that case was substantial). The response to this complaint, made at the hearing by the Court, is that the appellant must have taken those steps in the relatively short window between the time that ex tempore reasons were given on 9 June 2017, and the time that the application for an extension of time was filed on 10 July 2017.

(2)    The lack of prospects of success on the proposed grounds is such as to render an extension of time an exercise in futility, citing WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9]. That case is not quite expressed in those terms, with the Full Court identifying only a need to consider the putative appellant’s prospects of successfully prosecuting an appeal. That does not so much amount to a test, as a statement of the broad conclusion as to merit that is required to be reached, and which their Honours did reach at a later point in their reasons.

15    If an extension of time was granted, the Minister did not oppose leave being given to file and rely upon the proposed notice of appeal.

16    Given the seriousness of the claims made and the short extension required, an extension of time should be granted if either or both of the proposed grounds cannot be said on their face to be obviously hopeless when viewed only at an impressionistic level: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [65]-[66]. For the reasons that follow, I considered that proposed appeal ground 1 passed that threshold, but proposed appeal ground 2 did not. I formed that view because ground 1 identifies a recognised topic of judicial review, aided by written submissions which, on a light perusal and treated as being in the nature of particulars, suggest that the ground cannot be said to be obviously hopeless. The same cannot be said of proposed ground 2.

17    Proposed appeal ground 1 asserts error on the part of the primary judge in not finding jurisdictional error on the part of the Tribunal by way of, in effect, legal unreasonableness. While this was not an express ground of review below, his Honour did say that there was no basis to find that the adverse findings made by the Tribunal were unreasonable, irrational or illogical. While that was probably no more than a global observation in the absence of anything being identified to form a contrary view, it was at least a conclusion reached, which is amenable to challenge on appeal. I therefore concluded that the grant of an extension of time should extend to this proposed ground of appeal.

18    Proposed appeal ground 2 goes somewhat further in attacking the primary judge’s reasoning and the adequacy of his Honour’s treatment of the case that was advanced before him. The asserted error on the part of the primary judge is made by reference not to any curial decision-making obligation, but by reference to, at most, an executive decision-making obligation. Even that expression of an obligation has to be approached with considerable caution as it tends to invite impermissible merits review. Moreover, even if that requirement of executive decision-making in some way applied to the judicial review process, the pleaded assertion that his Honour failed to meet it fails at a glance. That is because the appellant’s case below did not in truth even suggest, let alone establish, an error of this kind. The first ground of review before his Honour, reproduced above at [8], overtly sought merits review without any hint as to what was being referred to, and the second ground of review referred to a similarly undisclosed error of law and fact, not jurisdictional error. His Honour succinctly dealt with both in a way that meets the description of being proper, genuine and realistic, given the lack of intelligible detail.

19    At the hearing in this Court, I expressed the substance of the views set out above and granted an extension of time and leave to file a notice of appeal confined to ground 1. The above are the reasons for making those orders. The balance of these reasons address the arguments put for and against the ground of appeal that has thus been permitted to be relied upon.

Did the primary judge err in failing to find that “the findings of the Tribunal in relation to s 36(2)(aa) of the Migration Act 1958 (Cth) were irrational, illogical and/or not based on findings or inferences of fact supported by logical grounds”?

20    This ground of appeal, in substance asserting legal unreasonableness, proceeds upon the fictional basis that the primary judge had before him grounds of review and/or any argument of the kind his Honour is said to have failed to uphold. Be that as it may, the Minister has not objected to that ground being advanced upon an extension of time being granted, and I tend to the view that the interests of justice support the Minister being generous in that respect. The appeal must be taken to be formally grounded as a challenge to his Honour making orders that included dismissing the application for judicial review based on a global assessment (at [23]) that there was no basis to say that the adverse findings made by the Tribunal were unreasonable, irrational or illogical.

21    The substance of this ground, once extraneous detail and collateral matters are stripped away, is succinctly stated in the appellant’s written submissions:

The primary judge erred in failing to find that the Tribunal’s rejection of the appellant’s claims in relation to her fear of harm upon return to Fiji because of the inadequacy of the Fijian justice system (in dealing with domestic violence) was illogical, irrational and legally unreasonable when looked at in the light of evidence including societal pressure for separated parties, particularly women, to resume cohabitation.

22    Stated as such, this ground may well have had substance had the submissions made orally or in writing made good those assertions. That ended up not being the case. Before explaining why that is so, it is convenient to state some well-established principles that apply to legal unreasonableness.

23    A court, in exercising a judicial review function over executive decision-making, is not entitled to remake the decision or substitute its own concepts of what is and is not reasonable, thereby straying beyond its function of supervising for legality. What is generally required is an identification of the metes and bounds of the executive power being exercised by reference to its terms, scope and purpose to see if they have been exceeded: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [8]-[13], [52]-[59] and [92]; see also Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332; and Minister for Immigration and Border Protection v Singh [2014] FCAFC 11; 231 FCR 437.

24    Some useful markers for those metes and bounds were usefully summarised by reference to the above authority in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 (at [58]-[60]):

First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making: Li at 350[26] and 351[29] (French CJ), 362[63] (Hayne, Kiefel and Bell JJ) and 370[88] (Gageler J); Singh at 445[43]; Stretton at [4] (Allsop CJ) and [53] (Griffiths J).

Second, the Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory (Li at 363[66]). It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker: Li at 363[66] (Hayne, Kiefel and Bell JJ); Stretton at [12] (Allsop CJ) and [58] (Griffiths J); see also M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 90 ALJR 197at 203[23]. Nor does it involve the Court remaking the decision according to its own view of reasonableness: Stretton at [8] (Allsop CJ).

Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an “outcome focused” conclusion without any specific jurisdictional error being identified: Li at 350[27]–351[28] (French CJ), [72] (Hayne, Kiefel and Bell JJ); Singh at [44]; Stretton at [6] (Allsop CJ).

25    The appellant relied upon earlier statements in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12; 78 ALJR 992 at [38], where Gummow and Hayne JJ said (footnote omitted):

The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith. To say that a decision-maker must have acted in good faith is to state a necessary but insufficient requirement for the attainment of satisfaction as a criterion of jurisdiction under s 65 of the Act. However, inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error.

26    The problem for the appellant is that no defects in logic or rationality of the kind referred to in SGLB were established. The criticisms of the Tribunal’s reasons did not rise any higher than an assertion that different conclusions could and therefore should have been made on the available evidence. Where gaps in evidence were pointed to during the appeal hearing, they were gaps that stood in the way of the Tribunal resolving an issue in the appellant’s favour. It could well have been open to the Tribunal to assess the effect of the evidence before it differently, and thereby to conclude:

(1)    that the appellant’s husband would indeed return to Fiji;

(2)    that he would then go to the island where she was from, being the place she said she would return to if sent back to Fiji (despite there being no evidence identified that he had any contacts there);

(3)    that her husband would track her down;

(4)    that the police would end up being ineffective in providing her with effective protection; and

(5)    that the harm that she feared taking place would occur.

27    However, that was not a conclusion that the Tribunal was compelled to reach. It is well-established that mere “emphatic disagreement” with the Tribunal’s conclusions will not be enough to establish jurisdictional error: see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [124]. The Tribunal’s findings that were contrary to what the appellant contends on appeal should have been made were reached by a careful and methodical process of evaluation and conventional reasoning, including considering at several points what difference it would make if a particular adverse finding was incorrect. Irrationality, illogicality and supposed inadequacy of the evidence to support the conclusions reached were asserted, but none came close to being established. This ground must therefore fail.

Conclusion

28    As the appellant has not made good her assertions as to the defects in the reasons of the Tribunal, and thus in the reasons of the primary judge in failing to identify them, the appeal must be dismissed. There is no reason why costs should not follow this outcome.

Associate:

Dated:    30 August 2019